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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
| þ | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the fiscal year ended December 31, 2006
| o | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from to
Commission
File Number 1-12002
ACADIA REALTY TRUST
(Exact name of registrant as specified in its charter)
| Maryland | 23-2715194 | |
| (State of incorporation) | (I.R.S. employer identification no.) |
1311 Mamaroneck Avenue, Suite 260
White Plains, NY 10605
(Address of principal executive offices)
White Plains, NY 10605
(Address of principal executive offices)
(914) 288-8100
(Registrant’s telephone number)
(Registrant’s telephone number)
Securities registered pursuant to Section 12(b) of the Act:
Common Shares of Beneficial Interest, $.001 par value
(Title of Class)
(Title of Class)
New York Stock Exchange
(Name of Exchange on which registered)
(Name of Exchange on which registered)
Securities registered pursuant to Section 12(g) of the Act:
None
None
Indicate by check mark if the Registrant is a well-known seasoned issuer, as defined in Rule 405 of
the Securities Act.
YES þ NO o
Indicate by check mark if the Registrant is not required to file reports pursuant to Section 13 or
Section 15 (d) of the Securities Act.
YES o NO þ
Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by
Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for
such shorter period that the registrant was required to file such reports) and (2) has been subject
to such filing requirements for the past 90 days.
YES þ NO o
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is
not contained herein, and will not be contained, to the best of registrant’s knowledge, in
definitive proxy or information statements incorporated by reference in Part III of this Form 10-K
or any amendment to this Form 10-K. o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer,
or a non-accelerated filer (as defined in Rule 12b-2 of the Act).
Large Accelerated Filer þ Accelerated Filer o Non-accelerated Filer o
Indicate by checkmark whether the registrant is a shell company (as defined in Rule 12b-2 of the
Act) YES o NO þ
The aggregate market value of the voting and non-voting common equity held by non-affiliates of the
registrant as of the last business day of the registrant’s most recently completed second fiscal
quarter was $751.4 million, based on a price of $23.65 per share, the average sales price for the
registrant’s shares of beneficial interest on the New York Stock Exchange on that date.
The number of shares of the registrant’s Common Shares of Beneficial Interest outstanding on March
1, 2007 was 32,132,797.
DOCUMENTS INCORPORATED BY REFERENCE
Part III – Definitive proxy statement for the 2007 Annual Meeting of Shareholders presently
scheduled to be held May 15, 2007 to be filed pursuant to Regulation 14A.
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Form 10-K Report
Form 10-K Report
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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Certain statements contained in this Annual Report on Form 10-K may contain forward-looking
statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the
Securities and Exchange Act of 1934 and as such may involve known and unknown risks, uncertainties
and other factors which may cause our actual results, performance or achievements to be materially
different from future results, performance or achievements expressed or implied by such
forward-looking statements. Forward-looking statements, which are based on certain assumptions and
describe our future plans, strategies and expectations are generally identifiable by use of the
words “may,” “will,” “should,” “expect,” “anticipate,” “estimate,” “believe,” “intend” or “project”
or the negative thereof or other variations thereon or comparable terminology. Factors which could
have a material adverse effect on our operations and future prospects include, but are not limited
to those set forth under the heading “Item 1A Risk Factors” in this Form 10-K. These risks and
uncertainties should be considered in evaluating any forward-looking statements contained or
incorporated by reference herein.
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PART I
ITEM 1. BUSINESS:
GENERAL
Acadia Realty Trust (the “Trust”) was formed on March 4, 1993 as a Maryland Real Estate Investment
Trust (“REIT”). All references to “Acadia,” “we,” “us,” ”our,” and “Company” refer to Acadia Realty
Trust and its consolidated subsidiaries. We are a fully integrated, self-managed and
self-administered equity REIT focused primarily on the ownership, acquisition, redevelopment and
management of retail properties, including neighborhood and community shopping centers and
mixed-use properties with retail components. We currently operate 74 properties, which we own or
have an ownership interest in. These assets are located primarily in the Northeast, Mid-Atlantic
and Midwestern regions of the United States which, in total, comprise approximately 10 million
square feet. We also have private equity investments in other retail real estate related opportunities including
investments for which we provide operational support to the operating ventures in which we have a minority equity interest.
All of our investments are held by, and all of our operations are conducted through, Acadia Realty
Limited Partnership (the “Operating Partnership”) and entities in which the Operating Partnership
owns a controlling interest. As of December 31, 2006, the Trust controlled 98% of the Operating
Partnership as the sole general partner. As the general partner, the Trust is entitled to share, in
proportion to its percentage interest, in the cash distributions and profits and losses of the
Operating Partnership. The limited partners represent entities or individuals which contributed
their interests in certain properties or entities to the Operating Partnership in exchange for
common or preferred units of limited partnership interest (“Common OP Units” or “Preferred OP
Units”). Limited partners holding Common OP Units are generally entitled to exchange their units on
a one-for-one basis for common shares of beneficial interest of the Trust (“Common Shares”). This
structure is commonly referred to as an umbrella partnership REIT or “UPREIT”.
BUSINESS OBJECTIVES AND STRATEGIES
Our primary business objective is to acquire, develop and manage commercial retail properties that
will provide cash for distributions to shareholders while also creating the potential for capital
appreciation to enhance investor returns. We focus on the following fundamentals to achieve this
objective:
| – | Own and operate a portfolio of community and neighborhood shopping centers and mixed-use properties with a retail component located in markets with strong demographics | ||
| – | Generate internal growth within the portfolio through aggressive redevelopment, re-anchoring and leasing activities | ||
| – | Generate external growth through an opportunistic yet disciplined acquisition program. The emphasis is on targeting transactions with high inherent opportunity for the creation of additional value through redevelopment and leasing and/or transactions requiring creative capital structuring to facilitate the transactions | ||
| – | Partner with private equity investors for the purpose of making investments in operating retailers with significant embedded value in their real estate assets | ||
| – | Maintain a strong and flexible balance sheet through conservative financial practices while ensuring access to sufficient capital to fund future growth |
Investment Strategy — External Growth through Opportunistic Acquisition Platforms
The requirements that acquisitions be accretive on a long-term basis based on our cost of capital,
as well as increase the overall portfolio quality and value, are core to our acquisition program.
As such, we constantly evaluate the blended cost of equity and debt and adjust the amount of
acquisition activity to align the level of investment activity with capital flows. We may engage in
discussions with public and private entities regarding business combinations. In addition to our
direct investments in real estate assets, we have also capitalized on our expertise in the
acquisition, redevelopment, leasing and management of retail real estate by establishing joint
ventures in which we earn, in addition to a return on our equity interest, fees and priority
distributions for our services. To date, we have launched two acquisition joint ventures, Acadia
Strategic Opportunity Fund, LP (“Fund I”) and Acadia Strategic Opportunity Fund II, LLC (“Fund
II”).
Fund I
In September 2001, we and four of our institutional shareholders formed a joint venture, whereby
the investors committed $70.0 million for the purpose of acquiring real estate assets. The
Operating Partnership committed an additional $20.0 million to Fund I, as the general partner with
a 22% interest. In addition to a pro-rata return on its invested equity, the Operating Partnership
is entitled to a profit participation based upon certain investment return thresholds. Cash flow is
distributed pro-rata to the partners (including the Operating Partnership) until they have received
a 9% cumulative return on, and a return of all capital contributions.
Thereafter, remaining cash flow is distributed 80% to the partners (including the Operating
Partnership) and 20% to the Operating Partnership as a carried interest (“Promote”). The Operating
Partnership also earns fees and/or priority distributions for asset management services equal to
1.5% of the allocated invested equity, as well as for property management, leasing and construction
services. All such fees and priority distributions are reflected as adjustments to minority
interest in the Consolidated Financial Statements included in Item 8 of Form 10-K.
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Our acquisition program was executed exclusively through Fund I through June 2004. Fund I focused
on targeting assets for acquisition that had superior in-fill locations, restricted competition due
to high barriers of entry and in-place below-market anchor leases with the potential to create
significant additional value through re-tenanting, timely capital improvements and property
redevelopment.
On January 4, 2006, Fund I recapitalized a one million square foot retail portfolio located in
Wilmington Delaware (“Brandywine Portfolio”) through a merger of interests with affiliates of GDC
Properties (“GDC”). The Brandywine Portfolio was recapitalized through a “cash-out” merger of the
77.8% interest, which was previously held by the institutional investors in Fund I, to GDC at a
valuation of $164.0 million. The Operating Partnership, through a subsidiary, retained its existing
22.2% interest and continues to operate the Brandywine Portfolio and earn fees for such services.
At the closing of the merger, the Fund I investors received a return of all of their capital
invested in Fund I and their unpaid preferred return, thus triggering the payment to the Operating Partnership
of its additional 20% Promote in all future Fund I distributions. During June 2006, the Fund I
investors received $36.0 million of additional proceeds from this transaction following the
replacement of bridge financing which they provided, with permanent mortgage financing, triggering
$7.2 million in additional Promote due the Operating Partnership, which will be paid from the Fund
I investor’s share of the remaining assets in Fund I.
There are 32 assets comprising approximately two million square feet remaining in Fund I in which
the Operating Partnership’s interest in cash flow and income has increased from 22.2% to 37.8% as a
result of the Promote.
Fund II
Following our success with Fund I, we formed a second, larger acquisition joint venture. During
June of 2004, we launched Fund II, which includes all of the investors from Fund I as well as two
additional institutional investors. With $300.0 million of committed discretionary capital, Fund II
expects to be able to acquire up to $900.0 million of real estate assets on a leveraged basis. The
Operating Partnership is the managing member with a 20% interest in Fund II. The terms and
structure of Fund II are substantially the same as Fund I with the exception that the Preferred
Return is 8%.
As the demand for retail real estate has significantly increased in recent years, there has been a
commensurate increase in selling prices. In an effort to generate superior risk-adjusted returns
for our shareholders and joint venture investors, we have channeled our acquisition efforts through
Fund II in two new opportunistic joint ventures launched during 2004 – the Retailer Controlled
Property Venture and the New York Urban Infill Redevelopment Initiative.
Retailer Controlled Property Venture (the “RCP Venture”)
On January 27, 2004, through Funds I and II, we entered into the RCP Venture with Klaff Realty,
L.P. (“Klaff”) and Klaff’s long time partner Lubert-Adler Management, Inc. (“Lubert-Adler”) for the
purpose of making investments in surplus or underutilized properties owned by retailers. The
initial size of the RCP Venture is expected to be approximately $300 million in equity based on
anticipated investments of approximately $1 billion. Each participant in the RCP Venture has the
right to opt out of any potential investment. Affiliates of Funds I and II have invested $12.3
million and $37.1 million, respectively, in the RCP Venture to date on a non-recourse basis. While we are not required to invest any additional capital into any of these investments, should additional capital be required and we elect not to contribute our share, our proportionate share in the investment will be reduced. Since
Fund I is fully invested, Fund II will provide the remaining portion of the original 20% of the
equity of the RCP Venture. Cash flow is to be distributed to the partners until they have received
a 10% cumulative return and a full return of all contributions. Thereafter, remaining cash flow is
to be distributed 20% to Klaff (“Klaff’s Promote”) and 80% to the partners (including Klaff). The
Operating Partnership may also earn market-rate fees for property management, leasing and
construction services on behalf of the RCP Venture. We seek to invest opportunistically in the RCP
Venture primarily in the following four ways:
| – | Invest in operating retailers through private equity joint ventures | ||
| – | Work with financially healthy retailers to create value from their surplus real estate | ||
| – | Acquire properties, designation rights or other control of real estate or leases associated with retailers in bankruptcy | ||
| – | Complete sale leasebacks with retailers in need of capital |
During 2004, we made our first RCP Venture investment with our participation in the acquisition of
Mervyns. During 2006, we made additional investments with our participation in the acquisition of
Albertsons, Cub, ShopKo and Marsh Supermarkets as further discussed in “PROPERTY ACQUISITIONS” in
this Item 1 of Form 10-K.
New York Urban/Infill Redevelopment Initiative
In September of 2004, through Fund II, we launched our New York Urban Infill Redevelopment
initiative. As retailers continue to recognize that many of the nation’s urban markets are
underserved from a retail standpoint, we are poised to capitalize on this trend by investing in
redevelopment projects in dense urban areas where retail tenant demand has effectively surpassed
the supply of available sites. During 2004, Fund II, together with an unaffiliated partner, P/A
Associates, LLC (“P/A”), formed Acadia-P/A Holding Company, LLC (“Acadia-P/A”) for the purpose of
acquiring, constructing, developing, owning, operating, leasing and managing certain retail real
estate properties in the New York City metropolitan area. P/A agreed to invest 10% of required
capital up to a maximum of $2.2 million and Fund II, the managing member, agreed to invest the
balance to acquire assets in which Acadia-P/A agrees to invest. See Item 7 of Form 10K for further
information on the Acadia P/A Joint Venture as detailed in “Liquidity and Capital Resources”. To
date, Fund II has, in conjunction with P/A, invested in six projects and entered into an
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agreement on a seventh project, subject to certain approvals, as discussed further in “PROPERTY
ACQUISITIONS” in this Item 1 of this Form 10-K.
Other Investments
We may also invest in preferred equity investments, mortgages, other real estate interests and
other investments. The mortgages in which we invest in may be either first mortgages or mezzanine
debt, where we believe the underlying value of the real estate collateral is in excess of its loan
balance. As of December 31, 2006 our investments in first mortgages and mezzanine debt aggregated
$38.3 million.
Capital Strategy — Balance Sheet Focus and Access to Capital
Our primary capital objective is to maintain a strong and flexible balance sheet through
conservative financial practices while ensuring access to sufficient capital to fund future growth.
We intend to continue financing acquisitions and property redevelopment with sources of capital
determined by management to be the most appropriate based on, among other factors, availability,
pricing and other commercial and financial terms. The sources of capital may include the issuance
of public equity, unsecured debt, mortgage and construction loans, and other capital alternatives
such as the issuance of Operating Partnership Units. We manage our interest rate risk primarily
through the use of variable and fixed rate-debt as well as with LIBOR swap agreements as discussed
further in Item 7A of this Form 10-K.
In December 2006, we issued $100.0 million of 3.75% unsecured Convertible Notes (the “Notes”).
Interest on the Notes is payable semi-annually. The Notes have an initial conversion rate of
32.4002 of our Common Shares for each $1,000 principal amount, representing a conversion price of
approximately $30.86 per Common Share, or a conversion premium of approximately 20.0%. The Notes
are redeemable for cash up to their principal amount plus accrued interest and, at our option,
cash, our Common Shares, or a combination thereof with respect to the remainder, if any, of the
conversion value in excess of the principal amount. The Notes mature December 15, 2026, although
the holders of the Notes may require the Company to repurchase their Notes, in whole or in part, on
December 20, 2011, December 15, 2016, and December 15, 2021. After December 20, 2011, we have the
right to redeem the Notes in whole or in part at any time. In January 2007, an option was exercised
to issue an additional $15.0 million of these Notes. The $112.1 million in proceeds, net of
related costs, were used to retire variable rate debt, provide for future Fund capital commitments
and for general working capital purposes.
During January 2007, we filed a shelf registration on Form S-3 providing offerings for up to a
total of $300.0 million of Common Shares, Preferred Shares and debt securities. To date, we have
not issued any securities pursuant to this shelf registration.
Common and Preferred OP Unit Transactions
On January 27, 2004, we issued 4,000 Series B Preferred OP Units to Klaff in connection with the
acquisition from Klaff of its rights to provide asset management, leasing, disposition, development
and construction services for an existing portfolio of retail properties. These units have a stated
value of $1,000 each and are entitled to a quarterly preferred distribution of the greater of (i)
$13.00 (5.2% annually) per Preferred OP Unit or (ii) the quarterly distribution attributable to a
Preferred OP Unit if such unit were converted into a Common OP Unit. The Preferred OP Units are
convertible into Common OP Units based on the stated value of $1,000 divided by 12.82 at any time.
Klaff may redeem them at par for either cash or Common OP Units (at our option) after the earlier
of the third anniversary of their issuance, or the occurrence of certain events including a change
in the control of our Company. Finally, after the fifth anniversary of the issuance, we may redeem
the Preferred OP Units and convert them into Common OP Units at market value as of the redemption
date.
Effective February 15, 2005, we acquired the balance of Klaff’s rights to provide the above
services as well as certain potential future revenue streams. The consideration for this
acquisition was $4.0 million in the form of 250,000 restricted Common OP Units, valued at $16 per
unit, which are convertible into our Common Shares on a one-for-one basis after a five year lock-up
period. As part of this transaction we also assumed all operational and redevelopment
responsibility for the Klaff Properties a year earlier than was contemplated in the January 2004
transaction.
In February 2007, Klaff converted 3,800 Series B Preferred OP Units into 296,412 Common OP Units
and ultimately into Common Shares.
Common Share Transactions
During November 2004, we issued 1,890,000 Common Shares (the “Offering”) pursuant to shelf
registration statements filed under the Securities Act of 1933, as amended, and previously declared
effective by the Securities and Exchange Commission. The $28.3 million in proceeds from the Offering, which were net of related costs, were used
to retire above-market, fixed-rate indebtedness as well as to invest in real estate assets. Yale
University and its affiliates (“Yale”), and Kenneth F. Bernstein, our Chief Executive Officer, also
sold 1,000,000, and 110,000 Common Shares, respectively, in connection with this transaction.
In March of 2004, a secondary public offering was completed for a total of 5,750,000 Common Shares.
The selling shareholders, Yale and Ross Dworman, a former trustee and Chairman, sold 4,191,386 and
1,558,614 Common Shares, respectively. Yale was a major shareholder, owning, at one time,
approximately one-third of all of our outstanding Common Shares. We did not sell any
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Common Shares in this transaction and did not receive any proceeds from this transaction.
Operating Strategy — Experienced Management Team with Proven Track Record
Our senior management team has an average of nine years with us and our predecessors and 26 years
in the real estate industry. Our management team successfully completed a major multi-year
portfolio repositioning initiative culminating in 2002 that significantly improved the quality of
our portfolio and tenant base. We believe our management team has demonstrated the ability to
create value internally through anchor recycling, property redevelopment and strategic non-core
dispositions. Our team has built several successful acquisition platforms including our New York
Urban Infill Redevelopment Initiative and RCP Venture. We have also capitalized on our expertise in
the acquisition, redevelopment, leasing and management of retail real estate by establishing joint
ventures, such as Funds I and II, in which we earn, in addition to a return on our equity interest,
fees and priority distributions for our services.
Operating functions such as leasing, property management, construction, finance and legal
(collectively, the “Operating Departments”) are provided by our personnel, providing for fully
integrated property management and development. By incorporating the Operating Departments in the
acquisition process, acquisitions are appropriately priced giving effect to each asset’s specific
risks and returns. Also, because of the Operating Departments involvement with, and corresponding
understanding of, the acquisition process, transition time is minimized and management can
immediately execute on its strategic plan for each asset.
We typically hold our properties for long-term investment. As such, we continuously review the
existing portfolio and implement programs to renovate and modernize targeted centers to enhance the
property’s market position. This in turn strengthens the competitive position of the leasing
program to attract and retain quality tenants, increasing cash flow and consequently property
value. We also periodically identify certain properties for disposition and redeploy the capital to
existing centers or acquisitions with greater potential for capital appreciation. Our core
portfolio consists primarily of neighborhood and community shopping centers, which are generally
dominant centers in high barrier-to-entry markets. The anchors at these centers typically pay
market or below-market rents and have low rent-to-sales ratios, which are, on average, less than
5%. Furthermore, supermarket and necessity-based retailers anchor the majority of our core
portfolio. These attributes enable our properties to better withstand a weakening economy while
also creating opportunities to increase rental income.
During 2006 and 2005 we sold six non-core properties and redeployed the capital to acquire five
retail properties as further discussed in “ASSET SALES” and CAPITAL/ASSET RECYCLING” in this Item 1
of Form 10-K.
PROPERTY ACQUISITIONS
RCP Venture
In June 2006, the RCP Venture made its second major investment with its participation in the
acquisition of Albertsons. The total price paid by the investment consortium, which included
Cerberus, Schottenstein and Kimco Realty, to Albertsons for the portfolio was $1.9 billion which
was funded with $0.3 billion of equity and $1.6 billion of financing. Albertsons was the nation’s
2nd largest grocery and drug chain which operated over 2,500 stores in 37 states. Albertsons
divided its assets into three independent components and for a total price of $17.4 billion, sold
1,124 stores to Supervalu, 700 stores to CVS and 699 stores along with 26 Cub Food stores to the
investment consortium. Supervalu and CVS are the investment consortium’s strategic operating
partners and, as such, are part of the purchasing group, but fund, own, and operate their
respective portions of the portfolio independently. As with the Mervyns investment (see below), we
anticipate investing in Albertsons add-on real estate opportunities. During the third quarter of
2006, additional investments of $1.0 million were made in, the Camellia Center and Newkirk
portfolio. Camellia Center is an Albertsons-anchored center located in Sacramento, California and
Newkirk is a portfolio of 50 properties currently leased to Albertsons. As of December 31, 2006,
our total invested capital in Albertsons and add-on investments amounted to $23.1 million, of which
the Operating Partnership’s share was $4.6 million.
We also invested $1.1 million in Shopko, a regional multi-department retailer with 358 stores
located throughout the Midwest, Mountain and Pacific Northwest and $0.7 million in Marsh, a
regional supermarket chain operating 271 stores in central Indiana, Illinois and western Ohio. The
Operating Partnership’s share of these investments totaled $0.4 million.
In September 2004, we made our first RCP Venture investment with our participation in the
acquisition of Mervyn’s. Through affiliates of Fund I and Fund II, which were separately organized,
newly formed limited liability companies on a non-recourse basis, we invested in the acquisition of
Mervyn’s through the RCP Venture, which, as part of an investment consortium of Sun Capital and
Cerberus, acquired Mervyn’s from Target Corporation. The total acquisition price was approximately
$1.2 billion subject to debt of approximately $800.0 million. Our share of equity invested
aggregated $24.6 million on a non-recourse basis and was divided equally between affiliates of
Funds I and II. The Operating Partnership’s share was $5.2 million.
As of the date of acquisition, Mervyn’s was a 257-store discount retailer with a very strong West
Coast concentration. During 2005, the consortium sold a portion of the portfolio as well as
refinanced existing mortgage debt and distributed cash to the investors, of which a total of $42.7
million was distributed to us of which the Operating Partnership’s share amounted to $10.2 million.
In February of 2006, the consortium distributed additional cash of which a total of $1.4 million
was distributed to us of which $0.4 million was the Operating Partnership’s share.
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On February 26, 2007 we, through our RCP Venture, received a cash distribution totaling
approximately $42.5 million from our ownership position in Albertsons. The Operating Partnership’s
share of this distribution amounted to approximately $8.5 million. The distribution resulted from
cash proceeds obtained by Albertsons in connection with its disposition of certain operating stores
and a refinancing of the remaining assets held in the entity.
New York Urban/Infill Redevelopment Initiative
The Center at Albee Square – On February 23, 2007, Acadia-P/A and Paul Travis of Washington Square
Partners (collectively, “Acadia P/A–Travis”), entered into an agreement for the purchase of the
leasehold interest in The Gallery at Fulton Street and adjacent parking garage in Downtown
Brooklyn, NY for $120.0 million. The fee position in the property is owned by the City of New York
and the agreement includes an option to purchase this fee position at a later date. Plans for the
property include the demolition of the existing improvements and the development of a 1.6 million
square foot mixed-use complex. This transaction is subject to approval by the Mayor of the City of
New York. There are no assurances that the approval will be granted.
Liberty Avenue — On December 20, 2005, Acadia-P/A acquired the remaining 40-year term of a
leasehold interest in land located at Liberty Avenue and 98th Street in Queens (Ozone
Park). Development of this project is substantially complete and includes approximately 30,000
square feet of retail anchored by a CVS drug store, which is open and operating. The project also
includes a 95,000 square foot self-storage facility which is open and currently operated by Storage
Post. Storage Post is a partner in the self-storage complex, and is anticipated to be a partner in
future retail projects in New York City where self storage will be a potential component of the
redevelopment. The total cost of the redevelopment is expected to be approximately $15 million.
216th Street — On December 1, 2005, Acadia-P/A acquired a 65,000 square foot
parking garage located at 10th Avenue and 216th Street in the Inwood section
of Manhattan for $7.0 million. Construction is underway for a 60,000 square foot office building to
relocate an agency of the City of New York, which is a current tenant at another of our
Urban/Infill Redevelopment projects. Inclusive of acquisition costs, total costs for the project,
which also includes a 100-space rooftop parking deck, are anticipated to be approximately $25
million.
161st Street - On August 5, 2005, Acadia-P/A purchased 244-268
161st Street located in the Bronx for $49.3 million, inclusive of closing costs. The
ultimate redevelopment plan for the property, a 100% occupied, 10-story office building, is to
reconfigure the property so that approximately 50% of the income from the building will eventually
be derived from retail tenants. Additional redevelopment costs are anticipated to be approximately
$16 million.
4650 Broadway - On April 6, 2005, Acadia-P/A acquired 4650 Broadway located in the
Washington Heights/Inwood section of Manhattan. The property, a 140,000 square foot building, which
is currently occupied by an agency of the City of New York and a commercial parking garage, was
acquired for a purchase price of $25.0 million. Following the relocation of the office tenant to
our 216th St. redevelopment during 2007 as discussed above, we plan to commence
redevelopment of the site to include retail, commercial and residential components totaling over
285,000 square feet. Expected costs to complete the retail and commercial component of the project
are estimated at $30.0 million before any potential sale of the residential air rights. In lieu of
directly developing the potential residential portion of the project, the rights to this component
may be sold while retaining ownership of the other portions of the project.
Pelham Manor — On October 1, 2004, Acadia-P/A entered into a 95-year, inclusive of
extension options, ground lease to redevelop a 16-acre site in Pelham Manor, Westchester County,
New York. We have commenced demolition of the existing industrial and warehouse buildings, and will
be replacing them with a multi-anchor community retail center at a total estimated cost of $40
million.
Fordham Road — On September 29, 2004, Acadia-P/A purchased 400 East Fordham Road, Bronx,
New York. Sears, a former tenant that operated on four levels at this property, has signed a new
lease to occupy only the concourse level after redevelopment. We have commenced redevelopment at
this site which is expected to include four levels of retail and office space totaling 276,000
square feet when completed. The total cost of the project, including the acquisition cost of $30
million, is expected to be $115 million.
In addition to the above New York Urban/Infill projects, through Fund II we also acquired the
following:
During November 2005, we acquired a ground lease interest in a 112,000 square foot building
occupied by Neiman Marcus. The property is located at Oakbrook Center, a super-regional Class A
mall located in the Chicago Metro area. The ground lease was acquired for $6.9 million, including
closing and other acquisition costs.
During July 2005, we acquired for $1.0 million, a 50% equity interest from its partner in the RCP
Venture in the entity which has a leasehold interest in a former Levitz Furniture store located in
Rockville, Maryland.
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Fund I
To date, through Fund I we have purchased a total of 35 assets totaling approximately 3.0 million
square feet. During January 2006, we recapitalized the Brandywine Portfolio, representing two
assets totaling approximately 1.0 million square feet, through a merger of interests with GDC as
discussed further in “BUSINESS OBJECTIVES AND STRATEGIES” in this Item 1 of Form 10-K. Following
the recapitalization of the Brandywine Portfolio, there are 33 assets comprising 2.0 million square
feet remaining in Fund I, (in which the Operating Partnership’s interest in cash flow and income
has increased from 22.2% to 37.8% as a result of the Promote) as follows:
| Year | ||||||||||||
| Shopping Center | Location | acquired | GLA | |||||||||
New York Region |
||||||||||||
New York |
||||||||||||
Tarrytown Center |
Westchester | 2004 | 35,291 | |||||||||
Mid-Atlantic Region |
||||||||||||
South Carolina |
||||||||||||
Hitchcock Plaza |
Aiken | 2004 | 232,383 | |||||||||
Pine Log Plaza |
Aiken | 2004 | 35,064 | |||||||||
Virginia |
||||||||||||
Haygood Shopping Center |
Virginia Beach | 2004 | 178,335 | |||||||||
Midwest Region |
||||||||||||
Ohio |
||||||||||||
Amherst Marketplace |
Cleveland | 2002 | 79,945 | |||||||||
Granville Centre |
Columbus | 2002 | 134,997 | |||||||||
Sheffield Crossing |
Cleveland | 2002 | 112,534 | |||||||||
Michigan |
||||||||||||
Sterling Heights Shopping Center |
Detroit | 2004 | 154,835 | |||||||||
Various Regions |
||||||||||||
Kroger/Safeway Portfolio |
Various | 2003 | 1,018,100 | |||||||||
Total |
1,981,484 | |||||||||||
In November 2006, we acquired the remaining 50% interest from its unaffiliated partner in the
Tarrytown Center for $3.5 million.
During February 2006, we finalized an agreement with its unaffiliated partner in the Hitchcock and
Pine Log Plazas whereby we converted our common equity interest in the properties to a preferred
equity position with a 15% preferred return payable currently and a 20% profit interest after all
invested capital and preferred returns are paid. In connection with this agreement, our partner
assumed all operational, redevelopment and leasing responsibilities
Other Investments
In March of 2005, we invested $20 million in a preferred equity position (“Preferred Equity”) in
Levitz SL, L.L.C. (“Levitz SL”), the owner of fee and leasehold interests in 30 locations (the
“Levitz Properties”), totaling 2.5 million square feet, of which the majority are currently leased
to Levitz Furniture Stores. In October 2005, Levitz Furniture filed for bankruptcy under Chapter
11. Klaff is a managing member of Levitz SL. The Preferred Equity investment received a return of
10%, plus a minimum return of capital of $2.0 million per annum. During March 2006, the rate of
return was reset to the six-month LIBOR plus 644 basis points or 11.5%.
On June 1, 2006, we converted the Preferred Equity Investment to a first mortgage loan and advanced
additional proceeds bringing the total outstanding amount to $31.3 million. The loan has a maturity
date of May 31, 2008 and bears interest at a rate of 10.5%. The loan was secured by fee and
leasehold mortgages as well as a pledge of the entities owning 19 of the above remaining locations
totaling 1.8 million square feet. During the third quarter of 2006, Levitz SL sold one of the
Levitz Properties located in Northridge, California and used $20.4 million of the proceeds to pay
down the loan. As of December 31, 2006, the loan balance amounted to $10.9 million. Although
Levitz Furniture is currently operating under Chapter 11 bankruptcy protection, we believe the
underlying value of the real estate is sufficient to recover the principal and interest due under
the mortgage.
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ASSET SALES AND CAPITAL/ASSET RECYCLING
We periodically identify certain properties for disposition and redeploy the capital to existing
centers or acquisitions with greater potential for capital appreciation. Since January 1, 2004, we
have sold the following assets:
| Sales price | ||||||||||||||||
| Shopping Center | Location | Date sold | GLA | (dollars in thousands) | ||||||||||||
Soundview Marketplace |
Long Island, New York | December 2006 | 183,815 | $ | 24,000 | |||||||||||
Bradford Towne Centre |
Northeast Pennsylvania | November 2006 | 257,123 | 16,000 | ||||||||||||
Greenridge Plaza |
Northeast Pennsylvania | November 2006 | 191,767 | 10,600 | ||||||||||||
Pittston Plaza |
Northeast Pennsylvania | November 2006 | 79,498 | 6,000 | ||||||||||||
Luzerne Street Shopping Center |
Northeast Pennsylvania | November 2006 | 58,035 | 3,600 | ||||||||||||
Berlin Shopping Center |
Central New Jersey | July 2005 | 188,688 | 4,000 | ||||||||||||
East End Centre |
Northeast Pennsylvania | November 2004 | 305,858 | 12,400 | ||||||||||||
Total |
1,264,784 | $ | 76,600 | |||||||||||||
Proceeds from these sales in part have been used to fund the following acquisitions:
In September 2006, we purchased 2914 Third Avenue in the Bronx, New York for $18.5 million. The
41,305 square foot property is 100% leased and is located in a densely populated, high
barrier-to-entry, infill area.
In June 2006, we purchased 8400 and 8625 Germantown Road in Philadelphia, Pennsylvania for $16.0
million. Tenants at these “Main Street” locations include Borders bookstore, Talbot’s and Limited
Express.
During January 2006, we closed on a 20,000 square foot retail building in the Lincoln Park district
in Chicago. The property was acquired from an affiliate of Klaff for $9.9 million. Tenants include
Starbucks, Nine West, Vitamin Shoppe and Cold Stone Creamery.
Also during January 2006, we acquired a 60% interest in the A&P Shopping Plaza located in Boonton,
New Jersey. The property, which is 100% occupied and located in northeastern New Jersey, is a
63,000 square foot shopping center anchored by a 49,000 square foot A&P Supermarket. The remaining
40% interest is owned by a principal of P/A. The interest was acquired for $3.2 million.
During July 2005 we purchased 4343 Amboy Road located in Staten Island, New York for $16.6 million
in cash and $0.2 million in Common OP Units. The property, a 60,000 square foot neighborhood
shopping center, is anchored by a Waldbaum’s supermarket and a Duane Reade drug store, and is
subject to a 23-year ground lease.
PROPERTY REDEVELOPMENT AND EXPANSION
Our redevelopment program focuses on selecting well-located neighborhood and community shopping
centers and creating significant value through re-tenanting and property redevelopment.
During 2006, we commenced the redevelopment and re-tenanting of the Bloomfield Town Square, located
in Bloomfield Hills, Michigan. A former out-parcel building was demolished and replaced with a
17,500 square foot building now occupied by Drexel Heritage and Panera Bread. The new tenants
opened and commenced paying rent during the third and fourth quarters of 2006, respectively, and
are paying a combined base rent at a 127% increase over that of the former tenant. In addition,
the Company has leased approximately 26,000 square feet to Circuit City, which is anticipated to
open and commence paying rent in the fourth quarter of 2007 at a 79% increase over that of the
former tenants. Total costs for this project are expected to be $3.3 million.
During 2004, we completed the redevelopment of the New Loudon Center, located in Latham, New York.
A new anchor, The Bon Ton Department Store, opened for business during the fourth quarter of 2003
as part of the redevelopment of this shopping center. Occupying 66,000 square feet formerly
occupied by an Ames department store, Bon Ton is paying base rent at a 15% increase over that of
Ames. During 2004, Marshall’s, an existing tenant at the center, expanded its current 26,000 square
foot store to 37,000 square feet. We also installed a new 49,000 square foot Raymour and Flanigan
Furniture store at this center during 2004. This community shopping center is now 100% occupied.
Costs incurred for this project totaled $0.4 million.
We also completed the redevelopment and re-anchoring of the Town Line Plaza, located in Rocky Hill,
Connecticut during 2004. The former building, occupied by GU Markets, was demolished and replaced
with a 66,000 square foot Super Stop & Shop. The new supermarket anchor is paying gross rent at a
33% increase over that of the former tenant with no interruption in rent payments. Costs for this
project totaled $1.7 million.
COMPETITION
There are numerous entities that compete with us in seeking properties for acquisition and tenants
who will lease space in our properties. Our competitors include other REIT’s, financial
institutions, insurance companies, pension funds, private companies and individuals. Our properties
compete for tenants with similar properties primarily on the basis of location, total occupancy
costs (including base rent and operating expenses), services provided, and the design and condition
of the improvements.
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FINANCIAL INFORMATION ABOUT MARKET SEGMENTS
We have two reportable segments: retail properties and multi-family properties. The accounting
policies of the segments are the same as those described in the notes to the consolidated financial
statements appearing in Item 8 of this Annual Report on Form 10-K. We evaluate property performance
primarily based on net operating income before depreciation, amortization and certain non-recurring
items. The reportable segments are managed separately due to the differing nature of the leases and
property operations associated with retail versus residential tenants. We do not have any foreign
operations. See Note 3 to our consolidated financial statements included in Item 8 of this Annual
Report on Form 10-K for certain information regarding each of our segments.
CORPORATE HEADQUARTERS AND EMPLOYEES
Our executive offices are located at 1311 Mamaroneck Avenue, Suite 260, White Plains, New York
10605, and our telephone number is (914) 288-8100. We have 130 employees, of which 105 are located
at our executive office, six at the Pennsylvania regional office and the remaining property
management personnel are located on-site at our properties.
COMPANY WEBSITE
All of our filings with the Securities and Exchange Commission, including our annual reports on
Form 10-K, quarterly reports on Form 10-Q and current reports on Form 8-K and amendments to those
reports filed or furnished pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of
1934, are available free of charge at our website at www.acadiarealty.com, as soon as reasonably
practicable after we electronically file such material with, or furnish it to, the Securities and
Exchange Commission. These filings can also be accessed through the Securities and Exchange
Commission’s website at www.sec.gov. Alternatively, we will provide paper copies of our filings
free of charge upon request.
CODE OF ETHICS AND WHISTLEBLOWER POLICIES
The Board of Trustees adopted a Code of Ethics for Senior Financial Officers that applies to our
Chief Executive Officer, Chief Financial Officer, Chief Accounting Officer, Controller, Director of
Financial Reporting, Director of Taxation and Assistant Controllers. The Board also adopted a Code
of Business Conduct and Ethics applicable to all employees, as well as a “Whistleblower Policy”.
Copies of these documents are available in the Investor Information section of our website.
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ITEM 1A. RISK FACTORS:
If any of the following risks actually occur, our business, results of operations and financial
condition would likely suffer. This section includes or refers to certain forward-looking
statements. Refer to the explanation of the qualifications and limitations on such forward-looking
statements discussed in the beginning of this Form 10-K.
We rely on revenues derived from major tenants.
We derive significant revenues from certain anchor tenants that occupy space in more than one
center. We could be adversely affected in the event of the bankruptcy or insolvency of, or a
downturn in the business of, any of our major tenants, or in the event that any such tenant does
not renew its leases as they expire or renews at lower rental rates. Vacated anchor space not only
would reduce rental revenues if not re-tenanted at the same rental rates but also could adversely
affect the entire shopping center because of the loss of the departed anchor tenant’s customer
drawing power. Loss of customer drawing power also can occur through the exercise of the right that
most anchors have to vacate and prevent re-tenanting by paying rent for the balance of the lease
term, or the departure of an anchor tenant that owns its own property. In addition, in the event
that certain major tenants cease to occupy a property, such an action may result in a significant
number of other tenants having the right to terminate their leases, or pay a reduced rent based on
a percentage of the tenant’s sales, at the affected property, which could adversely affect the
future income from such property.
Tenants may seek the protection of the bankruptcy laws, which could result in the rejection and
termination of their leases and thereby cause a reduction in the cash flow available for
distribution by us. Such reduction could be material if a major tenant files bankruptcy. See the
risk factor titled, “The bankruptcy of, or a downturn in the business of, any of our major tenants
may adversely affect our cash flows and property values” below.
Limited control over joint venture investments.
Our joint venture investments may involve risks not otherwise present for investments made solely
by us, including the possibility that our joint venture partner might have different interests or
goals than we do. Other risks of joint venture investments include impasse on decisions, such as a
sale, because neither we nor a joint venture partner would have full control over the joint
venture. Also, there is no limitation under our organizational documents as to the amount of funds
that may be invested in joint ventures.
Through our investments in joint ventures we have also invested in operating businesses that have
operational risk in addition to the risks associated with real estate investments, including among
other risks, human capital issues, adequate supply of product and material, and merchandising
issues.
During 2006 and 2005, our joint ventures provided Promote income. There can be no assurance that
the joint ventures will continue to operate profitably and thus provide additional Promote income
in the future.
Under the terms of our Fund II joint venture, we are required to first offer to Fund II all of our
opportunities to acquire retail shopping centers. Only if (i) our joint venture partner elects not
to approve Fund II’s pursuit of an acquisition opportunity; (ii) the ownership of the acquisition
opportunity by Fund II would create a material conflict of interest for us; (iii) we require the
acquisition opportunity for a “like-kind” exchange; or (iv) the consideration payable for the
acquisition opportunity is our Common Shares, OP Units or other securities, may we pursue the
opportunity directly. As a result, we may not be able to make attractive acquisitions directly and
may only receive a minority interest in such acquisitions through Fund II.
We operate through a partnership structure, which could have an adverse effect on our ability to
manage our assets.
Our primary property-owning vehicle is the Operating Partnership, of which we are the general
partner. Our acquisition of properties through the Operating Partnership in exchange for interests
in the Operating Partnership may permit certain tax deferral advantages to limited partners who
contribute properties to the Operating Partnership. Since properties contributed to the Operating
Partnership may have unrealized gain attributable to the difference between the fair market value
and adjusted tax basis in such properties prior to contribution, the sale of such properties could
cause adverse tax consequences to the limited partners who contributed such properties. Although
we, as the general partner of the Operating Partnership, generally have no obligation to consider
the tax consequences of our actions to any limited partner, there can be no assurance that the
Operating Partnership will not acquire properties in the future subject to material restrictions
designed to minimize the adverse tax consequences to the limited partners who contribute such
properties. Such restrictions could result in significantly reduced flexibility to manage our
assets.
There are risks relating to investments in real estate.
Real property investments are subject to varying degrees of risk. Real estate values are affected
by a number of factors, including: changes in the general economic climate, local conditions (such
as an oversupply of space or a reduction in demand for real estate in an area), the quality and
philosophy of management, competition from other available space, the ability of the owner to
provide adequate maintenance and insurance and to control variable operating costs. Shopping
centers, in particular, may be affected by changing perceptions of retailers or shoppers regarding
the safety, convenience and attractiveness of the shopping center and by the overall climate for
the retail industry generally. Real estate values are also affected by such factors as government
regulations, interest rate levels, the availability of financing and potential liability under, and
changes in, environmental, zoning, tax and other laws. A significant portion of our income is
derived from rental income from real property, our income and cash flow would be adversely affected
if a significant number of our tenants were unable to meet their obligations, or if we were unable
to lease on
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economically favorable terms a significant amount of space in our properties. In the event of
default by a tenant, we may experience delays in enforcing, and incur substantial costs to enforce,
our rights as a landlord. In addition, certain significant expenditures associated with each equity
investment (such as mortgage payments, real estate taxes and maintenance costs) are generally not
reduced when circumstances cause a reduction in income from the investment.
The bankruptcy of, or a downturn in the business of, any of our major tenants may adversely affect
our cash flows and property values.
The bankruptcy of, or a downturn in the business of, any of our major tenants causing them to
reject their leases, or not renew their leases as they expire, or renew at lower rental rates may
adversely affect our cash flows and property values. Furthermore, the impact of vacated anchor
space and the potential reduction in customer traffic may adversely impact the balance of tenants
at the center.
Certain of our tenants have experienced financial difficulties and have filed for bankruptcy under
Chapter 11 of the United States Bankruptcy Code (“Chapter 11 Bankruptcy”). Pursuant to bankruptcy
law, tenants have the right to reject their leases. In the event the tenant exercises this right,
the landlord generally has the right to file a claim for lost rent equal to the greater of either
one year’s rent (including tenant expense reimbursements) for remaining terms greater than one
year, or 15% of the rent remaining under the balance of the lease term, but not to exceed three
years rent. Actual amounts to be received in satisfaction of those claims will be subject to the
tenant’s final plan of reorganization and the availability of funds to pay its creditors.
Since January 1, 2003, there have been two significant tenant bankruptcies within our portfolio:
On May 30, 2003, The Penn Traffic Company (“Penn Traffic”) filed for protection under Chapter 11
Bankruptcy. Penn Traffic operated in one location in our wholly-owned portfolio in 52,000 square
feet. Rental revenues from this tenant at this location were $0.3 million, $0.4 million and $0.5
million for the years ended December 31, 2006, 2005 and 2004, respectively. As of November 3, 2006
we sold this property. Penn Traffic also operated in a location occupying 55,000 square feet at a
property in which we, through Fund I, hold a 22.2% ownership interest. Penn Traffic rejected the
lease at this location on February 20, 2004. Our pro-rata share of rental revenues from the tenant
at this location was $0.02 million for the year ended December 31, 2004.
On January 14, 2004, KB Toys (“KB”) filed for protection under Chapter 11 Bankruptcy. KB operated
in five locations in our wholly-owned portfolio totaling approximately 41,000 square feet. Rental
revenues from KB at these locations aggregated $0.3 million, $ 0.3 million and $0.8 million for the
years ended December 31, 2006, 2005 and 2004, respectively. KB rejected the lease at three of these
locations and continues to operate in two of our wholly-owned locations but has neither assumed nor
rejected these two leases. KB also operated in a location occupying 20,000 square feet at a
property in which we hold a 22.2% ownership interest. KB rejected the lease at this location during
2004 and our pro-rata share of rental revenues at this location were $0.04 million for the year
ended December 31, 2004.
We could be adversely affected by poor market conditions where properties are geographically
concentrated.
Our performance depends on the economic conditions in markets in which our properties are
concentrated. We have significant exposure to the New York region, from which we derive 33% of the
annual base rents within our wholly-owned portfolio. Our operating results could be adversely
affected if market conditions, such as an oversupply of space or a reduction in demand for real
estate, in this area become more competitive relative to other geographic areas.
Our ability to change our portfolio is limited because real estate investments are illiquid.
Equity investments in real estate are relatively illiquid and, therefore, our ability to change our
portfolio promptly in response to changed conditions will be limited. Our board of trustees may
establish investment criteria or limitations as it deems appropriate, but currently does not limit
the number of properties in which we may seek to invest or on the concentration of investments in
any one geographic region. We could change our investment, disposition and financing policies
without a vote of our shareholders.
Market interest rates could have an adverse effect on our share price.
One of the factors that may influence the trading price of our Common Shares is the annual dividend
rate on our Common Shares as a percentage of its market price. An increase in market interest rates
may lead purchasers of our Common Shares to seek a higher annual dividend rate, which could
adversely affect the market price of our Common Shares and our ability to raise additional equity
in the public markets.
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We could become highly leveraged, resulting in increased risk of default on our obligations and in
an increase in debt service requirements which could adversely affect our financial condition and
results of operations and our ability to pay distributions.
We have incurred, and expect to continue to incur, indebtedness in furtherance of our activities.
Neither our Declaration of Trust nor any policy statement formally adopted by our board of trustees
limits either the total amount of indebtedness or the specified percentage of indebtedness that we
may incur. Accordingly, we could become more highly leveraged, resulting in increased risk of
default on our obligations and in an increase in debt service requirements which could adversely
affect our financial condition and results of operations and our ability to make distributions.
Our loan agreements contain customary representations, covenants and events of default. Certain
loan agreements require us to comply with certain affirmative and negative covenants, including the
maintenance of certain debt service coverage and leverage ratios.
Interest expense on our variable debt as of December 31, 2006 would increase by $0.9 million
annually for a 100 basis point increase in interest rates. We may seek additional variable-rate
financing if and when pricing and other commercial and financial terms warrant. As such, we would
consider hedging against the interest rate risk related to such additional variable-rate debt
through interest rate swaps and protection agreements, or other means.
We enter into interest-rate hedging transactions, including interest rate swaps and cap agreements,
with counterparties. There can be no guarantee that the financial condition of these counterparties
will enable them to fulfill their obligations under these agreements.
We may not be able to renew current leases and the terms of re-letting (including the cost of
concessions to tenants) may be less favorable to us than current lease terms.
Upon the expiration of current leases for space located in our properties, we may not be able to
re-let all or a portion of that space, or the terms of re-letting (including the cost of
concessions to tenants) may be less favorable to us than current lease terms. If we are unable to
re-let promptly all or a substantial portion of the space located in our properties or if the
rental rates we receive upon re-letting are significantly lower than current rates, our net income
and ability to make expected distributions to our shareholders will be adversely affected due to
the resulting reduction in rent receipts. There can be no assurance that we will be able to retain
tenants in any of our properties upon the expiration of their leases. See “Item 2. Properties –
Lease Expirations” in this Annual Report on Form 10-K for additional information as to the
scheduled lease expirations in our portfolio.
Possible liability relating to environmental matters.
Under various federal, state and local environmental laws, statutes, ordinances, rules and
regulations, as an owner of real property, we may be liable for the costs of removal or remediation
of certain hazardous or toxic substances at, on, in or under our property, as well as certain other
potential costs relating to hazardous or toxic substances (including government fines and penalties
and damages for injuries to persons and adjacent property). These laws may impose liability without
regard to whether we knew of, or were responsible for, the presence or disposal of those
substances. This liability may be imposed on us in connection with the activities of an operator
of, or tenant at, the property. The cost of any required remediation, removal, fines or personal or
property damages and our liability therefore could exceed the value of the property and/or our
aggregate assets. In addition, the presence of those substances, or the failure to properly dispose
of or remove those substances, may adversely affect our ability to sell or rent that property or to
borrow using that property as collateral, which, in turn, would reduce our revenues and ability to
make distributions.
A property can also be adversely affected either through physical contamination or by virtue of an
adverse effect upon value attributable to the migration of hazardous or toxic substances, or other
contaminants that have or may have emanated from other properties. Although our tenants are
primarily responsible for any environmental damages and claims related to the leased premises, in
the event of the bankruptcy or inability of any of our tenants to satisfy any obligations with
respect to the property leased to that tenant, we may be required to satisfy such obligations. In
addition, we may be held directly liable for any such damages or claims irrespective of the
provisions of any lease.
From time to time, in connection with the conduct of our business, and prior to the acquisition of
any property from a third party or as required by our financing sources, we authorize the
preparation of Phase I environmental reports and, when necessary, Phase II environmental reports,
with respect to our properties. Based upon these environmental reports and our ongoing review of
our properties, as of the date of this prospectus supplement, we are not aware of any environmental
condition with respect to any of our properties that we believe would be reasonably likely to have
a material adverse effect on us. There can be no assurance, however, that the environmental reports
will reveal all environmental conditions at our properties or that the following will not expose us
to material liability in the future:
| – | The discovery of previously unknown environmental conditions; | ||
| – | Changes in law; | ||
| – | Activities of tenants; and | ||
| – | Activities relating to properties in the vicinity of our properties. |
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Changes in laws increasing the potential liability for environmental conditions existing on
properties or increasing the restrictions on discharges or other conditions may result in
significant unanticipated expenditures or may otherwise adversely affect the operations of our
tenants, which could adversely affect our financial condition or results of operations.
Competition may adversely affect our ability to purchase properties and to attract and retain
tenants.
There are numerous commercial developers, real estate companies, financial institutions and other
investors with greater financial resources than we have that compete with us in seeking properties
for acquisition and tenants who will lease space in our properties. Our competitors include other
REIT’s, financial institutions, insurance companies, pension funds, private companies and
individuals. This competition may result in a higher cost for properties that we wish to purchase.
In addition, retailers at our properties face increasing competition from outlet malls, discount
shopping clubs, internet commerce, direct mail and telemarketing, which could (i) reduce rents
payable to us; (ii) reduce our ability to attract and retain tenants at our properties; and (iii)
lead to increased vacancy rates at our properties.
We have pursued, and may in the future continue to pursue extensive growth opportunities which may
result in significant demands on our operational, administrative and financial resources.
We have pursued extensive growth opportunities. This expansion has placed significant demands on
our operational, administrative and financial resources. The continued growth of our real estate
portfolio can be expected to continue to place a significant strain on its resources. Our future
performance will depend in part on our ability to successfully attract and retain qualified
management personnel to manage the growth and operations of our business and to finance such
acquisitions. In addition, acquired properties may fail to operate at expected levels due to the
numerous factors that may affect the value of real estate. There can be no assurance that we will
have sufficient resources to identify and manage acquired properties or otherwise be able to
maintain our historic rate of growth.
Our inability to carry out our growth strategy could adversely affect our financial condition and
results of operations.
Our earnings growth strategy is based on the acquisition and development of additional properties,
including acquisitions through co-investment programs such as joint ventures. In the context of our
business plan, “development” generally means an expansion or renovation of an existing property.
The consummation of any future acquisitions will be subject to satisfactory completion of our
extensive valuation analysis and due diligence review and to the negotiation of definitive
documentation. We cannot be sure that we will be able to implement our strategy because we may have
difficulty finding new properties, negotiating with new or existing tenants or securing acceptable
financing.
Acquisitions of additional properties entail the risk that investments will fail to perform in
accordance with expectations, including operating and leasing expectations. Redevelopment is
subject to numerous risks, including risks of construction delays, cost overruns or force majeure
that may increase project costs, new project commencement risks such as the receipt of zoning,
occupancy and other required governmental approvals and permits, and the incurrence of development
costs in connection with projects that are not pursued to completion.
A component of our growth strategy is through private-equity type investments made through our RCP Venture. These include investments in operating retailers. The inability of the retailers to operate profitably would have an adverse impact on income realized from these investments.
Our board of trustees may change our investment policy without shareholder approval.
Our board of trustees will determine our investment and financing policies, our growth strategy and
our debt, capitalization, distribution, acquisition, disposition and operating policies. Our board
of trustees may establish investment criteria or limitations as it deems appropriate, but currently
does not limit the number of properties in which we may seek to invest or on the concentration of
investments in any one geographic region. Although our board of trustees has no present intention
to revise or amend our strategies and policies, it may do so at any time without a vote by our
shareholders. Accordingly, our shareholders’ control over changes in our strategies and policies is
limited to the election of trustees, and changes made by our board of trustees may not serve the
interests of all of our shareholders and could adversely affect our financial condition or results
of operations, including our ability to distribute cash to shareholders or qualify as a REIT.
There can be no assurance we have qualified or will remain qualified as a REIT for federal income
tax purposes.
We believe that we have met the requirements for qualification as a REIT for federal income tax
purposes beginning with our taxable year ended December 31, 1993, and we intend to continue to meet
these requirements in the future. However, qualification as a REIT involves the application of
highly technical and complex provisions of the Internal Revenue Code, for which there are only
limited judicial or administrative interpretations. No assurance can be given that we have
qualified or will remain qualified as a REIT. The Internal Revenue Code provisions and income tax
regulations applicable to REIT’s are more complex than those applicable to corporations. The
determination of various factual matters and circumstances not entirely within our control may
affect our ability to continue to qualify as a REIT. In addition, no assurance can be given that
legislation, regulations, administrative interpretations or court decisions will not significantly
change the requirements for qualification as a REIT or the federal income tax consequences of such
qualification. If we do not qualify as a REIT, we would not be allowed a deduction for
distributions to shareholders in computing our net taxable income. In addition, our income would be
subject to tax at the regular corporate rates. We also could be disqualified from treatment as a
REIT for the four taxable years following the year during which qualification was lost. Cash
available for distribution to our shareholders would be significantly reduced for each year in
which we do not qualify as a REIT. In that event, we would not be required to continue to make
distributions. Although we currently intend to continue to qualify as a REIT, it is possible that
future economic, market, legal, tax or other considerations may cause us, without the consent of
the shareholders, to revoke the REIT election or to otherwise take action that would result in
disqualification.
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Distribution requirements imposed by law limit our operating flexibility.
To maintain our status as a REIT for federal income tax purposes, we are generally required to
distribute to our shareholders at least 90% of our taxable income for that calendar year. Our
taxable income is determined without regard to any deduction for dividends paid and by excluding
net capital gains. To the extent that we satisfy the distribution requirement, but distribute less
than 100% of our taxable income, we will be subject to federal corporate income tax on our
undistributed income. In addition, we will incur a 4% nondeductible excise tax on the amount, if
any, by which our distributions in any year are less than the sum of (i) 85% of our ordinary income
for that year; (ii) 95% of our capital gain net income for that year and; (iii) 100% of our
undistributed taxable income from prior years. We intend to continue to make distributions to our
shareholders to comply with the distribution requirements of the Internal Revenue Code and to
reduce exposure to federal income and nondeductible excise taxes. Differences in timing between the
receipt of income and the payment of expenses in determining our income and the effect of required
debt amortization payments could require us to borrow funds on a short-term basis to meet the
distribution requirements that are necessary to achieve the tax benefits associated with qualifying
as a REIT.
Uninsured losses or a loss in excess of insured limits could adversely affect our financial
condition.
We carry comprehensive liability, fire, extended coverage and rent loss insurance on most of our
properties, with policy specifications and insured limits customarily carried for similar
properties. However, with respect to those properties where the leases do not provide for abatement
of rent under any circumstances, we generally do not maintain rent loss insurance. In addition,
there are certain types of losses, such as losses resulting from wars, terrorism or acts of God
that generally are not insured because they are either uninsurable or not economically insurable.
Should an uninsured loss or a loss in excess of insured limits occur, we could lose capital
invested in a property, as well as the anticipated future revenues from a property, while remaining
obligated for any mortgage indebtedness or other financial obligations related to the property.
Any loss of these types would adversely affect our financial condition.
Limits on ownership of our capital shares.
For the Company to qualify as a REIT for federal income tax purposes, among other requirements, not
more than 50% of the value of our capital shares may be owned, directly or indirectly, by five or
fewer individuals (as defined in the Internal Revenue Code to include certain entities) during the
last half of each taxable year after 1993, and such capital shares must be beneficially owned by
100 or more persons during at least 335 days of a taxable year of 12 months or during a
proportionate part of a shorter taxable year (in each case, other than the first such year). Our
Declaration of Trust includes certain restrictions regarding transfers of our capital shares and
ownership limits that are intended to assist us in satisfying these limitations. These restrictions
and limits may not be adequate in all cases, however, to prevent the transfer of our capital shares
in violation of the ownership limitations. The ownership limit discussed above may have the effect
of delaying, deferring or preventing someone from taking control of us.
Actual or constructive ownership of our capital shares in excess of the share ownership limits
contained in our Declaration of Trust would cause the violative transfer or ownership to be null
and void from the beginning and subject to purchase by us at a price equal to the lesser of (i) the
price stipulated in the challenged transaction; and (ii) the fair market value of such shares
(determined in accordance with the rules set forth in our declaration of trust). As a result, if a
violative transfer were made, the recipient of the shares would not acquire any economic or voting
rights attributable to the transferred shares. Additionally, the constructive ownership rules for
these limits are complex and groups of related individuals or entities may be deemed a single owner
and consequently in violation of the share ownership limits.
Adverse legislative or regulatory tax changes could have an adverse effect on us.
There are a number of issues associated with an investment in a REIT that are related to the
federal income tax laws, including, but not limited to, the consequences of failing to continue to
qualify as a REIT. At any time, the federal income tax laws governing REIT’s or the administrative
interpretations of those laws may be amended. Any of those new laws or interpretations may take
effect retroactively and could adversely affect us or our shareholders. Recently enacted
legislation reduces tax rates applicable to certain corporate dividends paid to most domestic
noncorporate shareholders. REIT dividends generally are not eligible for reduced rates because a
REIT’s income generally is not subject to corporate level tax. As a result, investment in non-REIT
corporations may be viewed as relatively more attractive than investment in REIT’s by domestic
noncorporate investors. This could adversely affect the market price of the Company’s shares.
Concentration of ownership by certain investors.
Six shareholders own 5% or more individually, and 42.7% in the aggregate, of our Common Shares. A
significant concentration of ownership may allow an investor to exert a greater influence over our
management and affairs and may have the effect of delaying, deferring or preventing a change in
control of us.
Restrictions on a potential change of control.
Our Board of Trustees is authorized by our Declaration of Trust to establish and issue one or more
series of preferred shares without shareholder approval. We have not established any series of
preferred shares. However, the establishment and issuance of a series of preferred shares could
make more difficult a change of control of us that could be in the best interest of the
shareholders.
16
Table of Contents
In addition, we have entered into an employment agreement with our Chief Executive Officer and
severance agreements are in place with our senior vice presidents which provide that, upon the
occurrence of a change in control of us and either the termination of their employment without
cause (as defined) or their resignation for good reason (as defined), those executive officers
would be entitled to certain termination or severance payments made by us (which may include a lump
sum payment equal to defined percentages of annual salary and prior years’ average bonuses, paid in
accordance with the terms and conditions of the respective agreement), which could deter a change
of control of us that could be in our best interest.
The loss of a key executive officer could have an adverse effect on us.
Our success depends on the contribution of key management members. The loss of the services of
Kenneth F. Bernstein, President and Chief Executive Officer, or other key executive-level employees
could have a material adverse effect on our results of operations. Although we have entered into an
employment agreement with Mr. Kenneth F. Bernstein, the loss of his services could have an adverse
effect on our operations.
ITEM 1B. UNRESOLVED STAFF COMMENTS
None.
ITEM 2. PROPERTIES:
SHOPPING CENTER PROPERTIES
The discussion and tables in this Item 2 include properties held through consolidated and
unconsolidated joint ventures in which we own a partial interest (“Consolidated Joint Venture
Portfolio” and Unconsolidated Joint Venture Portfolio”, respectively). Except where noted, it does not include
our partial interest in 25 anchor-only leases with Kroger and Safeway supermarkets. These are
detailed separately within this Item 2 as the majority of these properties are free-standing and
all are triple-net leases.
As of December 31, 2006, we owned and operated 47 shopping centers as part of our wholly-owned
portfolio and Consolidated and Unconsolidated Joint Venture Portfolios, which included a mixed-use
property (retail and residential), and twelve properties under redevelopment. Our shopping centers,
which total approximately 8.4 million square feet of gross leaseable area (“GLA”), are located in
14 states and are generally well-established, anchored community and neighborhood shopping centers.
The operating properties are diverse in size, ranging from approximately 15,000 to 815,000 square
feet with an average size of 116,000 square feet. As of December 31, 2006, our wholly-owned
portfolio and the Consolidated and Unconsolidated Joint Venture Portfolios (excluding properties
under redevelopment) were 94.0% and 95.1% occupied, respectively. Our shopping centers are
typically anchored by supermarkets or value-oriented retail.
We had approximately 656 leases as of December 31, 2006. A majority of our rental revenues were
from national tenants. A majority of the income from the properties consists of rent received under
long-term leases. Most of these leases provide for the payment of fixed minimum rent monthly in
advance and for the payment by tenants of a pro-rata share of the real estate taxes, insurance,
utilities and common area maintenance of the shopping centers. Minimum rents and expense
reimbursements accounted for approximately 82% of our total revenues for the year ended December
31, 2006.
As of December 31, 2006, approximately 43% of our existing leases also provided for the payment of
percentage rents either in addition to, or in place of, minimum rents. These arrangements generally
provide for payment to us of a certain percentage of a tenant’s gross sales in excess of a
stipulated annual amount. Percentage rents accounted for approximately 1% of the total 2006
revenues of the Company.
Seven of our shopping center properties are subject to long-term ground leases in which a third
party owns and has leased the underlying land to us. We pay rent for the use of the land at seven
locations and are responsible for all costs and expenses associated with the building and
improvements at all seven locations.
17
Table of Contents
No individual property contributed in excess of 10% of our total revenues for the years ended
December 31, 2006, 2005 and 2004. Reference is made to our consolidated financial statements in
Item 8 of this Annual Report on form 10-K for information on the mortgage debt pertaining to our
properties. The following sets forth more specific information with respect to each of our shopping
centers at December 31, 2006:
WHOLLY-OWNED PROPERTIES
| Year | ||||||||||||||||||||||
| Constructed | Occupancy | Anchor Tenants | ||||||||||||||||||||
| (C) | Ownership | (1)% | Current Lease Expiration/ | |||||||||||||||||||
| Shopping Center | Location | Acquired(A) | Interest | GLA | 12/31/06 | Lease Option Expiration | ||||||||||||||||
NEW YORK REGION |
||||||||||||||||||||||
Connecticut |
||||||||||||||||||||||
239 Greenwich Avenue |
Greenwich | 1998 | (A) | Fee | 16,834 | (3) | 100 | % | Restoration Hardware | |||||||||||||
| 2015/2025 | ||||||||||||||||||||||
| Coach 2016/2021 | ||||||||||||||||||||||
New York |
||||||||||||||||||||||
Village Commons Shopping Center |
Smithtown | 1998 | (A) | Fee | 87,169 | 86 | % | Daffy’s 2008/2028 | ||||||||||||||
Branch Shopping Plaza |
Smithtown | 1998 | (A) | LI (4) | 125,751 | 100 | % | Waldbaum’s 2013/2028 CVS 2010/— | ||||||||||||||
Pacesetter Park Shopping
Center |
Pomona | 1999 | (A) | Fee | 96,698 | 98 | % | Stop & Shop 2020/2040 | ||||||||||||||
Amboy Road |
Staten Island | 2005 | (A) | LI (4) | 60,090 | 98 | % | Waldbaum’s 2028/— Duane Reade 2008/2018 | ||||||||||||||
Bartow Avenue |
Bronx | 2005 | (C) | Fee | 14,694 | 51 | % | Sleepy’s 2009/2014 | ||||||||||||||
2914 Third Avenue |
Bronx | 2006 | (A) | Fee | 43,500 | 100 | % | Dr. J’s 2021/— | ||||||||||||||
New Jersey |
||||||||||||||||||||||
Elmwood Park Shopping
Center |
Elmwood Park | 1998 | (A) | Fee | 149,085 | 100 | % | Pathmark 2017/2052 Walgreen’s 2022/2062 | ||||||||||||||
Boonton Shopping Center |
Boonton | 2006 | (A) | Fee | 62,908 | 98 | % | A&P 2024 | ||||||||||||||
NEW ENGLAND REGION |
||||||||||||||||||||||
Connecticut |
||||||||||||||||||||||
Town Line Plaza |
Rocky Hill | 1998 | (A) | Fee | 206,356 | (2) | 100 | % | Stop & Shop 2023/2063 Wal-Mart(2) | |||||||||||||
Massachusetts |
||||||||||||||||||||||
Methuen Shopping Center |
Methuen | 1998 | (A) | LI/Fee (4) | 130,021 | 97 | % | DeMoulas Market 2015/2020 Wal-Mart 2011/2051 | ||||||||||||||
Crescent Plaza |
Brockton | 1984 | (A) | Fee | 218,141 | 99 | % | Shaw’s 2012/2042 Home Depot 2021/2056 | ||||||||||||||
New York |
||||||||||||||||||||||
New Loudon Center |
Latham | 1982 | (A) | Fee | 255,826 | 100 | % | Price Chopper 2015/2035 | ||||||||||||||
| Marshall’s 2014/2029 | ||||||||||||||||||||||
| Bon Ton 2014/2034 | ||||||||||||||||||||||
| Raymour and Flanigan 2019/2034 | ||||||||||||||||||||||
Rhode Island |
||||||||||||||||||||||
Walnut Hill Plaza |
Woonsocket | 1998 | (A) | Fee | 285,418 | 98 | % | Shaw’s 2013/2043 Sears 2008/2033 | ||||||||||||||
Vermont |
||||||||||||||||||||||
The Gateway Shopping
Center |
South Burlington | 1999 | (A) | Fee | 101,784 | 96 | % | Shaw’s 2024/2053 | ||||||||||||||
18
Table of Contents
| Year | ||||||||||||||||||||||
| Constructed | Occupancy | Anchor Tenants | ||||||||||||||||||||
| (C) | Ownership | (1)% | Current Lease Expiration/ | |||||||||||||||||||
| Shopping Center | Location | Acquired(A) | Interest | GLA | 12/31/06 | Lease Option Expiration | ||||||||||||||||
MIDWEST REGION |
||||||||||||||||||||||
Illinois |
||||||||||||||||||||||
Hobson West Plaza |
Naperville | 1998 | (A) | Fee | 98,902 | 99 | % | Bobak’s Market & Restaurant 2007/2032 | ||||||||||||||
Clark Diversey |
Chicago | 2006 | (A) | Fee | 19,265 | 100 | % | Papyrus 2010/2015 | ||||||||||||||
| Starbucks 2010/2015 | ||||||||||||||||||||||
| Nine West 2009/— | ||||||||||||||||||||||
| The Vitamin Shoppe 2014/2024 | ||||||||||||||||||||||
Indiana |
||||||||||||||||||||||
Merrillville Plaza |
Merrillville | 1998 | (A) | Fee | 235,678 | 96 | % | TJ Maxx 2009/2014 | ||||||||||||||
| JC Penney 2008/2018 | ||||||||||||||||||||||
| Office Max 2008/2028 | ||||||||||||||||||||||
Michigan |
||||||||||||||||||||||
Bloomfield Town Square |
Bloomfield Hills | 1998 | (A) | Fee | 232,366 | 87 | % | TJ Maxx 2009/— | ||||||||||||||
| Marshalls 2011/2026 | ||||||||||||||||||||||
| Home Goods 2010/2025 | ||||||||||||||||||||||
Ohio |
||||||||||||||||||||||
Mad River Station |
Dayton | 1999 | (A) | Fee | 155,838 | (6) | 79 | % | Babies ‘R’ Us 2010/2020 | |||||||||||||
| Office Depot 2010/— | ||||||||||||||||||||||
MID-ATLANTIC REGION |
||||||||||||||||||||||
New Jersey |
||||||||||||||||||||||
Marketplace of Absecon |
Absecon | 1998 | (A) | Fee | 105,097 | 95 | % | Acme 2015/2055 | ||||||||||||||
| Eckerd Drug 2020/2040 | ||||||||||||||||||||||
Ledgewood Mall |
Ledgewood | 1983 | (A) | Fee | 518,950 | 88 | % | Wal-Mart 2019/2049 | ||||||||||||||
| Macy’s 2010/2025 | ||||||||||||||||||||||
| The Sport’s Authority 2007/2037 | ||||||||||||||||||||||
| Circuit City 2020/2040 | ||||||||||||||||||||||
| Marshalls 2014/2034 | ||||||||||||||||||||||
Pennsylvania |
||||||||||||||||||||||
Abington Towne Center |
Abington | 1998 | (A) | Fee | 216,355 | (5) | 98 | % | TJ Maxx 2010/2020 | |||||||||||||
| Target (6) | ||||||||||||||||||||||
Blackman Plaza |
Wilkes-Barre | 1968 | (C) | Fee | 125,264 | 93 | % | Kmart 2009/2049 | ||||||||||||||
Mark Plaza |
Edwardsville | 1968 | (C) | LI/Fee (4) | 216,401 | 97 | % | Redner’s Markets 2018/2028 | ||||||||||||||
| Kmart 2009/2049 | ||||||||||||||||||||||
Plaza 422 |
Lebanon | 1972 | (C) | Fee | 154,878 | 69 | % | Home Depot 2028/2058 | ||||||||||||||
Route 6 Mall |
Honesdale | 1994 | (C) | Fee | 175,505 | 99 | % | Kmart 2020/2070 | ||||||||||||||
Chestnut Hill |
Philadelphia | 2006 | (A) | Fee | 40,570 | 100 | % | Borders 2010/- | ||||||||||||||
| Limited Express 2009/-- | ||||||||||||||||||||||
| Wholly-owned portfolio | 4,149,344 | 94 | % | |||||||||||||||||||
19
Table of Contents
PROPERTIES HELD IN CONSOLIDATED JOINT VENTURES
| Year | ||||||||||||||||||||||
| Constructed | Occupancy | Anchor Tenants | ||||||||||||||||||||
| (C) | Ownership | (1)% | Current Lease Expiration/ | |||||||||||||||||||
| Shopping Center | Location | Acquired(A) | Interest | GLA | 12/31/06 | Lease Option Expiration | ||||||||||||||||
NEW YORK REGION |
||||||||||||||||||||||
New York |
||||||||||||||||||||||
Tarrytown
Shopping Center |
Tarrytown | 2004 | (A) | JV (9) | 35,291 | 85 | % | Walgreen’s 2080/-- | ||||||||||||||
MIDWEST REGION |
||||||||||||||||||||||
Illinois |
||||||||||||||||||||||
Oakbrook |
Oakbrook | 2005 | (A) | JV (4) (10) | 112,000 | 100 | % | Neiman Marcus 2011/2029 | ||||||||||||||
Ohio |
||||||||||||||||||||||
Amherst Marketplace |
Cleveland | 2002 | (A) | JV (9) | 79,945 | 100 | % | Giant Eagle 2021/2041 Riser Foods Company/Pharmacy 2012/2027 |
||||||||||||||
Granville Centre |
Columbus | 2002 | (A) | JV (9) | 134,997 | 43 | % | Lifestyle Family Fitness 2017/2027 |
||||||||||||||
Sheffield Crossing |
Cleveland | 2002 | (A) | JV (9) | 112,534 | 94 | % | Giant Eagle 2022/2042 Revco Drug 2012/2027 |
||||||||||||||
VARIOUS REGIONS |
||||||||||||||||||||||
Kroger/Safeway
Portfolio |
Various | 2003 | (A) | JV (9) | 1,018,100 | 100 | % | 25 Kroger/Safeway Supermarkets 2009/2049 |
||||||||||||||
JV REDEVELOPMENTS |
||||||||||||||||||||||
New York |
||||||||||||||||||||||
400 E. Fordham Road |
Bronx | 2004 | (A) | JV (10) | 117,355 | 100 | % | Sears 2021/2031 | ||||||||||||||
Pelham Manor Shopping |
||||||||||||||||||||||
Plaza |
Westchester | 2004 | (A) | JV (4)(10) | 398,775 | 29 | % | |||||||||||||||
161st Street |
Bronx | 2005 | (A) | JV (10) | 223,611 | 100 | % | City of New York 2027/2032 | ||||||||||||||
Sherman Avenue |
New York | 2005 | (A) | JV (10) | 134,773 | 100 | % | |||||||||||||||
Liberty Avenue |
New York | 2005 | (A) | JV (4) (10) | — | (12) | — | (12) | ||||||||||||||
216th Street |
New York | 2005 | (A) | JV (10) | — | (12) | — | (12) | ||||||||||||||
| Consolidated Joint Venture
Portfolio |
2,367,381 | 89 | % | |||||||||||||||||||
20
Table of Contents
PROPERTIES HELD IN UNCONSOLIDATED JOINT VENTURES
| Year | ||||||||||||||||||||||
| Constructed | Occupancy | Anchor Tenants | ||||||||||||||||||||
| (C) | Ownership | (1)% | Current Lease Expiration/ | |||||||||||||||||||
| Shopping Center | Location | Acquired(A) | Interest | GLA | 12/31/06 | Lease Option Expiration | ||||||||||||||||
NEW YORK REGION |
||||||||||||||||||||||
New York |
||||||||||||||||||||||
Crossroads Shopping
Center |
White Plains | 1998 | (A) | JV (7) | 310,644 | 98 | % | Waldbaum’s 2007/2032 | ||||||||||||||
| Kmart 2012/2022 | ||||||||||||||||||||||
| B. Dalton 2012/2017 | ||||||||||||||||||||||
| Modell’s 2009/2019 | ||||||||||||||||||||||
MID-ATLANTIC REGION |
||||||||||||||||||||||
Delaware |
||||||||||||||||||||||
Brandywine Town Center |
Wilmington | 2003 | (A) | JV (11) | 815,215 | 98 | % | Drexel Heritage 2016/2026 | ||||||||||||||
| Michaels 2011/2006 | ||||||||||||||||||||||
| Old Navy (The Gap) 2011/2016 | ||||||||||||||||||||||
| Petsmart 2017/2042 | ||||||||||||||||||||||
| Thomasville Furniture 2011/2021 | ||||||||||||||||||||||
| Access Group 2015/2025 | ||||||||||||||||||||||
| Bed, Bath & Beyond 2014/2029 | ||||||||||||||||||||||
| Dick’s Sporting Goods 2013/2028 | ||||||||||||||||||||||
| Lowe’s Home Centers 2018/2048 | ||||||||||||||||||||||
| Regal Cinemas 2017/2037 | ||||||||||||||||||||||
| Target 2018/2068 | ||||||||||||||||||||||
| Transunion Settlement 2013/2018 | ||||||||||||||||||||||
| The Bombay Company 2015/2025 | ||||||||||||||||||||||
| Lane Home Furnishings 2015/2030 | ||||||||||||||||||||||
| MJM Designer 2015/2035 | ||||||||||||||||||||||
Market Square Shopping
Center |
Wilmington | 2003 | (A) | JV (11) | 102,562 | 79 | % | Trader Joe’s 2013/2028 TJ Maxx 2006/2016 |
||||||||||||||
JV REDEVELOPMENTS |
||||||||||||||||||||||
Michigan |
||||||||||||||||||||||
Sterling Heights Shopping
Center |
Detroit | 2004 | (A) | JV (9) | 154,835 | 64 | % | Burlington Coat Factory 2024/-- | ||||||||||||||
Delaware |
||||||||||||||||||||||
Naamans Road |
Wilmington | 2006 | (C) | JV (11) | 19,932 | 45 | % | Tweeters 2026/2046 | ||||||||||||||
South Carolina |
||||||||||||||||||||||
Hitchcock Plaza |
Aiken | 2004 | (A) | JV (9) | 232,383 | 78 | % | Bed, Bath & Beyond 2008/2017 | ||||||||||||||
| Club Fitness 2004/2014 | ||||||||||||||||||||||
| Old Navy 2006/2021 | ||||||||||||||||||||||
| Stein Mart 2006/2016 | ||||||||||||||||||||||
| Ross Dress for Less 2006/2017 | ||||||||||||||||||||||
| TJ Maxx 2006/2016 | ||||||||||||||||||||||
Pine Log Plaza |
Aiken | 2004 | (A) | JV (9) | 35,064 | 82 | % | |||||||||||||||
Virginia |
||||||||||||||||||||||
Haygood Shopping Center |
Virginia | 2004 | (A) | JV (9) | 178,335 | 75 | % | Eckerd Drug 2009/-- | ||||||||||||||
| Beach | Farm Fresh 2026/-- | |||||||||||||||||||||
| Unconsolidated Joint Venture Portfolio |
1,848,970 | 81 | % | |||||||||||||||||||
Notes:
| (1) | Does not include space leased for which rent has not yet commenced. | |
| (2) | Includes a 92,500 square foot Wal-Mart which is not owned us. | |
| (3) | In addition to the 16,834 square feet of retail GLA, this property also has 21 apartments comprising 14,434 square feet. | |
| (4) | We are a ground lessee under a long-term ground lease. | |
| (5) | Includes a 157,616 square foot Target Store that is not owned by the Company. | |
| (6) | The GLA for this property includes 28,205 square feet of office space. | |
| (7) | We have a 49% investment in this property. | |
| (8) | Does not include 50,000 square feet of new space in Phase II of the Brandywine Town Center, which will be paid for on an Earn-out basis only if, and when, it is leased. | |
| (9) | We have invested in this asset through Fund I. | |
| (10) | We have invested in this asset through Fund II. | |
| (11) | We have invested in this asset with Ginsburg Development Corp. (GDC). | |
| (12) | Under redevelopment. |
21
Table of Contents
MAJOR TENANTS
No individual retail tenant accounted for more than 5.4% of minimum rents for the year ended
December 31, 2006 or 8.8% of total leased GLA as of December 31, 2006. The following table sets
forth certain information for the 20 largest retail tenants based upon minimum rents in place as of
December 31, 2006. The table includes leases related to our partial interest in 25 anchor-only
leases with Kroger and Safeway supermarkets. The amounts below include our pro-rata share of GLA
and annualized base rent for our partial ownership interest in properties (GLA and rent in
thousands):
| Percentage of Total | ||||||||||||||||||||
| Number | Represented by Retail Tenant | |||||||||||||||||||
| of | Annualized | Total | Annualized | |||||||||||||||||
| Stores in | Total | Base | Portfolio GLA | Base | ||||||||||||||||
| Retail Tenant | Portfolio | GLA | Rent (1) | (2) | Rent (2) | |||||||||||||||
Albertsons (Shaw’s, Acme) |
4 | 221 | $ | 3,013 | 4.2 | % | 5.4 | % | ||||||||||||
A&P (Waldbaum’s) |
4 | 168 | 2,813 | 3.3 | % | 5.0 | % | |||||||||||||
T.J. Maxx (T.J. Maxx, Marshalls, A.J. Wrights) |
9 | 266 | 2,018 | 5.1 | % | 3.6 | % | |||||||||||||
Sears (Sears, Kmart) |
6 | 459 | 1,686 | 8.8 | % | 3.0 | % | |||||||||||||
Wal-Mart |
2 | 210 | 1,515 | 4.0 | % | 2.7 | % | |||||||||||||
Ahold (Stop & Shop) |
2 | 118 | 1,289 | 2.3 | % | 2.3 | % | |||||||||||||
Home Depot |
2 | 211 | 1,010 | 4.1 | % | 1.8 | % | |||||||||||||
Pathmark |
1 | 48 | 956 | 0.9 | % | 1.7 | % | |||||||||||||
Price Chopper |
1 | 77 | 804 | 1.5 | % | 1.5 | % | |||||||||||||
Restoration Hardware |
1 | 9 | 697 | 0.2 | % | 1.2 | % | |||||||||||||
Kroger (3) |
12 | 156 | 1,137 | 3.0 | % | 2.0 | % | |||||||||||||
Safeway (4) |
13 | 132 | 1,134 | 2.5 | % | 2.0 | % | |||||||||||||
Federated (Macy’s) |
1 | 73 | 651 | 1.4 | % | 1.2 | % | |||||||||||||
Sleepy’s |
5 | 36 | 621 | 0.7 | % | 1.1 | % | |||||||||||||
JC Penney |
1 | 50 | 495 | 1.0 | % | 0.9 | % | |||||||||||||
CVS |
4 | 33 | 527 | 0.6 | % | 1.0 | % | |||||||||||||
Limited Brands – Express |
1 | 13 | 510 | 0.3 | % | 0.9 | % | |||||||||||||
Payless Shoesource |
9 | 28 | 509 | 0.5 | % | 0.9 | % | |||||||||||||
Borders Books |
1 | 19 | 482 | 0.4 | % | 0.9 | % | |||||||||||||
Circuit City |
1 | 33 | 450 | 0.6 | % | 0.8 | % | |||||||||||||
Total |
80 | 2,360 | $ | 22,317 | 45.4 | % | 39.9 | % | ||||||||||||
Notes:
| (1) | Base rents do not include percentage rents (except where noted), additional rents for property expense reimbursements, and contractual rent escalations due after December 31, 2006. | |
| (2) | Represents total GLA and annualized base rent for our retail properties including our pro-rata share of Joint Venture Properties. | |
| (3) | Kroger has sub-leased four of these locations to supermarket tenants, two locations to a non-supermarket tenant and ceased operations at one other location. Kroger is obligated to pay rent through the full term of these leases which expire in 2009. | |
| (4) | Safeway has sub-leased seven of these locations to supermarket tenants, one location to a non-supermarket tenant and ceased operations at one other location. Safeway is obligated to pay rent through the full term of all these leases which expire in 2009. |
22
Table of Contents
LEASE EXPIRATIONS
The following table shows scheduled lease expirations for retail tenants in place as of December
31, 2006, assuming that none of the tenants exercise renewal options. Leases related to our joint
venture properties are shown separately below before our pro-rata share of annual base rent and GLA
(GLA and rent in thousands):
Wholly-Owned
Portfolio:
| Annualized Base Rent (1) | GLA | |||||||||||||||||||
| Leases | Number of | Current | Percentage of | Percentage | ||||||||||||||||
| maturing in | Leases | Annual Rent | Total | Square Feet | of Total | |||||||||||||||
2007 |
75 | 4,082 | 9 | % | 360 | 10 | % | |||||||||||||
2008 |
55 | 4,720 | 11 | % | 321 | 9 | % | |||||||||||||
2009 |
66 | 4,934 | 11 | % | 500 | 14 | % | |||||||||||||
2010 |
56 | 5,530 | 13 | % | 484 | 13 | % | |||||||||||||
2011 |
38 | 2,675 | 6 | % | 166 | 5 | % | |||||||||||||
2012 |
9 | 1,591 | 4 | % | 166 | 5 | % | |||||||||||||
2013 |
13 | 2,206 | 5 | % | 151 | 4 | % | |||||||||||||
2014 |
17 | 1,926 | 4 | % | 216 | 6 | % | |||||||||||||
2015 |
14 | 3,362 | 8 | % | 190 | 5 | % | |||||||||||||
2016 |
11 | 1,348 | 3 | % | 65 | 2 | % | |||||||||||||
Thereafter |
29 | 11,676 | 26 | % | 1,024 | 27 | % | |||||||||||||
Total |
383 | $ | 44,050 | 100 | % | 3,643 | 100 | % | ||||||||||||
Consolidated
and Unconsolidated Joint Venture Portfolios:
| Annualized Base Rent (1) | GLA | |||||||||||||||||||
| Leases | Number of | Current | Percentage of | Percentage | ||||||||||||||||
| maturing in | Leases | Annual Rent | Total | Square Feet | of Total | |||||||||||||||
2007 |
109 | 4,152 | 9 | % | 396 | 11 | % | |||||||||||||
2008 |
25 | 3,110 | 7 | % | 198 | 5 | % | |||||||||||||
2009 |
44 | 10,182 | 23 | % | 1,150 | 32 | % | |||||||||||||
2010 |
11 | 767 | 2 | % | 47 | 1 | % | |||||||||||||
2011 |
20 | 7,538 | 17 | % | 422 | 12 | % | |||||||||||||
2012 |
6 | 697 | 2 | % | 53 | 1 | % | |||||||||||||
2013 |
7 | 2,067 | 5 | % | 117 | 3 | % | |||||||||||||
2014 |
13 | 2,270 | 5 | % | 124 | 3 | % | |||||||||||||
2015 |
10 | 3,218 | 7 | % | 166 | 5 | % | |||||||||||||
2016 |
3 | 514 | 1 | % | 66 | 2 | % | |||||||||||||
Thereafter |
25 | 9,844 | 22 | % | 892 | 25 | % | |||||||||||||
Total |
273 | $ | 44,359 | 100 | % | 3,631 | 100 | % | ||||||||||||
Note:
| (1) | Base rents do not include percentage rents, additional rents for property expense reimbursements, nor contractual rent escalations due after December 31, 2006. |
23
Table of Contents
GEOGRAPHIC CONCENTRATIONS
The following table summarizes our retail properties by region as of December 31, 2006. (GLA and
rent in thousands):
| Annualized | Percentage of Total | |||||||||||||||||||||||
| Annualized | Base Rent per | Represented by Region | ||||||||||||||||||||||
| Base | Leased Square | Annualized | ||||||||||||||||||||||
| Region | GLA (1) | Occupied % (2) | Rent (2) | Foot | GLA | Base Rent | ||||||||||||||||||
Wholly-Owned Portfolio: |
||||||||||||||||||||||||
New York Region |
657 | 96 | % | $ | 14,512 | $ | 22.92 | 16 | % | 33 | % | |||||||||||||
New England |
1,197 | 98 | % | 10,091 | 9.33 | 29 | % | 23 | % | |||||||||||||||
Midwest |
742 | 90 | % | 8,554 | 12.81 | 18 | % | 19 | % | |||||||||||||||
Mid-Atlantic |
1,553 | 91 | % | 10,892 | 8.64 | 37 | % | 25 | % | |||||||||||||||
Total Wholly-Owned Portfolio |
4,149 | 94 | % | $ | 44,049 | $ | 12.09 | 100 | % | 100 | % | |||||||||||||
| Consolidated and Unconsolidated Joint Venture Portfolios: | ||||||||||||||||||||||||
Operating Properties |
||||||||||||||||||||||||
Midwest (3) |
439 | 81 | % | $ | 3,481 | $ | 9.78 | 26 | % | 14 | % | |||||||||||||
Mid-Atlantic (4) |
918 | 96 | % | 13,707 | 15.58 | 54 | % | 57 | % | |||||||||||||||
New York Region (5) |
346 | 96 | % | 6,923 | 20.79 | 20 | % | 29 | % | |||||||||||||||
Total Operating Properties |
1,703 | 92 | % | 24,111 | 15.37 | 100 | % | 100 | % | |||||||||||||||
Redevelopment Properties: |
||||||||||||||||||||||||
Midwest (6) |
155 | 64 | % | 608 | 6.13 | 11 | % | 5 | % | |||||||||||||||
Mid-Atlantic (7) |
466 | 76 | % | 3,272 | 9.27 | 31 | % | 27 | % | |||||||||||||||
New York Region (8) |
874 | 68 | % | 8,355 | 14.10 | 58 | % | 68 | % | |||||||||||||||
Total Redevelopment
Properties |
1,495 | 70 | % | 12,235 | 11.71 | 100 | % | 100 | % | |||||||||||||||
Total Joint Venture Portfolio |
3,198 | 82 | % | $ | 36,346 | $ | 13.91 | 100 | % | 100 | % | |||||||||||||
Notes:
| (1) | Property GLA includes a total of 255,000 square feet which is not owned us. This square footage has been excluded for calculating annualized base rent per square foot. | |
| (2) | The above occupancy and rent amounts do not include space which is currently leased, but for which rent payment has not yet commenced. | |
| (3) | We have a 37.78% interest in Fund I which owns three properties and a 20% interest in Fund II which owns one property. | |
| (4) | Does not include 50,000 square feet of new space in Phase II of the Brandywine Town Center, which will be paid for by us on an “earn-out basis” only if, and when it is leased. | |
| (5) | We have a 49% interest in two partnerships which, together, own the Crossroads Shopping Center and a 38% interest in Fund I which owns 100% of the Tarrytown Shopping Center. | |
| (6) | We have a 37.78% interest in Fund I which has a 50% interest in a property. | |
| (7) | We have a 22.22% interest in one property and a 38% interest in Fund I which has interests ranging from 20% to 50% in three properties. | |
| (8) | We have a 20% interest in Fund II which has a 96% interest in four properties. |
24
Table of Contents
KROGER/SAFEWAY PORTFOLIO
In January of 2003, Fund I formed a joint venture (the “Kroger/Safeway JV”) with an affiliate of
real estate developer and investor AmCap Incorporated (“AmCap”) for the purpose of acquiring a
portfolio of twenty-five supermarket leases for $48.9 million inclusive of the closing and other
related acquisition costs. The portfolio, which aggregates approximately 1.0 million square feet,
consists of 25 anchor-only leases with Kroger (12 leases) and Safeway supermarkets (13 leases). The
majority of the properties are free-standing and all are triple-net leases. The Kroger/Safeway JV
acquired the portfolio subject to long-term ground leases with terms, including renewal options,
averaging in excess of 80 years, which are master leased to a non-affiliated entity. The rental
options for the supermarket leases at the end of their primary lease term in approximately three
years (“Primary Term”) are at an average of $5.13 per square foot. Although there is no obligation
for the Kroger/Safeway JV to pay ground rent during the Primary Term, to the extent it exercises an
option to renew a ground lease for a property at the end of the Primary Term, it will be obligated
to pay an average ground rent of $1.55 per square foot.
The following table sets forth more specific information with respect to the 25 supermarket leases:
| Gross leasable | Rent upon initial | Lease expiration | ||||||||||||||||||
| area | option | year/ Last option | ||||||||||||||||||
| Location | Tenant | (“GLA”) | Current rent | commencement | expiration year | |||||||||||||||
Great Bend, KS |
Kroger Co. (1) | 48,000 | $ | 3.33 | $ | 2.40 | 2009/2049 | |||||||||||||
Cincinnati, OH |
Kroger Co. | 32,200 | 7.49 | 5.36 | 2009/2049 | |||||||||||||||
Conroe, TX |
Kroger Co. (2) | 75,000 | 6.44 | 4.60 | 2009/2049 | |||||||||||||||
Harahan, LA |
Kroger Co. (2) | 60,000 | 6.41 | 4.61 | 2009/2049 | |||||||||||||||
Indianapolis, IN |
Kroger Co. | 34,000 | 5.42 | 3.87 | 2009/2049 | |||||||||||||||
Irving, TX |
Kroger Co. | 43,900 | 6.05 | 4.32 | 2009/2049 | |||||||||||||||
Pratt, KS |
Kroger Co. (1) | 38,000 | 5.26 | 3.78 | 2009/2049 | |||||||||||||||
Roanoke, VA |
Kroger Co. | 36,700 | 12.06 | 8.62 | 2009/2049 | |||||||||||||||
Shreveport, LA |
Kroger Co. | 45,000 | 9.74 | 6.96 | 2009/2049 | |||||||||||||||
Wichita, KS |
Kroger Co. (1) | 50,000 | 10.40 | 7.48 | 2009/2049 | |||||||||||||||
Wichita, KS |
Kroger Co. (1) | 40,000 | 9.70 | 6.97 | 2009/2049 | |||||||||||||||
Atlanta, TX |
Safeway (3) | 31,000 | 6.79 | 3.98 | 2009/2049 | |||||||||||||||
Batesville, AR |
Safeway (1) | 29,000 | 9.74 | 5.72 | 2009/2049 | |||||||||||||||
Benton, AR |
Safeway (1) | 33,500 | 8.02 | 4.71 | 2009/2049 | |||||||||||||||
Carthage, TX |
Safeway (1) | 27,700 | 7.01 | 4.12 | 2009/2049 | |||||||||||||||
Little Rock, AR |
Safeway (1) | 36,000 | 11.22 | 6.58 | 2009/2049 | |||||||||||||||
Longview, WA |
Safeway | 48,700 | 7.64 | 4.48 | 2009/2049 | |||||||||||||||
Mustang, OK |
Safeway (1) | 30,200 | 7.08 | 4.15 | 2009/2049 | |||||||||||||||
Roswell, NM |
Safeway (2) | 36,300 | 10.12 | 5.94 | 2009/2049 | |||||||||||||||
Ruidoso, NM |
Safeway (1) | 38,600 | 10.17 | 5.97 | 2009/2049 | |||||||||||||||
San Ramon, CA |
Safeway | 54,000 | 8.46 | 4.96 | 2009/2049 | |||||||||||||||
Springerville, AZ |
Safeway | 30,500 | 8.24 | 4.83 | 2009/2049 | |||||||||||||||
Tucson, AZ |
Safeway | 41,800 | 7.98 | 4.68 | 2009/2049 | |||||||||||||||
Tulsa, OK |
Safeway (1) | 30,000 | 8.45 | 4.96 | 2009/2049 | |||||||||||||||
Cary, NC |
Kroger Co. (3) | 48,000 | 6.37 | 4.55 | 2009/2049 | |||||||||||||||
| Total | 1,018,100 | |||||||||||||||||||
Notes:
| (1) | The tenant is obligated to pay rent pursuant to the lease and has sub-leased this location to a supermarket sub-tenant. | |
| (2) | The tenant is obligated to pay rent pursuant to the lease and has sub-leased this location to a non-supermarket sub-tenant. | |
| (3) | The tenant is currently not operating at this location although they continue to pay rent in accordance with the lease. |
25
Table of Contents
MULTI-FAMILY PROPERTIES
We own two multi-family properties located in the Mid-Atlantic and Midwest regions. As of December
31, 2006, the properties had an average occupancy rate of 90%. The following sets forth more
specific information with respect to each of our multi-family properties at December 31, 2006:
| Year | Ownership | |||||||||||||||||||
| Multi-Family Property | Location | Acquired | Interest | Units | % Occupied | |||||||||||||||
Missouri (1) Gate House, Holiday House, Tiger Village and Colony Apartments |
Columbia | 1998 | Fee | 874 | 92 | % | ||||||||||||||
North Carolina Village Apartments |
Winston Salem | 1998 | Fee | 600 | 86 | % | ||||||||||||||
Totals |
1,474 | 90 | % | |||||||||||||||||
Notes:
| (1) | We own four contiguous residential complexes in Columbia, Missouri which, although owned in two separate entities, are managed as a single property and therefore reflected as such |
ITEM 3. LEGAL PROCEEDINGS:
We are involved in other various matters of litigation arising in the normal course of business.
While we are unable to predict with certainty the amounts involved, management is of the opinion
that, when such litigation is resolved, our resulting liability, if any, will not have a
significant effect on our consolidated financial position or results of operations.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS:
No matter was submitted to a vote of security holders through the solicitation of proxies or
otherwise during the fourth quarter of 2006.
26
Table of Contents
PART II
| ITEM 5. | MARKET FOR REGISTRANT’S COMMON EQUITY, RELATED STOCK MATTERS AND ISSUER PURCHASES OF EQUITY SECURITIES. |
(a) Market Information
The following table shows, for the period indicated, the high and low sales price for the Common
Shares as reported on the New York Stock Exchange, and cash dividends paid during the two years
ended December 31, 2006 and 2005:
| Dividend | ||||||||||||
| Quarter Ended | High | Low | Per Share | |||||||||
2006 |
||||||||||||
March 31, 2006
|
$ | 24.21 | $ | 19.79 | $ | 0.1850 | ||||||
June 30, 2006
|
23.94 | 19.51 | 0.1850 | |||||||||
September 30, 2006
|
26.70 | 22.70 | 0.1850 | |||||||||
December 31, 2006
|
27.13 | 23.81 | 0.2000 | |||||||||
2005 |
||||||||||||
March 31, 2005
|
$ | 16.76 | $ | 15.40 | $ | 0.1725 | ||||||
June 30, 2005
|
18.68 | 15.25 | 0.1725 | |||||||||
September 30, 2005
|
20.13 | 17.38 | 0.1725 | |||||||||
December 31, 2005
|
20.79 | 16.51 | 0.1850 | |||||||||
At March 1, 2007, there were 348 holders of record of the Company’s Common Shares.
(b) Dividends
We have determined that for 2006, 100% of the total dividends distributed to shareholders
represented ordinary income. There was no unrecaptured section 1250 gain or nontaxable return of
capital in 2006. Our cash flow is affected by a number of factors, including the revenues received
from rental properties, our operating expenses, the interest expense on our borrowings, the ability
of lessees to meet their obligations to us and unanticipated capital expenditures. Future dividends
paid by us will be at the discretion of the Trustees and will depend on our actual cash flows, our
financial condition, capital requirements, the annual distribution requirements under the REIT
provisions of the Code and such other factors as the Trustees deem relevant.
(c) Issuer purchases of equity securities
We have an existing share repurchase program that authorizes management, at its discretion, to
repurchase up to $20.0 million of our outstanding Common Shares. Through March 1, 2007, we had
repurchased 2.1 million Common Shares at a total cost of $11.7 million. All of these Common Shares
have been subsequently reissued. The program may be discontinued or extended at any time and there
is no assurance that we will purchase the full amount authorized. There were no Common Shares
repurchased by us during the fiscal year ended December 31, 2006.
(d) Securities authorized for issuance under equity compensation plans
The following table provides information related to our 1999 Share Incentive Plan (the “1999
Plan”), 2003 Share Incentive Plan (the “2003 Plan”) and the 2006 Share Incentive Plan (the “2006
Plan”) as of December 31, 2006:
| Equity Compensation Plan Information | ||||||||||||
| (a) | (b) | (c) | ||||||||||
| Number of securities to | Weighted- average | Number of securities remaining | ||||||||||
| be issued upon exercise | exercise price of | available for future issuance under | ||||||||||
| of outstanding options, | outstanding options, | equity compensation plans (excluding | ||||||||||
| warrants and rights | warrants and rights | securities reflected in column) (a) | ||||||||||
Equity compensation plans
approved by security holders |
550,372 | $ | 10.01 | 729,097 | (1) | |||||||
Equity compensation plans
not approved by security
holders |
— | — | — | |||||||||
Total |
550,372 | $ | 10.01 | 729,097 | (1) | |||||||
Notes:
| (1) | The 1999, 2003 and 2006 Plans authorize the issuance of options equal to up to a total of 12% of the total Common Shares outstanding from time to time on a fully diluted basis. The 2006 Plan authorizes the issuance of a maximum number of 500,000 Common Shares. However, not more than 4,000,000 of the Common Shares in the aggregate may be issued pursuant to the exercise of options and no participant may receive more than 5,000,000 Common Shares during the term of the 1999 and 2003 Plans. No participant may receive more than 500,000 Common Shares during the term of the 2006 Plan. |
27
Table of Contents
Remaining Common Shares available is as follows:
Outstanding Common Shares as of December 31, 2006 |
31,772,952 | |||
Outstanding OP Units as of December 31, 2006 |
642,272 | |||
Total Outstanding Common Shares and OP Units |
32,415,224 | |||
12% of Common Shares pursuant to the 1999 and 2003
Plans |
3,889,827 | |||
Common Shares pursuant to the 2006 Plan |
500,000 | |||
Total Common Shares available under equity
compensations plans |
4,389,827 | |||
Less: Issuance of Restricted Shares Granted |
(880,408 | ) | ||
Issuance of Options Granted |
(2,780,322 | ) | ||
Number of Common Shares remaining available |
729,097 | |||
(e) Share Price Performance Graph
The following graph compares the cumulative total shareholder return for our Common Shares for the
period commencing December 31, 2001 through December 31, 2006 with the cumulative total return on
the Russell 2000 Index (“Russell 2000”), the NAREIT All Equity REIT Index (the “NAREIT”) and the
SNL Shopping Center REITs (the “SNL”) over the same period. Total return values for the Russell
2000, the NAREIT, the SNL and the Common Shares were calculated based upon cumulative total return
assuming the investment of $100.00 in each of the Russell 2000, the NAREIT, the SNL and our Common
Shares on December 31, 2001, and assuming reinvestment of such dividends. The shareholder return as
set forth in the table below is not necessarily indicative of future performance.
Comparison of 5 Year Cumulative Total Return among Acadia Realty Trust, the Russell 2000, the
NAREIT and the SNL:
| Period Ending | ||||||||||||||||||||||||
| Index | 12/31/01 | 12/31/02 | 12/31/03 | 12/31/04 | 12/31/05 | 12/31/06 | ||||||||||||||||||
Acadia Realty Trust |
100.00 | 125.41 | 224.19 | 305.64 | 391.01 | 503.39 | ||||||||||||||||||
Russell 2000 |
100.00 | 79.52 | 117.09 | 138.55 | 144.86 | 171.47 | ||||||||||||||||||
NAREIT All Equity REIT Index |
100.00 | 103.82 | 142.37 | 187.33 | 210.12 | 283.78 | ||||||||||||||||||
SNL Shopping Center REITS Index |
100.00 | 115.58 | 163.87 | 222.64 | 242.95 | 327.02 | ||||||||||||||||||
28
Table of Contents
ITEM 6. SELECTED FINANCIAL DATA
The following table sets forth, on a historical basis, our selected financial data. This
information should be read in conjunction with our audited consolidated financial statements and
Management’s Discussion and Analysis of Financial Condition and Results of Operations appearing
elsewhere in this Form 10-K.
| Years ended December 31, | ||||||||||||||||||||
| (dollars in thousands, except per share amounts) | ||||||||||||||||||||
| 2006 | 2005 | 2004 | 2003 | 2002 | ||||||||||||||||
OPERATING DATA: |
||||||||||||||||||||
Revenues |
$ | 102,693 | $ | 100,806 | $ | 87,082 | $ | 82,791 | $ | 57,803 | ||||||||||
Operating expenses |
46,101 | 41,642 | 36,135 | 34,530 | 26,677 | |||||||||||||||
Interest expense |
22,451 | 18,804 | 16,687 | 15,573 | 8,679 | |||||||||||||||
Depreciation and amortization |
26,637 | 25,905 | 22,781 | 23,672 | 12,441 | |||||||||||||||
Gain in sale of land |
— | — | 932 | 1,187 | 1,530 | |||||||||||||||
Equity in earnings of unconsolidated partnerships |
2,559 | 21,280 | 513 | 985 | 542 | |||||||||||||||
Minority interest |
5,223 | (13,952 | ) | (1,466 | ) | (4,899 | ) | (1,686 | ) | |||||||||||
Income tax benefit (expense) |
508 | (2,140 | ) | — | — | — | ||||||||||||||
Income from continuing operations |
15,794 | 19,643 | 11,458 | 6,289 | 10,392 | |||||||||||||||
Income from discontinued operations |
23,219 | 983 | 8,127 | 1,564 | 9,007 | |||||||||||||||
Net income |
$ | 39,013 | $ | 20,626 | $ | 19,585 | $ | 7,853 | $ | 19,399 | ||||||||||
Basic earnings per share: |
||||||||||||||||||||
Income from continuing operations |
$ | 0.49 | $ | 0.62 | $ | 0.39 | $ | 0.24 | $ | 0.41 | ||||||||||
Income from discontinued operations |
0.71 | 0.03 | 0.28 | 0.06 | 0.36 | |||||||||||||||
Basic earnings per share |
$ | 1.20 | $ | 0.65 | $ | 0.67 | $ | 0.30 | $ | 0.77 | ||||||||||
Diluted earnings per share: |
||||||||||||||||||||
Income from continuing operations |
$ | 0.48 | $ | 0.61 | $ | 0.38 | $ | 0.23 | $ | 0.41 | ||||||||||
Income from discontinued operations |
0.70 | 0.03 | 0.27 | 0.06 | 0.35 | |||||||||||||||
Diluted earnings per share |
$ | 1.18 | $ | 0.64 | $ | 0.65 | $ | 0.29 | $ | 0.76 | ||||||||||
Weighted average number of Common
Shares outstanding |
||||||||||||||||||||
- basic |
32,502 | 31,949 | 29,341 | 26,640 | 25,321 | |||||||||||||||
- diluted |
33,153 | 32,214 | 29,912 | 27,232 | 25,806 | |||||||||||||||
Cash dividends declared per Common Share |
$ | 0.755 | $ | 0.7025 | $ | 0.6525 | $ | 0.595 | $ | 0.52 | ||||||||||
BALANCE SHEET DATA: |
||||||||||||||||||||
Real estate before accumulated
depreciation |
$ | 677,238 | $ | 709,906 | $ | 599,558 | $ | 541,892 | $ | 375,149 | ||||||||||
Total assets |
851,692 | 841,591 | 636,731 | 556,278 | 442,034 | |||||||||||||||
Total mortgage indebtedness |
347,402 | 386,600 | 271,571 | 277,817 | 173,074 | |||||||||||||||
Total convertible notes payable |
100,000 | 24,400 | — | — | — | |||||||||||||||
Minority interest in Operating Partnership |
8,673 | 9,204 | 6,893 | 7,875 | 22,745 | |||||||||||||||
Minority interests in partially-owned affiliates |
105,064 | 137,086 | 75,244 | 37,681 | 12,611 | |||||||||||||||
Total equity |
241,119 | 220,576 | 216,924 | 169,734 | 161,323 | |||||||||||||||
OTHER: |
||||||||||||||||||||
Funds from Operations (1) |
$ | 39,953 | $ | 35,842 | $ | 30,004 | $ | 27,664 | $ | 30,162 | ||||||||||
Cash flows provided by (used in): |
||||||||||||||||||||
Operating activities |
39,627 | 50,239 | 33,885 | 31,031 | 29,422 | |||||||||||||||
Investing activities |
(58,890 | ) | (135,470 | ) | (72,860 | ) | (76,552 | ) | 31,855 | |||||||||||
Financing activities |
68,359 | 159,425 | 40,050 | 15,454 | (50,215 | ) | ||||||||||||||
Notes:
| (1) | The Company considers funds from operations (“FFO”) as defined by the National Association of Real Estate Investment Trusts (“NAREIT”) to be an appropriate supplemental disclosure of operating performance for an equity REIT due to its widespread acceptance and use within the REIT and analyst communities. FFO is presented to assist investors in analyzing the performance of the Company. It is helpful as it excludes various items included in net income that are not indicative of the operating performance, such as gains (losses) from sales of depreciated property and depreciation and amortization. However, the Company’s method of calculating FFO may be different from methods used by other REITs and, accordingly, may not be comparable to such other REIT’s. FFO does not represent cash generated from operations as defined by generally accepted accounting principles (“GAAP”) and is not indicative of cash available to fund all cash needs, including distributions. It should not be considered as an alternative to net income for the purpose of evaluating the Company’s performance or to cash flows as a measure of liquidity. Consistent with the NAREIT definition, the Company defines FFO as net income (computed in accordance with GAAP), excluding gains (losses) from sales of depreciated property, plus depreciation and amortization, and after adjustments for unconsolidated partnerships and joint ventures. See “Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations – Reconciliation of Net Income to Funds from Operations” for the reconciliation of net income to FFO. |
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ITEM 7. MANAGEMENTS DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
OVERVIEW
We currently operate 74 properties, which we own or have an ownership interest in, consisting of 72
neighborhood and community shopping centers and two multi-family properties, which are located
primarily in the Northeast, Mid-Atlantic and Midwestern regions of the United States. We receive
income primarily from the rental revenue from tenants at our properties, including recoveries from
tenants, offset by operating and overhead expenses.
Our primary business objective is to acquire and manage commercial retail properties that will
provide cash for distributions to shareholders while also creating the potential for capital
appreciation to enhance investor returns. We focus on the following fundamentals to achieve this
objective:
| – | Own and operate a portfolio of community and neighborhood shopping centers and mixed-use properties with a retail component located in markets with strong demographics. | ||
| – | Generate internal growth within the portfolio through aggressive redevelopment, re-anchoring and leasing activities. | ||
| – | Generate external growth through an opportunistic yet disciplined acquisition program. The emphasis is on targeting transactions with high inherent opportunity for the creation of additional value through redevelopment and leasing and/or transactions requiring creative capital structuring to facilitate the transactions. | ||
| – | Partner with private equity investors for the purpose of making investments in operating retailers with significant embedded value in their real estate assets. | ||
| – | Maintain a strong and flexible balance sheet through conservative financial practices while ensuring access to sufficient capital to fund future growth. |
RESULTS OF OPERATIONS
Comparison of the year ended December 31, 2006 (“2006”) to the year ended December 31, 2005
(“2005”)
The Brandywine Portfolio operations were consolidated as part of Fund I for the year ended December
31, 2005. Subsequent to the recapitalization and conversion of interests from Fund I to GDC in
January 2006, the Brandywine Portfolio is accounted for under the equity method of accounting for
the year ended December 31, 2006. In the following tables, we have excluded the Brandywine
Portfolio operations for the year ended December 31, 2005 for purposes of comparability with the
year ended December 31, 2006.
| Change from | ||||||||||||||||||||||||
| 2005 As | Brandywine | 2005 | 2005 Adjusted | |||||||||||||||||||||
| (dollars in millions) | 2006 | Reported | Portfolio | Adjusted | $ | % | ||||||||||||||||||
Revenues
Minimum rents |
$ | 69.7 | $ | 75.4 | $ | (14.0 | ) | $ | 61.4 | $ | 8.3 | 13 | % | |||||||||||
Percentage rents |
1.2 | 1.3 | (0.6 | ) | 0.7 | 0.5 | 71 | % | ||||||||||||||||
Expense reimbursements |
15.0 | 14.9 | (2.2 | ) | 12.7 | 2.3 | 18 | % | ||||||||||||||||
Other property income |
1.2 | 2.3 | (0.2 | ) | 2.1 | (0.9 | ) | (43 | )% | |||||||||||||||
Management fee income |
5.6 | 3.6 | 0.5 | 4.1 | 1.5 | 37 | % | |||||||||||||||||
Interest income |
8.3 | 3.3 | — | 3.3 | 5.0 | 152 | % | |||||||||||||||||
Other |
1.7 | — | — | — | 1.7 | 100 | % | |||||||||||||||||
Total revenues |
$ | 102.7 | $ | 100.8 | $ | (16.5 | ) | $ | 84.3 | $ | 18.4 | 22 | % | |||||||||||
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The increase in minimum rents was attributable to additional rents following our acquisition of
Chestnut Hill, Clark Diversey, A&P Shopping Plaza, 2914 Third Avenue and Boonton Shopping Center
(60% owned) as well as Fund II acquisitions of Sherman Avenue and 161st Street in New
York and a leasehold interest in Chicago (“2005/2006 Acquisitions”).
Expense reimbursements for both common area maintenance (“CAM”) and real estate taxes increased in
2006. CAM expense reimbursement increased $0.4 million as a result of higher tenant reimbursements
following the 2005/2006 Acquisitions, offset by a decrease in tenant reimbursements as a result of
lower snow removal costs in 2006. Real estate tax reimbursements increased $1.8 million, primarily
as a result of the 2005/2006 Acquisitions, as well as general increases in real estate taxes across
the portfolio.
The decrease in other property income was the result of receipt of a bankruptcy claim settlement
against a former tenant in 2005.
Management fee income increased primarily as a result of fees earned in connection with the
acquisition of the Klaff management contract rights in February 2005 and additional management fees
earned from our investments in unconsolidated affiliates.
The increase in interest income was attributable to interest income on our advances and notes
receivable originated in 2005 and 2006, as well as higher balances in interest earning assets in
2006.
Other income increased as a result of a $1.1 million reimbursement of the Company’s share of
certain fees incurred by the institutional investors of Fund I for the Brandywine Portfolio, as
well as $0.5 million related to termination of an interest rate swap in 2006.
| Change from 2005 | ||||||||||||||||||||||||
| 2005 As | Brandywine | 2005 | Adjusted | |||||||||||||||||||||
| (dollars in millions) | 2006 | Reported | Portfolio | Adjusted | $ | % | ||||||||||||||||||
Operating Expenses
Property operating |
$ | 15.7 | $ | 16.1 | $ | (3.4 | ) | $ | 12.7 | $ | 3.0 | 24 | % | |||||||||||
Real estate taxes |
10.6 | 9.4 | (0.8 | ) | 8.6 | 2.0 | 23 | % | ||||||||||||||||
General and administrative |
19.8 | 16.2 | — | 16.2 | 3.6 | 22 | % | |||||||||||||||||
Depreciation and amortization |
26.6 | 25.9 | (2.6 | ) | 23.3 | 3.3 | 14 | % | ||||||||||||||||
Total operating expenses |
$ | 72.7 | $ | 67.6 | $ | (6.8 | ) | $ | 60.8 | $ | 11.9 | 20 | % | |||||||||||
The increase in property operating expenses was primarily the result of the recovery of
approximately $0.5 million related to the settlement of our insurance claim in connection with the
flood damage incurred at the Mark Plaza in 2005, increased property operating expenses related to
the 2005/2006 Acquisitions and higher bad debt expense in 2006. These increases were offset by
lower snow removal costs during 2006.
The increase in real estate taxes was due to general increases in real estate taxes experienced
across the portfolio, as well as increased real estate tax expense related to the 2005/2006
Acquisitions.
The increase in general and administrative expense was primarily attributable to increased
compensation expense of $2.7 million, including stock-based compensation of $0.9 million, and $0.9
million of other overhead expenses following the expansion of our infrastructure related to
increased investment in development-intensive projects in Fund assets and asset management
services.
Depreciation expense increased $1.4 million in 2006. This was principally a result of increased
depreciation expense related to the 2005/2006 Acquisitions. Amortization expense increased $1.9
million, which was primarily the combination of an increase in amortization related to the
2005/2006 Acquisitions, specifically, amortization of tenant installation costs of $1.0 million,
amortization of leasehold interest of $0.5 million and amortization of loan costs of $0.2 million.
In addition, amortization expense increased $0.2 million related to the write off of certain Klaff
management contracts following the disposition of these assets in 2006.
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| Change from 2005 | ||||||||||||||||||||||||
| 2005 As | Brandywine | 2005 | Adjusted | |||||||||||||||||||||
| (dollars in millions) | 2006 | Reported | Portfolio | Adjusted | $ | % | ||||||||||||||||||
Other: |
||||||||||||||||||||||||
Equity in earnings
of unconsolidated
affiliates |
$ | 2.6 | $ | 21.3 | $ | 0.9 | $ | 22.2 | $ | (19.6 | ) | (88 | )% | |||||||||||
Interest expense |
(22.5 | ) | (18.8 | ) | 3.7 | (15.1 | ) | (7.4 | ) | (49 | )% | |||||||||||||
Minority interest |
5.2 | (14.0 | ) | 5.1 | (8.9 | ) | 14.1 | 158 | % | |||||||||||||||
Income taxes |
0.5 | (2.1 | ) | — | (2.1 | ) | 2.6 | 124 | % | |||||||||||||||
Income from
discontinued
operations |
23.2 | 1.0 | — | 1.0 | 22.2 | (2220 | )% | |||||||||||||||||
Equity in earnings of unconsolidated affiliates decreased during 2006 primarily as a result of the
gains recognized from the sale of Mervyns assets in 2005.
Interest expense increased $7.4 million as a result of higher average outstanding borrowings in
2006.
Minority interest variance is attributable to the minority partner’s share of gains from the sale
of Mervyns assets in 2005.
The variance in income tax expense relates to taxes at the taxable REIT subsidiary (“TRS”) level on
our share of gains from the sale of Mervyns locations during 2005.
Income from discontinued operations represents activity related to properties sold in 2006 and
2005.
Comparison of the year ended December 31, 2005 (“2005”) to the year ended December 31, 2004
(“2004”)
| Change | ||||||||||||||||
| (dollars in millions) | 2005 | 2004 | $ | % | ||||||||||||
Revenues: |
||||||||||||||||
Minimum rents |
$ | 75.4 | $ | 68.9 | $ | 6.5 | 9 | % | ||||||||
Percentage rents |
1.3 | 1.3 | — | — | ||||||||||||
Expense
reimbursements |
14.9 | 13.3 | 1.6 | 12 | % | |||||||||||
Other property income |
2.3 | 0.8 | 1.5 | 188 | % | |||||||||||
Management fee income |
3.6 | 1.3 | 2.3 | 177 | % | |||||||||||
Interest income |
3.3 | 1.3 | 2.0 | 154 | % | |||||||||||
Other |
— | 0.2 | (0.2 | ) | (100 | )% | ||||||||||
Total revenues |
$ | 100.8 | $ | 87.1 | $ | 13.7 | 16 | % | ||||||||
Minimum rents within our Funds I and II (“Funds”) increased $4.6 million primarily a result of
minimum rents from properties we acquired through the Funds during 2004 and 2005 (“2004/2005 Fund
Acquisitions”) as discussed in “LIQUIDITY AND CAPITAL RESOURCES” in Item 7 of this Form 10K. $1.9
million of the increase in minimum rents was attributable to additional rents following our
purchase of Amboy Road shopping center in July 2005, re-tenanting activities as well as increased
occupancy across the remaining balance of our portfolio.
Tenant expense reimbursements within our Funds increased $0.9 million primarily a result of our
2004/2005 Fund Acquisitions. Real estate tax reimbursements within the balance of the portfolio
increased $0.5 million primarily as a result of general increases in real estate taxes as well as
re-tenanting activities. CAM expense reimbursements within the balance of our portfolio increased
$0.5 million as a result of increased tenant reimbursements of higher snow removal costs in 2005.
Management fee income increased primarily as a result of management fees earned related to our
acquisition of certain management contract rights from Klaff in January 2004 and February 2005.
The increase in interest income was a combination of additional interest income earned on our notes
receivable originated in 2004 and 2005 and additional interest income earned following our
preferred equity investment in Levitz SL in 2005.
| Change | ||||||||||||||||
| (dollars in millions) | 2005 | 2004 | $ | % | ||||||||||||
Operating Expenses: |
||||||||||||||||
Property operating |
$ | 16.1 | $ | 17.0 | $ | (0.9 | ) | (5 | )% | |||||||
Real estate taxes |
9.4 | 8.2 | 1.2 | 15 | % | |||||||||||
General and administrative |
16.1 | 10.9 | 5.2 | 48 | % | |||||||||||
Depreciation and
amortization |
25.9 | 22.8 | 3.1 | 14 | % | |||||||||||
Total operating expenses |
$ | 67.5 | $ | 58.9 | $ | 8.6 | 15 | % | ||||||||
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Property operating expenses within our Funds decreased $0.6 million primarily as a result of the
reduction in the allowance for doubtful accounts as a result of the recovery of amounts due from
Penn Traffic following its bankruptcy and the partial recovery of previous years CAM billings
previously disputed by tenants. The decrease in property operating expenses within our remaining
portfolio was primarily a result of our recovery of $0.5 million in 2005 related to the settlement
of our insurance claim in connection with the flood damage incurred at Mark Plaza. A non-recurring
charge of approximately $0.7 million related to this flood damage was recorded in 2004. This
decrease was partially offset by higher snow removal costs in 2005.
Real estate taxes increased $0.8 million within our Funds primarily as a result of our 2004/2005
Fund Acquisitions. General increases in real estate taxes due to increases in assessments and tax
rates were also experienced across our remaining portfolio.
The increase in general and administrative expense was attributable to increased compensation
expense and other overhead expenses following the expansion of our infrastructure related to
increased investment activity in fund assets and asset management services.
The $1.9 million increase in depreciation and amortization expense in 2005 within our Funds was
primarily attributable to our 2004/2005 Fund Acquisitions. Within the balance of our portfolio,
depreciation expense increased $0.3 million primarily related to capitalized tenant installation
costs in 2004 and 2005. Amortization expense increased primarily as a result of the write-off of
acquisition costs totaling $0.5 million allocable to specific Klaff management contracts following
the disposition of the related assets.
| Change | ||||||||||||||||
| (dollars in millions) | 2005 | 2004 | $ | % | ||||||||||||
Other: |
||||||||||||||||
Equity in earnings of unconsolidated
partnerships |
$ | 21.3 | $ | 0.5 | $ | 20.8 | 4160 | % | ||||||||
Interest Expense |
(18.8 | ) | (16.7 | ) | (2.1 | ) | (13 | )% | ||||||||
Gain on Sale |
— | 0.9 | (0.9 | ) | (100 | )% | ||||||||||
Minority Interest |
(14.0 | ) | (1.4 | ) | (12.6 | ) | (900 | )% | ||||||||
Income Taxes |
(2.1 | ) | — | (2.1 | ) | — | ||||||||||
Income from discontinued operations |
1.0 | 8.1 | (7.1 | ) | (88 | )% | ||||||||||
Equity in earnings of unconsolidated partnerships increased primarily as a result of our share of
gain from the sale of certain Mervyn’s locations.
The increase in interest expense was primarily attributable to our Fund Acquisitions and higher
average interest rates on the portfolio mortgage debt in 2005.
The gain on sale of land in 2004 was related to a prior year sale of a contract to purchase land to
the Target Corporation. We received additional sales proceeds of $0.9 million which were being held
in escrow pending the completion of certain site work by the buyer. Of these proceeds, $0.5 million
were distributed to our joint venture partner in the sale and are a component of minority interest
in the accompanying financial statements.
Income taxes in 2005 relate to our share of the income taxes on gain from the sale of certain
Mervyn’s locations during the third and fourth quarters of 2005.
Income (loss) from discontinued operations represents activity related to properties sold during
2004 and 2005 as well as property held for sale subsequent to 2005.
RECONCILIATION OF NET INCOME TO FUNDS FROM OPERATIONS
| For the Years Ended December 31, | ||||||||||||||||||||
| 2006 | 2005 | 2004 | 2003 | 2002 | ||||||||||||||||
Net income |
$ | 39,013 | $ | 20,626 | $ | 19,585 | $ | 7,853 | $ | 19,399 | ||||||||||
Depreciation of real estate and amortization of leasing
costs: |
||||||||||||||||||||
Consolidated affiliates, net of minority interests’ share |
20,206 | 16,676 | 16,026 | 18,421 | 15,335 | |||||||||||||||
Unconsolidated affiliates |
1,806 | 746 | 714 | 643 | 632 | |||||||||||||||
Income attributable to minority interest in operating
partnership (1) |
803 | 416 | 375 | 747 | 2,928 | |||||||||||||||
Gain on sale of properties |
(21,875 | ) | (2,622 | ) | (6,696 | ) | — | (8,132 | ) | |||||||||||
Funds from operations |
$ | 39,953 | $ | 35,842 | $ | 30,004 | $ | 27,664 | $ | 30,162 | ||||||||||
| Notes: | ||
| (1) | Represents income attributable to Common Operating Partnership Units and does not include distributions paid to Series A and B Preferred OP Unitholders. |
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LIQUIDITY AND CAPITAL RESOURCES
USES OF LIQUIDITY
Our principal uses of liquidity are expected to be for distributions to our shareholders and OP
unit holders, debt service and loan repayments, and property investment which include the funding
of our joint venture commitments, acquisition, redevelopment, expansion and re-tenanting
activities.
Distributions
In order to qualify as a REIT for Federal income tax purposes, we must currently distribute at
least 90% of our taxable income to our shareholders. For the first three quarters during 2006, we
paid a quarterly dividend of $0.185 per Common Share and Common OP Unit. In December of 2006, our
Board of Trustees approved and declared an 8.1% increase in our quarterly dividend to $0.20 per
Common Share and Common OP Unit for the fourth quarter of 2006, which was paid January 16, 2007.
Acadia Strategic Opportunity Fund, LP (“Fund I”)
In September 2001, the Operating Partnership committed $20.0 million to a newly formed joint
venture with four of our institutional shareholders, who committed $70.0 million, for the purpose
of acquiring a total of approximately $300.0 million of community and neighborhood shopping centers
on a leveraged basis.
On January 4, 2006, we recapitalized a one million square foot retail portfolio located in
Wilmington, Delaware (“Brandywine Portfolio”) through a merger of interests with affiliates of GDC
Properties (“GDC”). The Brandywine Portfolio was recapitalized through a “cash out” merger of the
77.8% interest, which was previously held by the institutional investors in Fund I (the
“Investors”) to affiliates of GDC at a valuation of $164.0 million. The Operating Partnership,
through a subsidiary, retained our existing 22.2% interest and continue to operate the Brandywine
Portfolio and earn fees for such services. At the closing, the Investors, excluding the Operating
Partnership, received a return of all their capital invested in Fund I and preferred return, thus
triggering the Operating Partnership’s Promote distribution in all future Fund I distributions and
increasing the Operating Partnership’s interest in cash flow and income from 22.2% to 37.8% as a
result of the Promote. In June 2006, the Investors received $36.0 million of additional proceeds
from this transaction following the replacement of bridge financing provided by them with permanent
mortgage financing
As of December 31, 2006, we have a total of 32 properties totaling 2.0 million square feet as
further discussed in “PROPERTY ACQUISITIONS” in Item 1 of this Form 10-K.
Acadia Strategic Opportunity Fund II, LLC (“Fund II”)
On June 15, 2004, we closed our second acquisition fund, Fund II, which includes all of the
investors from Fund I as well as two additional institutional investors. With $300.0 million of
committed discretionary capital, Fund II expects to be able to acquire up to $900.0 million of real
estate assets on a leveraged basis. The Operating Partnership is the managing member with a 20%
interest in the joint venture. The terms and structure of Fund II are substantially the same as
Fund I with the exceptions that the preferred return is 8%. As of December 31, 2006, $122.6 million
has been contributed to Fund II, of which the Operating Partnership’s share is $24.5 million.
Fund II has invested in the RCP Venture and the New York Urban/Infill Redevelopment initiatives and
other investments as further discussed in “PROPERTY ACQUISITIONS” in Item 1 of Form 10-K .
New York Urban/ Infill Redevelopment Initiative
In September 2004, we, through Fund II, launched our New York Urban Infill Redevelopment
initiative. As retailers continue to recognize that many of the nation’s urban markets are
underserved from a retail standpoint, Fund II’s intent is to capitalize on this trend by investing
in redevelopment projects in dense urban areas where retail tenant demand has effectively surpassed
the supply of available sites. During 2004, Fund II, together with an unaffiliated partner, P/A,
formed Acadia-P/A for the purpose of acquiring, constructing, developing, owning, operating,
leasing and managing certain retail real estate properties in the New York City metropolitan area.
P/A has agreed to invest 10% of required capital up to a maximum of $2.2 million and Fund II, the
managing member, has agreed to invest the balance to acquire assets in which Acadia-P/A agrees to
invest. Operating cash flow is generally to be distributed pro-rata to Fund II and P/A until each
has received a 10% cumulative return and then 60% to Fund II and 40% to P/A. Distributions of net
refinancing and net sales proceeds, as defined, follow the distribution of operating cash flow
except that unpaid original capital is returned before the 60%/40% split between Fund II and P/A,
respectively. Upon the liquidation of the last property investment of Acadia-P/A, to the extent
that Fund II has not received an 18% internal rate of return (“IRR”) on all of its capital
contributions, P/A is obligated to return a portion of its previous distributions, as defined,
until Fund II has received an 18% IRR. To date, Fund II has, in conjunction with P/A, invested in
seven projects through Fund II as follows:
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| Redevelopment (dollars in millions) | ||||||||||||||||||||||||
| Anticipated | Square | |||||||||||||||||||||||
| Year | Purchase | additional | Estimated | feet upon | ||||||||||||||||||||
| Property | Location | acquired | price | costs | completion | completion | ||||||||||||||||||
Liberty Avenue (1) |
Queens | 2005 | $ | — | $ | 15.0 | 1st half 2007 | 125,000 | ||||||||||||||||
216th Street |
Manhattan | 2005 | 7.0 | 18.0 | 2nd half 2007 | 60,000 | ||||||||||||||||||
Pelham Manor Shopping Center (1) |
Westchester | 2004 | — | 40.0 | 2nd half 2008 | 320,000 | ||||||||||||||||||
161st Street |
Bronx | 2005 | 49.0 | 16.0 | 2nd half 2008 | 232,000 | ||||||||||||||||||
400 East Fordham Road |
Bronx | 2004 | 30.0 | 85.0 | 1st half 2009 | 276,000 | ||||||||||||||||||
Canarsie Plaza (2) |
Brooklyn | 2007 | — | 60.0 | 1st half 2009 | 323,000 | ||||||||||||||||||
4650 Broadway |
Manhattan | 2005 | 25.0 | 30.0 | 2nd half 2009 | 175,000 | ||||||||||||||||||
Total |
$ | 111.0 | $ | 264.0 | 1,511,000 | |||||||||||||||||||
| Notes: | ||
| (1) | Fund II acquired a leasehold interest at this property. | |
| (2) | Closing is anticipated in 2007, although such closing cannot be assured. |
Other Investments
During 2005 and 2006, we made the following other investments as further discussed in “PROPERTY
ACQUISITIONS” in Item 1 of this Form 10-K:
(i) $16.8 million in Amboy Road
(ii) $4.0 million for Klaff’s management rights
(iii) $9.8 million for Clark/Diversey
(iv) $3.2 million for Boonton Shopping Center
(v) $16.0 million for Chestnut Hill and
(vi) $18.5 million for 2914 Third Avenue.
(ii) $4.0 million for Klaff’s management rights
(iii) $9.8 million for Clark/Diversey
(iv) $3.2 million for Boonton Shopping Center
(v) $16.0 million for Chestnut Hill and
(vi) $18.5 million for 2914 Third Avenue.
Property Development, Redevelopment and Expansion
Our redevelopment program focuses on selecting well-located neighborhood and community shopping
centers and creating significant value through re-tenanting and property redevelopment.
During 2006, the Company commenced the redevelopment and re-tenanting of the Bloomfield Town
Square, located in Bloomfield Hills, Michigan. A former outparcel building, occupied by Chrysler
Dodge, was demolished and replaced with a 17,500 square foot building occupied by Drexel Heritage
and Panera Bread. The new tenants opened and commenced paying rent during the third and fourth
quarters of 2006, and are paying base rent at a 127% increase over that of Chrysler Dodge. In
addition, the Company has re-tenanted approximately 26,000 square feet to Circuit City which is
anticipated to open and commence paying rent in the fourth quarter of 2007 at a 79% increase over
that of the former tenants. Total costs for this project are anticipated to be $3.3 million.
Additionally, for the year ending December 31, 2007, we currently estimate that capital outlays of
approximately $4.8 million to $6.5 million will be required for tenant improvements, related
renovations and other property improvements.
Share Repurchase
Repurchases of our Common Shares is an additional use of liquidity as discussed in Item 5 of this
Form 10-K.
SOURCES OF LIQUIDITY
We intend on using Fund II as the primary vehicle for our future acquisitions, including
investments in the RCP Venture and New York Urban/Infill Redevelopment initiative. Sources of
capital for funding property acquisitions, redevelopment, expansion and re-tenanting, as well as
future repurchases of Common Shares are expected to be obtained primarily from issuance of public
equity or debt instruments, cash on hand, additional debt financings, unrelated member capital
contributions and future sales of existing properties. As of December 31, 2006, we had a total of
approximately $162.2 million of additional capacity under existing debt facilities, cash and cash
equivalents on hand of $139.6 million, and eight properties that are unencumbered and available as
potential collateral for future borrowings. In addition, on February 26, 2007, we through our RCP
Venture, received a cash distribution totaling approximately $42.5 million from our ownership
position in Albertsons. The Operating Partnership’s share of this distribution amounted to
approximately $8.5 million and is subject to income tax considerations. The distribution resulted
from
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cash proceeds obtained by Albertsons in connection with its disposition of certain operating
stores and a refinancing of the remaining assets held in the entity. We anticipate that cash flow
from operating activities will continue to provide adequate capital for all of our debt service
payments, recurring capital expenditures and REIT distribution requirements.
Issuance of Convertible Notes
In December 2006, we issued $100.0 million of 3.75% Convertible Notes. These Notes were issued at
par and are due in 2026. In January 2007, an option was exercised to issue an additional $15.0
million of Convertible Notes. The $112.1 million in proceeds, net of related costs, were used to
retire variable rate debt, fund capital commitments and general company purposes.
Issuance of Equity
During January 2007, we filed a shelf registration on Form S-3 providing offerings for up to a
total of $300.0 million of Common Shares, Preferred Shares and debt securities. To date, we have
not issued any securities pursuant to this shelf registration.
During November 2004, we issued 1,890,000 Common Shares (the “Offering”). The Offering was made
under shelf registration statements filed under the Securities Act of 1933, as amended, and
previously declared effective by the Securities and Exchange Commission. The $28.3 million in
proceeds from the Offering, net of related costs, were used to retire above-market, fixed-rate
indebtedness as well as to invest in real estate assets. Following this transaction, we have $46.7
million of remaining capacity to issue equity under our primary shelf registration statement.
Financing and Debt
At December 31, 2006, mortgage and convertible notes payable aggregated $445.2 million, net of
unamortized premium of $2.2 million, and were collateralized by 52 properties and related tenant
leases. Interest rates on our outstanding indebtedness ranged from 3.75% to 8.5% with maturities
that ranged from July 2007 to November 2032. Taking into consideration $16.0 million of notional
principal under variable to fixed-rate swap agreements currently in effect, $351.0 million of the
portfolio, or 79%, was fixed at a 5.2% weighted average interest rate and $94.2 million, or 21% was
floating at a 6.7% weighted average interest rate. There is $54.9 million of debt maturing in 2007
at weighted average interest rates of 6.3%. We intend to refinance the indebtedness or select
other alternatives based on market conditions at that time.
Reference is made to Note 6 and Note 7 in the Notes to Consolidated Financial Statements that begin
on page F-9 of this Form 10-K for a summary of the financing and refinancing transactions since
December 31, 2005.
Asset Sales
Asset sales are an additional source of liquidity for us. During the fourth quarter of 2006, we
sold the Soundview Marketplace, Bradford Towne Center, Greenridge Plaza, Luzerne Street Shopping
Center and Pittston Plaza. During 2005 and 2004, we sold the Berlin Shopping Center and East End
Centre. These sales are discussed in “ASSET SALES AND CAPITAL/ASSET RECYCLING” in Item 1 of this
Form 10-K.
CONTRACTUAL OBLIGATIONS AND OTHER COMMITMENTS
At December 31, 2006, maturities on our mortgage notes ranged from July 2007 to November 2032. In
addition, we have non-cancelable ground leases at seven of our shopping centers. We lease space for
its White Plains corporate office for a term expiring in 2010. The following table summarizes our
debt maturities and obligations under non-cancelable operating leases of December 31, 2006:
| Payments due by period | ||||||||||||||||||||
| Less than | 1 to 3 | 3 to 5 | More than | |||||||||||||||||
| (amounts in millions) | Total | 1 year | years | years | 5 years | |||||||||||||||
Contractual obligation |
||||||||||||||||||||
Future debt maturities |
$ | 445.2 | $ | 60.0 | $ | 57.1 | $ | 154.3 | $ | 173.8 | ||||||||||
Interest obligations on debt |
137.6 | 24.0 | 37.9 | 32.8 | 42.9 | |||||||||||||||
Operating lease obligations |
120.8 | 3.6 | 7.6 | 8.6 | 101.0 | |||||||||||||||
Total |
$ | 703.6 | $ | 87.6 | $ | 102.6 | $ | 195.7 | $ | 317.7 | ||||||||||
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OFF BALANCE SHEET ARRANGEMENTS
We have investments in the following joint ventures for the purpose of investing in operating
properties. We account for these investments using the equity method of accounting as we have a
non-controlling interest. As such, our financial statements reflect our share of income from but
not the assets and liabilities of these joint ventures.
| – | We own a 49% interest in two partnerships which own the Crossroads Shopping Center (“Crossroads”). Our pro rata share of Crossroads mortgage debt as of December 31, 2006 was $31.4 million. This fixed-rate debt bears interest at 5.4% and matures in December 2014. | ||
| – | We own a 22.2% investment in various entities which own the Brandywine Portfolio. Our pro-rata share of Brandywine debt as of December 31, 2006, was $36.9 million with a fixed interest rate of 5.99%. These loans mature on July 1, 2016. | ||
| – | We have 50% interests in two Fund I investments of which our pro-rata share of mortgage debt (net of the Fund I minority interest share) as of December 31, 2006, was $2.6 million with a weighted average interest rate of 6.97%. Both of these loans mature during August 2010. |
In addition, we have arranged for the provision of five separate letters of credit in connection
with certain leases and investments. As of December 31, 2006, there was no balance outstanding
under any of the letters of credit. If the letters of credit were fully drawn, the combined maximum
amount of exposure would be approximately $3.1 million.
HISTORICAL CASH FLOW
The following discussion of historical cash flow compares our cash flow for the year ended December
31, 2006 with our cash flow for the year ended December 31, 2005.
Cash and cash equivalents were $139.6 million and $90.5 million at December 31, 2006 and 2005,
respectively. The increase of $49.1 million was a result of the following increases and decreases
in cash flows:
| Years Ended December 31, | ||||||||||||
| (amounts in millions) | 2006 | 2005 | Variance | |||||||||
Net cash provided by operating activities |
$ | 39.6 | $ | 50.2 | $ | (10.6 | ) | |||||
Net cash used in investing activities |
(58.9 | ) | (135.5 | ) | 76.6 | |||||||
Net cash provided by financing activities |
68.4 | 159.4 | (91.0 | ) | ||||||||
Totals |
$ | 49.1 | $ | 74.1 | $ | (25.0 | ) | |||||
The variance in net cash provided by operating activities resulted from a decrease of $22.0 million
in operating income before non-cash expenses in 2006, which was primarily due to $20.9 million of
distributions of operating income from unconsolidated affiliates as a result of the distributions
from Mervyns in 2005, as well as those factors discussed within Item 2, Management’s Discussion and
Analysis of Financial Condition and Results of Operations. In addition, a net increase of $11.4
million resulted from changes in operating assets and liabilities, primarily rents receivable,
prepaid expenses and other assets.
The decrease in net cash used in investing activities was primarily the result of a $44.1 million
decrease in cash used for real estate acquisitions, development and tenant installations, $34.5
million of additional proceeds from the sale of properties in 2006, a net decrease of $28.1 million
related to the 2005 Levitz preferred equity investment (Note 4) and the 2006 Levitz note receivable
(Note 4) activity and $5.6 million of additional return of capital from unconsolidated affiliates
in 2006. These net decreases were offset by $26.2 million of additional investments in
unconsolidated partnerships, primarily the Albertsons investment in 2006 and $8.1 million of
additional notes issued in 2006.
The decrease in net cash provided by financing activities resulted primarily from $148.2 million of
additional cash used for the net repayment of debt in 2006 and $36.1 million of additional
distributions to partners and members in 2006, primarily relating to the Mervyns investment. These
net decreases were partially offset by $100.0 million of proceeds from the Convertible Debt
issuance in 2006.
37
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CRITICAL ACCOUNTING POLICIES
Management’s discussion and analysis of financial condition and results of operations is based upon
our consolidated financial statements, which have been prepared in accordance with GAAP. The
preparation of these consolidated financial statements requires management to make estimates and
judgments that affect the reported amounts of assets, liabilities, revenues and expenses. We base
our estimates on historical experience and assumptions that are believed to be reasonable under the
circumstances, the results of which form the basis for making judgments about carrying value of
assets and liabilities that are not readily apparent from other sources. Actual results may differ
from these estimates under different assumptions or conditions. We believe the following critical
accounting policies affect the significant judgments and estimates used by us in the preparation of
our consolidated financial statements.
Valuation of Property Held for Use and Sale
On a quarterly basis, we review the carrying value of both properties held for use and for sale. We
record impairment losses and reduce the carrying value of properties when indicators of impairment
are present and the expected undiscounted cash flows related to those properties are less than
their carrying amounts. In cases where we do not expect to recover our carrying costs on properties
held for use, we reduce our carrying cost to fair value. For properties held for sale, we reduce
our carrying value to the fair value less costs to sell. For the year ended December 31, 2006, no
impairment loss was recognized. For the year ended December 31, 2005, an impairment loss of $0.8
million was recognized related to a property that was sold in July of 2005. Management does not
believe that the value of any properties in its portfolio was impaired as of December 31, 2006 or
2005.
Bad Debts
We maintain an allowance for doubtful accounts for estimated losses resulting from the inability of
tenants to make payments on arrearages in billed rents, as well as the likelihood that tenants will
not have the ability to make payment on unbilled rents including estimated expense recoveries and
straight-line rent. As of December 31, 2006, we had recorded an allowance for doubtful accounts of
$3.3 million. If the financial condition of our tenants were to deteriorate, resulting in an
impairment of their ability to make payments, additional allowances may be required.
INFLATION
Our long-term leases contain provisions designed to mitigate the adverse impact of inflation on our
net income. Such provisions include clauses enabling us to receive percentage rents based on
tenants’ gross sales, which generally increase as prices rise, and/or, in certain cases, escalation
clauses, which generally increase rental rates during the terms of the leases. Such escalation
clauses are often related to increases in the consumer price index or similar inflation indexes. In
addition, many of our leases are for terms of less than ten years, which permits us to seek to
increase rents upon re-rental at market rates if current rents are below the then existing market
rates. Most of our leases require the tenants to pay their share of operating expenses, including
common area maintenance, real estate taxes, insurance and utilities, thereby reducing our exposure
to increases in costs and operating expenses resulting from inflation.
RECENTLY ISSUED ACCOUNTING PRONOUNCEMENTS
Reference is made to the Notes to Consolidated Financial Statements included in Item 8 of this Form
10-K.
38
Table of Contents
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK.
Our primary market risk exposure is to changes in interest rates related to our mortgage debt. See
the consolidated financial statements and notes thereto included in this Annual Report on Form 10-K
for certain quantitative details related to our mortgage debt.
Currently, we manage our exposure to fluctuations in interest rates primarily through the use of
fixed-rate debt and interest rate swap agreements. As of December 31, 2006, we had total mortgage
debt of $445.2 million of which $351.0 million, or 79%, was fixed-rate, inclusive of interest rate
swaps, and $94.2 million, or 21%, was variable-rate based upon LIBOR plus certain spreads. As of
December 31, 2006, we were a party to two interest rate swap transactions to hedge our exposure to
changes in interest rates with respect to $16.0 million of LIBOR-based variable-rate debt. We also
have one forward-starting interest rate swap which commences during 2007 and matures in 2012 that
will hedge our exposure to changes in interest rates with respect to $8.4 million of refinanced
LIBOR-based variable rate debt with the matching maturities.
The following table sets forth information as of December 31, 2006 concerning our long-term debt
obligations, including principal cash flows by scheduled maturity and weighted average interest
rates of maturing amounts (amounts in millions):
Consolidated mortgage debt:
| Weighted | |||||||||||||||||
| Scheduled | average | ||||||||||||||||
| Year | amortization | Maturities | Total | interest rate | |||||||||||||
2007 |
$ | 5.2 | $ | 54.9 | $ | 60.1 | 6.3 | % | |||||||||
2008 |
9.1 | 34.9 | 44.0 | 6.7 | % | ||||||||||||
2009 |
10.6 | 2.5 | 13.1 | 7.0 | % | ||||||||||||
2010 |
3.5 | 14.7 | 18.2 | 7.6 | % | ||||||||||||
2011 |
21.3 | 114.8 | 136.1 | 4.2 | % | ||||||||||||
Thereafter |
24.8 | 148.9 | 173.7 | 5.7 | % | ||||||||||||
| $ | 74.5 | $ | 370.7 | $ | 445.2 | ||||||||||||
Mortgage debt in unconsolidated partnerships (at our pro rata share):
| Weighted | ||||||||||||||||
| Scheduled | average | |||||||||||||||
| Year | amortization | Maturities | Total | interest rate | ||||||||||||
2007 |
$ | 0.4 | $ | — | $ | 0.4 | n/a | |||||||||
2008 |
0.4 | — | 0.4 | n/a | ||||||||||||
2009 |
0.5 | — | 0.5 | n/a | ||||||||||||
2010 |
0.5 | 2.5 | 3.0 | 7.0 | % | |||||||||||
2011 |
0.5 | — | 0.5 | n/a | ||||||||||||
Thereafter |
1.7 | 64.3 | 66.0 | 5.7 | % | |||||||||||
| $ | 4.0 | $ | 66.8 | $ | 70.8 | |||||||||||
Of our total consolidated and our pro-rata share of unconsolidated outstanding debt, $54.9 million
and $34.9 million will become due in 2007 and 2008, respectively. As we intend on refinancing some
or all of such debt at the then-existing market interest rates which may be greater than the
current interest rate, our interest expense would increase by approximately $0.9 million annually
if the interest rate on the refinanced debt increased by 100 basis points. Interest expense on our
variable debt of $94.2 million as of December 31, 2006 would increase $0.9 million if LIBOR
increased by 100 basis points. We may seek additional variable-rate financing if and when pricing
and other commercial and financial terms warrant. As such, we would consider hedging against the
interest rate risk related to such additional variable-rate debt through interest rate swaps and
protection agreements, or other means.
Based on our outstanding debt balances as of December 31, 2006, the fair value of our total
outstanding debt would decrease by approximately $16.4 million if interest rates increase by 1%.
Conversely, if interest rates decrease by 1%, the fair value of our total outstanding debt would
increase by approximately $17.7 million.
39
Table of Contents
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.
The financial statements beginning on page F-1 are incorporated herein by reference.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE:
None.
ITEM 9A. CONTROLS AND PROCEDURES.
(i) Disclosure Controls and Procedures
We conducted an evaluation, under the supervision and with the participation of management
including our Chief Executive Officer and Chief Financial Officer, of the effectiveness of our
disclosure controls and procedures. Based on that evaluation, the Chief Executive Officer and Chief
Financial Officer concluded that our disclosure controls and procedures were effective as of
December 31, 2006.
(ii) Internal Control Over Financial Reporting
(a) Management’s Annual Report on Internal Control Over Financial Reporting
Management of Acadia Realty Trust is responsible for establishing and maintaining adequate internal
control over financial reporting, as such term is defined in the Securities Exchange Act of 1934
Rule 13a-15(f). Under the supervision and with the participation of our management, including our
principal executive officer and principal financial officer, we conducted an evaluation of the
effectiveness of our internal control over financial reporting as of December 31, 2006 as required
by the Securities Exchange Act of 1934 Rule 13a-15(c). In making this assessment, we used the
criteria set forth in the framework in Internal Control–Integrated Framework issued by the
Committee of Sponsoring Organizations of the Treadway Commission. Based on our evaluation under the
framework in Internal Control–Integrated Framework, our management concluded that our internal
control over financial reporting was effective as of December 31, 2006.
BDO Seidman, LLP, an independent registered public accounting firm that audited our Financial
Statements included in this Annual Report, has issued an attestation report on our management’s
assessment of the effectiveness of our internal control over financial reporting as of December 31,
2006 which appears in this item 9A.
Acadia Realty Trust
White Plains, New York
March 1, 2007
March 1, 2007
40
Table of Contents
(b) Attestation report of the independent registered public accounting firm
The Shareholders and Trustees of
Acadia Realty Trust
Acadia Realty Trust
We have audited management’s assessment, included in the accompanying Management’s Report on
Internal Control Over Financial Reporting, that Acadia Realty Trust and subsidiaries maintained
effective internal control over financial reporting as of December 31, 2006, based on criteria
established in Internal Control—Integrated Framework issued by the Committee of Sponsoring
Organizations of the Treadway Commission (the COSO criteria). Acadia Realty Trust and subsidiaries’
management is responsible for maintaining effective internal control over financial reporting and
for its assessment of the effectiveness of internal control over financial reporting. Our
responsibility is to express an opinion on management’s assessment and an opinion on the
effectiveness of the company’s internal control over financial reporting based on our audit.
We conducted our audit in accordance with the standards of the Public Company Accounting Oversight
Board (United States). Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether effective internal control over financial reporting was
maintained in all material respects. Our audit included obtaining an understanding of internal
control over financial reporting, evaluating management’s assessment, testing and evaluating the
design and operating effectiveness of internal control, and performing such other procedures as we
considered necessary in the circumstances. We believe that our audit provides a reasonable basis
for our opinion.
A company’s internal control over financial reporting is a process designed to provide reasonable
assurance regarding the reliability of financial reporting and the preparation of financial
statements for external purposes in accordance with generally accepted accounting principles. A
company’s internal control over financial reporting includes those policies and procedures that (1)
pertain to the maintenance of records that, in reasonable detail, accurately and fairly reflect the
transactions and dispositions of the assets of the company; (2) provide reasonable assurance that
transactions are recorded as necessary to permit preparation of financial statements in accordance
with generally accepted accounting principles, and that receipts and expenditures of the company
are being made only in accordance with authorizations of management and directors of the company;
and (3) provide reasonable assurance regarding prevention or timely detection of unauthorized
acquisition, use, or disposition of the company’s assets that could have a material effect on the
financial statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or
detect misstatements. Also, projections of any evaluation of effectiveness to future periods are
subject to the risk that controls may become inadequate because of changes in conditions, or that
the degree of compliance with the policies or procedures may deteriorate.
In our opinion, management’s assessment that Acadia Realty Trust and subsidiaries maintained
effective internal control over financial reporting as of December 31, 2006, is fairly stated, in
all material respects, based on the COSO criteria. Also, in our opinion, Acadia Realty Trust
maintained, in all material respects, effective internal control over financial reporting as of
December 31, 2006, based on the COSO criteria.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight
Board (United States), the consolidated balance sheets of Acadia Realty Trust and subsidiaries as
of December 31, 2006 and 2005 and the related consolidated statements of income, shareholders’
equity, and cash flows for the years then ended December 31, 2006 and 2005 and our report dated March 1, 2007 expressed an unqualified opinion thereon.
/s/ BDO Seidman, LLP
New York, New York
March 1, 2007
March 1, 2007
(c) Changes in internal control over financial reporting.
There was no change in our internal control over financial reporting during our fourth fiscal
quarter ended December 31, 2006 that has materially affected, or is reasonably likely to materially
affect, our internal control over financial reporting.
ITEM 9B. OTHER INFORMATION.
None
41
Table of Contents
PART III
ITEM 10. DIRECTORS; EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE.
This item is incorporated by reference from the definitive proxy statement for the 2007 Annual
Meeting of Shareholders presently scheduled to be held May 15, 2007, to be filed pursuant to
Regulation 14A.
ITEM 11. EXECUTIVE COMPENSATION.
This item is incorporated by reference from the definitive proxy statement for the 2007 Annual
Meeting of Shareholders presently scheduled to be held May 15, 2007, to be filed pursuant to
Regulation 14A.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.
This item is incorporated by reference from the definitive proxy statement for the 2007 Annual
Meeting of Shareholders presently scheduled to be held May 15, 2007, to be filed pursuant to
Regulation 14A.
The information under Item 5 under the heading “(d) Securities authorized for issuance under equity
compensation plans” is incorporated herein by reference.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR INDEPENDENCE:
This item is incorporated by reference from the definitive proxy statement for the 2007 Annual
Meeting of Shareholders presently scheduled to be held May 15, 2007, to be filed pursuant to
Regulation 14A.
ITEM 14. PRINCIPAL ACCOUNTANT FEES AND SERVICES.
This item is incorporated by reference from the definitive proxy statement for the 2007 Annual
Meeting of Shareholders presently scheduled to be held May 15, 2007, to be filed pursuant to
Regulation 14A.
PART IV
ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES.
1. Financial Statements: See “Index to Financial Statements” at page F-1 below.
2. Financial Statement Schedule: See “Schedule III—Real Estate and Accumulated Depreciation” at
page F-41 below.
3. Exhibits:
42
Table of Contents
| Exhibit No. | Description | |
3.1
|
Declaration of Trust of the Company, as amended (1) | |
3.2
|
Fourth Amendment to Declaration of Trust (4) | |
3.3
|
Amended and Restated By-Laws of the Company (22) | |
4.1
|
Voting Trust Agreement between the Company and Yale University dated February 27, 2002 (14) | |
10.1
|
1999 Share Option Plan (8) (20) | |
10.2
|
2003 Share Option Plan (16) (20) | |
10.3
|
Form of Share Award Agreement (17) (21) | |
10.4
|
Form of Registration Rights Agreement and Lock-Up Agreement (18) | |
10.5
|
Registration Rights and Lock-Up Agreement (RD Capital Transaction) (11) | |
10.6
|
Registration Rights and Lock-Up Agreement (Pacesetter Transaction) (11) | |
10.7
|
Contribution and Share Purchase Agreement dated as of April 15, 1998 among Mark Centers Trust, Mark Centers Limited Partnership, the Contributing Owners and Contributing Entities named therein, RD Properties, L.P. VI, RD Properties, L.P. VIA and RD Properties, L.P. VIB (9) | |
10.8
|
Agreement of Contribution among Acadia Realty Limited Partnership, Acadia Realty Trust and Klaff Realty, LP and Klaff Realty, Limited (18) | |
10.9
|
Employment agreement between the Company and Kenneth F. Bernstein dated October 1998 (6) (21) | |
10.11
|
Amendment to employment agreement between the Company and Kenneth F. Bernstein dated January 19, 2007 (26) (21) | |
10.12
|
First Amendment to Employment Agreement between the Company and Kenneth Bernstein dated as of January 1, 2001 (12) (21) | |
10.14
|
Letter of employment offer between the Company and Michael Nelsen, Sr. Vice President and Chief Financial Officer dated February 19, 2003 (15) (21) | |
10.15
|
Severance Agreement between the Company and Joel Braun, Sr. Vice President, dated April 6, 2001 (13) (21) | |
10.16
|
Severance Agreement between the Company and Joseph Hogan, Sr. Vice President, dated April 6, 2001 (13) (21) | |
10.17
|
Severance Agreement between the Company and Joseph Napolitano, Sr. Vice President dated April 6, 2001 (18) (21) | |
10.18
|
Severance Agreement between the Company and Robert Masters, Sr. Vice President and General Counsel dated January 2001 (18) (21) | |
10.19
|
Severance Agreement between the Company and Michael Nelsen, Sr. Vice President and Chief Financial Officer dated February 19, 2003 (15) (21) | |
10.20
|
Secured Promissory Note between RD Absecon Associates, L.P. and Fleet Bank, N.A. dated February 8, 2000 (7) | |
10.21
|
Promissory Note between 239 Greenwich Associates, L.P. and Greenwich Capital Financial Products, Inc. dated May 30, 2003 (18) | |
10.22
|
Open-End Mortgage, Assignment of Leases and Rents, and Security Agreement between 239 Greenwich Associates, L.P. and Greenwich Capital Financial Products, Inc. dated May 30, 2003 (18) | |
10.23
|
Promissory Note between Merrillville Realty, L.P. and Sun America Life Insurance Company dated July 7, 1999 (7) | |
10.24
|
Secured Promissory Note between Acadia Town Line, LLC and Fleet Bank, N.A. dated March 21, 1999 (7) | |
10.25
|
Promissory Note between RD Village Associates Limited Partnership and Sun America Life Insurance Company Dated September 21, 1999 (7) | |
10.26
|
First Amendment to Severance Agreements between the Company and Joel Braun Executive Vice President and Chief Investment Officer, Michael Nelsen, Senior Vice President and Chief Financial Officer, Robert Masters, Senior Vice President, General Counsel, Chief Compliance Officer and Secretary and Joseph Hogan, Senior Vice President and Director of Construction dated January 19, 2007 (21) (26) | |
10.33
|
Term Loan Agreement between Acadia Realty L.P. and The Dime Savings Bank of New York, dated March 30, 2000 (10) | |
10.34
|
Mortgage Agreement between Acadia Realty L.P. and The Dime Savings Bank of New York, dated March 30, 2000 (10) | |
10.35
|
Promissory Note between RD Whitegate Associates, L.P. and Bank of America, N.A. dated December 22, 2000 (10) | |
10.36
|
Promissory Note between RD Columbia Associates, L.P. and Bank of America, N.A. dated December 22, 2000 (10) | |
10.44
|
Prospectus Supplement Regarding Options Issued under the Acadia Realty Trust 1999 Share Incentive Plan and 2003 Share Incentive Plan (19) (21) | |
10.45
|
Acadia Realty Trust 1999 Share Incentive Plan and 2003 Share Incentive Plan Deferral and Distribution Election Form (19) (21) | |
10.46
|
Amended, Restated And Consolidated Promissory Note between Acadia New Loudon, LLC and Greenwich Capital Financial Products, Inc. dated August 13, 2004 (19) |
Table of Contents
| Exhibit No. | Description | |
10.47
|
Amended, Restated And Consolidated Mortgage, Assignment Of Leases And Rents And Security Agreement between Acadia New Loudon, LLC and Greenwich Capital Financial Products, Inc. dated August 13, 2004 (19) | |
10.51
|
Mortgage, Assignment of Leases and Rents and Security Agreement between Acadia Crescent Plaza, LLC and Greenwich Capital Financial Products, Inc. dated August 31, 2005 (22) | |
10.52
|
Mortgage, Assignment of Leases and Rents and Security Agreement between Pacesetter/Ramapo Associates and Greenwich Capital Financial Products, Inc. dated October 17, 2005 (22) | |
10.53
|
Loan Agreement between RD Elmwood Associates, L.P. and Bear Stearns Commercial Finance Mortgage, Inc. dated December 9, 2005 (22) | |
10.54
|
Mortgage and Security Agreement between RD Elmwood Associates, L.P. and Bear Stearns Commercial Finance Mortgage, Inc. dated December 9, 2005 (22) | |
10.55
|
Agreement and Plan Of Merger Dated as of December 22, 2005 by and among Acadia Realty Acquisition I, LLC, Ara Btc LLC, ARA MS LLC, ARA BS LLC, ARA BC LLC and ARA BH LLC, Acadia Investors, Inc., AII BTC LLC, AII MS LLC, AII BS LLC, AII BC LLC And AII BH LLC, Samuel Ginsburg 2000 Trust Agreement #1, Martin Ginsburg 2000 Trust Agreement #1, Martin Ginsburg, Samuel Ginsburg and Adam Ginsburg, and GDC SMG, LLC, GDC Beechwood, LLC, Aspen Cove Apartments, LLC and SMG Celebration, LLC (23) | |
10.56
|
Amended and Restated Loan Agreement between Acadia Realty Limited Partnership, as lender, and Levitz SL Woodbridge, L.L.C., Levitz SL St. Paul, L.L.C., Levitz SL La Puente, L.L.C., Levitz SL Oxnard, L.L.C., Levitz SL Willowbrook, L.L.C., Levitz SL Northridge, L.L.C., Levitz SL San Leandro, L.L.C., Levitz SL Sacramento, L.L.C., HL Brea, L.L.C., HL Deptford, L.L.C., HL Hayward, L.L.C., HL San Jose, L.L.C., HL Scottsdale, L.L.C., HL Torrance, L.L.C., HL Irvine 1, L.L.C., HL West Covina, L.L.C., HL Glendale, L.L.C. and HL Northridge, L.L.C., each a Delaware limited liability company, Levitz SL Langhorne, L.P. and HL Fairless Hills, L.P., each a Delaware limited partnership (each, together with its permitted successors and assigns, a “Borrower” , and collectively, together with their respective permitted successors and assigns, “ Borrowers ”), dated June 1, 2006 (24) | |
10.57
|
Consent and Assumption Agreement between Thor Chestnut Hill, LP, Thor Chestnut Hill II, LP, Acadia Chestnut, LLC, Acadia Realty Limited Partnership and Wells Fargo Bank, N.A. dated June 9, 2006, original Mortgage and Security Agreement between Thor Chestnut Hill, LP and Thor Chestnut Hill II, LP and Column Financial, Inc. dated June 5, 2003 and original Assignment of Leases and Rents from Thor Chestnut Hill, LP and Thor Chestnut Hill II, LP to Column Financial, Inc. dated June 2003. (24) | |
10.58
|
Loan Agreement and Promissory Note between RD Woonsocket Associates, L.P. and Merrill Lynch Mortgage Lending, Inc. dated September 8, 2006 (25) | |
10.59
|
Amended and Restated Revolving Loan Agreement dated as of December 19, 2006 by and among RD Abington Associates LP, Acadia Town Line, LLC, RD Methuen Associates LP, RD Absecon Associates, LP, RD Bloomfield Associates, LP, RD Hobson Associates, LP, and RD Village Associates LP, and Bank of America, N.A. and the First Amendment to Amended and Restated Revolving Loan Agreement dated February, 2007. (26) | |
10.60
|
Loan Agreement between Bank of America, N.A. and RD Branch Associates, LP dated December 19, 2006. (26) | |
21
|
List of Subsidiaries of Acadia Realty Trust (27) | |
23.1
|
Consent of Registered Public Accounting Firm to Form S-3 and Form S-8 (27) | |
23.2
|
Consent of former Registered Public Accounting Firm to Form S-3 and Form S-8 (27) | |
31.1
|
Certification of Chief Executive Officer pursuant to rule 13a–14(a)/15d-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (26) | |
31.2
|
Certification of Chief Financial Officer pursuant to rule 13a–14(a)/15d-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (26) | |
32.1
|
Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (26) | |
32.2
|
Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (26) | |
99.1
|
Amended and Restated Agreement of Limited Partnership of the Operating Partnership (11) | |
99.2
|
First and Second Amendments to the Amended and Restated Agreement of Limited Partnership of the Operating Partnership (11) | |
99.3
|
Third Amendment to Amended and Restated Agreement of Limited Partnership of the Operating Partnership (18) | |
99.4
|
Fourth Amendment to Amended and Restated Agreement of Limited Partnership of the Operating Partnership (18) | |
99.5
|
Certificate of Designation of Series A Preferred Operating Partnership Units of Limited Partnership Interest of Acadia Realty Limited Partnership (2) | |
99.6
|
Certificate of Designation of Series B Preferred Operating Partnership Units of Limited Partnership Interest of Acadia Realty Limited Partnership (18) |
Table of Contents
| Notes: | ||
| (1) | Incorporated by reference to the copy thereof filed as an Exhibit to the Company’s Annual Report on Form 10-K filed for the fiscal Year ended December 31, 1994 | |
| (2) | Incorporated by reference to the copy thereof filed as an Exhibit to Company’s Quarterly Report on Form 10-Q filed for the quarter ended June 30, 1997 | |
| (3) | Incorporated by reference to the copy thereof filed as an Exhibit to Company’s Quarterly Report on Form 10-Q filed for the quarter ended September 30, 1998 | |
| (4) | Incorporated by reference to the copy thereof filed as an Exhibit to Company’s Quarterly Report on Form 10-Q filed for the quarter ended September 30, 1998 | |
| (5) | Incorporated by reference to the copy thereof filed as an Exhibit to the Company’s Registration Statement on Form S-11 (File No.33-60008) | |
| (6) | Incorporated by reference to the copy thereof filed as an Exhibit to the Company’s Annual Report on Form10-K filed for the fiscal year ended December 31, 1998 | |
| (7) | Incorporated by reference to the copy thereof filed as an Exhibit to the Company’s Annual Report on Form10-K filed for the fiscal year ended December 31, 1999 | |
| (8) | Incorporated by reference to the copy thereof filed as an Exhibit to the Company’s Registration Statement on Form S-8 filed September 28, 1999 | |
| (9) | Incorporated by reference to the copy thereof filed as an Exhibit to the Company’s Form 8-K filed on April 20, 1998 | |
| (10) | Incorporated by reference to the copy thereof filed as an Exhibit to the Company’s Form 10-K filed for the fiscal year ended December 31, 2000 | |
| (11) | Incorporated by reference to the copy thereof filed as an Exhibit to the Company’s Registration Statement on Form S-3 filed on March 3, 2000 | |
| (12) | Incorporated by reference to the copy thereof filed as an Exhibit to Company’s Quarterly Report on Form 10-Q filed for the quarter ended September 30, 2001 | |
| (13) | Incorporated by reference to the copy thereof filed as an Exhibit to the Company’s Annual Report on Form 10-K filed for the fiscal year ended December 31, 2001 | |
| (14) | Incorporated by reference to the copy thereof filed as an Exhibit to Yale University’s Schedule 13D filed on September 25, 2002 | |
| (15) | Incorporated by reference to the copy thereof filed as an Exhibit to the Company’s Annual Report on Form 10-K filed for the fiscal year ended December 31, 2002 | |
| (16) | Incorporated by reference to the copy thereof filed as an Exhibit to the Company’s Definitive Proxy Statement on Schedule 14A filed April 29, 2003. | |
| (17) | Incorporated by reference to the copy thereof filed as an Exhibit to the Company’s Current Report on Form 8-K filed on July 2, 2003 | |
| (18) | Incorporated by reference to the copy thereof filed as an Exhibit to the Company’s Annual Report on Form 10-K filed for the fiscal year ended December 31, 2003 | |
| (19) | Incorporated by reference to the copy thereof filed as an Exhibit to the Company’s Annual Report on Form 10-K filed for the fiscal year ended December 31, 2004. | |
| (20) | Incorporated by reference to the copy thereof filed as an Exhibit to the Company’s Annual Report on Form 10-K filed for the fiscal year ended December 31, 2004. | |
| (21) | Management contract or compensatory plan or arrangement. | |
| (22) | Incorporated by reference to the copy thereof filed as an Exhibit to the Company’s Annual Report on Form 10-K filed for the fiscal year ended December 31, 2005. | |
| (23) | Incorporated by reference to the copy thereof filed as an Exhibit to the Company’s Current Report on Form 8-K filed on January 4, 2006 | |
| (24) | Incorporated by reference to the copy thereof filed as an Exhibit to Company’s Quarterly Report on Form 10-Q filed for the quarter ended June 30, 2006 | |
| (25) | Incorporated by reference to the copy thereof filed as an Exhibit to Company’s Quarterly Report on Form 10-Q filed for the quarter ended September 30, 2006 | |
| (26) | Incorporated by reference to the copy thereof filed as an Exhibit to the Company’s Current Report on Form 8-K filed on January 19, 2007 | |
| (27) | Filed herewith. |
Table of Contents
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the undersigned, thereto duly
authorized.
| ACADIA REALTY TRUST | ||||||
| (Registrant) | ||||||
| By: | /s/ Kenneth F. Bernstein | |||||
| Kenneth F. Bernstein | ||||||
| Chief Executive Officer, | ||||||
| President and Trustee | ||||||
| By: | /s/ Michael Nelsen | |||||
| Michael Nelsen | ||||||
| Sr. Vice President and | ||||||
| Chief Financial Officer | ||||||
| By: | /s/ Jonathan W. Grisham | |||||
| Jonathan W. Grisham | ||||||
| Vice President and | ||||||
| Chief Accounting Officer |
Dated: March 1, 2007
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed
below by the following persons on behalf of the Registrant and in the capacities and on the dates
indicated.
| Signature | Title | Date | ||
/s/ Kenneth F. Bernstein (Kenneth F. Bernstein) |
Chief Executive Officer, President and Trustee (Principal Executive Officer) |
March 1, 2007 | ||
/s/ Michael Nelsen (Michael Nelsen) |
Senior Vice President and Chief Financial Officer (Principal Financial Officer) |
March 1, 2007 | ||
/s/ Jonathan W. Grisham (Jonathan W. Grisham) |
Vice President and Chief Accounting Officer (Principal Accounting Officer) |
March 1, 2007 | ||
/s/ Douglas Crocker II Douglas Crocker II |
Trustee | March 1, 2007 | ||
/s/ Alan S. Forman (Alan S. Forman) |
Trustee | March 1, 2007 | ||
/s/ Suzanne Hopgood (Suzanne Hopgood) |
Trustee | March 1, 2007 | ||
/s/ Lorrence T. Kellar Lorrence T. Kellar |
Trustee | March 1, 2007 | ||
/s/ Wendy Luscombe (Wendy Luscombe) |
Trustee | March 1, 2007 | ||
/s/ Lee S. Wielansky (Lee S. Wielansky) |
Trustee | March 1, 2007 |
Table of Contents
EXHIBIT INDEX
The following is an index to all exhibits filed with the Annual Report on Form 10-K other than
those incorporated by reference herein:
| Exhibit No. | Description | |
10.59
|
Amended and Restated Revolving Loan Agreement dated as of December 19, 2006 by and among RD Abington Associates LP, Acadia Town Line, LLC, RD Methuen Associates LP, RD Absecon Associates, LP, RD Bloomfield Associates, LP, RD Hobson Associates, LP, and RD Village Associates LP, and Bank of America, N.A. and the First Amendment to Amended and Restated Revolving Loan Agreement dated February, 2007. | |
10.60
|
Loan Agreement between Bank of America, N.A. and RD Branch Associates, LP dated December 19, 2006. | |
21
|
List of Subsidiaries of Acadia Realty Trust | |
23.1
|
Consent of Registered Public Accounting Firm to Form S-3 and Form S-8 | |
23.2
|
Consent of former Registered Public Accounting Firm to Form S-3 and Form S-8 | |
31.1
|
Certification of Chief Executive Officer pursuant to rule 13a – 14(a)/15d-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 | |
31.2
|
Certification of Chief Financial Officer pursuant to rule 13a – 14(a)/15d-14(a) of the Securities Exchange Act of 1934, as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 | |
32.1
|
Certification of Chief Executive Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 | |
32.2
|
Certification of Chief Financial Officer pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 | |
Table of Contents
ACADIA REALTY TRUST AND SUBSIDIARIES
INDEX TO FINANCIAL STATEMENTS
INDEX TO FINANCIAL STATEMENTS
| F-2 | ||||
| F-3 | ||||
| F-4 | ||||
| F-5 | ||||
| F-6 | ||||
| F-7 | ||||
| F-9 | ||||
| F-41 |
F-1
Table of Contents
Report of Independent Registered Public Accounting Firm
The Shareholders and Trustees of
Acadia Realty Trust
Acadia Realty Trust
We have audited the accompanying consolidated balance sheets of Acadia Realty Trust and subsidiaries
(the “Company”) as of December 31, 2006 and 2005 and the related consolidated statements of income,
stockholders’ equity, and cash flows for the years then ended. Our audits also included the
financial statement schedule listed on page F-1. These financial statements and
schedule are the responsibility of the Company’s management. Our responsibility is to express an
opinion on these financial statements and schedule based on our audits.
We conducted our audit in accordance with the standards of the Public Company Accounting Oversight
Board (United States). Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material misstatement. An
audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the
financial statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall financial statement
presentation. We believe that our audit provides a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in all material
respects, the consolidated financial position of Acadia Realty Trust and subsidiaries at December
31, 2006 and 2005 and the consolidated results of their operations and their cash flows for years then ended, in conformity with generally accepted
accounting principles in the United States of America. Also, in our opinion, the related financial statement
schedule, when considered in relation to the basic financial statements taken as a whole, present
fairly in all material respects the information set forth therein.
We also have audited, in accordance with the standards of the Public Company Accounting Oversight
Board (United States), the effectiveness of Acadia Realty Trust and subsidiaries’ internal control
over financial reporting as of December 31, 2006, based on criteria established in Internal
Control—Integrated Framework issued by the Committee of Sponsoring Organizations of the Treadway
Commission and our report dated March 1, 2007 expressed an unqualified opinion thereon.
As explained in Note 1 to the financial statements, effective January 1, 2006, Acadia Realty Trust
and subsidiaries adopted the provisions of Staff Accounting Bulletin 108, Considering the Effects
of Prior Year Misstatements when Qualifying Misstatements in Current Year Financial Statements.
/s/ BDO Seidman, LLP
New York, New York
March 1, 2007
March 1, 2007
F-2
Table of Contents
Report of Independent Registered Public Accounting Firm
The Shareholders and Trustees of
Acadia Realty Trust
Acadia Realty Trust
We have audited the accompanying consolidated statements of income, shareholders’ equity, and cash
flows of Acadia Realty Trust and subsidiaries (the “Company”) for the year ended December 31, 2004.
These financial statements are the responsibility of the Company’s management. Our responsibility
is to express an opinion on these financial statements based on our audit.
We conducted our audit in accordance with the standards of the Public Company Accounting Oversight
Board (United States). Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material misstatement. An
audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the
financial statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall financial statement
presentation. We believe that our audit provides a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in all material
respects, the consolidated results of Acadia Realty Trust and subsidiaries’ operations and their
cash flows for the year ended December 31, 2004, in conformity with U.S. generally accepted
accounting principles.
/s/ Ernst & Young LLP
New York, New York
November 30, 2006
November 30, 2006
F-3
Table of Contents
ACADIA REALTY TRUST AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
| December 31, | ||||||||
| 2006 | 2005 | |||||||
| (dollars in thousands) | ||||||||
ASSETS |
||||||||
Real estate: |
||||||||
Land |
$ | 152,930 | $ | 141,319 | ||||
Buildings and improvements |
497,638 | 564,779 | ||||||
Construction in progress |
26,670 | 3,808 | ||||||
| 677,238 | 709,906 | |||||||
Less: accumulated depreciation |
142,071 | 127,819 | ||||||
Net real estate |
535,167 | 582,087 | ||||||
Cash and cash equivalents |
139,571 | 90,475 | ||||||
Restricted cash |
549 | 548 | ||||||
Cash in escrow |
7,639 | 7,789 | ||||||
Investment in management contracts, net of accumulated amortization
of $3,277 and $1,938, respectively |
1,839 | 3,178 | ||||||
Investments in and advances to unconsolidated affiliates |
31,049 | 17,863 | ||||||
Rents receivable, net |
12,949 | 13,000 | ||||||
Notes receivable and preferred equity investment |
38,322 | 34,733 | ||||||
Prepaid expenses |
1,865 | 4,980 | ||||||
Deferred charges, net |
33,255 | 23,739 | ||||||
Acquired lease intangibles |
11,653 | 8,119 | ||||||
Other assets |
37,834 | 15,354 | ||||||
Assets of discontinued operations |
— | 39,726 | ||||||
| $ | 851,692 | $ | 841,591 | |||||
LIABILITIES AND SHAREHOLDERS’ EQUITY |
||||||||
Mortgage and other notes payable |
$ | 347,402 | $ | 411,000 | ||||
Convertible notes payable |
100,000 | — | ||||||
Acquired leases and other intangibles |
4,919 | 6,812 | ||||||
Accounts payable and accrued expenses |
10,548 | 18,302 | ||||||
Dividends and distributions payable |
6,661 | 6,088 | ||||||
Share of distributions in excess of share of income and investment
in unconsolidated affiliates |
21,728 | 10,315 | ||||||
Other liabilities |
5,578 | 7,144 | ||||||
Liabilities of discontinued operations |
— | 15,064 | ||||||
Total liabilities |
496,836 | 474,725 | ||||||
Minority interest in Operating Partnership |
8,673 | 9,204 | ||||||
Minority interests in partially-owned affiliates |
105,064 | 137,086 | ||||||
Total minority interests |
113,737 | 146,290 | ||||||
Shareholders’ equity: |
||||||||
Common shares, $.001 par value, authorized 100,000,000 shares,
issued and outstanding 31,772,952 and 31,542,942 shares,
respectively |
31 | 31 | ||||||
Additional paid-in capital |
227,555 | 223,199 | ||||||
Accumulated other comprehensive loss |
(234 | ) | (12 | ) | ||||
Retained earnings (deficit ) |
13,767 | (2,642 | ) | |||||
Total shareholders’ equity |
241,119 | 220,576 | ||||||
| $ | 851,692 | $ | 841,591 | |||||
The accompanying notes are an integral part of these consolidated financial statements
F-4
Table of Contents
ACADIA REALTY TRUST AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
| Years ended December 31, | ||||||||||||
| 2006 | 2005 | 2004 | ||||||||||
| (dollars in thousands except per share amounts) | ||||||||||||
Revenues |
||||||||||||
Minimum rents |
$ | 69,663 | $ | 75,441 | $ | 68,899 | ||||||
Percentage rents |
1,192 | 1,272 | 1,348 | |||||||||
Expense reimbursements |
15,048 | 14,944 | 13,336 | |||||||||
Other property income |
1,206 | 2,269 | 785 | |||||||||
Management fee income from related parties, net |
5,625 | 3,564 | 1,259 | |||||||||
Interest income |
8,311 | 3,316 | 1,245 | |||||||||
Other income |
1,648 | — | 210 | |||||||||
Total revenues |
102,693 | 100,806 | 87,082 | |||||||||
Operating Expenses
Property operating |
15,672 | 16,087 | 17,007 | |||||||||
Real estate taxes |
10,647 | 9,402 | 8,187 | |||||||||
General and administrative |
19,782 | 16,153 | 10,941 | |||||||||
Depreciation and amortization |
26,637 | 25,905 | 22,781 | |||||||||
Total operating expenses |
72,738 | 67,547 | 58,916 | |||||||||
Operating income |
29,955 | 33,259 | 28,166 | |||||||||
Equity in earnings of unconsolidated affiliates |
2,559 | 21,280 | 513 | |||||||||
Interest expense |
(22,451 | ) | (18,804 | ) | (16,687 | ) | ||||||
Gain on sale of land |
— | — | 932 | |||||||||
Minority interest |
5,223 | (13,952 | ) | (1,466 | ) | |||||||
Income from continuing operations before income taxes |
15,286 | 21,783 | 11,458 | |||||||||
Income tax benefit (expense) |
508 | (2,140 | ) | — | ||||||||
Income from continuing operations |
15,794 | 19,643 | 11,458 | |||||||||
Discontinued operations: |
||||||||||||
Operating income from discontinued operations |
2,703 | 1,823 | 1,596 | |||||||||
Impairment of real estate |
— | (770 | ) | — | ||||||||
Gain (loss) on sale of properties |
20,974 | (50 | ) | 6,696 | ||||||||
Minority interest |
(458 | ) | (20 | ) | (165 | ) | ||||||
Income from discontinued operations |
23,219 | 983 | 8,127 | |||||||||
Net income |
$ | 39,013 | $ | 20,626 | $ | 19,585 | ||||||
Basic earnings per share
Income from continuing operations |
$ | 0.49 | $ | 0.62 | $ | 0.39 | ||||||
Income from discontinued operations |
0.71 | 0.03 | 0.28 | |||||||||
Basic earnings per share |
$ | 1.20 | $ | 0.65 | $ | 0.67 | ||||||
Diluted earnings per share
Income from continuing operations |
$ | 0.48 | $ | 0.61 | $ | 0.38 | ||||||
Income from discontinued operations |
0.70 | 0.03 | 0.27 | |||||||||
Diluted earnings per share |
$ | 1.18 | $ | 0.64 | $ | 0.65 | ||||||
The accompanying notes are an integral part of these consolidated financial statements
F-5
Table of Contents
ACADIA REALTY TRUST AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF SHAREHOLDERS’ EQUITY
| Accumulated | ||||||||||||||||||||||||
| Additional | Other | Retained | Total | |||||||||||||||||||||
| Common Stock | Paid-in | Comprehensive | Earnings | Shareholders’ | ||||||||||||||||||||
| Shares | Amount | Capital | Loss | (Deficit) | Equity | |||||||||||||||||||
Balance at December 31, 2003 |
27,409 | $ | 27 | $ | 177,891 | $ | (5,505 | ) | $ | (2,679 | ) | $ | 169,734 | |||||||||||
Conversion of 746,762 OP Units to Common
Shares by limited partners of the
Operating
Partnership |
747 | 1 | 6,395 | — | — | 6,396 | ||||||||||||||||||
Shares issued to trustees and employees |
5 | — | 443 | — | — | 443 | ||||||||||||||||||
Employee restricted share award |
22 | — | 394 | — | — | 394 | ||||||||||||||||||
Settlement of vested options |
— | — | (67 | ) | — | — | (67 | ) | ||||||||||||||||
Dividends declared ($0.6525 per Common
Share) |
— | — | — | — | (19,548 | ) | (19,548 | ) | ||||||||||||||||
Employee and trustee exercise of 1,262,000
options |
1,262 | 1 | 9,265 | — | — | 9,266 | ||||||||||||||||||
Common Shares issued under Employee Stock
Purchase Plan |
6 | — | 84 | — | — | 84 | ||||||||||||||||||
Issuance of 1,890,000 Common Shares,
net of issuance costs |
1,890 | 2 | 28,310 | — | — | 28,312 | ||||||||||||||||||
Unrealized gain on valuation of swap
agreements |
— | — | — | 2,325 | — | 2,325 | ||||||||||||||||||
Net income |
— | — | — | — | 19,585 | 19,585 | ||||||||||||||||||
Total comprehensive income |
21,910 | |||||||||||||||||||||||
Balance at December 31, 2004 |
31,341 | 31 | 222,715 | (3,180 | ) | (2,642 | ) | 216,924 | ||||||||||||||||
Conversion of 796 Series A Preferred OP
Units to Common Shares by limited partners
of the Operating Partnership |
92 | — | 696 | — | — | 696 | ||||||||||||||||||
Employee restricted share awards |
52 | — | 1,030 | — | — | 1,030 | ||||||||||||||||||
Dividends declared ($0.69 per Common Share) |
— | — | (1,691 | ) | — | (20,626 | ) | (22,317 | ) | |||||||||||||||
Employee and trustee exercise of 51,200
options |
51 | — | 345 | — | — | 345 | ||||||||||||||||||
Common Shares issued under Employee Stock
Purchase Plan |
7 | — | 104 | — | — | 104 | ||||||||||||||||||
Unrealized gain on valuation of swap
agreements |
— | — | — | 3,168 | — | 3,168 | ||||||||||||||||||
Net income |
— | — | — | — | 20,626 | 20,626 | ||||||||||||||||||
Total comprehensive income |
23,794 | |||||||||||||||||||||||
Balance at December 31, 2005 |
31,543 | 31 | 223,199 | (12 | ) | (2,642 | ) | 220,576 | ||||||||||||||||
Cumulative effect of straight-line rent
adjustment |
— | — | — | — | 1,796 | 1,796 | ||||||||||||||||||
Conversion of 696 Series A Preferred OP
Units to Common Shares by limited partners
of the Operating Partnership |
93 | — | 696 | — | — | 696 | ||||||||||||||||||
Employee restricted share awards |
122 | — | 3,530 | — | — | 3,530 | ||||||||||||||||||
Dividends declared ($0.755 per Common
Share) |
— | — | — | — | (24,400 | ) | (24,400 | ) | ||||||||||||||||
Employee exercise of 7,500 options |
8 | — | 43 | — | — | 43 | ||||||||||||||||||
Common Shares issued under Employee Stock
Purchase Plan |
4 | — | 112 | — | — | 112 | ||||||||||||||||||
Redemption of 11,105 restricted Common OP
Units |
— | — | (101 | ) | — | — | (101 | ) | ||||||||||||||||
Issuance of Common Stock to Trustees |
3 | — | 76 | — | — | 76 | ||||||||||||||||||
Unrealized loss on valuation of swap
agreements |
— | — | — | (222 | ) | — | (222 | ) | ||||||||||||||||
Net income |
— | — | — | — | 39,013 | 39,013 | ||||||||||||||||||
Total comprehensive income |
38,791 | |||||||||||||||||||||||
Balance at December 31, 2006 |
31,773 | $ | 31 | $ | 227,555 | $ | (234 | ) | $ | 13,767 | $ | 241,119 | ||||||||||||
The accompanying notes are an integral part of these consolidated financial statements.
F-6
Table of Contents
ACADIA REALTY TRUST AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
| Years ended December 31, | ||||||||||||
| 2006 | 2005 | 2004 | ||||||||||
| (dollars in thousands) | ||||||||||||
CASH FLOWS FROM OPERATING ACTIVITIES: |
||||||||||||
Net income |
$ | 39,013 | $ | 20,626 | $ | 19,585 | ||||||
Adjustments to reconcile net income to net cash provided by
operating activities: |
||||||||||||
Depreciation and amortization |
27,178 | 27,747 | 25,030 | |||||||||
Gain on sale of land |
— | — | (932 | ) | ||||||||
(Gain) loss on sale of property |
(20,974 | ) | 50 | (6,696 | ) | |||||||
Impairment of real estate |
— | 770 | — | |||||||||
Minority interests |
(4,765 | ) | 13,972 | 1,631 | ||||||||
Amortization of lease intangibles |
1,080 | 980 | (519 | ) | ||||||||
Amortization of mortgage note premium |
(144 | ) | (530 | ) | (524 | ) | ||||||
Equity in earnings of unconsolidated affiliates |
(2,559 | ) | (21,280 | ) | (513 | ) | ||||||
Elimination of fees received from unconsolidated partnerships |
467 | — | — | |||||||||
Distributions recognized as income from unconsolidated affiliates |
2,810 | 21,498 | 720 | |||||||||
Amortization of derivative settlement included in interest expense |
440 | 460 | 125 | |||||||||
Provision for bad debts |
41 | 305 | 1,254 | |||||||||
Changes in assets and liabilities: |
||||||||||||
Restricted cash |
(1 | ) | 701 | (709 | ) | |||||||
Funding of escrows, net |
(1,389 | ) | (1,827 | ) | (2,063 | ) | ||||||
Rents receivable |
219 | (3,309 | ) | (1,998 | ) | |||||||
Prepaid expenses |
2,769 | (783 | ) | (442 | ) | |||||||
Other assets |
(1,801 | ) | (8,785 | ) | (3,204 | ) | ||||||
Accounts payable and accrued expenses |
(1,669 | ) | (2,826 | ) | 3,546 | |||||||
Due to/from related parties |
— | — | (344 | ) | ||||||||
Other liabilities |
(1,088 | ) | 2,470 | (62 | ) | |||||||
Net cash provided by operating activities |
39,627 | 50,239 | 33,885 | |||||||||
CASH FLOWS FROM INVESTING ACTIVITIES: |
||||||||||||
Expenditures for real estate and improvements |
(87,009 | ) | (131,077 | ) | (48,611 | ) | ||||||
Deferred acquisition and leasing costs |
(6,941 | ) | (5,670 | ) | (3,014 | ) | ||||||
Investments in and advances to unconsolidated affiliates |
(26,697 | ) | (455 | ) | (30,803 | ) | ||||||
Return of capital from unconsolidated affiliates |
28,423 | 22,847 | 15,136 | |||||||||
Collections of notes receivable |
20,948 | 1,868 | 3,929 | |||||||||
Advances of notes receivable |
(45,091 | ) | (7,914 | ) | (10,429 | ) | ||||||
Preferred equity investment |
19,000 | (19,000 | ) | — | ||||||||
Proceeds from sale of property and land |
38,477 | 3,931 | 932 | |||||||||
Net cash used in investing activities |
(58,890 | ) | (135,470 | ) | (72,860 | ) | ||||||
F-7
Table of Contents
ACADIA REALTY TRUST AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
CONSOLIDATED STATEMENTS OF CASH FLOWS
| Years ended December 31, | ||||||||||||
| 2006 | 2005 | 2004 | ||||||||||
| (dollars in thousands) | ||||||||||||
CASH FLOWS FROM FINANCING ACTIVITIES: |
||||||||||||
Principal payments on mortgage notes payable |
(168,082 | ) | (44,784 | ) | (106,639 | ) | ||||||
Proceeds received on mortgage notes payable |
159,617 | 184,466 | 94,251 | |||||||||
Proceeds from issuance of convertible debt |
100,000 | — | — | |||||||||
Payment of deferred financing and other costs |
(7,026 | ) | (2,801 | ) | (2,338 | ) | ||||||
Capital contributions from partners and members |
44,481 | 44,122 | 40,302 | |||||||||
Distributions to partners and members |
(36,120 | ) | — | (3,238 | ) | |||||||
Dividends paid |
(23,823 | ) | (21,869 | ) | (18,507 | ) | ||||||
Distributions to minority interests in Operating Partnership |
(487 | ) | (380 | ) | (416 | ) | ||||||
Distributions on preferred Operating Partnership Units |
(254 | ) | (342 | ) | (283 | ) | ||||||
Distributions to minority interests in partially-owned affiliates |
(232 | ) | (436 | ) | (1,031 | ) | ||||||
Contributions from minority interests in partially-owned affiliates |
300 | 1,000 | 1,587 | |||||||||
Redemption of Operating Partnership Units |
(246 | ) | — | — | ||||||||
Common Shares issued under Employee Stock Purchase Plan |
188 | 104 | 84 | |||||||||
Settlement of options to purchase Common Shares |
— | — | (67 | ) | ||||||||
Exercise of options to purchase Common Shares |
43 | 345 | 9,340 | |||||||||
Termination of derivative instrument |
— | — | (1,307 | ) | ||||||||
Issuance of Common Shares |
— | — | 28,312 | |||||||||
Net cash provided by financing activities |
68,359 | 159,425 | 40,050 | |||||||||
Increase in cash and cash equivalents |
49,096 | 74,194 | 1,075 | |||||||||
Cash and cash equivalents, beginning of period |
90,475 | 16,281 | 15,206 | |||||||||
Cash and cash equivalents, end of period |
$ | 139,571 | $ | 90,475 | $ | 16,281 | ||||||
Supplemental disclosure of cash flow information: |
||||||||||||
Cash paid during the period for interest, including capitalized interest of
$79, $260, and $304, respectively |
$ | 22,843 | $ | 18,799 | $ | 19,167 | ||||||
Cash paid for income taxes |
$ | 1,039 | $ | 1,512 | $ | — | ||||||
Supplemental disclosure of non-cash investing and financing activities: |
||||||||||||
Acquisition of management contract rights through issuance of Common and
Preferred Operating Partnership Units |
$ | — | $ | 4,000 | $ | 4,000 | ||||||
Accrued earn-out liability on acquired real estate |
$ | — | $ | — | $ | 12,241 | ||||||
Acquisition of real estate through assumption of debt |
$ | 22,583 | $ | — | $ | — | ||||||
Acquisition of property through issuance of Preferred Operating Partnership
Units |
$ | — | $ | 200 | $ | — | ||||||
Conversion of common equity interest into preferred equity interest in
in the Hitchcock and Pine Log investments |
$ | — | $ | 3,255 | $ | — | ||||||
Deconsolidation of the Brandywine Portfolio: |
||||||||||||
Real estate, net |
$ | 124,962 | $ | — | $ | — | ||||||
Other assets and liabilities |
(11,413 | ) | — | — | ||||||||
Mortgage debt |
(66,984 | ) | — | — | ||||||||
Minority interests |
(36,504 | ) | — | — | ||||||||
Investment in unconsolidated affiliates |
(10,428 | ) | — | — | ||||||||
Cash included in investments and advances to unconsolidated affiliates |
$ | (367 | ) | $ | — | $ | — | |||||
Acquisition of remaining interest in Tarrytown |
||||||||||||
Real estate, net |
$ | (9,260 | ) | $ | — | $ | — | |||||
Other assets and liabilities |
5,901 | — | — | |||||||||
Investment in unconsolidated affiliates |
3,469 | — | — | |||||||||
Cash included in expenditures for real estate and improvements |
$ | 110 | $ | — | $ | — | ||||||
The accompanying notes are an integral part of these consolidated financial statements.
F-8
Table of Contents
ACADIA REALTY TRUST AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. Organization, Basis of Presentation and Summary of Significant Accounting Policies
Acadia Realty Trust (the “Trust”) and subsidiaries (collectively, the “Company”) is a fully
integrated, self-managed and self-administered equity real estate investment trust (“REIT”) focused
primarily on the ownership, acquisition, redevelopment and management of retail properties,
including neighborhood and community shopping centers and mixed-use properties with retail
components.
As of December 31, 2006, the Company operated 74 properties, which it owns or has an ownership
interest in, principally located in the Northeast, Mid-Atlantic and Midwest regions of the United
States.
All of the Company’s assets are held by, and all of its operations are conducted through, Acadia
Realty Limited Partnership (the “Operating Partnership”) and entities in which the Operating
Partnership owns a controlling interest. As of December 31, 2006, the Trust controlled 98% of the
Operating Partnership as the sole general partner. As the general partner, the Trust is entitled to
share, in proportion to its percentage interest, in the cash distributions and profits and losses
of the Operating Partnership. The limited partners represent entities or individuals who
contributed their interests in certain properties or entities to the Operating Partnership in
exchange for common or preferred units of limited partnership interest (“Common or Preferred OP
Units”). Limited partners holding Common OP Units are generally entitled to exchange their units on
a one-for-one basis for common shares of beneficial interest of the Trust (“Common Shares”). This
structure is commonly referred to as an umbrella partnership REIT or “UPREIT”.
In 2001, the Company formed a partnership, Acadia Strategic Opportunity Fund I, LP (“Fund I”), and
in 2004 formed a limited liability company, Acadia Mervyn I, LLC (“Mervyns I”), with four
institutional investors. The Operating Partnership committed a total of $20.0 million to Fund I and
Mervyns I, and the four institutional shareholders committed $70.0 million, for the purpose of
acquiring a total of approximately $300.0 million in investments. As of December 31, 2006, the
Operating Partnership has contributed $16.2 million to Fund I and $2.7 million to Mervyns I.
The Operating Partnership is the sole general partner of Fund I and managing member of Mervyns I,
with a 22.2% interest in both Fund I and Mervyns I and is also entitled to a profit participation
in excess of its invested capital based on certain investment return thresholds. Decisions made by
the general partner, as it relates to purchasing, financing, and disposition of properties, are
subject to the unanimous disapproval of the Advisory Committee of Fund I, which is comprised of
representatives from each of the four institutional investors. Cash flow is distributed pro-rata to
the partners (including the Operating Partnership) until they receive a 9% cumulative return, and
the return of all capital contributions. Thereafter, remaining cash flow (which is net of
distributions and fees to the Operating Partnership for management, asset management, leasing and
construction services) was to be distributed 80% to the partners (including the Operating
Partnership) and 20% to the Operating Partnership as a carried interest (“Promote”). Following the
recapitalization of the Brandywine Portfolio in January 2006, all capital contributions and the
required 9% cumulative preferred return were distributed to the institutional investors.
Accordingly, the Operating Partnership is now entitled to a Promote on all future earnings and
distributions.
In June 2004, the Company formed a limited liability company, Acadia Strategic Opportunity Fund II,
LLC (“Fund II”), and in August 2004 formed another limited liability company, Mervyn II, LLC
(“Mervyns II”), with the investors from Fund I as well as two additional institutional investors.
With $300.0 million of committed discretionary capital, Fund II and Mervyns II expect to be able to
acquire up to $900.0 million of investments on a leveraged basis. The Operating Partnership’s share
of committed capital is $60.0 million. The Operating Partnership is the sole managing member with a
20% interest in both Fund II and Mervyns II and is also entitled to a profit participation in
excess of its invested capital based on certain investment return thresholds. The terms and
structure of Fund II are substantially the same as Fund I with the exception that the preferred
return is 8%. As of December 31, 2006, the Operating Partnership has contributed $17.1 million to
Fund II and $7.4 million to Mervyns II.
Principles of Consolidation
The consolidated financial statements include the consolidated accounts of the Company and its
controlling investments in partnerships and limited liability companies in which the Company is
presumed to have control in accordance with Emerging Issues Task Force Issue No. 04-5. The
ownership interests of other investors in these entities are recorded as minority interests. All
significant intercompany balances and transactions have been eliminated in consolidation.
Investments in entities for which the Company has the ability to exercise significant influence
over, but does not have financial or operating control, are accounted for using the equity method
of accounting. Accordingly, the Company’s share of the earnings (or loss) of these entities are
included in consolidated net income.
F-9
Table of Contents
ACADIA REALTY TRUST AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. Organization, Basis of Presentation and Summary of Significant Accounting Policies, continued
Principles of Consolidation, continued
Variable interest entities within the scope of Financial Accounting Statements Board (“FASB”)
Interpretation No. 46, “Consolidation of Variable Interest Entities” (“FIN 46-R”) are required to
be consolidated by their primary beneficiary. The primary beneficiary of a variable interest entity
is determined to be the party that absorbs a majority of the entity’s expected losses, receives a
majority of its expected returns, or both. Management has evaluated the applicability of FIN 46-R
to its investments in certain joint ventures and determined that these joint ventures do not meet
the requirements of a variable interest entity and, therefore, consolidation of these ventures is
not required. Accordingly, these investments are accounted for using the equity method.
On January 4, 2006, Fund I recapitalized its investment in a one million square foot shopping
center portfolio located in Wilmington, Delaware (“Brandywine Portfolio”). The recapitalization
was effected through the conversion of the 77.8% interest which was previously held by the
institutional investors in Fund I to affiliates of GDC Properties (“GDC”) through a merger of
interests in exchange for cash. The Operating Partnership has retained its existing 22.2% interest
in the Brandywine Portfolio in partnership with GDC and continues to operate the portfolio and earn
fees for such services. Following the January 2006 recapitalization of the Brandywine Portfolio,
the Company no longer has a controlling interest in this investment and, accordingly, currently
accounts for this investment under the equity method of accounting.
Investments in and Advances to Unconsolidated Joint Ventures
The Company accounts for its investments in unconsolidated joint ventures using the equity method
as it does not exercise control over significant asset decisions such as buying, selling or
financing nor is it the primary beneficiary under FIN 46R, as discussed above. Under the equity
method, the Company increases its investment for its proportionate share of net income and
contributions to the joint venture and decreases its investment balance by recording its
proportionate share of net loss and distributions. The Company recognizes income for distributions
in excess of its investment where there is no recourse to the Company. For investments in which
there is recourse to the Company, distributions in excess the investment are recorded as a
liability.
The Company periodically reviews its investment in unconsolidated joint ventures for other
temporary declines in market value. Any decline that is not expected to be recovered in the next
twelve months is considered other than temporary and an impairment charge is recorded as a
reduction in the carrying value of the investment. No impairment charges were recognized in the
years ended December 31, 2006, 2005 and 2004.
Use of Estimates
Accounting principles generally accepted in the United States of America (“GAAP”) require the
Company’s management to make estimates and assumptions that affect the amounts reported in the
financial statements and accompanying notes. The most significant assumptions and estimates relate
to the valuation of real estate, depreciable lives, revenue recognition and the collectability of
trade accounts receivable. Application of these assumptions requires the exercise of judgment as to
future uncertainties and, as a result, actual results could differ from these estimates.
Real Estate
Real estate assets are stated at cost less accumulated depreciation. Expenditures for acquisition,
development, construction and improvement of properties, as well as significant renovations are
capitalized. Interest costs are capitalized until construction is substantially complete.
Construction in progress includes costs for significant shopping center expansion and
redevelopment. Depreciation is computed on the straight-line basis over estimated useful lives of
30 to 40 years for buildings and the shorter of the useful life or lease term for improvements,
furniture, fixtures and equipment. Expenditures for maintenance and repairs are charged to
operations as incurred.
Upon acquisitions of real estate, the Company assesses the fair value of acquired assets (including
land, buildings and improvements, and identified intangibles such as above and below market leases
and acquired in-place leases and customer relationships) and acquired liabilities in accordance
with Statement of Financial Accounting Standards (“SFAS”) No. 141, “Business Combinations” and SFAS
No. 142,” Goodwill and Other Intangible Assets”, and allocates purchase price based on these
assessments. The Company assesses fair value based on estimated cash flow projections that utilize
appropriate discount and capitalization rates and available market information. Estimates of future
cash flows are based on a number of factors including the historical operating results, known
trends, and market/economic conditions that may affect the property.
F-10
Table of Contents
The Company reviews its long-lived assets used in operations for impairment when there is an event,
or change in circumstances that indicates impairment in value. The Company records impairment
losses and reduces the carrying value of properties when indicators of impairment are present and
the expected undiscounted cash flows related to those properties are less than their carrying
amounts. In cases where the Company does not expect to recover its carrying costs on properties
held for use, the Company reduces its carrying cost to fair value, and for properties held for
sale, the Company reduces its carrying value to the fair value less costs to sell. During the year
ended December 31, 2005, an impairment loss of $0.8 million was recognized related to a property
that was sold in July of 2005. Management does not believe that the values of its properties within
the portfolio are impaired as of December 31, 2006.
Sale of Real Estate Assets
The Company recognizes property sales in accordance with SFAS No. 66, “Accounting for Sales of Real
Estate.” The Company generally records the sales of operating properties and outparcels using the
full accrual method at closing when the warnings process is deemed to be complete. Sales not
qualifying for full recognition at the time of sale are accounted for under other appropriate
deferral methods.
Investment in Real Estate –Held-for Sale
The Company evaluates the held-for-sale classification of its real estate each quarter. Assets that
are classified as held-for-sale are recorded at the lower of their carrying amount or fair value
less cost to sell. Assets are generally classified as held-for-sale once management commits to a
plan to sell the properties and has initiated an active program to market them for sale. The
results of operations of these real estate properties are reflected as discontinued operations in
all periods reported.
On occasion, the Company will receive unsolicited offers from third parties to buy individual
Company properties. Under these circumstances, the Company will classify the properties as
held-for-sale when a sales contract is executed with no contingencies and the prospective buyer has
funds at risk to ensure performance.
Deferred Costs
Fees and costs paid in the successful negotiation of leases have been deferred and are being
amortized on a straight-line basis over the terms of the respective leases. Fees and costs incurred
in connection with obtaining financing have been deferred and are being amortized over the term of
the related debt obligation.
Management Contracts
Income from management contracts, net of sub-management fees of $0.3 million and $1.6 million for
the years ended December 31, 2005 and 2004 respectively, is recognized on an accrual basis as such
fees are earned. The initial acquisition cost of the management contracts is being amortized over
the estimated lives of the contracts acquired.
F-11
Table of Contents
ACADIA REALTY TRUST AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. Organization, Basis of Presentation and Summary of Significant Accounting Policies, continued
Revenue Recognition and Accounts Receivable
Leases with tenants are accounted for as operating leases. Minimum rents are recognized on a
straight-line basis over the term of the respective leases. As of December 31, 2006 and 2005
unbilled rents receivable relating to straight-lining of rents were $6.2 million and $8.8 million,
respectively and deferred rents related to the straight lining of rents were $2.9 million and $2.5
million, respectively. Certain of these leases also provide for percentage rents based upon the
level of sales achieved by the tenant. Percentage rents are recognized in the period when the
tenants’ sales breakpoint is met. In addition, leases typically provide for the reimbursement to
the Company of real estate taxes, insurance and other property operating expenses. These
reimbursements are recognized as revenue in the period the expenses are incurred.
The Company makes estimates of the uncollectability of its accounts receivable related to base
rents, expense reimbursements and other revenues. An allowance for doubtful accounts has been
provided against certain tenant accounts receivable that are estimated to be uncollectible. Once
the amount is ultimately deemed to be uncollectible, it is written off. Rents receivable at
December 31, 2006 and 2005 are shown net of an allowance for doubtful accounts of $3.3 million and
$3.2 million, respectively. Interest income from notes receivable is recognized on an accrual basis
based on the contractual terms of the notes.
Cash and Cash Equivalents
The Company considers all highly liquid investments with an original maturity of three months or
less when purchased to be cash equivalents.
Restricted Cash and Cash in Escrow
Restricted cash and cash in escrow consists principally of cash held for real estate taxes,
property maintenance, insurance, minimum occupancy and property operating income requirements at
specific properties as required by certain loan agreements.
Income Taxes
The Company has made an election to be taxed, and believes it qualifies as a REIT under Sections
856 through 860 of the Internal Revenue Code of 1986, as amended (the “Code”). To maintain REIT
status for Federal income tax purposes, the Company is generally required to distribute to its
stockholders at least 90% of its REIT taxable income as well as comply with certain other
requirements as defined by the Code. Accordingly, the Company is not subject to federal corporate
income tax to the extent that it distributes 100% of its REIT taxable income each year.
Although it may qualify for REIT status for Federal income tax purposes, the Company is subject to
state income or franchise taxes in certain states in which some of its properties are located. In
addition, taxable income from non-REIT activities managed through the Company’s taxable REIT
subsidiaries (“TRS”) are subject to Federal, state and local income taxes.
TRS income taxes are accounted for under the asset and liability method as required SFAS No. 109,
“Accounting for Income Taxes”. Under the asset and liability method, deferred income taxes are
recognized for the temporary differences between the financial reporting basis and the tax basis of
the TRS assets and liabilities.
F-12
Table of Contents
ACADIA REALTY TRUST AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. Organization, Basis of Presentation and Summary of Significant Accounting Policies, continued
Stock-based Compensation
Prior to 2002, the Company accounted for stock options under Accounting Principles Board Opinion
No. 25, “Accounting for Stock Issued to Employees” and related interpretations. Effective January
1, 2002, the Company adopted the fair value method of recording stock-based compensation contained
in SFAS No. 123, “Accounting for Stock-Based Compensation” and SFAS No. 123R effective June 30,
2005. As such, all stock options granted after December 31, 2001 are reflected as compensation
expense in the Company’s consolidated financial statements over their vesting period based on the
fair value at the date the stock-based compensation was granted. As provided for in SFAS No. 123,
the Company elected the “prospective method” for the adoption of the fair value basis method of
accounting for employee stock options. Under this method, the recognition provisions have been
applied to all employee awards granted, modified or settled after January 1, 2002. The following
table illustrates the effect on net income and earnings per share if the Company had applied the
fair value based method of accounting for stock-based employee compensation for vested stock
options granted prior to January 1, 2002.
| Year ended | ||||
| December 31, | ||||
| (dollars in thousands) | 2004 | |||
Net income: |
||||
As reported |
$ | 19,585 | ||
Pro forma |
$ | 19,561 | ||
Basic earnings per share: |
||||
As reported |
$ | 0.67 | ||
Pro forma |
$ | 0.67 | ||
Diluted earnings per share: |
||||
As reported |
$ | 0.65 | ||
Pro forma |
$ | 0.65 | ||
Recent Accounting Pronouncements
In February 2006, the FASB issued SFAS No. 155, “Accounting for Certain Hybrid Financial
Instruments — an amendment of FASB Statements No. 133 and No. 140”. This Statement amends SFAS No.
133, “Accounting for Derivative Instruments and Hedging Activities”, and SFAS No. 140, “Accounting
for Transfers and Servicing of Financial Assets and Extinguishments of Liabilities” and resolves
issues addressed in SFAS No. 133 Implementation Issue No. D1, “Application of SFAS No. 133 to
Beneficial Interests in Securitized Financial Assets.” This Statement (a) permits fair value
remeasurement for any hybrid financial instrument that contains an embedded derivative that
otherwise would require bifurcation, (b) clarifies which interest-only strips and principal-only
strips are not subject to the requirements of SFAS No. 133, (c) establishes a requirement to
evaluate interests in securitized financial assets to identify interests that are freestanding
derivatives or that are hybrid financial instruments that contain an embedded derivative requiring
bifurcation, (d) clarifies that concentrations of credit risk in the form of subordination are not
embedded derivatives and (e) amends SFAS No. 140 to eliminate the prohibition on a qualifying
special-purpose entity from holding a derivative financial instrument that pertains to a beneficial
interest other than another derivative financial instrument. This Statement is effective for all
financial instruments acquired or issued after the beginning of an entity’s first fiscal year that
begins after September 15, 2006. The Company is currently evaluating the effect of the adoption of
SFAS No. 155.
In June 2006, the FASB issued Interpretation No. 48, “Accounting for Uncertainty in Income Taxes -
an interpretation of SFAS No. 109.” (“Interpretation No. 48”), Interpretation No. 48 defines a
recognition threshold and measurement attribute for the financial statement recognition and
measurement of a tax position taken or expected to be taken in a tax return. Interpretation No. 48
also provides guidance on derecognition, classification, interest and penalties, accounting in
interim periods, disclosure, and transition. Interpretation No. 48 is effective for fiscal years
beginning after December 15, 2006. The adoption of Interpretation No. 48 on its effective date will
not have an effect on the Company’s consolidated financial statements.
F-13
Table of Contents
ACADIA REALTY TRUST AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. Organization, Basis of Presentation and Summary of Significant Accounting Policies, continued
In September 2006, the SEC issued Staff Accounting Bulletin (SAB) No. 108 “Considering the Effects
of Prior Year Misstatements when Quantifying Misstatements in Current Year Financial Statements.”
This Bulletin provides guidance on the consideration of the effects of prior year misstatements in
quantifying current year misstatements for the purpose of a materiality assessment. The guidance in
this Bulletin must be applied to financial reports covering the first fiscal year ending after
November 15, 2006. As a result of the adoption of SAB No. 108, the Company recorded a $1.8 million
cumulative effect of straight-line rent adjustment for prior years effective January 1, 2006. This
adjustment was the result of changing the calculation of tenants straight-line rent from rent
commencement date to the date the tenant took possession of the space. This adjustment is reflected
in the Company’s balance sheet as an increase to both rents receivable, net and retained earnings.
In September 2006, the FASB issued SFAS No. 157 “Fair Value Measurements.” This SFAS defines fair
value, establishes a framework for measuring fair value in generally accepted accounting principles
(“GAAP”), and expands disclosures about fair value measurements. This Statement applies to
accounting pronouncements that require or permit fair value measurements, except for share-based
payments transactions under SFAS No. 123. This Statement is effective for financial statements
issued for fiscal years beginning after November 15, 2007. As SFAS No. 157 does not require any new
fair value measurements or remeasurements of previously computed fair values, the Company does not
believe adoption of SFAS No. 157 will have a material effect on its financial statements.
On February 15, 2007, the FASB issued SFAS Statement No. 159, “The Fair Value Option for Financial
Assets and Financial Liabilities”. This Statement permits companies and not-for-profit
organizations to make a one-time election to carry eligible types of financial assets and
liabilities at fair value, even if fair value measurement is not required under GAAP.
SFAS 159 is effective for fiscal years beginning after November 15, 2007. The Company is
currently evaluating the effect of the adoption of SFAS No. 159.
Comprehensive income
The following table sets forth comprehensive income for the years ended December 31, 2006, 2005 and
2004:
| Years ended December 31, | ||||||||||||
| (dollars in thousands) | 2006 | 2005 | 2004 | |||||||||
Net income |
$ | 39,013 | $ | 20,626 | $ | 19,585 | ||||||
Other comprehensive income (loss) |
(222 | ) | 3,168 | 2,325 | ||||||||
Comprehensive income |
$ | 38,791 | $ | 23,794 | $ | 21,910 | ||||||
Notes: |
Other Comprehensive income relates to the changes in the fair value of
derivative instruments accounted for as cash flow hedges. |
The following table sets forth the change in accumulated other comprehensive loss for the years
ended December 31, 2006, 2005 and 2004:
Accumulated other comprehensive income (loss)
| Years ended December 31, | ||||||||||||
| (dollars in thousands) | 2006 | 2005 | 2004 | |||||||||
Beginning balance |
$ | (12 | ) | $ | (3,180 | ) | $ | (5,505 | ) | |||
Unrealized gain (loss)
on valuation of
derivative instruments |
(222 | ) | 3,168 | 2,325 | ||||||||
Ending balance |
$ | (234 | ) | $ | (12 | ) | $ | (3,180 | ) | |||
F-14
Table of Contents
ACADIA REALTY TRUST AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
2. Acquisition and Disposition of Properties and Discontinued Operations
A. Acquisition and Disposition of Properties
Currently the primary vehicles for the Company’s acquisitions are Funds I and II (Note 1).
Dispositions relate to the sale of shopping centers and land. Gains from these sales are recognized
in accordance with the provisions of SFAS No. 66, “Accounting for Sales of Real Estate”.
Acquisitions
On January 12, 2006, the Company closed on a 19,265 square foot retail building in the Lincoln Park
district in Chicago. The property was acquired from an affiliate of Klaff (Note 4) for a purchase
price of $9.9 million, including the assumption of existing mortgage debt in the principal amount
of $3.8 million.
On January 24, 2006, the Company acquired a 60% interest in the A&P Shopping Plaza located in
Boonton, New Jersey. The property, which is 100% occupied and located in northeastern New Jersey,
is a 63,000 square foot shopping center anchored by a 49,000 square foot A&P Supermarket. A
portion of the remaining 40% interest is owned by a principal of P/A Associates, LLC (“P/A”). The
interest was acquired for $3.2 million. There is an existing first mortgage debt of $8.6 million
encumbering the property.
On June 16, 2006, the Company purchased 8400 and 8625 Germantown Road in Philadelphia, Pennsylvania
for $16.0 million. The Company assumed a $10.1 million first mortgage loan which has a maturity
date of June 11, 2013. The 40,570 square foot property is 100% occupied.
On September 21, 2006, the Company purchased 2914 Third Avenue in the Bronx, New York for $18.5
million. The 41,305 square foot property is 100% occupied.
F-15
Table of Contents
ACADIA REALTY TRUST AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
2. Acquisition and Disposition of Properties and Discontinued Operations, continued
Acquisitions, continued
On April 6, 2005, in conjunction with an investment partner, P/A Associates, LLC (“P/A”), Fund II,
through Acadia-P/A Holding Company, LLC (“Acadia-P/A”) purchased a 140,000 square foot building
located in the Washington Heights section of Manhattan, New York for a purchase price of $25.0
million. In September 2005, Acadia-P/A obtained a mortgage loan of $19.0 million secured by this
property which requires monthly payments of interest only at a fixed interest rate of 5.26% and
matures September 2007.
During July 2005, Fund II, in conjunction with its partners in the Retailer Controlled Property
Venture, invested $1.0 million for a 50% interest in a leasehold located in Rockville, Maryland.
During July of 2005, the Company purchased 4343 Amboy Road located in Staten Island, New York for
$16.6 million in cash and $0.2 million in Common OP Units.
On August 5, 2005, Acadia-P/A purchased 260 East 161st Street in the Bronx, New York for $49.4
million, inclusive of closing and other related acquisition costs. Concurrent with the closing,
Acadia-P/A obtained a short term loan of $12.1 million which bears interest at LIBOR plus 150 basis
points and matured March 2006. In March 2006, the Company obtained a construction loan of $30
million which bears interest at LIBOR plus 140 basis points and matures on April 2008.
On November 3, 2005, Fund II acquired a 36-year ground lease interest for a 112,000 square foot
building located at Oakbrook Center in the Chicago Metro Area for $6.9 million, including closing
and other acquisition costs. The ground lease expires in July 2017 and has three 10-year-options.
The current tenant’s lease expires in October 2011 with four 5-year-options at the current rent
plus one 15-year option at fair market value.
In December 2005, Acadia-P/A acquired a 65,000 square foot parking garage located at 10th Avenue in
Manhattan, New York for $7.0 million, including closing and other acquisition costs. Concurrent
with the closing, Acadia-P/A obtained a $4.9 million short term loan which matured on March 31,
2006 and bore interest at LIBOR plus 125 basis points. In July 2006, the Company obtained a
construction loan of $19.2 million which bears interest at LIBOR plus 125 basis points and matures
on December 31, 2008. As of December 31, 2006, the amount outstanding on this loan was $6.4
million.
Also in December 2005, Acadia-P/A acquired the remaining 40-year term of a leasehold interest on
land located at Liberty Avenue in Queens, New York for $0.3 million.
In March, 2004, the Company, through a newly-formed joint venture with an unaffiliated third-party
10% investor, acquired a $9.6 million first mortgage loan secured by a shopping center in Aiken,
South Carolina, which was in default, for $5.5 million and subsequently acquired the fee interest
in this property through a deed in lieu of foreclosure. In September, 2004 this joint venture
acquired an adjacent property for a cash price of $1.5 million. In the fourth quarter of 2005, the
Company exchanged its common equity interest in these properties for a 15% preferred equity
position. As a result of the afore-mentioned exchange, as of December 31, 2005, the Company
accounts for this investment under the equity method (Note 4).
On September 29, 2004, Acadia-P/A purchased 400 East Fordham Road in the Bronx, New York for $30.2
million, inclusive of closing and other related acquisition costs for cash. Subsequent to the
closing, Acadia P/A financed this acquisition with an $18.0 million mortgage loan from a bank which
bears interest at LIBOR plus 175 basis points and matures November 2007. On February 25, 2005,
Acadia-P/A purchased a parcel of land adjacent to 400 E. Fordham Road for $0.9 million, inclusive
of closing and related acquisition costs.
On October 1, 2004, Acadia-P/A entered into a 95-year ground lease to redevelop a 16-acre site in
Pelham Manor, Westchester County, New York.
F-16
Table of Contents
ACADIA REALTY TRUST AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
2. Acquisition and Disposition of Properties and Discontinued Operations, continued
Dispositions
On November 3, 2006, the Company sold Bradford Town Centre, a 257,123 square foot shopping center
in Towanda, Pennsylvania, for $16.0 million which resulted in a $5.6 million gain on the sale.
On November 28, 2006, the Company sold three properties, Greenridge Plaza, a 191,767 square foot
shopping center in Scranton, Pennsylvania, for $10.6 million which resulted in a $4.7 million gain
on the sale, Luzerne Street Center, a 58,035 square foot shopping center in Scranton, Pennsylvania,
for $3.6 million which resulted in a $2.5 million gain on the sale and Pittston Plaza, a 79,498
square foot shopping center in Pittston, Pennsylvania, for $6.0 million which resulted in a $0.5
million gain on the sale.
On December 14, 2006, the Company sold Soundview Marketplace, a 183,815 square foot shopping center
in Port Washington, New York, for $24.0 million which resulted in a $7.9 million gain on the sale.
On July 7, 2005, the Company sold Berlin Shopping Center for $4.0 million. An impairment loss of
$0.8 million was recognized for the year ended December 31, 2005, to reduce the carrying value of
this asset to fair value less costs to sell.
On November 22, 2004, the Company sold East End Centre, a 308,000 square foot shopping center in
Wilkes-Barre, Pennsylvania, for approximately $12.4 million which resulted in a $6.7 million gain
on the sale.
B. Discontinued Operations
SFAS No. 144 requires discontinued operations presentation for disposals of a “component” of an
entity. In accordance with SFAS No. 144, for all periods presented, the Company reclassified its
consolidated statements of income to reflect income and expenses for properties which became held
for sale subsequent to December 31, 2001, as discontinued operations and reclassified its
consolidated balance sheets to reflect assets and liabilities related to such properties as assets
and liabilities related to discontinued operations.
The combined results of operations of sold properties are reported separately as discontinued
operations for the year ended December 31, 2006. These are related to the dispositions listed
above.
The combined assets and liabilities and results of operations of the properties classified as
discontinued operations are summarized as follows:
| December 31, | ||||
| (dollars in thousands) | 2005 | |||
ASSETS |
||||
Net real estate |
$ | 35,538 | ||
Rent receivable, net |
2,214 | |||
Other assets |
1,974 | |||
Total assets |
$ | 39,726 | ||
LIABILITIES AND DEFICIT |
||||
Mortgage notes payable |
$ | 13,800 | ||
Accounts payable and accrued expenses |
653 | |||
Other liabilities |
611 | |||
Total liabilities |
15,064 | |||
Surplus |
24,662 | |||
Total liabilities and surplus |
$ | 39,726 | ||
F-17
Table of Contents
ACADIA REALTY TRUST AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
2. Acquisition and Disposition of Properties and Discontinued Operations, continued
B. Discontinued Operations, continued
| Years ended December 31, | ||||||||||||
| (dollars in thousands) | 2006 | 2005 | 2004 | |||||||||
Total revenues |
$ | 8,466 | $ | 9,437 | $ | 11,113 | ||||||
Total expenses |
5,763 | 7,614 | 9,517 | |||||||||
| 2,703 | 1,823 | 1,596 | ||||||||||
Impairment of real estate |
— | (770 | ) | — | ||||||||
(Loss) gain on sale of properties |
20,974 | (50 | ) | 6,696 | ||||||||
Minority interest |
(458 | ) | (20 | ) | (165 | ) | ||||||
Income from discontinued operations |
$ | 23,219 | $ | 983 | $ | 8,127 | ||||||
3. Segment Reporting
The Company has two reportable segments: retail properties and multi-family properties. The
accounting policies of the segments are the same as those described in the summary of significant
accounting policies. The Company evaluates property performance primarily based on net operating
income before depreciation, amortization and certain nonrecurring items. The reportable segments
are managed separately due to the differing nature of the leases and property operations associated
with the retail versus residential tenants. The following table sets forth certain segment
information for the Company, reclassified for discontinued operations, as of and for the years
ended December 31, 2006, 2005, and 2004 (does not include unconsolidated affiliates):
2006
| Retail | Multi-Family | All | ||||||||||||||
| (dollars in thousands) | Properties | Properties | Other | Total | ||||||||||||
Revenues |
$ | 79,399 | $ | 7,710 | $ | 15,584 | $ | 102,693 | ||||||||
Property operating expenses and real estate taxes |
22,011 | 4,308 | — | 26,319 | ||||||||||||
Other Expenses |
15,298 | 1,482 | 3,002 | 19,782 | ||||||||||||
Net property income before depreciation and amortization |
$ | 42,090 | $ | 1,920 | $ | 12,582 | $ | 56,592 | ||||||||
Depreciation and amortization |
$ | 24,659 | $ | 1,510 | $ | 468 | $ | 26,637 | ||||||||
Interest expense |
$ | 21,000 | $ | 1,451 | $ | — | $ | 22,451 | ||||||||
Real estate at cost |
$ | 634,815 | $ | 42,423 | $ | — | $ | 677,238 | ||||||||
Total assets |
$ | 774,905 | $ | 36,626 | $ | 40,161 | $ | 851,692 | ||||||||
Expenditures for real estate and improvements |
$ | 86,219 | $ | 790 | $ | — | $ | 87,009 | ||||||||
Reconciliation to net income |
||||||||||||||||
Net property income before depreciation and amortization |
$ | 56,592 | ||||||||||||||
Depreciation and amortization |
(26,637 | ) | ||||||||||||||
Equity in earnings of unconsolidated partnerships |
2,559 | |||||||||||||||
Interest expense |
(22,451 | ) | ||||||||||||||
Income from discontinued operations |
23,219 | |||||||||||||||
Income taxes |
508 | |||||||||||||||
Minority interest |
5,223 | |||||||||||||||
Net income |
$ | 39,013 | ||||||||||||||
F-18
Table of Contents
ACADIA REALTY TRUST AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
3. Segment Reporting, continued
2005
| Retail | Multi-Family | All | ||||||||||||||
| (dollars in thousands) | Properties | Properties | Other | Total | ||||||||||||
Revenues |
$ | 86,070 | $ | 7,688 | $ | 7,048 | $ | 100,806 | ||||||||
Property operating expenses and real estate taxes |
21,236 | 4,253 | — | 25,489 | ||||||||||||
Other Expenses |
9,396 | 267 | 6,490 | 16,153 | ||||||||||||
Net property income before depreciation and amortization |
$ | 55,438 | $ | 3,168 | $ | 558 | $ | 59,164 | ||||||||
Depreciation and amortization |
$ | 23,989 | $ | 1,465 | $ | 451 | $ | 25,905 | ||||||||
Interest expense |
$ | 17,449 | $ | 1,355 | $ | — | $ | 18,804 | ||||||||
Real estate at cost |
$ | 668,273 | $ | 41,633 | $ | — | $ | 709,906 | ||||||||
Total assets |
$ | 755,691 | $ | 37,295 | $ | 48,605 | $ | 841,591 | ||||||||
Expenditures for real estate and improvements |
$ | 130,059 | $ | 1,018 | $ | — | $ | 131,077 | ||||||||
Reconciliation to net income |
||||||||||||||||
Net property income before depreciation and amortization |
$ | 59,164 | ||||||||||||||
Depreciation and amortization |
(25,905 | ) | ||||||||||||||
Equity in earnings of unconsolidated partnerships |
21,280 | |||||||||||||||
Interest expense |
(18,804 | ) | ||||||||||||||
Income from discontinued operations |
983 | |||||||||||||||
Income taxes |
(2,140 | ) | ||||||||||||||
Minority interest |
(13,952 | ) | ||||||||||||||
Net income |
$ | 20,626 | ||||||||||||||
2004
| Retail | Multi-Family | All | ||||||||||||||
| (dollars in thousands) | Properties | Properties | Other | Total | ||||||||||||
Revenues |
$ | 76,529 | $ | 7,596 | $ | 2,957 | $ | 87,082 | ||||||||
Property operating expenses and real estate taxes |
21,060 | 4,134 | — | 25,194 | ||||||||||||
Other expenses |
7,593 | 490 | 2,858 | 10,941 | ||||||||||||
Net property income before depreciation and amortization |
$ | 47,876 | $ | 2,972 | $ | 99 | $ | 50,947 | ||||||||
Depreciation and amortization |
$ | 21,020 | $ | 1,433 | $ | 328 | $ | 22,781 | ||||||||
Interest expense |
$ | 15,169 | $ | 1,518 | $ | — | $ | 16,687 | ||||||||
Real estate at cost |
$ | 558,943 | $ | 40,615 | $ | — | $ | 599,558 | ||||||||
Total assets |
$ | 579,110 | $ | 36,872 | $ | 20,749 | $ | 636,731 | ||||||||
Expenditures for real estate and improvements |
$ | 47,769 | $ | 842 | $ | — | $ | 48,611 | ||||||||
Reconciliation to net income |
||||||||||||||||
Net property income before depreciation and amortization |
$ | 50,947 | ||||||||||||||
Depreciation and amortization |
(22,781 | ) | ||||||||||||||
Equity in earnings of unconsolidated partnerships |
513 | |||||||||||||||
Interest expense |
(16,687 | ) | ||||||||||||||
Gain on sale of land |
932 | |||||||||||||||
Income from discontinued operations |
8,127 | |||||||||||||||
Minority interest |
(1,466 | ) | ||||||||||||||
Net income |
$ | 19,585 | ||||||||||||||
F-19
Table of Contents
ACADIA REALTY TRUST AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
4. Investments
A. Investments In and Advances to Unconsolidated Affiliates
Retailer Controlled Property Venture
On January 27, 2004, the Company entered into the Retailer Controlled Property Venture (“RCP
Venture”) with Klaff Realty, L.P. (“Klaff”) and Klaff’s long-time capital partner Lubert-Adler
Management, Inc. (“Lubert-Adler”) for the purpose of making investments in surplus or underutilized
properties owned by retailers. On September 2, 2004, affiliates of Fund I and Fund II, through
separately organized, newly formed limited liability companies on a non-recourse basis, invested in
the acquisition of Mervyns through the RCP Venture, which, as part of an investment consortium of
Sun Capital and Cerberus, acquired Mervyns from Target Corporation. The total acquisition price was
$1.2 billion, with such affiliates’ combined $24.6 million share of the investment divided equally
between them. The Operating Partnership’s share of the Mervyns investment totaled $5.2 million.
Since inception, Mervyns I and II received distributions totaling $50.8 million and recognized
income of $23.1 million. For the year ended December 31, 2006, Mervyns I and II received
distributions of $4.6 million and recognized $2.2 million of income representing the excess
distribution over its remaining capital.
During 2006, the RCP Venture made its second investment with its participation in the acquisition
of Albertsons. Affiliates of Fund II, through the same limited liability companies which were
formed for the investment in Mervyns, invested $20.7 million in the acquisition of Albertsons
through the RCP Venture, along with others as part of an investment consortium. The Operating
Partnership’s share of the invested capital was $4.2 million.
During 2006, Fund II made additional investments of $4.1 million, through the RCP Venture, in two
Albertsons investments, Camellia and Newkirk, and in Shopko and Marsh. The Operating Partnership’s
share of the additional investments totaled $0.7 million. Consequently, the Company accounts for
these investments using the cost method due to the minor ownership percent interest and the
inability to exert influence over the partnership’s operating and financial policies.
Brandywine Portfolio
On January 4, 2006, the institutional investors of Fund I transferred their 77.8% interest in the
Brandywine Portfolio into affiliates of GDC in exchange for cash. The Operating Partnership
transferred its 22.2% share of the Brandywine Portfolio into affiliates of GDC in exchange for a
22.2% interest in such affiliates. Prior to the closing of this transaction, the Operating
Partnership provided $17.6 million of mortgage financing secured by certain properties within the
Brandywine Portfolio. This financing was repaid in June 2006.
Other Investments
Fund I Investments
Fund I has joint ventures with third party investors in the ownership and operation of Hitchcock
Plaza, Pine Log Plaza, Sterling Heights Shopping Center, and Haygood Shopping Center. The Hitchcock
Plaza is a 234,000 square foot shopping center located in Aiken, South Carolina. Adjacent to the
Hitchcock Plaza is the 35,000 square foot Pine Log Plaza. Sterling Heights Shopping Center is a
155,000 square foot community shopping center located in Detroit, Michigan. Lastly, Haygood
Shopping Center is a 178,000 square foot center located in Virginia Beach, Virginia. The
investments in these properties are accounted for using the equity method of accounting.
In the fourth quarter 2006, Fund I completed the purchase of the remaining 50% interest in the
Tarrytown Centre, a 35,000 square foot center located in Westchester, New York, from its
unaffiliated partner. This investment, which had previously been accounted for using the equity
method, is now consolidated.
Fund II Investments
Fund II acquired for $1.0 million, a 50% equity interest from its partner in the RCP Venture in the
entity which has a leasehold interest in a former Levitz Furniture store located in Rockville,
Maryland. The investment in this property is accounted for using the equity method of accounting.
Crossroads
The Company owns a 49% interest in the Crossroads Joint Venture and Crossroads II Joint Venture
(collectively, “Crossroads”), which collectively own a 311,000 square foot shopping center in White
Plains, New York. The Company accounts for its investment in Crossroads using the equity method.
The unamortized excess of the Company’s investment over its share of the net equity in Crossroads
at the date of acquisition was $19.6 million. The portion of this excess attributable to buildings
and improvements are being amortized over the life of the related property.
F-20
Table of Contents
ACADIA REALTY TRUST AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
4. Investments, continued
A. Investments In and Advances to Unconsolidated Affiliates, continued
The following tables summarize the Company’s investment in unconsolidated subsidiaries as of
December 31, 2006, December 31, 2005 and December 31, 2004. The Investment in Mervyns represents
the Company’s share of the investment through the RCP Venture.
| December 31, 2006 | ||||||||||||||||||||
| Brandywine | Other | |||||||||||||||||||
| (dollars in thousands) | Mervyns | Portfolio | Crossroads | Investments | Total | |||||||||||||||
Balance Sheets |
||||||||||||||||||||
Assets |
||||||||||||||||||||
Rental property, net |
$ | — | $ | 127,146 | $ | 6,017 | $ | 43,660 | $ | 176,823 | ||||||||||
Investment in unconsolidated affiliates |
385,444 | — | — | — | 385,444 | |||||||||||||||
Other assets |
— | 6,747 | 4,511 | 6,632 | 17,890 | |||||||||||||||
Total assets |
$ | 385,444 | $ | 133,893 | $ | 10,528 | $ | 50,292 | $ | 580,157 | ||||||||||
Liabilities and partners’ equity |
||||||||||||||||||||
Mortgage note payable |
$ | — | $ | 166,200 | $ | 64,000 | $ | 28,558 | $ | 258,758 | ||||||||||
Other liabilities |
— | 12,709 | 1,858 | 8,862 | 23,429 | |||||||||||||||
Partners equity (deficit) |
385,444 | (45,016 | ) | (55,330 | ) | 12,872 | 297,970 | |||||||||||||
Total liabilities and partners’ equity |
$ | 385,444 | $ | 133,893 | $ | 10,528 | $ | 50,292 | $ | 580,157 | ||||||||||
Company’s investment in unconsolidated
affiliates |
$ | 23,539 | $ | — | $ | — | $ | 7,510 | $ | 31,049 | ||||||||||
Share of distributions in excess of
share of income and investment in
unconsolidated affiliates |
$ | — | $ | (10,541 | ) | $ | (11,187 | ) | $ | — | $ | (21,728 | ) | |||||||
| Year ended December 31, 2006 | ||||||||||||||||||||
| Brandywine | Other | |||||||||||||||||||
| (dollars in thousands) | Mervyns | Portfolio | Crossroads | Investments | Total | |||||||||||||||
Statements of Operations |
||||||||||||||||||||
Total revenue |
$ | — | $ | 18,324 | $ | 9,208 | $ | 3,707 | $ | 31,239 | ||||||||||
Operating and other expenses |
— | 4,800 | 3,121 | 2,295 | 10,216 | |||||||||||||||
Interest expense |
— | 12,066 | 3,485 | 1,448 | 16,999 | |||||||||||||||
Equity in earnings (loss) of affiliates |
(4,554 | ) | — | — | — | (4,554 | ) | |||||||||||||
Depreciation and amortization |
— | 2,947 | 580 | 1,416 | 4,943 | |||||||||||||||
Net income (loss) |
$ | (4,554 | ) | $ | (1,489 | ) | $ | 2,022 | $ | (1,452 | ) | $ | (5,473 | ) | ||||||
Company’s share of net income |
2,212 | (31 | ) | 991 | (221 | ) | 2,951 | |||||||||||||
Amortization of excess investment |
— | — | 392 | — | 392 | |||||||||||||||
Company’s share of net income (loss) |
$ | 2,212 | $ | (31 | ) | $ | 599 | $ | (221 | ) | $ | 2,559 | ||||||||
F-21
Table of Contents
ACADIA REALTY TRUST AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
4. Investments, continued
A. Investments In and Advances to Unconsolidated Affiliates, continued
| December 31, 2005 | ||||||||||||||||
| Other | ||||||||||||||||
| (dollars in thousands) | Mervyns | Crossroads | Investments | Total | ||||||||||||
Balance Sheets |
||||||||||||||||
Assets |
||||||||||||||||
Rental property, net |
$ | — | $ | 6,458 | $ | 31,093 | $ | 37,551 | ||||||||
Investment in unconsolidated affiliates |
9,401 | — | — | 9,401 | ||||||||||||
Other assets |
— | 5,543 | 8,708 | 14,251 | ||||||||||||
Total assets |
$ | 9,401 | $ | 12,001 | $ | 39,801 | $ | 61,203 | ||||||||
Liabilities and partners’ equity |
||||||||||||||||
Mortgage note payable |
$ | — | $ | 64,000 | $ | 16,340 | $ | 80,340 | ||||||||
Other liabilities |
— | 2,359 | 5,265 | 7,624 | ||||||||||||
Partners equity (deficit) |
9,401 | (54,358 | ) | 18,196 | (26,761 | ) | ||||||||||
Total liabilities and partners’ equity |
$ | 9,401 | $ | 12,001 | $ | 39,801 | $ | 61,203 | ||||||||
Company’s investment in unconsolidated affiliates |
$ | 2,722 | $ | — | $ | 15,141 | $ | 17,863 | ||||||||
Share of distributions in excess of share of
income and investment in unconsolidated
affiliates |
$ | — | $ | (10,315 | ) | $ | — | $ | (10,315 | ) | ||||||
| Year ended December 31, 2005 | ||||||||||||||||
| Other | ||||||||||||||||
| (dollars in thousands) | Mervyns | Crossroads | Investments | Total | ||||||||||||
Statements of Operations |
||||||||||||||||
Total revenue |
$ | — | $ | 8,772 | $ | 3,778 | $ | 12,550 | ||||||||
Operating and other expenses |
— | 2,581 | 2,206 | 4,787 | ||||||||||||
Interest expense |
— | 3,632 | 906 | 4,538 | ||||||||||||
Equity in earnings of affiliates |
181,543 | — | — | 181,543 | ||||||||||||
Depreciation and amortization |
— | 654 | 927 | 1,581 | ||||||||||||
Net income (loss) |
$ | 181,543 | $ | 1,905 | $ | (261 | ) | $ | 183,187 | |||||||
Company’s share of net income |
20,902 | 988 | (218 | ) | 21,672 | |||||||||||
Amortization of excess investment |
— | 392 | — | 392 | ||||||||||||
Company’s share of net income (loss) |
$ | 20,902 | $ | 596 | $ | (218 | ) | $ | 21,280 | |||||||
F-22
Table of Contents
ACADIA REALTY TRUST AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
4. Investments, continued
A. Investments In and Advances to Unconsolidated Affiliates, continued
| Year ended December 31, 2004 | ||||||||||||
| Other | ||||||||||||
| (dollars in thousands) | Crossroads | Investments | Total | |||||||||
Statements of Operations |
||||||||||||
Total revenue |
$ | 8,160 | $ | 380 | $ | 8,540 | ||||||
Operating and other expenses |
2,707 | — | 2,707 | |||||||||
Interest expense |
2,740 | 384 | 3,124 | |||||||||
Depreciation and amortization |
778 | 416 | 1,194 | |||||||||
Net income (loss) |
$ | 1,935 | $ | (420 | ) | $ | 1,515 | |||||
Company’s share of net income |
1,112 | (207 | ) | 905 | ||||||||
Amortization of excess investment |
392 | — | 392 | |||||||||
Company’s share of net income (loss) |
$ | 720 | $ | (207 | ) | $ | 513 | |||||
B. Notes Receivable and Preferred Equity Investment
In March 2005, the Company invested $20.0 million in a preferred equity position (“Preferred Equity
Investment”) with Levitz SL, L.L.C. (“Levitz SL”), the owner of fee and leasehold interests in 30
locations (the “Levitz Properties”) totaling 2.5 million square feet, of which the majority are
currently leased to Levitz Furniture Stores (which filed for bankruptcy protection under Chapter 11
in October 2005). Klaff Realty L.P. (“Klaff”) is a managing member of Levitz SL. The Preferred
Equity Investment received a return of 10%, plus a minimum return of capital of $2.0 million per
annum. During March 2006, the rate of return was reset to the six-month LIBOR plus 644 basis points
or 11.5%.
In June 2006, the Company converted the Preferred Equity Investment to a first mortgage loan in the
amount of $31.3 million. The loan has a maturity date of May 31, 2008 and has an interest rate of
10.5%. The loan was secured by fee and leasehold mortgages as well as a pledge of the entities
owning 19 of the Levitz Properties totaling 1.8 million square feet. During the third quarter of
2006, Levitz SL sold one of the Levitz Properties located in Northridge, California and used $20.4
million of the proceeds to partially pay down the loan. As of December 31, 2006, the loan balance
amounted to $10.9 million and is included in Notes Receivable and Preferred Equity Investment on
the consolidated balance sheet. Management believes that the underlying value of the real estate
is sufficient to recover the mortgage and accordingly, no reserve is required at December 31, 2006.
5. Deferred Charges
Deferred charges consist of the following as of December 31, 2006 and 2005:
| December 31, | ||||||||
| 2006 | 2005 | |||||||
| (dollars in thousands) | ||||||||
Deferred financing costs |
$ | 15,684 | $ | 9,631 | ||||
Deferred leasing and other costs |
31,848 | 25,855 | ||||||
| 47,532 | 35,486 | |||||||
Accumulated amortization |
(14,277 | ) | (11,747 | ) | ||||
| $ | 33,255 | $ | 23,739 | |||||
F-23
Table of Contents
ACADIA REALTY TRUST AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
6. Mortgage and Other Notes Payable
At December 31, 2006, mortgage and other notes payable were
collateralized by 52 properties and related tenant leases. Interest rates on our outstanding
mortgage indebtedness ranged from 5.0% to 8.5% with maturities that ranged from July 2007 to
November 2032. Certain loans are cross-collateralized and cross-defaulted. The loan agreements
contain customary representations, covenants and events of default. Certain loan agreements require
the Company to comply with certain affirmative and negative covenants, including the maintenance of
certain debt service coverage and leverage ratios.
On January 12, 2006, in conjunction with the purchase of a property, the Company assumed a loan of
$3.8 million which bears interest at a fixed rate of 8.5% and matures on April 11, 2028.
On January 24, 2006, in conjunction with the purchase of a partnership interest, the Company
assumed a loan of $8.6 million which bears interest at a fixed rate of 6.4% and matures on November
1, 2032.
On February 22, 2006, the Company refinanced a property within its existing portfolio for $20.5
million. This loan bears interest at a fixed rate of 5.4% and matures on March 1, 2016.
On March 27, 2006, the Company refinanced a property for $30.0 million. This loan bears interest
at LIBOR plus 140 basis points and matures on April 1, 2008. A portion of the proceeds were used
to pay down the existing $12.1 million of debt on this property.
On May 18, 2006, the Company closed on a construction loan for a property up to $12.0 million.
This loan bears interest at LIBOR plus 165 basis points and matures on May 18, 2009. Proceeds from
this loan will be drawn down as needed and will be used to fund construction work. As of December
31, 2006, the amount outstanding on this loan was $5.4 million.
On June 16, 2006, in conjunction with the purchase of a property, the Company assumed a loan of
$10.1 million which bears interest at a fixed rate of 5.45% and matures on June 11, 2013.
On July 12, 2006, the Company closed on a construction loan for a property for $19.2 million. This
loan bears interest at LIBOR plus 125 basis points and matures on December 31, 2008. Proceeds from
this loan will be drawn down as needed and will be used to fund construction work. As of December
31, 2006, the amount outstanding on this loan was $6.4 million.
On September 8, 2006, the Company financed a property for $23.5 million. This loan bears interest
at a fixed rate of 6.06% and matures on August 29, 2016.
On November 3, 2006, in conjunction with the sale of a property, the Company paid off $5.3 million
of debt. This loan was cross-collateralized with another property. As part of the payoff, the
other property mortgage balance was reduced by $1.5 million.
On December 14, 2006, in conjunction with the sale of a property, the Company paid off $8.2 million
of debt.
On December 18, 2006, the Company paid off $2.5 million on an existing loan. The remaining balance
on this loan is $2.9 million.
On December 19, 2006, the Company modified two existing facilities with the Bank of America which
were collateralized by eight of the Company’s properties into a new $75.0 million revolving credit
facility collateralized by seven of the properties and a new $16.0 million term loan on the
remaining property. Utilizing the proceeds from the issuance of convertible debt (Note 7) the
Company paid off the existing facilities balances in December 2006. The new $75.0 million revolving
credit facility, which can be increased up to $88.0 million based on collateral performance, bears
interest at LIBOR plus 125 basis points and matures on December 1, 2010. As of December 31, 2006,
there was no outstanding balance on this facility. The new $16.0 million term loan bears interest
at LIBOR plus 130 basis points and matures on December 1, 2011. The above transactions were
reflected as a modification of debt in accordance with Emerging Issues Task Force No. 96-19,
“Debtors Accounting for Modifications or Exchange of Debt Instruments”.
During March 2005, the Company obtained a secured revolving line of credit with a bank for $70.0
million. The revolving line of credit bears interest rate either at Prime plus 0% or LIBOR plus
0.75% at borrower’s option. The loan matures at the earlier of three years or the date on which
capital commitments have been fully drawn. As of December 31, 2005, the outstanding balance on
this facility was $24.4 million. On January 18, 2006, the Company drew an additional $1.8 million
on this facility. On April 21, 2006, the Company paid down $15.0 million on this facility. On
June 1, 2006, the Company drew an additional $19.2 million on this facility. On June 22, 2006, the
entire existing balance of $30.4 million was paid off by the Company.
F-24
Table of Contents
ACADIA REALTY TRUST AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
6. Mortgage and Other Notes Payable, continued
The following table summarizes our mortgage indebtedness as of December 31, 2006 and December
31, 2005:
| December 31, | December | Interest Rate at | Properties | Payment | ||||||||||||||||||
| (dollars in thousands) | 2006 | 31, 2005 | December 31, 2006 | Maturity | Encumbered | Terms | ||||||||||||||||
Mortgage notes
payable–variable-rate |
||||||||||||||||||||||
Washington Mutual Bank, FA |
$ | 21,524 | $ | 23,669 | 6.83% (LIBOR + 1.50%) | 4/1/2011 | (1 | ) | (31 | ) | ||||||||||||
Bank of America, N.A. |
9,925 | 10,082 | 6.73% (LIBOR + 1.40%) | 6/29/2012 | (2 | ) | (31 | ) | ||||||||||||||
RBS Greenwich Capital |
30,000 | — | 6.73% (LIBOR + 1.40%) | 4/1/2008 | (3 | ) | (32 | ) | ||||||||||||||
Bank of America, N.A. |
6,424 | 4,900 | 6.58% (LIBOR + 1.25%) | 12/31/2008 | (4 | ) | (32 | ) | ||||||||||||||
PNC Bank, National Association |
5,363 | — | 6.98% (LIBOR + 1.65%) | 5/18/2009 | (5 | ) | (39 | ) | ||||||||||||||
JP Morgan Chase |
2,939 | 5,570 | 7.33% (LIBOR + 2.00%) | 10/5/2007 | (6 | ) | (31 | ) | ||||||||||||||
Bank of China, New York Branch |
18,000 | 18,000 | 7.08% (LIBOR + 1.75%) | 11/1/2007 | (7 | ) | (32 | ) | ||||||||||||||
Bank of America, N.A. |
16,000 | — | 6.63% (LIBOR + 1.30%) | 12/1/2011 | (8 | ) | (31 | ) | ||||||||||||||
Bank of America, N.A. |
— | — | 6.58% (LIBOR + 1.25%) | 12/1/2010 | (9 | ) | (33 | ) | ||||||||||||||
Bank of America, N.A. |
— | 22,000 | 6.63% (LIBOR + 1.30%) | 6/1/2010 | (10 | ) | (32 | ) | ||||||||||||||
Bank of America, N.A. |
— | 44,485 | 6.73% (LIBOR + 1.40%) | 6/29/2012 | (11 | ) | (33 | ) | ||||||||||||||
Bank of America, N.A. |
— | 12,066 | 6.83% (LIBOR + 1.50%) | 2/1/2006 | (3 | ) | (32 | ) | ||||||||||||||
Bank of America, N.A. |
— | 24,400 | ||||||||||||||||||||
Interest rate swaps |
(16,002 | ) | (92,376 | ) | ||||||||||||||||||
Total variable-rate debt |
94,173 | 72,796 | ||||||||||||||||||||
F-25
Table of Contents
ACADIA REALTY TRUST AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
6. Mortgage and Other Notes Payable, continued
| Interest Rate at | ||||||||||||||||||||||||
| December 31, | December 31, | December 31, | Properties | Payment | ||||||||||||||||||||
| (dollars in thousands) | 2006 | 2005 | 2006 | Maturity | Encumbered | Terms | ||||||||||||||||||
Mortgage notes payable – fixed-rate |
||||||||||||||||||||||||
Sun America Life Insurance Company |
$ | 12,665 | $ | 12,936 | 6.46 | % | 7/1/2007 | (12 | ) | (31 | ) | |||||||||||||
Bank of America, N.A. |
15,686 | 15,882 | 7.55 | % | 1/1/2011 | (13 | ) | (31 | ) | |||||||||||||||
RBS Greenwich Capital |
15,672 | 15,894 | 5.19 | % | 6/1/2013 | (14 | ) | (31 | ) | |||||||||||||||
RBS Greenwich Capital |
14,940 | 15,000 | 5.64 | % | 9/6/2014 | (15 | ) | (31 | ) | |||||||||||||||
RBS Greenwich Capital |
17,600 | 17,600 | 4.98 | % | 9/6/2015 | (16 | ) | (34 | ) | |||||||||||||||
RBS Greenwich Capital |
12,500 | 12,500 | 5.12 | % | 11/6/2015 | (17 | ) | (35 | ) | |||||||||||||||
Bear Stearns Commercial |
34,600 | 34,600 | 5.53 | % | 1/1/2016 | (18 | ) | (36 | ) | |||||||||||||||
Bear Stearns Commercial |
20,500 | — | 5.44 | % | 3/1/2016 | (19 | ) | (32 | ) | |||||||||||||||
LaSalle Bank, N.A. |
3,782 | — | 8.50 | % | 4/11/2028 | (20 | ) | (31 | ) | |||||||||||||||
GMAC Commercial |
8,565 | — | 6.40 | % | 11/1/2032 | (21 | ) | (31 | ) | |||||||||||||||
Column Financial, Inc. |
9,997 | — | 5.45 | % | 6/11/2013 | (22 | ) | (31 | ) | |||||||||||||||
Merrill Lynch Mortgage Lending, Inc. |
23,500 | — | 6.06 | % | 8/29/2016 | (23 | ) | (37 | ) | |||||||||||||||
Bank of China |
19,000 | 19,000 | 5.26 | % | 9/1/2007 | (24 | ) | (32 | ) | |||||||||||||||
Cortlandt Deposit Corp |
7,425 | 9,900 | 6.62 | % | 2/1/2009 | (25 | ) | (38 | ) | |||||||||||||||
Cortlandt Deposit Corp |
7,339 | 9,785 | 6.51 | % | 1/15/2009 | (26 | ) | (38 | ) | |||||||||||||||
The Ohio National Life Insurance Co. |
4,526 | 4,667 | 8.20 | % | 6/1/2022 | (27 | ) | (31 | ) | |||||||||||||||
Canada Life Insurance Company |
6,743 | 6,945 | 8.00 | % | 1/1/2023 | (28 | ) | (31 | ) | |||||||||||||||
UBS Warburg Real Estate |
— | 30,000 | 4.69 | % | 2/11/2008 | (29 | ) | (32 | ) | |||||||||||||||
UBS Warburg Real Estate |
— | 21,018 | 7.01 | % | 7/11/2012 | (29 | ) | (31 | ) | |||||||||||||||
UBS Warburg Real Estate |
— | 15,964 | 7.32 | % | 6/11/2012 | (30 | ) | (31 | ) | |||||||||||||||
Interest rate swaps |
16,002 | 92,376 | 6.28 | % | (40 | ) | ||||||||||||||||||
Total fixed-rate debt |
251,042 | 334,067 | ||||||||||||||||||||||
Total fixed and variable debt |
345,215 | 406,863 | ||||||||||||||||||||||
Valuation premium on assumption of
debt net of amortization |
2,187 | 4,137 | ||||||||||||||||||||||
Total |
$ | 347,402 | $ | 411,000 | ||||||||||||||||||||
| Notes: | ||
(1)
|
Ledgewood Mall | (15 | ) | New Loudon Center | ||||
(2)
|
Smithtown Shopping Center | (16 | ) | Crescent Plaza | ||||
(3)
|
244-268 161 st Street | (17 | ) | Pacesetter Park Shopping Center | ||||
(4)
|
216 th Street | (18 | ) | Elmwood Park Shopping Center | ||||
(5)
|
Liberty Avenue | (19 | ) | Gateway Shopping Center | ||||
(6)
|
Granville Center | (20 | ) | Clark-Diversey | ||||
(7)
|
400 East Fordham Road | (21 | ) | Boonton | ||||
(8)
|
Branch Shopping Center | (22 | ) | Chestnut Hill | ||||
(9)
|
Marketplace of Absecon | (23 | ) | Walnut Hill | ||||
| Bloomfield Town Square | (24 | ) | Sherman Avenue | |||||
| Hobson West Plaza | (25 | ) | Kroger Portfolio | |||||
| Village Apartments | (26 | ) | Safeway Portfolio | |||||
| Town Line Plaza | (27 | ) | Amherst Marketplace | |||||
| Methuen Shopping Center | (28 | ) | Sheffield Crossing | |||||
| Abington Towne Center | (29 | ) | Brandywine Town Center | |||||
(10)
|
Bloomfield Town Square | (30 | ) | Market Square Shopping Center | ||||
| Hobson West Plaza | (31 | ) | Monthly principal and interest. | |||||
| Marketplace of Absecon | (32 | ) | Interest only monthly. | |||||
| Village Apartments | (33 | ) | Annual principal and monthly interest. | |||||
(11)
|
Abington Towne Center | (34 | ) | Interest only monthly until 9/10; monthly principal and interest thereafter. | ||||
| Branch Shopping Center | (35 | ) | Interest only monthly until 11/08; monthly principal and interest thereafter. |
F-26
Table of Contents
ACADIA REALTY TRUST AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
6. Mortgage Loans, continued
| Methuen Shopping Center | (36 | ) | Interest only monthly until 1/10; monthly principal and interest thereafter. | |||||
| Town Line Plaza | (37 | ) | Interest only monthly until 11/11; monthly principal and interest thereafter. | |||||
(12)
|
Merrillville Plaza | (38 | ) | Annual principal and semi-annual interest payments. | ||||
(13)
|
GHT Apartments/Colony Apartments | (39 | ) | Interest only upon draw down on construction loan. | ||||
(14)
|
239 Greenwich Avenue | (40 | ) | Maturing between 1/1/10 and 10/1/11. |
In connection with the assumption of debt in accordance with the requirements of SFAS No.
141, the Company has recorded a valuation premium which is being amortized to interest expense over
the remaining terms of the underlying mortgage loans.
7. Convertible Notes Payable
In December 2006, the Company issued $100.0 million of convertible notes due 2026 (the “Convertible
Notes”). The Convertible Notes were issued at par and pay interest in cash semi-annually in
arrears on June 15 and December 15 of each year, beginning on June 15, 2007. The Convertible Notes
are unsecured unsubordinated obligations and rank equally with all other unsecured and
unsubordinated indebtedness. There was an option to increase the issuance of the Convertible Notes
by an additional $15.0 million, which was exercised on January 8, 2007, resulting in additional
proceeds of $14.7 million. The Convertible Notes have an initial conversion price of $30.86 per
share. Upon conversion of the Convertible Notes, the Company will deliver cash and, in some
circumstances, Common Shares, as specified in the indenture relating to the Convertible Notes. The
Convertible Notes may only be converted prior to maturity: (i) during any calendar quarter
beginning after December 31, 2006 (and only during such calendar quarter), if, and only if, the
closing sale price of the Company’s Common Shares for at least 20 trading days (whether consecutive
or not) in the period of 30 consecutive trading days ending on the last trading day of the
preceding calendar quarter is greater than 130% of the conversion price per common share in effect
on the applicable trading day; or (ii) during the five consecutive trading-day period following
any five consecutive trading-day period in which the trading price of the notes was less than 98%
of the product of the closing sale price of the Company’s Common Shares multiplied by the
applicable conversion rate; or (iii) if those notes have been called for redemption, at any time
prior to the close of business on the second business day prior to the redemption date; or (iv) if
the Company’s Common Shares are not listed on a United States national or regional securities
exchange for 30 consecutive trading days. Prior to December 20, 2011, the Company will not have the
right to redeem Convertible Notes, except to preserve its status as a REIT. After December 20,
2011, the Company will have the right to redeem the notes, in whole or in part, at any time and
from time to time, for cash equal to 100% of the principal amount of the notes plus any accrued and
unpaid interest to, but not including, the redemption date. The Holders of notes may require us to
repurchase their notes, in whole or in part, on December 20, 2011, December 15, 2016, and December
15, 2021 for cash equal to 100% of the principal amount of the notes to be repurchased plus any
accrued and unpaid interest to, but not including, the repurchase date.
F-27
Table of Contents
ACADIA REALTY TRUST AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
7. Convertible Notes Payable, continued
If certain change of control transactions occur prior to December 20, 2011 and a holder elects to
the Convertible Notes in connection with any such transaction, the Company will increase the
conversion rate in connection with such conversion by a number of additional common shares based on
the date such transaction becomes effective and the price paid per common share in such
transaction. The conversion rate may also be adjusted under certain other circumstances, including
the payment of cash dividends in excess of our current regular quarterly cash dividend of $0.20 per
Common Share, but will be not adjusted for accrued and unpaid interest on the notes.
Upon a conversion of notes, the Company will deliver cash and, at the Company’s election, its
Common Shares, with an aggregate value, which the Company refers to as the “conversion value”,
equal to the conversion rate multiplied by the average price of the Company’s Common Shares as
follows: (i) an amount in cash which the Company refers to as the “principal return”, equal to the
lesser of (a) the principal amount of the converted notes and (b) the conversion value; and (ii) if
the conversion value is greater than the principal return, an amount with a value equal to the
difference between the conversion value and the principal return, which the Company refers to as
the “new amount”. The net amount may be paid, at the Company’s option, in cash, its Common Shares
or a combination of cash and its Common Shares.
The scheduled principal repayments of all indebtedness as of December 31, 2006 are as follows:
2007 |
$ | 60,033 | ||
2008 |
43,951 | |||
2009 |
13,172 | |||
2010 |
18,235 | |||
2011 |
136,054 | |||
Thereafter |
173,770 | |||
| $ | 445,215 | |||
8. Shareholders’ Equity and Minority Interests
Common Shares
In March of 2004, a secondary public offering was completed for a total of 5,750,000 Common Shares.
The selling shareholders, Yale University and its affiliates (“Yale”) and Ross Dworman, a former
trustee, sold 4,191,386 and 1,558,614 Common Shares, respectively. The Company did not sell any
Common Shares in the offering and did not receive any proceeds from the offering.
During November 2004, the Company issued 1,890,000 Common Shares (the “Offering”). The $28.3
million in proceeds from the Offering, net of related costs, was used to retire above-market,
fixed-rate indebtedness as well as to invest in real estate assets. Yale and Kenneth F. Bernstein,
the Company’s Chief Executive Officer, also sold 1,000,000, and 110,000 Common Shares,
respectively, in connection with this transaction. Mr. Bernstein sold 110,000 Common Shares in
connection with his exercise of options to purchase 150,000 Common Shares. In October 2005, the
Board of Trustees approved a resolution permitting one of its institutional shareholders, which at
the time owned approximately 3.8% of the Company’s outstanding Common Shares, to acquire additional
shares through open market purchases. This waiver of the Company’s share ownership limitation
permitted this shareholder to acquire up to an additional 6% of the Company’s shares through
December 31, 2005, or an aggregate of up to 9.8% of the Company’s Common Shares.
Through December 31, 2006, the Company had repurchased 2,051,605 Common Shares at a total cost of
$11.7 million (all of these Common Shares have been subsequently reissued) under its share
repurchase program that allows for the repurchase of up to $20.0 million of its outstanding Common
Shares. The repurchased shares are reflected as a reduction of par value and additional paid-in
capital.
F- 28
Table of Contents
ACADIA REALTY TRUST AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
8. Shareholders’ Equity and Minority Interests, continued
Minority Interests
The following table summarizes the change in the minority interests since December 31, 2005:
| Minority | ||||||||
| Minority | Interest in | |||||||
| Interest in | partially- | |||||||
| Operating | owned | |||||||
| Partnership | Affiliates | |||||||
| (dollars in thousands) | ||||||||
Balance at December 31, 2005 |
$ | 9,204 | $ | 137,086 | ||||
Dividends and distributions declared of $0.755 per Common Share and Common
OP Unit |
(487 | ) | — | |||||
Net income (loss) for the period January 1 through December 31, 2006 |
804 | (5,569 | ) | |||||
Distributions paid |
— | (73,242 | ) | |||||
Conversion of Series A Preferred OP Units |
(696 | ) | — | |||||
Acquisition of partnership interest |
— | 2,246 | ||||||
Other comprehensive income – unrealized loss on valuation of swap agreements |
(6 | ) | — | |||||
Redemption of 11,105 Restricted Common OP Units |
(146 | ) | — | |||||
Minority Interest contributions |
— | 44,543 | ||||||
Balance at December 31, 2006 |
8,673 | 105,064 | ||||||
Notes:
Minority interest in the Operating Partnership represents (i) the limited partners’ interest of
642,272 and 653,360 Common OP Units at December 31, 2006 and 2005, respectively, (ii) 188 and 884
Series A Preferred OP Units at December 31, 2006 and 2005, respectively, with a nominal value of
$1,000 per unit, which are entitled to a preferred quarterly distribution of the greater of (a)
$22.50 per unit (9% annually) per Series A Preferred OP Unit or (b) the quarterly distribution
attributable to a Series A Preferred OP Unit if such unit were converted into a Common OP Unit, and
(iii) 4,000 Series B Preferred OP Units at both December 31, 2006 and 2005 with a nominal value of
$1,000 per unit, which are entitled to a preferred quarterly distribution of the greater of (a)
$13.00 (5.2% annually) per unit or (b) the quarterly distribution attributable to a Series B
Preferred OP Unit if such unit were converted into a Common OP Unit.
During July 2005, the Company issued to a third party 11,105 Restricted Common OP Units valued at
$18.01 per unit in connection with the purchase of 4343 Amboy Road. The holder of the Common OP
Units was restricted from selling these for six months from the date of the transaction. During
June 2006, the Company redeemed for cash the 11,105 Restricted Common OP Units.
Minority interests in partially-owned affiliates include third-party interests in three
partnerships in which the Company has a majority ownership position. In addition, the accompanying
financial statements include the limited partners’ and non-managing members’ interests in Funds I
and II, and Mervyns I and II as additional minority interests in partially-owned affiliates.
During January 2006, the Company acquired a 60% interest in the A&P Shopping Plaza located in
Boonton, New Jersey, (Note 6). The remaining 40% interest is owned by a third party and is
reflected as minority interest in the accompanying Consolidated Balance Sheet as of December 31,
2006. Also during January 2006, Fund I recapitalized the Brandywine Portfolio, and as a result,
$36.5 million was distributed to the institutional investors in Fund I.
The following table summarizes the minority interest contributions and distributions in 2006:
| Contributions | Distributions | |||||||
(dollars in thousands) |
||||||||
Minority interest in two
partnerships(1) |
$ | — | $ | (232 | ) | |||
Fund I (2) |
— | (37,223 | ) | |||||
Mervyns I |
— | (16,864 | ) | |||||
Fund II |
24,664 | — | ||||||
Mervyns II |
19,879 | (18,923 | ) | |||||
| $ | 44,543 | $ | (73,242 | ) | ||||
| (1) | Represents 239 Greenwich Avenue and The Boonton Shopping Center. | |
| (2) | Includes Brandywine Portfolio distribution of $36,454. |
F- 29
Table of Contents
ACADIA REALTY TRUST AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
8. Shareholders’ Equity and Minority Interests, continued
Minority Interests, continued
In February 2005, the Company issued $4.0 million (250,000 Restricted Common OP Units valued at
$16.00 each) of Restricted Common OP Units to Klaff in consideration for the 25% balance of certain
management contract rights as well as the rights to certain potential future revenue streams. This
followed the acquisition of 75% of the management contract rights from Klaff in January 2004 as
reflected below. The Restricted Common OP Units are convertible into the Company’s Common Shares on
a one-for-one basis after a five-year lock-up period. $1.1 million of the purchase price was
allocated to investment in management contracts in the consolidated balance sheet and is being
amortized over the estimated remaining life of the contracts. For both years 2006 and 2005, $0.2
million of these Klaff management contracts were written off following the disposition of these
assets. The remainder of the $2.9 million purchase price has been allocated to deferred charges in
the consolidated balance sheet. $1.1 million of these allocated costs have been identified to
future revenue streams and are being amortized over the estimated life of each deal. The remaining
$1.8 million will be allocated over future acquisitions as they occur.
During 2005 and 2004, various limited partners converted a total of 746,762 and 2,058,804 Common OP
Units into Common Shares on a one-for-one basis, respectively. Mr. Dworman, a trustee of the
Company, received 34,841 of Common OP Units through various affiliated entities during 2003 (Note
9).
The Series A Preferred OP Units were issued on November 16, 1999 in connection with the acquisition
of all the partnership interests of the limited partnership which owns the Pacesetter Park Shopping
Center. Certain Series A Preferred OP Unit holders converted 696 Series A Preferred OP Units into
92,800 Common OP Units and then into Common Shares in both 2006 and 2005. The Series A Preferred OP
Units are currently convertible into Common OP Units based on the stated value divided by $7.50.
After the seventh anniversary following their issuance, either the Company or the holders can call
for the conversion of the Series A Preferred OP Units at the lesser of $7.50 or the market price of
the Common Shares as of the conversion date.
4,000 Series B Preferred OP Units were issued to Klaff in January 2004 in consideration for the
acquisition of 75% of certain management contract rights. The Preferred OP Units are convertible
into Common OP Units based on the stated value of $1,000 divided by $12.82 at any time.
Additionally, Klaff may redeem them at par for either cash or Common OP Units after the earlier of
the third anniversary of their issuance, or the occurrence of certain events including a change in
the control of the Company. Finally, after the fifth anniversary of the issuance, the Company may
redeem the Preferred OP Units and convert them into Common OP Units at market value as of the
redemption date. The $4.0 million purchase price is reflected in the investment in management
contracts in the consolidated balance sheet and is being amortized over the estimated life of the
contracts. For both years 2006 and 2005, $0.5 million of these Klaff management contracts were
written off following the disposition of these assets. Subsequent to December 31, 2006,, Klaff
converted 3,800 Series B Preferred Units into 296,412 Common OP Units and ultimately into Common
Shares (Note 21).
F- 30
Table of Contents
ACADIA REALTY TRUST AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
9. Related Party Transactions
In February 2005, the Operating Partnership issued $4.0 million of Restricted Common OP Units to
Klaff for the balance of certain management contract rights as well as the rights to certain
potential future revenue streams (Note 8).
In March 2005, the Company completed a $20.0 million Preferred Equity Investment with Levitz SL, of
which Klaff, a common and preferred OP unit holder, is the managing member. In June 2006, the
Company converted its Preferred Equity Investment with Levitz SL, into a mortgage loan (Note 4).
The Company managed one property in which a major shareholder of the Company had an ownership
interest and earned a management fee of 3% of tenant collections. Management fees earned by the
Company under this contract aggregated $0.1 million for the year ended December 31, 2004. In
addition, the Company earned leasing commission of $0.2 million related to this property for the
year ended December 31, 2004. In connection with the sale of the property on July 12, 2004, the
management contract was terminated and the Company earned a $0.08 million disposition fee.
Lee Wielansky, the Lead Trustee of the Company, was paid a consulting fee of $0.1 million for each
of the years ended December 31, 2006, 2005 and 2004.
On March 19, 2004, Ross Dworman, a former trustee of the Company, and certain entities controlled
by Mr. Dworman converted 1,000,000 share options and 548,614 OP Units held by them to Common Shares in connection with a secondary public offering.
During the year ended December 31, 2004, Kenneth F. Bernstein, President and Chief Executive
Officer, and certain trustees of the Company exercised 400,000 and 20,000 options to purchase
Common Shares, respectively.
10. Tenant Leases
Space in the shopping centers and other retail properties is leased to various tenants under
operating leases that usually grant tenants renewal options and generally provide for additional
rents based on certain operating expenses as well as tenants’ sales volume.
Minimum future rentals to be received under non-cancelable leases for shopping centers and other
retail properties as of December 31, 2006 are summarized as follows:
| (dollars in thousands) | ||||
2007 |
$ | 77,415 | ||
2008 |
73,801 | |||
2009 |
70,464 | |||
2010 |
61,526 | |||
2011 |
49,610 | |||
Thereafter |
326,043 | |||
| $ | 658,859 | |||
Minimum future rentals above include a total of $0.3 million for two tenants (with three leases),
which have filed for bankruptcy protection. None of these leases have been rejected nor affirmed.
During the years ended December 31, 2006, 2005 and 2004, no single tenant collectively accounted
for more than 10% of the Company’s total revenues.
11. Lease Obligations
The Company leases land at seven of its shopping centers, which are accounted for as operating
leases and generally provide the Company with renewal options. Ground rent expense was $4.5
million, $3.5 million, and $1.5 million (including capitalized ground rent at properties under
development of $3.4 million, $2.7 million and $0.7 million) for the years ended December 31, 2006,
2005 and 2004, respectively. The leases terminate at various dates between 2008 and 2066. Four of
these leases provide the Company with options to renew for additional terms aggregating from 20 to
60 years. The Company leases space for its White Plains corporate office for a term expiring in
2010. Office rent expense under this lease was $0.6 million, $0.4 million and $0.2 million for the
years ended December 31, 2006, 2005 and 2004, respectively. Future minimum rental payments required
for leases having remaining non-cancelable lease terms are as follows:
| (dollars in thousands) | ||||
2007 |
$ | 3,628 | ||
2008 |
3,664 | |||
2009 |
3,966 | |||
2010 |
4,567 | |||
2011 |
3,998 | |||
Thereafter |
100,971 | |||
| $ | 120,794 | |||
F- 31
Table of Contents
ACADIA REALTY TRUST AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
12. Share Incentive Plan
During 1999, the Company adopted the 1999 Share Incentive Plan (the “1999 Plan”), which replaced
both the 1994 Share Option Plan and the 1994 Non-Employee Trustees’ Share Option Plan. The 1999
Plan authorizes the issuance of options equal to up to 8% of the total Common Shares outstanding
from time to time on a fully diluted basis. However, not more than 4,000,000 of the Common Shares
in the aggregate may be issued pursuant to the exercise of options and no participant may receive
more than 5,000,000 Common Shares during the term of the 1999 Plan. Options are granted by the
Share Option Plan Committee (the “Committee”), which currently consists of two non-employee
Trustees, and will not have an exercise price less than 100% of the fair market value of the Common
Shares and a term of greater than ten years at the grant date. Vesting of options is at the
discretion of the Committee with the exception of options granted to non-employee Trustees, which
vest in five equal annual installments beginning on the date of grant.
The 1999 Plan also provides for the granting of share appreciation rights, restricted shares and
performance units/shares. Share appreciation rights provide for the participant to receive, upon
exercise, cash and/or Common Shares, at the discretion of the committee, equal to the excess of the
market value of the Common Shares at the exercise date over the market value of the Common Shares
at the grant date. The Committee will determine the award and restrictions placed on restricted
shares, including the dividends thereon and the term of such restrictions. The Committee also
determines the award and vesting of performance units and performance shares based on the
attainment of specified performance objectives of the Company within a specified performance
period. Through December 31, 2006, no share appreciation rights or performance units/shares have
been awarded.
During 2003, the Company adopted the 2003 Share Incentive Plan (the “2003 Plan”) because no Common
Shares remained available for future grants under the 1999 Plan. The 2003 Plan provides for the
granting of options, share appreciation rights, restricted shares and performance units
(collectively, “Awards”) to officers, employees and trustees of the Company and consultants to the
Company. The 2003 Plan is generally identical to the 1999 Plan, except that the maximum number of
Common Shares that the Company may issue pursuant to the 2003 Plan is four percent of the Common
Shares outstanding from time to time on a fully diluted basis. However, no participant may receive
more than 1,000,000 Common Shares during the term of the 2003 Plan with respect to Awards. Pursuant
to the 2003 Plan, non-employee Trustees receive an automatic grant of 3,000 options following each
Annual Meeting of Shareholders.
During 2006, the Company adopted the 2006 Share Incentive Plan (the “2006 Plan”) because relatively
few Common Shares remained available for future grants under the 1999 and 2003 plans. The 2006 Plan
provides for the granting of Awards to officers, employees and trustees of the Company and
consultants to the Company. The 2006 Plan is substantially similar to the 2003 Plan, except that
the maximum number of Common Shares that the Company may issue pursuant to the 2006 Plan is 500,000
Common Shares. No participant may receive more than 500,000 Common Shares during the term of the
2006 Plan with respect to Awards.
On January 6, 2006, the Company issued 62,630 options to Officers (“Officers”) and Employees
(“Employees”) of the Company.
On May 16, 2006, the Company issued 18,000 options, 3,461 unrestricted shares and the equivalent of
1,340 Common Shares through a deferred compensation plan to Trustees of the Company in connection
with Trustee fees. The options vest immediately.
As of December 31, 2006, the Company has 492,372 options outstanding to officers and employees of
which 433,839 are vested. These options are for ten-year terms from the grant date and vest in
three equal annual installments which begin on the grant date. In addition, 58,000 options have
been issued to non-employee Trustees of which 57,400 options were vested as of December 31, 2006.
On January 6, 2006, (the “Grant Date”), the Company also issued a total of 121,233 Restricted
Common Shares (“Restricted Shares”) to Officers and 13,136 Restricted shares (net of subsequent
forfeitures) to certain Employees of the Company. In general, the Restricted Shares carry all the
rights of Common Shares including voting and dividend rights, but may not be transferred, assigned
or pledged until the recipients have a vested non-forfeitable right to such shares. Vesting with
respect to the Restricted Shares issued to Officers, which is subject to the recipients’ continued
employment with the Company through the applicable vesting dates, is over five years commencing
with 30% on the Grant Date and 17.5% on each of the next four anniversaries thereafter. In
addition, vesting on 50% of the unvested Restricted Shares is also subject to certain total
shareholder returns on the Company’s Common Shares. Vesting with respect to the Restricted Shares
issued to Employees, which is subject to the recipients’ continued employment with the Company
through the applicable vesting dates, is over five years commencing with 30% on the Grant Date and
17.5% on each of the next four anniversaries thereafter. In addition, vesting on 25% of the
unvested Restricted Shares is also subject to certain total shareholder returns on the Company’s
Common Shares.
F- 32
Table of Contents
ACADIA REALTY TRUST AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
12. Share Incentive Plan, continued
The total value of the above restricted share awards on the date of grant was $2.7 million, of
which $2.0 million will be recognized in compensation expense
over the vesting period.
On the Grant Date, the Company also issued a total of 224,901 Restricted Shares to Officers and
28,706 Restricted Shares to Employees in connection with a special, one-time performance bonus
recognizing management’s outstanding achievements in enhancing shareholder values over the previous
five years, including, but not limited to, total shareholder return and the recent recapitalization
of the Brandywine Portfolio. The Restricted Shares vest over a period of five years. 50% will
vest on the third anniversary and 25% will vest on the following two anniversaries of the Grant
Date. The total value of this special bonus was $5.2 million which will be recognized in
compensation expense over the vesting period. For the year ended December 31, 2005, 133,468
Restricted Shares (net of forfeitures) were issued pursuant to the 2003 Plan. The total value of
the Restricted Share awards on the date of grant was $2.2 million which will be recognized in
expense over the vesting period. No awards of share appreciation rights or performance units/shares
were granted for the years ended December 31, 2006, 2005 and 2004.
For the years ended December 31, 2006, 2005 and 2004, $2.7 million, $1.0 million, and $0.8 million,
respectively, were recognized in compensation expense related to Restricted Share grants.
The Company has used the Binomial method for 2006 and 2005 and the Black-Scholes option-pricing
model for 2004 for purposes of estimating the fair value in determining compensation expense for
options granted for the years ended December 31, 2006, 2005 and 2004. The Company has also used
this model for the pro forma information regarding net income and earnings per share as required by
SFAS No. 123 for options issued for the year ended December 31, 2001 as if the Company had also
accounted for these employee stock options under the fair value method. The fair value for the
options issued by the Company was estimated at the date of the grant using the following
weighted-average assumptions resulting in:
| Years ended December 31, | ||||||||||||
| 2006 | 2005 | 2004 | ||||||||||
Weighted-average volatility |
18.0 | % | 18.0 | % | 18.0 | % | ||||||
Expected dividends |
3.6 | % | 4.2 | % | 4.2 | % | ||||||
Expected life (in years) |
7.5 | 7.5 | 7.5 | |||||||||
Risk-free interest rate |
4.4 | % | 4.0 | % | 4.0 | % | ||||||
Fair value
at date of grant (per option) |
$ | 3.03 | $ | 2.57 | $ | 2.17 | ||||||
A summary of option activity under all option arrangements as of December 31, 2006, and changes
during the year then ended is presented below:
| Weighted | Weighted Average | Aggregate Intrinsic | ||||||||||||||
| Average | Remaining | Value | ||||||||||||||
| Options | Shares | Exercise Price | Contractual Term | (dollars in thousands) | ||||||||||||
Outstanding at January 1, 2006 |
477,242 | $ | 8.08 | |||||||||||||
Granted |
80,630 | 21.04 | ||||||||||||||
Exercised |
(7,500 | ) | 5.75 | |||||||||||||
Forfeited or Expired |
— | — | ||||||||||||||
Outstanding at December 31,
2006 |
550,372 | $ | 10.01 | 4.9 | $ | 8,260 | ||||||||||
Exercisable at December 31,
2006 |
491,239 | $ | 8.89 | 4.4 | $ | 7,923 | ||||||||||
The weighted average grant date fair value of options granted during the years 2006, 2005 and 2004
was $3.03, $2.57 and $2.17, respectively. The total intrinsic value of options exercised during the
years ended December 31, 2006, 2005 and 2004 was $0.1 million, $0.6 million and $12.9 million,
respectively.
F- 33
Table of Contents
ACADIA REALTY TRUST AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
12. Share Incentive Plan, continued
A summary of the status of the Entity’s nonvested Restricted Shares as of December 31, 2006 and changes during
the year ended December 31, 2006, is presented below:
| Restricted | Weighted | |||||||
| Shares | Grant-Date | |||||||
| Nonvested Shares | (in thousands) | Fair Value | ||||||
Nonvested at January 1, 2006 |
283 | $ | 12.90 | |||||
Granted |
388 | 20.46 | ||||||
Vested |
(121 | ) | 20.28 | |||||
Forfeited |
— | — | ||||||
Nonvested at December 31,
2006 |
550 | $ | 17.27 | |||||
As of December 31, 2006, there was $7.0 million of total unrecognized compensation cost related to
nonvested share-based compensation arrangements granted under the Plan. That cost is expected to be
recognized over a weighted-average period of 3.6 years. The total fair value of shares vested
during the years ended December 31, 2006, 2005 and 2004, was $2.5 million, $1.0 million and $0.5
million, respectively.
13. Employee Stock Purchase and Deferred Share Plan
In 2003, the Company adopted the Acadia Realty Trust Employee Stock Purchase Plan (the “Purchase
Plan”), which allows eligible employees of the Company to purchase Common Shares through payroll
deductions. The Purchase Plan provides for employees to purchase Common Shares on a quarterly basis
at a 15% discount to the closing price of the Company’s Common Shares on either the first day or
the last day of the quarter, whichever is lower. The amount of the payroll deductions will not
exceed a percentage of the participant’s annual compensation that the Committee establishes from
time to time, and a participant may not purchase more than 1,000 Common Shares per quarter.
Compensation expense will be recognized by the Company to the extent of the above discount to the
average closing price of the Common Shares with respect to the applicable quarter. During 2006,
2005 and 2004, 5,307, 6,412 and 6,397 Common Shares, respectively, were purchased by Employees
under the Purchase Plan. Associated compensation expense of $0.02 million was recorded in each
year.
In August of 2004, the Company adopted a Deferral and Distribution Election pursuant to the 1999
Share Incentive Plan and 2003 Share Incentive Plan, whereby the participants elected to defer
receipt of 190,487 Common Shares (“Share Units”) that would otherwise be issued upon the exercise
of certain options. The payment of the option exercise price was made by tendering Common Shares
that the participants owned for at least six months prior to the option exercise date. The Share
Units are equivalent to a Common Share on a one-for-one basis and carry a dividend equivalent right
equal to the dividend rate for the Company’s Common shares. The deferral period is determined by
each of the participants and generally terminates after the cessation of the participants
continuous service with the Company, as defined in the agreement. In December 2004, optionees
exercised 346,000 options pursuant to the Deferred Share Election and tendered 155,513 Common
Shares in consideration of the option exercise price. In 2004 the Company issued 155,513 Common
Shares to optionees and 190,487 Share Units. During 2006 and 2005 there were no additional Share
Units contributed to the plan.
14. Employee 401(k) Plan
The Company maintains a 401(k) plan for employees under which the Company currently matches 50% of
a plan participant’s contribution up to 6% of the employee’s annual salary. A plan participant may
contribute up to a maximum of 15% of their compensation but not in excess of $0.02 million for the
year ended December 31, 2006. The Company contributed $0.2 million, $0.1 million and $0.1 million
for the years ended December 31, 2006, 2005 and 2004, respectively.
15. Dividends and Distributions Payable
On December 4, 2006, the Company declared a cash dividend for the quarter ended December 31, 2006
of $0.20 per Common Share. The dividend was paid on January 15, 2007 to shareholders of record as
of December 29, 2006.
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Table of Contents
ACADIA REALTY TRUST AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
16. Federal Income Taxes
The Company has elected to qualify as a REIT in accordance with the Internal Revenue Code (the
“Code”) and intends at all times to qualify as a REIT under Sections 856 through 860 of the
Internal Revenue Code of 1986, as amended. To qualify as a REIT, the Company must meet a number of
organizational and operational requirements, including a requirement that it currently distribute
at least 90% of its annual REIT taxable income to its shareholders. As a REIT, the Company
generally will not be subject to corporate Federal income tax, provided that distributions to its
shareholders equal at least the amount of its REIT taxable income as defined under the Code. As the
Company distributed sufficient taxable income for the years ended December 31, 2006, 2005 and 2004,
no U.S. Federal income or excise taxes were incurred. If the Company fails to qualify as a REIT in
any taxable year, it will be subject to Federal income taxes at the regular corporate rates
(including any applicable alternative minimum tax) and may not be able to qualify as a REIT for the
four subsequent taxable years. Even though the Company qualifies for taxation as a REIT, the
Company is subject to certain state and local taxes on its income and property and Federal income
and excise taxes on any undistributed taxable income. In addition, taxable income from non-REIT
activities managed through the Company’s TRS are subject to Federal, state and local income taxes.
The primary difference between the GAAP and tax reported amounts of the Company’s assets and
liabilities are a higher GAAP basis in its real estate properties. This is primarily the result of
assets acquired as a result of property contributions in exchange for OP Units.
Reconciliation between GAAP net income and Federal taxable income
The following unaudited table reconciles GAAP net income to taxable income for the years ended
December 31, 2006, 2005 and 2004:
| 2006 | 2005 | 2004 | ||||||||||
| (dollars in thousands) | (Estimated) | (Actual) | (Actual) | |||||||||
GAAP net income |
$ | 39,013 | $ | 20,626 | $ | 19,585 | ||||||
GAAP net (loss) income of TRS |
(405 | ) | 1,349 | — | ||||||||
GAAP net income from REIT operations (1) |
39,418 | 19,277 | 19,585 | |||||||||
Book/tax difference in depreciation and amortization |
5,472 | 2,817 | 3,438 | |||||||||
Book/tax difference on exercise of options to
purchase Common Shares |
(224 | ) | (405 | ) | (8,970 | ) | ||||||
Book/tax difference on capital transactions (2) |
(20,974 | ) | (465 | ) | (1,354 | ) | ||||||
Other book/tax differences, net |
2,492 | (2,065 | ) | 1,953 | ||||||||
REIT taxable income before dividends paid deduction |
$ | 26,184 | $ | 19,159 | $ | 14,652 | ||||||
| (1) | All adjustments to GAAP net income from REIT operations are net of amounts attributable to minority interest and TRS. | |
| (2) | Principally the result of the deferral of gain on sale of properties pursuant to Code Section 1031 Like-Kind Exchanges |
F- 35
Table of Contents
ACADIA REALTY TRUST AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
16. Federal Income Taxes, continued
Characterization of Distributions:
The Company has determined that the cash distributed to the shareholders is characterized as
follows for Federal income tax purposes:
| For the years ended December 31, | ||||||||||||
| 2006 | 2005 | 2004 | ||||||||||
Ordinary income |
100 | % | 95 | % | 59 | % | ||||||
Section 1250 gain |
— | 3 | % | 32 | % | |||||||
Return of capital |
— | 2 | % | 9 | % | |||||||
| 100 | % | 100 | % | 100 | % | |||||||
Taxable REIT Subsidiaries (“TRS”)
Income taxes have been provided for using the asset and liability method as required by SFAS No.
109. The Company’s combined TRS (loss) income and (benefit) provision for income taxes for the
years ended December 31, 2006 and 2005 are summarized as follows:
| 2006 | 2005 | |||||||
| (dollars in thousands) | (Estimated) | (Actual) | ||||||
TRS (loss) income before income taxes |
$ | (296 | ) | $ | 3,458 | |||
Benefit (provision) for income taxes: |
— | — | ||||||
Federal |
590 | (1,601 | ) | |||||
State and local |
111 | (508 | ) | |||||
TRS net income |
$ | 405 | $ | 1,349 | ||||
The income tax benefit (provision) differs from the amount computed by applying the statutory
federal income tax rate to taxable (loss) income before income taxes as follows:
| (dollars in thousands) | 2006 | 2005 | ||||||
Federal benefit (provision) at statutory tax rate |
$ | 100 | $ | (1,210 | ) | |||
State and local taxes, net of federal benefit |
15 | (330 | ) | |||||
Tax effect of: |
||||||||
Valuation allowance against deferred tax liability asset |
— | (208 | ) | |||||
Utilization of loss and deduction carry forwards |
— | 115 | ||||||
Change in estimate |
586 | — | ||||||
REIT State, Local and Franchise taxes |
(193 | ) | (507 | ) | ||||
Total benefit (provision) for income taxes |
$ | 508 | $ | (2,140 | ) | |||
F- 36
Table of Contents
ACADIA REALTY TRUST AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
17. Financial Instruments
Fair Value of Financial Instruments:
SFAS No. 107, “Disclosures about Fair Value of Financial Instruments” requires disclosure on
the fair value of financial instruments. Certain of the Company’s assets and liabilities are
considered financial instruments. Fair value estimates, methods and assumptions are set forth
below.
Cash and Cash Equivalents, Restricted Cash, Cash in Escrow, Rents Receivable, Notes Receivable,
Prepaid Expenses, Other Assets, Accounts Payable and Accrued Expenses, Dividends and
Distributions Payable, Due to Related Parties and Other Liabilities. The carrying amount of
these assets and liabilities approximates fair value due to the short-term nature of such
accounts.
Derivative Instruments — The fair value of these instruments is based upon the estimated
amounts the Company would receive or pay to terminate the contracts as of December 31, 2006 and
2005 and is determined using interest rate market pricing models.
Mortgage Notes Payable and Notes Payable — As of December 31, 2006 and 2005, the Company has
determined the estimated fair value of its mortgage notes payable, including those relating to
discontinued operations, are $439.1 million and $422.1 million, respectively, by discounting
future cash payments utilizing a discount rate equivalent to the rate at which similar mortgage
notes payable would be originated under conditions then existing.
Derivative Financial Instruments:
SFAS No. 133, “Accounting for Derivative Instruments and Hedging Activities”, as amended and
interpreted, establishes accounting and reporting standards for derivative instruments,
including certain derivative instruments embedded in other contracts, and for hedging
activities. As required by SFAS 133, the Company records all derivatives on the balance sheet
at fair value. The accounting for changes in the fair value of derivatives depends on the
intended use of the derivative and the resulting designation. Derivatives used to hedge the
exposure to changes in the fair value of an asset, liability, or firm commitment attributable
to a particular risk, such as interest rate risk, are considered fair value hedges. Derivatives
used to hedge the exposure to variability in expected future cash flows, or other types of
forecasted transactions, are considered cash flow hedges.
For derivatives designated as fair value hedges, changes in the fair value of the derivative
and the hedged item related to the hedged risk are recognized in earnings. For derivatives
designated as cash flow hedges, the effective portion of changes in the fair value of the
derivative is initially reported in other comprehensive income (outside of earnings) and
subsequently reclassified to earnings when the hedged transaction affects earnings, and the
ineffective portion of changes in the fair value of the derivative is recognized directly in
earnings. The Company assesses the effectiveness of each hedging relationship by comparing the
changes in fair value or cash flows of the derivative hedging instrument with the changes in
fair value or cash flows of the designated hedged item or transaction. For derivatives not
designated as hedges, changes in fair value are recognized in earnings.
As of December 31, 2006 and 2005, no derivatives were designated as fair value hedges or hedges
of net investments in foreign operations. Additionally, the Company does not use derivatives
for trading or speculative purposes and currently does not have any derivatives that are not
designated as hedges.
The following table summarizes the notional values and fair values of the Company’s derivative
financial instruments as of December 31, 2006. The notional value does not represent exposure
to credit, interest rate or market risks:
| Notional | Forward Start | Interest | ||||||||||||||||||
| Hedge Type | Value | Rate | Date | maturity | Fair Value | |||||||||||||||
(dollars in thousands) |
||||||||||||||||||||
Current Interest Rate Swaps |
||||||||||||||||||||
LIBOR Swap |
$ | 4,627 | 4.71 | % | n/a | 01/01/10 | $ | 27 | ||||||||||||
LIBOR Swap |
11,375 | 4.90 | % | n/a | 10/01/11 | 33 | ||||||||||||||
Interest rate swap receivable |
$ | 16,002 | $ | 60 | ||||||||||||||||
Forward –Starting Interest Rate Swaps |
||||||||||||||||||||
LIBOR Swap |
$ | 8,434 | 5.14 | % | 6/1/07 | 3/1/12 | $ | (72 | ) | |||||||||||
| $ | 8,434 | |||||||||||||||||||
Interest Rate Caps |
||||||||||||||||||||
LIBOR Cap |
$ | 30,000 | 6.00 | % | n/a | 4/1/08 | 2 | |||||||||||||
Net Interest rate swap liability |
$ | (10 | ) | |||||||||||||||||
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Table of Contents
ACADIA REALTY TRUST AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
17. Financial Instruments, continued
Derivative Financial Instruments, continued:
Derivative instruments are reported at fair value as reflected above. The fair value of the derivative instruments is included in Other Assets in the Consolidated Balance Sheets as of December 31, 2006. As of December 31, 2005,
the derivative instruments were reported at fair value as a derivative instrument asset of $0.8
million and derivative instrument liability of $0.2 million. As of December 31, 2006 and 2005,
unrealized losses totaling $0.2 and $0.01 million, respectively, represented the fair value of the
aforementioned derivatives, of which $(0.2) million and $(0.01) million, respectively, were
reflected in accumulated other comprehensive loss.
The Company’s interest rate hedges are designated as cash flow hedges and hedge the future cash
outflows on mortgage debt. Interest rate swaps that convert variable payments to fixed payments,
such as those held by the Company, as well as interest rate caps, floors, collars, and forwards are
cash flow hedges. The unrealized gains and losses in the fair value of these hedges are reported on
the balance sheet with a corresponding adjustment to either accumulated other comprehensive income
or earnings depending on the type of hedging relationship. For cash flow hedges, offsetting gains
and losses are reported in accumulated other comprehensive income. Over time, the unrealized gains
and losses held in accumulated other comprehensive income will be reclassified to earnings. This
reclassification occurs over the same time period in which the hedged items affect earnings. At December 31, 2006, approximately $0.4 million is expected to be reclassified to earnings.
18. Earnings Per Common Share
Basic earnings per share was determined by dividing the applicable net income to common
shareholders for the year by the weighted average number of Common Shares outstanding during each
year consistent with SFAS No. 128. Diluted earnings per share reflects the potential dilution that
could occur if securities or other contracts to issue Common Shares were exercised or converted
into Common Shares or resulted in the issuance of Common Shares that then shared in the earnings of
the Company. The following table sets forth the computation of basic and diluted earnings per share
from continuing operations for the periods indicated:
| Years ended December 31, | ||||||||||||
| (dollars in thousands, except per share amounts) | 2006 | 2005 | 2004 | |||||||||
Numerator: |
||||||||||||
Income from continuing operations – basic earnings
per share |
$ | 15,794 | $ | 19,643 | $ | 11,458 | ||||||
Effect of dilutive securities: |
||||||||||||
Preferred OP Unit distributions |
254 | — | — | |||||||||
Numerator for diluted earnings per share |
$ | 16,048 | $ | 19,643 | $ | 11,458 | ||||||
Denominator: |
||||||||||||
Weighted average shares – basic earnings per share |
32,502 | 31,949 | 29,341 | |||||||||
Effect of dilutive securities: |
||||||||||||
Employee stock options |
314 | 265 | 571 | |||||||||
Convertible Preferred OP Units |
337 | — | — | |||||||||
Dilutive potential Common Shares |
651 | 265 | 571 | |||||||||
Denominator for diluted earnings per share |
33,153 | 32,214 | 29,912 | |||||||||
Basic earnings per share from continuing operations |
$ | 0.49 | $ | 0.62 | $ | 0.39 | ||||||
Diluted earnings per share from continuing operations |
$ | 0.48 | $ | 0.61 | $ | 0.38 | ||||||
The weighted average shares used in the computation of basic earnings per share include unvested
restricted shares (Note 12) and Share Units (Note 13) that are entitled to receive dividend
equivalent payments. The effect of the conversion of Common OP Units is not reflected in the above
table as they are exchangeable for Common Shares on a one-for-one basis. The income allocable to
such units is allocated on this same basis and reflected as minority interest in the accompanying
consolidated financial statements. As such, the assumed conversion of these units would have no net
impact on the determination of diluted earnings per share.
F- 38
Table of Contents
ACADIA REALTY TRUST AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
19. Summary of Quarterly Financial Information (unaudited)
The quarterly results of operations of the Company for the years ended December 31, 2006 and 2005
are as follows:
| March 31, | June 30, | September 30, | December 31, | Total for | ||||||||||||||||
| (dollars in thousands, except per share amount | 2006 | 2006 | 2006 | 2006 | Year | |||||||||||||||
Revenue |
$ | 25,646 | $ | 23,944 | $ | 26,116 | $ | 26,987 | $ | 102,693 | ||||||||||
Income from continuing operations |
$ | 3,803 | $ | 4,338 | $ | 3,748 | $ | 3,905 | $ | 15,794 | ||||||||||
Income (loss) from discontinued operations |
$ | 550 | $ | 510 | $ | 374 | $ | 21,785 | $ | 23,219 | ||||||||||
Net income |
$ | 4,353 | $ | 4,848 | $ | 4,122 | $ | 25,690 | $ | 39,013 | ||||||||||
Net income per Common Share – basic: |
||||||||||||||||||||
Income from continuing operations |
$ | 0.12 | $ | 0.14 | $ | 0.12 | $ | 0.12 | $ | 0.49 | ||||||||||
Income (loss) from discontinued
operations |
0.01 | 0.01 | 0.01 | 0.67 | 0.71 | |||||||||||||||
Net income |
$ | 0.13 | $ | 0.15 | $ | 0.13 | $ | 0.79 | $ | 1.20 | ||||||||||
Net income per Common Share –
diluted: |
||||||||||||||||||||
Income from continuing operations |
$ | 0.12 | $ | 0.14 | $ | 0.12 | $ | 0.12 | $ | 0.48 | ||||||||||
Income (loss) from discontinued
operations |
0.01 | 0.01 | 0.01 | 0.65 | 0.70 | |||||||||||||||
Net income |
$ | 0.13 | $ | 0.15 | $ | 0.13 | $ | 0.77 | $ | 1.18 | ||||||||||
Cash dividends declared per Common
Share |
$ | 0.185 | $ | 0.185 | $ | 0.185 | $ | 0.20 | $ | 0.755 | ||||||||||
Weighted average Common Shares
outstanding: |
||||||||||||||||||||
Basic |
32,468,204 | 32,509,360 | 32,513,398 | 32,514,803 | 32,501,602 | |||||||||||||||
Diluted |
32,766,119 | 32,810,794 | 32,836,473 | 33,186,718 | 33,152,996 | |||||||||||||||
| March 31, | June 30, | September 30, | December 31, | Total for | ||||||||||||||||
| (dollars in thousands, except per share amounts) | 2005 | 2005 | 2005 | 2005 | Year | |||||||||||||||
Revenue |
$ | 23,776 | $ | 24,298 | $ | 27,818 | $ | 24,914 | $ | 100,806 | ||||||||||
Income from continuing operations |
$ | 4,013 | $ | 4,485 | $ | 6,714 | $ | 4,431 | $ | 19,643 | ||||||||||
Income (loss) from discontinued operations |
$ | 432 | $ | (140 | ) | $ | 511 | $ | 180 | $ | 983 | |||||||||
Net income |
$ | 4,445 | $ | 4,345 | $ | 7,225 | $ | 4,611 | $ | 20,626 | ||||||||||
Net income per Common Share – basic: |
||||||||||||||||||||
Income from continuing operations |
$ | 0.13 | $ | 0.14 | $ | 0.21 | $ | 0.14 | $ | 0.62 | ||||||||||
Income (loss) from discontinued
operations |
0.01 | 0.00 | 0.02 | 0.00 | 0.03 | |||||||||||||||
Net income |
$ | 0.14 | $ | 0.14 | $ | 0.23 | $ | 0.14 | $ | 0.65 | ||||||||||
Net income per Common Share –
diluted: |
||||||||||||||||||||
Income from continuing operations |
$ | 0.13 | $ | 0.14 | $ | 0.20 | $ | 0.14 | $ | 0.61 | ||||||||||
Income (loss) from discontinued
operations |
0.01 | 0.00 | 0.02 | 0.00 | 0.03 | |||||||||||||||
Net income |
$ | 0.14 | $ | 0.14 | $ | 0.22 | $ | 0.14 | $ | 0.64 | ||||||||||
Cash dividends declared per Common
Share |
$ | 0.1725 | $ | 0.1725 | $ | 0.1725 | $ | 0.185 | $ | 0.7025 | ||||||||||
Weighted average Common Shares
outstanding: |
||||||||||||||||||||
Basic |
31,867,185 | 31,898,644 | 32,008,982 | 32,017,316 | 31,948,610 | |||||||||||||||
Diluted |
32,139,833 | 32,144,529 | 32,706,201 | 32,293,926 | 32,214,231 | |||||||||||||||
F- 39
Table of Contents
ACADIA REALTY TRUST AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
20. Commitments and Contingencies
Under various Federal, state and local laws, ordinances and regulations relating to the protection
of the environment, a current or previous owner or operator of real estate may be liable for the
cost of removal or remediation of certain hazardous or toxic substances disposed, stored,
generated, released, manufactured or discharged from, on, at, under, or in a property. As such, the
Company may be potentially liable for costs associated with any potential environmental remediation
at any of its formerly or currently owned properties.
The Company conducts Phase I environmental reviews with respect to properties it acquires. These
reviews include an investigation for the presence of asbestos, underground storage tanks and
polychlorinated biphenyls (PCBs). Although such reviews are intended to evaluate the environmental
condition of the subject property as well as surrounding properties, there can be no assurance that
the review conducted by the Company will be adequate to identify environmental or other problems
that may exist. Where a Phase II assessment is so recommended, a Phase II assessment was conducted
to further determine the extent of possible environmental contamination. In all instances where a
Phase I or II assessment has resulted in specific recommendations for remedial actions, the Company
has either taken or scheduled the recommended remedial action. To mitigate unknown risks, the
Company has obtained environmental insurance for most of its properties, which covers only unknown
environmental risks.
The Company believes that it is in compliance in all material respects with all Federal, state and
local ordinances and regulations regarding hazardous or toxic substances. Management is not aware
of any environmental liability that it believes would have a material adverse impact on the
Company’s financial position or results of operations. Management is unaware of any instances in
which the Company would incur significant environmental costs if any or all properties were sold,
disposed of or abandoned. However, there can be no assurance that any such non-compliance,
liability, claim or expenditure will not arise in the future.
For the year ended December 31, 2004, the Company accrued a reserve for $0.7 million related to
flood damage incurred at one of its properties. Under the terms of the Company’s insurance policy,
a maximum deductible of approximately $0.7 million would apply in the event the flood damage was
the direct result of a “named” storm. During the first quarter of 2005, the Company reduced the
reserve by $0.5 million due to the settlement of the insurance claim.
The Company is involved in various matters of litigation arising in the normal course of business.
While the Company is unable to predict with certainty the amounts involved, the Company’s
management and counsel are of the opinion that, when such litigation is resolved, the Company’s
resulting liability, if any, will not have a significant effect on the Company’s consolidated
financial position or results of operations.
21. Subsequent Events
In February 2007, Klaff converted 3,800 Series B Preferred Units into 296,412 Common OP Units and
ultimately into Common Shares.
On January 8, 2007, the Initial Purchasers exercised their option pursuant to the Purchase
Agreement to purchase an additional $15.0 million aggregate principal amount of the Notes. The net
proceeds from the sale of the additional Notes, after deducting the Initial Purchasers’ discount
and estimated offering expenses, were approximately $14.7 million.
On February 26, 2007 the Company, through its RCP Venture, received a cash distribution totaling
approximately $42.5 million from its ownership position in Albertsons. The Operating Partnership’s
share of this distribution amounted to approximately $8.5 million. The distribution resulted from
cash proceeds obtained by Albertsons in connection with its disposition of certain operating stores
and a refinancing of the remaining assets held in the entity.
F- 40
Table of Contents
ACADIA
REALTY TRUST
SCHEDULE III-REAL ESTATE AND ACCUMULATED DEPRECIATION
December 31, 2006
December 31, 2006
| Costs capitalized | Date of | |||||||||||||||||||||||||||||||||||
| Buildings & | Subsequent to | Buildings & | Accumulated | Acquisition (a) | ||||||||||||||||||||||||||||||||
| Description | Encumbrances | Land | Improvements | Acquisition | Land | Improvements | Total | Depreciation | Construction(c) | |||||||||||||||||||||||||||
Shopping Centers |
||||||||||||||||||||||||||||||||||||
Crescent Plaza |
$ | 17,600 | $ | 1,147 | $ | 7,425 | $ | 823 | $ | 1,147 | $ | 8,248 | $ | 9,395 | $ | 4,612 | 1984 | (a) | ||||||||||||||||||
Brockton, MA |
||||||||||||||||||||||||||||||||||||
New Loudon Center |
14,940 | 505 | 4,161 | 10,839 | 505 | 15,000 | 15,505 | 8,594 | 1982 | (a) | ||||||||||||||||||||||||||
Latham, NY |
||||||||||||||||||||||||||||||||||||
Ledgewood Mall |
21,524 | 619 | 5,434 | 33,199 | 619 | 38,633 | 39,252 | 27,003 | 1983 | (a) | ||||||||||||||||||||||||||
Ledgewood, NJ |
||||||||||||||||||||||||||||||||||||
Mark Plaza |
— | — | 4,268 | 4,690 | — | 8,958 | 8,958 | 5,942 | 1968 | (c) | ||||||||||||||||||||||||||
Edwardsville, PA |
||||||||||||||||||||||||||||||||||||
Blackman Plaza |
— | 120 | — | 1,599 | 120 | 1,599 | 1,719 | 637 | 1968 | (c) | ||||||||||||||||||||||||||
Wilkes-Barre, PA |
||||||||||||||||||||||||||||||||||||
Plaza 422 |
— | 190 | 3,004 | 720 | 190 | 3,724 | 3,914 | 2,826 | 1972 | (c) | ||||||||||||||||||||||||||
Lebanon, PA |
||||||||||||||||||||||||||||||||||||
Route 6 Mall |
— | — | — | 12,695 | 1,664 | 11,031 | 12,695 | 4,613 | 1995 | (c) | ||||||||||||||||||||||||||
Honesdale, PA |
||||||||||||||||||||||||||||||||||||
Bartow Avenue |
— | 1,691 | 5,803 | 330 | 1,691 | 6,133 | 7,824 | 380 | 2002 | (c) | ||||||||||||||||||||||||||
Bronx, NY |
||||||||||||||||||||||||||||||||||||
Amboy Rd. Shopping Ctr. |
— | — | 11,909 | 1,435 | — | 13,344 | 13,344 | 496 | 2005 | (a) | ||||||||||||||||||||||||||
Staten Island, NY |
||||||||||||||||||||||||||||||||||||
Abington Towne Center |
— | 799 | 3,197 | 1,994 | 799 | 5,191 | 5,990 | 1,420 | 1998 | (a) | ||||||||||||||||||||||||||
Abington, PA |
||||||||||||||||||||||||||||||||||||
Bloomfield Town Square |
— | 3,443 | 13,774 | 6,414 | 3,443 | 20,188 | 23,631 | 4,286 | 1998 | (a) | ||||||||||||||||||||||||||
Bloomfield Hills, MI |
||||||||||||||||||||||||||||||||||||
Walnut Hill Plaza |
23,500 | 3,122 | 12,488 | 1,242 | 3,122 | 13,730 | 16,852 | 3,339 | 1998 | (a) | ||||||||||||||||||||||||||
Woonsocket, RI |
||||||||||||||||||||||||||||||||||||
Elmwood Park Plaza |
34,600 | 3,248 | 12,992 | 14,764 | 3,798 | 27,206 | 31,004 | 6,371 | 1998 | (a) | ||||||||||||||||||||||||||
Elmwood Park, NJ |
||||||||||||||||||||||||||||||||||||
Merrillville Plaza |
12,665 | 4,288 | 17,152 | 1,473 | 4,288 | 18,625 | 22,913 | 4,270 | 1998 | (a) | ||||||||||||||||||||||||||
Hobart, IN |
||||||||||||||||||||||||||||||||||||
Marketplace of Absecon |
— | 2,573 | 10,294 | 2,465 | 2,577 | 12,755 | 15,332 | 2,863 | 1998 | (a) | ||||||||||||||||||||||||||
Absecon, NJ |
||||||||||||||||||||||||||||||||||||
Clark Diversey |
3,781 | 11,303 | 2,903 | — | 11,303 | 2,903 | 14,206 | 71 | ||||||||||||||||||||||||||||
Boonton |
8,565 | 3,297 | 7,611 | — | 3,297 | 7,611 | 10,908 | 174 | ||||||||||||||||||||||||||||
Chestnut Hill |
9,997 | 8,978 | 5,568 | — | 8,978 | 5,568 | 14,546 | 69 | ||||||||||||||||||||||||||||
Third Avenue |
— | 11,108 | 8,038 | — | 11,108 | 8,038 | 19,146 | 48 | ||||||||||||||||||||||||||||
Liberty Avenue |
5,362 | — | — | — | — | — | — | — | ||||||||||||||||||||||||||||
Tarrytown Centre |
— | 2,323 | 7,396 | — | 2,323 | 7,396 | 9,719 | 409 | ||||||||||||||||||||||||||||
Mark Plaza |
— | 250 | — | — | 250 | 250 | ||||||||||||||||||||||||||||||
Acadia Realty L.P. |
— | — | 1,455 | — | 1,455 | 1,455 | 1,169 | |||||||||||||||||||||||||||||
Acadia K-H, LLC |
— | — | 50 | — | 50 | 50 | 25 | |||||||||||||||||||||||||||||
Acadia Sterling Heights |
— | — | (26 | ) | — | (26 | ) | (26 | ) | (0 | ) | |||||||||||||||||||||||||
Acadia Haygood |
— | — | (103 | ) | — | (103 | ) | (103 | ) | (1 | ) | |||||||||||||||||||||||||
Pelham Manor |
— | 905 | — | — | 905 | — | 905 | |||||||||||||||||||||||||||||
Hobson West Plaza |
— | 1,793 | 7,172 | 690 | 1,793 | 7,862 | 9,655 | 1,928 | 1998 | (a) | ||||||||||||||||||||||||||
Naperville, IL Village |
||||||||||||||||||||||||||||||||||||
Commons/Smithtown
Shopping Center |
9,925 | 3,229 | 12,917 | 1,229 | 3,229 | 14,146 | 17,375 | 3,580 | 1998 | (a) | ||||||||||||||||||||||||||
Smithtown, NY |
||||||||||||||||||||||||||||||||||||
Town Line Plaza |
878 | 3,510 | 7,176 | 907 | 10,657 | 11,564 | 6,562 | 1998 | (a) | |||||||||||||||||||||||||||
Rocky Hill, CT |
||||||||||||||||||||||||||||||||||||
Branch Shopping Center |
16,000 | 3,156 | 12,545 | 653 | 3,156 | 13,198 | 16,354 | 2,902 | 1998 | (a) | ||||||||||||||||||||||||||
Village of the
Branch, NY |
||||||||||||||||||||||||||||||||||||
F- 41
Table of Contents
| Costs capitalized | Date of | |||||||||||||||||||||||||||||||||||
| Buildings & | Subsequent | Buildings & | Accumulated | Acquisition (a) | ||||||||||||||||||||||||||||||||
| Description | Encumbrances | Land | Improvements | to Acquisition | Land | Improvements | Total | Depreciation | Construction(c) | |||||||||||||||||||||||||||
The Methuen Shopping
Center |
— | 956 | 3,826 | 358 | 956 | 4,184 | 5,140 | 801 | 1998 | (a) | ||||||||||||||||||||||||||
Methuen, MA |
||||||||||||||||||||||||||||||||||||
Gateway Shopping Center |
20,500 | 1,273 | 5,091 | 11,536 | 1,273 | 16,627 | 17,900 | 2,478 | 1999 | (a) | ||||||||||||||||||||||||||
Burlington, VT |
||||||||||||||||||||||||||||||||||||
Mad River Station |
— | 2,350 | 9,404 | 546 | 2,350 | 9,950 | 12,300 | 2,040 | 1999 | (a) | ||||||||||||||||||||||||||
Dayton, OH |
||||||||||||||||||||||||||||||||||||
Pacesetter Park Shopping
Center |
12,500 | 1,475 | 5,899 | 1,032 | 1,475 | 6,931 | 8,406 | 1,507 | 1999 | (a) | ||||||||||||||||||||||||||
Ramapo, NY |
||||||||||||||||||||||||||||||||||||
239 Greenwich |
15,672 | 1,817 | 15,846 | 502 | 1,817 | 16,348 | 18,165 | 3,172 | 1999 | (c) | ||||||||||||||||||||||||||
Greenwich, CT |
||||||||||||||||||||||||||||||||||||
Residential Properties
Gate House, Holiday House,
Tiger Village |
10,459 | 2,312 | 9,247 | 3,474 | 2,312 | 12,721 | 15,033 | 3,635 | 1998 | (a) | ||||||||||||||||||||||||||
Columbia, MO |
||||||||||||||||||||||||||||||||||||
Village Apartments |
— | 3,429 | 13,716 | 2,919 | 3,429 | 16,635 | 20,064 | 4,378 | 1998 | (a) | ||||||||||||||||||||||||||
Winston Salem, NC |
||||||||||||||||||||||||||||||||||||
Colony Apartments |
5,229 | 1,118 | 4,470 | 1,654 | 1,118 | 6,124 | 7,242 | 1,767 | 1998 | (a) | ||||||||||||||||||||||||||
Columbia, MO |
||||||||||||||||||||||||||||||||||||
Amherst Marketplace |
4,526 | 1,534 | 6,144 | — | 1,534 | 6,144 | 7,678 | 737 | 2002 | (a) | ||||||||||||||||||||||||||
Sheffield Crossing |
6,744 | 2,049 | 7,557 | 46 | 2,049 | 7,603 | 9,652 | 849 | 2002 | (a) | ||||||||||||||||||||||||||
Granville Center |
2,939 | 2,186 | 8,744 | 59 | 2,186 | 8,803 | 10,989 | 981 | 2002 | (a) | ||||||||||||||||||||||||||
Kroger/Safeway |
14,764 | — | 48,938 | (48 | ) | — | 48,890 | 48,890 | 22,430 | 2003 | (a) | |||||||||||||||||||||||||
Various |
||||||||||||||||||||||||||||||||||||
400 E. Fordham Road |
18,000 | 11,144 | 18,010 | 902 | 12,012 | 18,044 | 30,056 | 1,017 | 2004 | (a) | ||||||||||||||||||||||||||
Bronx, NY |
||||||||||||||||||||||||||||||||||||
4650 Broadway/Sherman
Avenue |
19,000 | 25,267 | — | — | 25,267 | — | 25,267 | — | 2005 | (a) | ||||||||||||||||||||||||||
New York, NY |
||||||||||||||||||||||||||||||||||||
216th Street |
6,423 | 7,313 | — | (52 | ) | 7,261 | — | 7,261 | — | 2005 | (a) | |||||||||||||||||||||||||
New York, NY |
||||||||||||||||||||||||||||||||||||
161st Street |
30,000 | 16,679 | 28,410 | 181 | 16,679 | 28,591 | 45,270 | 1,008 | 2005 | (a) | ||||||||||||||||||||||||||
Bronx, NY |
||||||||||||||||||||||||||||||||||||
Oakbrook |
— | — | 6,906 | 17 | — | 6,923 | 6,923 | 683 | 2005 | (a) | ||||||||||||||||||||||||||
Oakbrook, IL |
||||||||||||||||||||||||||||||||||||
Undeveloped land |
— | — | — | — | — | — | — | — | ||||||||||||||||||||||||||||
Properties under
development |
— | — | — | 26,670 | — | 26,670 | 26,670 | — | 2005 | (a) | ||||||||||||||||||||||||||
| $ | 345,215 | $ | 149,867 | $ | 373,145 | $ | 154,226 | $ | 152,930 | $ | 524,308 | $ | 677,238 | $ | 142,071 | |||||||||||||||||||||
S.CONT
F- 42
Table of Contents
ACADIA REALTY TRUST
NOTES TO SCHEDULE III
NOTES TO SCHEDULE III
December 31, 2006
1. Depreciation and investments in buildings and improvements reflected in the statements of income
is calculated over the estimated useful life of the assets as follows:
Buildings 30 to 40 years Improvements Shorter of lease term or useful life
2. The aggregate gross cost of property included above for Federal income tax purposes was $352.7
million as of December 31, 2006.
3. (a) Reconciliation of Real Estate Properties:
The following table reconciles the real estate properties from January 1, 2004 to December 31,
2006:
| For the year ended December 31, | ||||||||||||
| (dollars in thousands) | 2006 | 2005 | 2004 | |||||||||
Balance at beginning of year |
$ | 710,106 | $ | 599,558 | $ | 541,892 | ||||||
Transfers (1) |
(131,341 | ) | ||||||||||
Other improvements |
28,698 | 12,700 | 6,909 | |||||||||
Reclassification of tenant
improvement activities |
— | — | 845 | |||||||||
Property Acquired |
69,775 | 97,848 | 49,912 | |||||||||
Balance at end of year |
$ | 677,238 | $ | 710,106 | $ | 599,558 | ||||||
| (1) | Reflects the change in accounting for the Brandywine Portfolio following the recapitalization of the investment in January 2006 (Note 1). |
(b) Reconciliation of Accumulated Depreciation:
The following table reconciles accumulated depreciation from January 1, 2004 to December 31, 2006:
| For the year ended December 31, | ||||||||||||
| (dollars in thousands) | 2006 | 2005 | 2004 | |||||||||
Balance at beginning of year |
$ | 127,819 | $ | 106,924 | $ | 86,337 | ||||||
Reclassification of tenant
improvement activities |
— | — | 660 | |||||||||
Depreciation related to real estate |
14,252 | 20,895 | 19,927 | |||||||||
Balance at end of year |
$ | 142,071 | $ | 127,819 | $ | 106,924 | ||||||
F- 43
Exhibit 10.59
AMENDED AND RESTATED REVOLVING LOAN AGREEMENT
dated as of December 19, 2006
between
BANK OF AMERICA, N.A.,
as a Lender and Arranger
(“Lender”),
as a Lender and Arranger
(“Lender”),
BANK OF AMERICA, N.A.,
as Administrative Agent
(“Administrative Agent”)
as Administrative Agent
(“Administrative Agent”)
and
RD ABINGTON ASSOCIATES LIMITED PARTNERSHIP (“RD Abington”),
ACADIA TOWN LINE, LLC (“Acadia Town Line”),
RD METHUEN ASSOCIATES LIMITED PARTNERSHIP (“RD Methuen”),
RD ABSECON ASSOCIATES, L.P. (“RD Absecon”),
RD BLOOMFIELD ASSOCIATES, LIMITED PARTNERSHIP (“RD Bloomfield”),
RD HOBSON ASSOCIATES, L.P. (“RD Hobson”),
and
RD VILLAGE ASSOCIATES LIMITED PARTNERSHIP (“RD Village”),
as Borrowers
ACADIA TOWN LINE, LLC (“Acadia Town Line”),
RD METHUEN ASSOCIATES LIMITED PARTNERSHIP (“RD Methuen”),
RD ABSECON ASSOCIATES, L.P. (“RD Absecon”),
RD BLOOMFIELD ASSOCIATES, LIMITED PARTNERSHIP (“RD Bloomfield”),
RD HOBSON ASSOCIATES, L.P. (“RD Hobson”),
and
RD VILLAGE ASSOCIATES LIMITED PARTNERSHIP (“RD Village”),
as Borrowers
(RD Abington, Acadia Town Line, RD Methuen, RD Absecon, RD Bloomfield,
RD Hobson and RD Village, individually and collectively, as the context requires,
“Borrower”)
RD Hobson and RD Village, individually and collectively, as the context requires,
“Borrower”)
THIS AMENDED AND RESTATED REVOLVING LOAN AGREEMENT (“this Agreement”) dated as of December 19,
2006 by and among RD ABINGTON ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership (“RD
Abington”), ACADIA TOWN LINE, LLC, a Connecticut limited liability company (“Acadia Town Line”), RD
METHUEN ASSOCIATES LIMITED PARTNERSHIP, a Massachusetts limited partnership (“RD Methuen”), RD
ABSECON ASSOCIATES, L.P., a Delaware limited partnership (“RD Absecon”), RD BLOOMFIELD ASSOCIATES,
LIMITED PARTNERSHIP, a Delaware limited partnership (“RD Bloomfield”), RD HOBSON ASSOCIATES, L.P.,
a Delaware limited partnership (“RD Hobson”) and RD VILLAGE ASSOCIATES LIMITED PARTNERSHIP, a
Delaware limited partnership (“RD Village”; RD Abington, Acadia Town Line, RD Methuen, RD Absecon,
RD Bloomfield, RD Hobson and RD Village, collectively and individually, as the context requires,
“Borrower”) and BANK OF AMERICA, N.A. (in its individual capacity and not as Administrative Agent,
“BofA”; BofA and each other lender who may become a Lender pursuant to Section 8.07, each, a
“Lender” and collectively, “Lenders”) and BANK OF AMERICA, N.A., as Administrative Agent for
Lenders (together with its successors in such capacity, “Administrative Agent”).
WHEREAS, pursuant to that certain Revolving Loan Agreement dated as of May 26, 2005 (the
“Original Agreement”) by and among RD Absecon, RD Bloomfield, RD Hobson and RD Village
(collectively, the “Original Borrowers”) and RD Woonsocket Associates Limited Partnership (“RD
Woonsocket”), Fleet National Bank, a Bank of America company (“Fleet”) and The Bank of China, New
York Branch (“Bank of China”), Fleet and Bank of China made a loan (the “Original Loan”) to
Original Borrowers and RD Woonsocket in the original principal amount of up to $65,000,000;
WHEREAS, on the date hereof, after giving effect to an Assignment and Assumption from Bank of
China to BofA, BofA is the only Lender under the Original Agreement;
WHEREAS, pursuant to that certain Amended and Restated Term Loan Agreement dated as of June
30, 2004 (the “Term Agreement”) by and among Fleet, Heathcote Associates, L.P. (“Acadia
Heathcote”), RD Branch Associates, L.P. (“RD Branch”), Acadia Town Line, RD Abington, and RD
Methuen (collectively, the “Term Borrowers”), Lender made a loan (the “Term Loan”) to Term
Borrowers in the original principal amount of up to $45,900,000;
WHEREAS, the property owned by RD Woonsocket has been, or will contemporaneously herewith be,
released from the liens of the mortgages securing the Original Loan;
WHEREAS, the property owned by Acadia Heathcote has been released from the liens of the
mortgages securing the Term Loan;
WHEREAS, BofA is the successor by merger to Fleet;
WHEREAS, the portion of the Term Loan which is secured by the property owned by RD Branch will
contemporaneously herewith be severed pursuant to a certain Note Modification and Severance
Agreement dated as of the date hereof (the “Severance Agreement”) by and between the Term Borrowers
and BofA so that such portion of the Term Loan is evidenced by a severed note and secured by a
severed mortgage upon which the other Term Borrowers are not obligors;
WHEREAS, RD Woonsocket, Acadia Heathcote and RD Branch shall, as of the date hereof, no longer
have any of their property encumbered as collateral for either the Term Loan or the Original Loan,
therefore such entities have requested that they be released from liability for the future
repayment thereof and Lenders have agreed to so release such entities;
WHEREAS, as of the date hereof the outstanding principal balance of the Original Loan is
$22,000,000 and the outstanding principal balance of the Term Loan, after giving effect to the
Severance Agreement and excluding the portion thereof for which solely RD Branch shall hereafter be
liable, is $18,584,535 and, in addition, the Existing Letters of Credit (as hereinafter defined) in
the aggregate amount of $56,600 have been issued and are outstanding; and
WHEREAS, Borrower has requested, and Lenders and Administrative Agent have agreed, subject to
the terms and conditions hereof, to consolidate the Original Loan and the Term Loan into a single
loan (defined herein as the Loan), increase the maximum principal amount thereof, extend the term
thereof and to consolidate, amend and restate the terms of the Original Agreement, the notes
executed pursuant to the Original Agreement (the “Original Notes”), the Term Agreement, the note
executed pursuant to the Term Agreement (the “Term Note”) on the terms and conditions set forth
herein and Lenders are prepared to do so on the terms and conditions hereinafter set forth.
Borrower desires that Lenders extend credit as provided herein, and Lenders are prepared to
extend such credit. Accordingly, Borrower, Administrative Agent and each Lender agree as follows:
NOW, THEREFORE, in consideration of the mutual promises and agreements herein contained,
Borrower, Administrative Agent and Lenders hereby agree as follows:
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.01. Definitions. The following terms, as used in this Agreement, shall
have the following meanings:
“Abington/PA Property” — The fee interest in real property located on Old York Road in
Abington, Pennsylvania owned by RD Abington.
2
“Absecon/NJ Property” — The fee interest in real property located at Whitehorse Pike in
Absecon, New Jersey owned by RD Absecon.
“Additional Costs” — Has the meaning specified in Section 3.01.
“Additional Interest” — Any and all sums that shall become due and payable by Borrower
under the Hedging Agreement.
“Additional Advance” — Has the meaning set forth in Section 4.02 of this Agreement.
“Administration Fee” — Has the meaning specified in Section 6.03.
“Administrative Agent” — Has the meaning specified in the preamble.
“Administrative Agent’s Counsel” — Schiff Hardin LLP, 623 Fifth Avenue, 28th Floor, New
York, New York 10022.
“Administrative Agent’s Office” — Administrative Agent’s office located as set forth on
its signature page hereof, or such other address in the United States as Administrative Agent
may designate by notice to Borrower and Lenders.
“Affiliate” — With respect to any Person (the “first Person”), any other Person (1) which
directly or indirectly controls, or is controlled by, or is under common control with the
first Person or (2) 10% or more of the beneficial interest in which is directly or indirectly
owned or held by the first Person. The term “control” means the possession, directly or
indirectly, of the power, alone, to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by contract, or
otherwise.
“Anchors” — Shall mean, with respect to each Property:
(i) American Stores Properties, Inc., a wholly owned subsidiary of Albertson’s, Inc.
(a/k/a Acme), Island Gym/Fitness and Eckerd Corporation with respect to the Absecon/NJ
Property;
(ii) HomeGoods, Inc., Marshalls of MA, Inc., The TJX Companies, Inc., PetCo and
OfficeMax North America, Inc. (f/k/a OfficeMax, Inc.) with respect to the Bloomfield/MI
Property;
(iii) Bobak Enterprises and Coldwell Banker, with respect to the Hobson/IL Property;
(iv) Stop & Shop and Town Line Diner with respect to the Town Line/CT Property;
(v) Wal-Mart and Demoulas Market, with respect to the Methuen/MA Property; and
3
(vi) T.J. Maxx, with respect to the Abington/PA Property.
“Applicable Lending Office” — For each Lender and for the portions of the outstanding
principal balance under its Note bearing interest at the Prime Based Rate or LIBO Based Rate,
as applicable, the lending office of such Lender (or of an Affiliate of such Lender)
designated as such on its signature page hereof or in the applicable Assignment and Assumption
Agreement, or such other office of such Lender (or of an Affiliate of such Lender) as such
Lender may from time to time specify to Administrative Agent and Borrower as the office by the
portions of the outstanding principal balance under its Note bearing interest at the Prime
Based Rate or LIBO Based Rate , as applicable, are to be made and maintained.
“Applicable Margin” — With respect to the Prime Based Rate, 1.0% per annum; and with
respect to the LIBO Based Rate, 1.25% per annum.
“Assignee” — Has the meaning specified in Section 8.07.
“Assignment and Assumption Agreement” — An Assignment and Assumption Agreement,
substantially in the form of EXHIBIT A, pursuant to which a Lender assigns and an Assignee
assumes rights and obligations in accordance with Section 11.05.
“Authorization Letter” — The letter in the form of EXHIBIT F.
“Bloomfield/MI Property” — The fee interest in real property located at 2257 South
Telegraph Road in Bloomfield, Michigan owned by RD Bloomfield.
“Business Day” — Any day on which commercial banks are not authorized or required to close
in New York City; and, whenever such day relates to a LIBOR Amount, an Interest Period with
respect to a LIBOR Amount, or notice with respect to a LIBOR Amount, any such day in which
dealings in Dollar deposits are also carried out in the London interbank market and banks are
also open for business in London.
“Code” — The Internal Revenue Code of 1986.
“Contribution Agreement” — That certain Subordination and Contribution Agreement dated as
of the date hereof by and among Administrative Agent and Borrowers.
“Counterparty” — Bank of America, N.A., or any of its Affiliates, in their capacity as a
party to the Hedging Agreement, if any, and its successors and assigns in such capacity.
“Default” — Any event or circumstance which, with the giving of notice or the passage of
time, or both, would become an Event of Default.
“Default Rate” — A rate per annum equal to (1) with respect to Prime Based Loans, a
variable rate 5% above the rate of interest then in effect thereon and (2) with
4
respect to LIBOR Amounts, a fixed rate 5% above rate(s) of interest in effect thereon at
the time of Event of Default until the end of the then current Interest Period therefor
and, thereafter, a variable rate 5% above the rate of interest for a Prime Based Loan.
“Delinquency Amount”; “Delinquency Notice”; “Delinquent Lender” — Have the
respective meanings specified in Section 7.16.
“Dollars” and “$” — Lawful money of the United States of America.
“DSC Cap” — Has the meaning set forth in Section 2.04(b) of this Agreement.
“DSC Test” — Has the meaning set forth in Section 6.06 of this Agreement.
“Electing Lender”; “Election Notice”; “Election Period” — Have the
respective meanings specified in Section 7.16.
“Eligible Assignee” — An entity which is (i) a commercial bank organized under the Laws of
the United States, or any State thereof, and having (x) total assets in excess of
$1,000,000,000 and (y) a combined capital and surplus of at least $250,000,000; (ii) a
commercial bank organized under the laws of any other country which is a member of the
Organization of Economic Cooperation and Development (“OECD”), or a political subdivision of
any such country, and having (x) total assets in excess of $1,000,000,000 and (y) a combined
capital and surplus of at least $250,000,000, provided that such bank is acting through a
branch or agency located in the country in which it is organized or another country which is
also a member of OECD; (iii) a life insurance company organized under the Laws of any State of
the United States, or organized under the laws of any country and licensed as a life insurer
by any State within the United States and having admitted assets of at least $1,000,000,000;
or (iv) a nationally recognized investment banking company, or an Affiliate thereof (other
than any Person which is directly or indirectly an Affiliate of Borrower or Guarantor, or of
any member or partner of Borrower or Guarantor) organized under the Laws of any State of the
United States, and licensed or qualified to conduct such business under the Laws of any such
State and having (1) total assets of at least $1,000,000,000 and (2) a net worth of at least
$250,000,000.
“Employee Benefit Plan” — Any employee benefit or other plan established or maintained, or
to which contributions have been made, by Borrower or Guarantor.
“ERISA” — The Employee Retirement Income Security Act of 1974, including the rules and
regulations promulgated thereunder.
“ERISA Affiliate” — Any corporation which is a member of the same controlled group of
corporations (within the meaning of Section 414(b) of the Code) as Borrower and/or Guarantor,
or any trade or business which is under common control (within the meaning of Section 414(c)
of the Code) with Borrower and/or Guarantor, or
5
any organization which is required to be treated as a single employer with Borrower and/or
Guarantor under Section 414(m) or 414(o) of the Code.
“Event of Default” — Has the meaning given to such term in the Mortgage.
“Existing Letters of Credit” — Collectively, (i) that certain letter of credit no.
68010726 issued by BofA on December 30, 2005 in the reduced amount of $6,600 for the benefit
of New Castle County General Manager, Department of Land Use and (ii) that certain letter of
credit no. 68012410 issued by BofA on April 24, 2006 in the amount of $50,000 for the benefit
of The Estate of John W. Rollins, Sr.
“Federal Funds Rate” — For any day, the rate per annum equal to the weighted average of
the rates on overnight Federal funds transactions as published by the Federal Reserve Bank of
New York for such day or, for any day that is not a banking day in New York City, for the
immediately preceding banking day.
“Fiscal Year” — The calendar year or such other annual period as Borrower and
Administrative Agent may mutually agree upon.
“Financial Statements” — Statements of the assets, liabilities (direct or contingent),
income, expenses and cash flow of Borrower and Guarantor, prepared in accordance with
generally accepted accounting principles in the United States as in effect from time to time
and consistently applied.
“Fronting Fee” — Has the meaning set forth in Section 8.21 of this Agreement.
“Funding Cap” — $75,000,000 subject to adjustment, up or down, in accordance with Section
2.04(b), but in no event to exceed $88,000,000.
“GAAP” — Generally accepted accounting principles in the United States as in effect from
time to time, consistently applied.
“Good Faith Contest” — The contest of an item if (1) the item is diligently contested in
good faith, and, if appropriate, by proceedings timely instituted, (2) adequate reserves are
established with respect to the contested item, (3) during the period of such contest, the
enforcement of any contested item is effectively stayed and (4) the failure to pay or comply
with the contested item during the period of the contest is not likely to (x) result in a
Material Adverse Change or (y) have an adverse effect on the Mortgaged Property under any
Mortgage or any part thereof, or on Lenders’ interest therein.
“Governmental Approvals” — Any authorization, consent, approval, license, permit,
certification, or exemption of, registration or filing with or report or notice to, any
Governmental Authority.
“Governmental Authorities” — The United States, the state in which the Property is located
and any political subdivision, agency, department, commission, board, bureau or
instrumentality of either of them, including any local authorities, which
6
exercises jurisdiction over Borrower, Guarantor, the Property or the Improvements.
“Guarantor” — Jointly and severally, Acadia Realty Limited Partnership, a Delaware limited
partnership and any other person(s) or entity(ies) who may hereafter become a guarantor of any
or all of Borrower’s obligations in respect of the Loan.
“Guaranty” — The guaranty(ies) of all or part of Borrower’s obligations, to be executed by
Guarantor.
“Hazardous Materials” — Has the meaning given to such term in the Mortgage.
“Hedging Agreement” — Any ISDA Master Agreement or other documentation with respect to an
interest rate hedging transaction entered into by and between any Borrower, as any of the same
may be amended, modified or supplemented from time to time, including any and all
“confirmations” under any thereof.
“Hobson/IL Property” — The fee interest in real property located at 931 West 75th Street
in Naperville, Illinois owned by RD Hobson.
“Improvements” — Shall mean, with respect to the indicated Property: (i) a one story
Neighborhood Shopping Center containing 105,093 square feet with respect to the Absecon/NJ
Property, (ii) a one story Community Shopping Center containing 229,506 square feet with
respect to the Bloomfield/MI Property, (iii) a one story Neighborhood Shopping Center
containing 99,042 square feet with respect to the Hobson/IL Property, (iv) a one story
neighborhood shopping center containing 129,494 square feet with respect to the Methuen/MA
Property, (v) a multi-level shopping center containing 63,889 square feet with respect to the
Abington/PA Property, (vi) a one-story neighborhood shopping center containing 206,178 square
feet with respect to the Town Line/CT Property and (vii) a two story, 578,706 n.r.s.f./600
unit apartment community with 1,158 surface parking spaces with respect to the Village/NC
Property.
“Increase Fee” — Has the meaning set forth in Section 2.04(b) of this Agreement.
“Indemnity” — An agreement from Borrower and Guarantor or, if there is no Guarantor, such
other persons or entities as shall be satisfactory to Lender, whereby, among other things,
Lender is indemnified regarding Hazardous Materials.
“Individual Loan Commitment” — With respect to each Lender, the amount set forth below
opposite the name of such Lender (subject to change in accordance with the terms of this
Agreement).
7
| Lender | Individual Loan Commitment | |||
BofA |
$ | 88,000,000 | ||
Upon any reduction in the Total Loan Commitment, each Lender’s Individual Loan Commitment shall
reduce by the Lender’s Pro Rata Share of the reduction of the Total Loan Commitment.
“Insolvency Event” — Shall mean the occurrence of any of the Events of Default described
in clauses (d) through (h) of the Mortgage.
“Interest Period” — The period during which interest at the LIBO Based Rate, determined as
provided in this Agreement, shall be applicable to the LIBO Rate Request Amount in question,
provided, however, that each such period shall be either one (1), two (2),
three (3) months (or, if available, four (4), or six (6) months or such other periods as
Administrative Agent may make available from time to time), which shall be measured from the
date specified by Borrower in each LIBO Rate Request for the commencement of the computation
of interest at the LIBO Based Rate, to the numerically corresponding day in the calendar month
in which such period terminates (or, if there be no numerical correspondent in such month, or
if the date selected by Borrower for such commencement is the last Business Day of a calendar
month, then the last Business Day of the calendar month in which such period terminates, or if
the numerically corresponding day is not a Business Day then the next succeeding Business Day,
unless such next succeeding Business Day enters a new calendar month, in which case such
period shall end on the next preceding Business Day) and in no event shall any such period
extend beyond the Maturity Date.
“Initial Advance” — The first advance of Loan proceeds to be made hereunder.
“Law” — Any federal, state or local law, statute, rule, regulation, ordinance, order,
decree, directive, requirement, code, notice of violation or rule of common law, now or
hereafter in effect, and in each case as amended, and any judicial or administrative
interpretation thereof by a Governmental Authority or otherwise, including any judicial or
administrative order, determination, consent decree or judgment.
“Lender”; “Lenders” — Has the respective meanings specified in the preamble.
“Lender Reply Period” — Has the meaning specified in Section 8.06.
“Lenders L/C Fee” — Has the meaning set forth in Section 8.21 of this Agreement.
“Letter of Credit” — Has the meaning set forth in Section 8.21 of this Agreement.
“LIBO Based Rate” — With respect to any LIBOR Amount, the rate per annum (expressed as a
percentage) determined by Administrative Agent to be equal to the sum of (i) the quotient of
the LIBO Rate for the LIBOR Amount and Interest
8
Period in question divided by [1 minus the Reserve Requirement] (at Administrative Agent’s
option, rounded up, if necessary, to the nearest 1/100 of 1%) and (ii) the Applicable
Margin.
“LIBO Rate” — With respect to any applicable Interest Period, the rate per annum equal to
the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by Reuters (or other
commercially available source providing quotations of BBA LIBOR as selected by Administrative
Agent from time to time) at approximately 11:00 a.m. London time two (2) Business Days before
the commencement of such Interest Period, for deposits in U.S. Dollars (for delivery on the
first day of such Interest Period) with a term equivalent to such Interest Period. If such
rate is not available at such time for any reason, then the rate for that Interest Period will
be determined by such alternate method as reasonably selected by Administrative Agent.
“LIBO Rate Request” — Borrower’s telephonic notice (to be promptly confirmed in writing),
to be received by Administrative Agent by 12 Noon (New York time) three (3) Business Days
prior to the date specified in the LIBO Rate Request for the commencement of the Interest
Period (which specified date must be a Business Day), of (a) its intention to have (i) all or
any portion of the Principal Amount which is not then the subject of an Interest Period (other
than an Interest Period which is terminating on the Business Day specified in the notice)
and/or (ii) all or any portion of any advance of proceeds of the Loan evidenced by the Notes
which is to be made on the Business Day specified in such notice, bear interest at the LIBO
Based Rate and (b) the Interest Period desired by Borrower in respect of the amount specified,
which notice shall be promptly communicated by Administrative Agent to each Lender.
“LIBO Rate Request Amount” — The amount, to be specified by Borrower in each LIBO Rate
Request, which Borrower desires bear interest at the LIBO Based Rate and which, at
Administrative Agent’s option, shall be an integral multiple of $100,000.
“LIBOR Amount” — All or any portion (as the context requires) of any Lender’s Loan which
shall accrue interest at the LIBOR Based Rate.
“Liquidity Requirement” — Has the meaning specified in Section 4.01(d)(18).
“Loan” — The loan in the Loan Amount made by Lender to Borrower under this Agreement.
“Loan Allocation” — Shall mean, with respect to the indicated Property: (i) $13,000,000
for the Absecon/NJ Property, (ii) $21,000,000 for the Bloomfield/MI Property, (iii)
$10,000,000 for the Hobson/IL Property, (iv) $7,500,000 for the Abington/PA Property, (v)
$13,000,000 for the Town Line/CT Property, (vi) $8,500,000 for the Methuen/MA Property and
(vii) $15,000,000 for the Village/NC Property.
9
“Loan Amount” — [$75,000,000 (subject to change in accordance with the terms of this
Agreement)].
“Loan Documents” — This Agreement, the Notes, the Mortgages, the Indemnity, the
Authorization Letter, the Solvency Certificate, the Contribution Agreement, Uniform Commercial
Code financing statements in respect of the Mortgaged Property and any other collateral given
to Lender as security for the Loan, and any other documents which evidence or secure the Loan.
“Loan to Value Cap” — Has the meaning set forth in Section 2.04(b) of this Agreement.
“Loan to Value Test” — Has the meaning set forth in Section 6.06 of this Agreement.
“Major Lease” — Any lease for space in excess of 10,000 square feet of the rentable area
of the Improvements.
“Material Adverse Change” means either (1) a material adverse change in the status of the
business, results of operations, financial condition, property or prospects of Borrower or (2)
any event or occurrence of whatever nature which is likely to (x) have a material adverse
effect on the ability of Borrower to perform its obligations under the Loan Documents or (y)
create, in the sole and absolute judgment (reasonably exercised) of Lender, a material risk of
sale or forfeiture of any of the Mortgaged Property (other than an immaterial portion thereof)
under any Mortgage or otherwise materially impair any of the Mortgaged Property under any
Mortgage or Lenders’ rights therein.
“Maturity Date” — December 1, 2010 subject to extension in accordance with Section 2.16.
“Maximum Release Price” — Has the meaning set forth in Section 8.18 of this Agreement.
“Methuen/MA Property” — The fee and leasehold interest in real property located at the
intersection of Rte. 113 and Interstate 495 in Methuen, Massachusetts owned by RD Methuen.
“Mortgage” — Those certain mortgages (or deeds of trust) made by a Borrower in favor of
Administrative Agent dated the date hereof, or as may be described in, and modified by, those
certain Mortgage (or Deed of Trust) Modification Agreements, dated the date hereof, by and
between a Borrower and Administrative Agent, in all cases to secure the payment and
performance of Borrower’s obligations hereunder, under the Note and otherwise in respect of
the Loan.
“Mortgaged Property” means, for each Property, the Property, the Improvements thereon and
all other property constituting the “Mortgaged Property”, as said quoted term is defined in
the applicable Mortgage.
10
“Multiemployer Plan” — A Plan defined as such in Section 3(37) of ERISA to which
contributions have been made by Borrower or any ERISA Affiliate and which is covered by Title
IV of ERISA.
“Net Operating Income”
(a) all revenues from the ownership, use, occupancy, leasing and operation of the
Property during the period in question, determined in accordance with GAAP (but adjusted to
eliminate the effects of straight-lining of rents and further adjusted to exclude
extraordinary and non-recurring sources of income), including all rental and other
payments, including, without limitation, base rent, additional rent, promotional revenues,
percentage rent and payments for common area maintenance, taxes, insurance and operating
expenses and proceeds of rental loss or business interruption service, excluding tenant
security deposits collected but not applied to tenants’ obligations, and interest on such
deposits;
minus
(b) all expenses in connection with the Property during such period, determined in
accordance with GAAP, including insurance premiums, real estate taxes, promotional
expenses, maintenance and repair expenses, management fees and any other operational
expenses, all as determined in accordance with GAAP, but not including debt service payable
under the Loan.
“Net Worth Requirement” — Has the meaning specified in Section 4.01(d)(18).
“Non-Delinquent Lender” — Each Lender other than the Delinquent Lender(s).
“Non-Excluded Taxes” — Has the meaning specified in Section 8.14.
“Note”; “Notes” — Have the respective meanings specified in Section 2.06.
“Obligations” — Each and every obligation, covenant and agreement of Borrower, now or
hereafter existing, contained in this Agreement, and any of the other Loan Documents, whether
for principal, reimbursement obligations, interest, fees, expenses, indemnities or otherwise,
and any amendments or supplements thereto, extensions or renewals thereof or replacements
therefor, including, but not limited to, all indebtedness, obligations and liabilities of
Borrower to Administrative Agent and any Lender now existing or hereafter incurred under or
arising out of or in connection with the Notes, this Agreement, the other Loan Documents, and
any documents or instruments executed in connection therewith; in each case whether direct or
indirect, joint or several, absolute or contingent, liquidated or unliquidated, now or
hereafter existing, renewed or restructured, whether or not from time to time decreased or
extinguished and later increased, created or incurred, and including all indebtedness of
Borrower, under any instrument now or hereafter evidencing or securing any of the foregoing.
11
“Outstanding Credit Amount” — Has the meaning set forth in Section 2.01 of this Agreement.
“Participant”; “Participation” — Have the respective meanings specified in Section
8.07.
“Payor” — Has the meaning specified in Section 7.12.
“Pension Plan” — Any employee pension benefit plan within the meaning of Section 3(2) of
ERISA with respect to which Borrower, Guarantor or any ERISA Affiliate at any relevant time
has liability or an obligation to contribute.
“Person” — An individual, partnership, corporation, limited liability company, business
trust, joint stock company, trust, unincorporated association, joint venture or other entity
of whatever nature.
“Plan” — Any employee benefit or other plan established or maintained, or to which
contributions have been made, by Borrower or any ERISA Affiliate and which is covered by Title
IV of ERISA or to which Section 412 of the Code applies.
“Premises Documents” — Has the meaning given to such term in the Mortgage.
“Prime Based Loan” — All or any portion (as the context requires) of a Lender’s Loan which
shall accrue interest at a rate determined in relation to the Prime Based Rate.
“Prime Based Rate” — The Applicable Margin plus the greater of (i) the Federal Funds Rate
plus 1/2 of 1% per annum or (ii) the prime commercial lending rate as announced from time to
time by Administrative Agent at Administrative Agent’s Office (it being understood that said
“prime commercial lending rate” is a reference rate and does not necessarily represent the
lowest or best rate being charged to customers), each change in said rates to be effective,
without notice or demand of any kind, as of the date of such change.
“Principal Amount” — At any time, the aggregate outstanding principal amount of the Notes.
“Property” means, individually and collectively, as the context requires, each of the
Absecon/NJ Property, the Bloomfield/MI Property, the Hobson/IL Property, the Village/NC
Property, the Abington/PA Property, the Methuen/MA Property and the Town Line/CT Property.
“Pro Rata Share” — With respect to each Lender, the ratio of such Lender’s Individual Loan
Commitment to the Loan Amount. As of the date hereof, the Lenders’ respective Pro Rata Shares
are as follows:
12
| Lender | Pro Rata Share | |||
BofA |
100 | % | ||
“Regulation D” and “Regulation U” — Respectively, Regulation D and Regulation U of
the Board of Governors of the Federal Reserve System.
“Regulatory Change” — With respect to any Lender and the charging and collecting of
interest at the LIBO Based Rate, any change after the date hereof in federal, state or foreign
laws or regulations (including Regulation D) or the adoption or making after such date of any
interpretations, directives or requests applying to a class of banks including such Lender
under any federal, state or foreign laws or regulations (whether or not having the force of
law) by any court or governmental or monetary authority charged with the interpretation or
administration thereof, excluding any change the effect of which is reflected in a change in
the LIBO Based Rate.
“Release Price” — Shall mean, with respect to each Property, an amount equal to the
greater of (x) the product of the Loan Allocation Amount for such Property multiplied by 1.15
or (y) 80% of the appraised value of such Property as indicated on the most recent appraisal
procured by Lender for such Property.
“Replacement Lender” — Has the meaning set forth in Section 7.20 of this Agreement.
“Required Lenders” — At any time, those Non-Delinquent Lenders having Pro Rata Shares
aggregating more than 50%.
“Required Payment” — Has the meaning specified in Section 7.12.
“Requisition” — A written statement by or on behalf of Borrower, in form and substance
satisfactory to Administrative Agent, setting forth the amount of the Loan advance requested
in each instance and instructions for the payment of the same, and certifying the purpose for
which such advance is to be used.
“Reserve Requirement” — With respect to any applicable Interest Period, for any day that
percentage (expressed as a decimal) which is in effect on such day, as prescribed by the Board
of Governors of the Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including basic, supplemental, emergency, special and marginal reserves)
generally applicable to financial institutions regulated by the Federal Reserve Board
comparable in size and type to Lenders, in respect of “Eurocurrency liabilities” (or in
respect of any other category of liabilities which includes deposits by reference to which the
interest rate on LIBOR Amounts is determined), whether or not Lenders have any Eurocurrency
liabilities or such requirement otherwise in fact applies to Lenders. The LIBOR Rate shall be
adjusted automatically as of the effective date of each change in the Reserve Requirement
13
“Solvency Certificate” — A certificate in the form of EXHIBIT G executed by each of
the Borrowers.
“Solvent” — When used with respect to any Person, that the fair value of the property of
such Person, on a going concern basis, is greater than the total amount of liabilities
(including, without limitation, contingent liabilities) of such Person.
“Special Holdback” — $780,000, provided, however, that the Special Holdback shall be $0
(zero) if, as and when RD Bloomfield delivers to Administrative Agent an estoppel from Circuit
City Stores, Inc. (“CC”) certifying that, pursuant to the lease between RD Bloomfield and CC,
CC has accepted occupancy of the demised premises, has opened for business to the public
therein and has received all required “Landlord Reimbursements” thereunder and that there is
no default under such lease.
“Supplemental Fee Letter” — That certain letter agreement, dated the date hereof, between
BofA and Borrower, providing for Borrower’s payment to Administrative Agent and/or BofA on the
date hereof and from time to time hereafter certain fees in connection with the Loan, each
such fee to be for Administrative Agent’s and/or BofA’s own account.
“Title Insurer” — The issuer(s), approved by Administrative Agent, of the title insurance
policy or policies insuring the Mortgage.
“Total Loan Commitment” — An amount equal to (x) the aggregate amount of all Individual
Loan Commitments less (y) the Special Holdback.
“Town Line/CT Property” — The fee interest in real property located at 80 Town Line Road,
Rocky Hill, Connecticut owned by Acadia Town Line.
“Treasury Rate” — The yield rate (i) on the 10 year U.S. Treasury Security due on or
closest to the Maturity Date (as defined in the Note), as such yield rate is reported in the
Wall Street Journal on the second Business Day preceding the date of calculation.
“Unrestricted Cash and Cash Equivalents” — The following assets of Guarantor (and
Guarantor’s pro rata share thereof with respect to unconsolidated joint ventures in which
Guarantor has the power and authority to cause distributions from such joint venture), in each
case, not subject to any lien, security interest or restriction: (i) cash, (ii) securities
issued or directly and fully guaranteed or insured by the United States of America or any
agency or instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more than six (6)
months from the date of acquisition, (iii) shares of money market funds invested in the
securities described in clause (ii) above and (iv) Dollar denominated time deposits or
certificates of deposit of any domestic United States commercial bank whose long-term debt is
rated at least A by Standard & Poor’s Rating Services, a division of The McGraw-
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Hill Companies, Inc. or A2 by Moody’s Investors Service, Inc. and having capital and
surplus in excess of $500,000,000.
“Unused Fee” — Has the meaning specified in Section 6.10.
“Unused Fee Rate” — A rate per annum which will vary daily based upon the Outstanding
Credit Amount as follows:
| Outstanding Credit Amount | Unused Fee Rate | |
Less than $50,000,000
|
0.0150% (15 basis points) | |
Equal to or greater than
$50,000,000 but equal to or less
than $60,000,000
|
0.0125% (12.5 basis points) | |
Greater than $60,000,000
|
0.0100% (10 basis points) |
“Village/NC Property” — The fee interest in real property located at 240 Village Crossing
Lane in Winston-Salem, North Carolina owned by RD Village.
Section 1.02. Accounting Terms. All accounting terms not specifically defined herein
shall be construed in accordance with GAAP, and all financial data required to be delivered
hereunder shall be prepared in accordance with GAAP.
Section 1.03. Computation of Time Periods. Except as otherwise provided herein, in
this Agreement, in the computation of periods of time from a specified date to a later specified
date, the word “from” means “from and including” and words “to” and “until” each means “to but
excluding”.
Section 1.04. Rules of Construction. Except as expressly provided otherwise, when
used in this Agreement (i) “or” is not exclusive, (ii) “hereunder”, “herein”, “hereof” and the like
refer to this Agreement as a whole, (iii) “Article”, “Section”, “Schedule” and “Exhibit” refer to
Articles, Sections, Schedules and Exhibits of this Agreement, (iv) terms defined in the singular
shall have a correlative meaning when used in the plural and vice versa, (v) a reference to a Law
includes any amendment, modification or supplement to, or replacement of, such Law and (vi) a
reference to a document shall mean such document as the same may be amended, modified or
supplemented from time to time in accordance with its terms. The cover page and the Exhibits and
Schedules, if any, annexed hereto are incorporated as a part of this Agreement with the same effect
as if set forth in the body hereof. Any table of contents and all captions and headings herein are
for convenience only and shall not affect the interpretation or construction hereof.
ARTICLE II
THE LOAN
Section 2.01. Generally. Subject to the terms and conditions of this Agreement, each
of the Lenders severally agrees to lend to Borrower in an amount up to its Individual
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Loan Commitment pursuant to which the Lender shall from time to time advance and re-advance to
Borrower an amount equal to its Pro Rata Share of the excess of the Total Loan Commitment over the
sum (the “Outstanding Credit Amount”) of (1) all previous advances of the Loans which remain unpaid
and (2) the outstanding amount of all Letters of Credit. Within the limits set forth herein,
Borrower may borrow from time to time under this Section 2.01 and prepay from time to time pursuant
to Section 2.13 (subject, however, to the restrictions on prepayment set forth in said Section),
and thereafter re-borrow pursuant to this Section 2.01. The Loans may be outstanding as (1) Base
Rate Loans, (2) LIBOR Amounts or (3) a combination of the foregoing, as Borrower shall elect and
notify Administrative Agent in accordance with Section 2.10. Each Lender’s share of the Loan shall
be maintained at such Lender’s Applicable Lending Office.
Section 2.02. Nature of Lenders’ Obligations. The obligations of Lenders under this
Agreement are several, and no Lender shall be responsible for the failure of any other Lender to
make any advance of the Loan to be made by such other Lender. However, the failure of any Lender
to make any advance of the Loan to be made by it hereunder on the date specified therefor shall not
relieve any other Lender of its obligation to make any advance of its portion of the Loan specified
hereby to be made on such date.
Section 2.03. Purpose. The Loan shall be made for the business purposes of working
capital, distributions to Borrower’s parent company and repayment of existing debt. Borrower
covenants and agrees that in no event shall proceeds of the Loan, or any part thereof, be used,
directly or indirectly, for any other purpose, for any illegal purpose or for the purpose, whether
immediate, incidental or ultimate, of buying or carrying “margin stock” within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System, or in connection with any
hostile acquisition or for any illegal purpose.
Section 2.04. Advances.
(a) The Initial Advance (which has previously been advanced under the Original Agreement and
the Term Agreement) is in the amount of $40,584,535 (prior to any prepayments Borrower may make on
the date hereof) and shall be made upon satisfaction of the conditions set forth in Section 4.01.
Subsequent advances shall be made no more frequently than once a month thereafter, upon
satisfaction of the conditions set forth in Section 4.02. In no event shall Lenders be obligated
to make an advance hereunder if the Outstanding Credit Amount of the Loan following such advance
(the “Post Advance Amount”) would exceed the Funding Cap.
(b) Upon (i) request of Borrower, but not more often than once per calendar quarter, and
payment of the Increase Fee (as hereinafter defined) or (ii) the release of any Property in
accordance with Section 8.18 or 8.19, Administrative Agent shall recalculate the Funding Cap as of
the first day of the month in which Administrative Agent receives such request (or in the case of a
Property release, the first day of the month preceding such release) to be the amount equal to the
least of (x) 65% of the appraised value of the Mortgaged Property (the “Loan to Value Cap”) as
determined by an independent appraisal conducted at Borrower’s expense by an appraiser selected by
Administrative
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Agent, which appraisal shall be conclusive as to value absent manifest error or (y) an amount
equal to the highest Post Advance Amount at which the current Net Operating Income would equal 130%
of debt service on such Post Advance Amount (the “DSC Cap”) or (z) $88,000,000. As a condition to
the effectiveness of any and all increases in the Funding Cap, Borrower shall pay to Administrative
Agent for the benefit of Lenders, any applicable fee related to such extension as set forth in the
Supplemental Fee Letter (the “Increase Fee”). For purposes of determining compliance with the DSC
Cap, Net Operating Income shall be calculated using actual figures for the preceding six (6) months
and the projected figures for the next succeeding six months and debt service shall be calculated
using an interest rate equal to the greater of (a) the actual interest rate; (b) the Treasury Rate
plus 225 basis points or (c) an interest rate equal to 8.0% and a (25) year equal payment self
liquidating amortization schedule. For purposes of determining the Loan to Value Cap, a new
appraisal shall not be required for each redetermination of the Funding Cap provided the appraisal
required in connection therewith shall not be more than twelve (12) months old and any required
reappraisals shall be made at Borrower’s expense. Notwithstanding anything to the contrary
contained herein, there shall be no increases in the Funding Cap on or after December 1, 2010.
Section 2.05. Procedure for Advance. Borrower shall submit to Administrative Agent a
request for the advance of proceeds of the Loan stating the amount requested and the purpose for
which such advance is to be used no later than 10:00 a.m. (New York time) on the date five (5)
Business Days, prior to the date the advance is to be made. Administrative Agent, upon its receipt
and approval of the request for advance, will so notify all Lenders by facsimile. Not later than
10:00 a.m. (New York time) on the date set for such advance, each Lender shall, through its
Applicable Lending Office and subject to the conditions of this Agreement, make the amount to be
advanced by it on such day available to Administrative Agent, at Administrative Agent’s Office and
in immediately available funds for the account of Borrower. The amount so received by
Administrative Agent shall, subject to the conditions of this Agreement, be made available to
Borrower, in immediately available funds, by Administrative Agent’s crediting one or more bank
accounts of Borrower or any one or more of them designated by Borrower in its request for advance.
Each Advance made pursuant to this Agreement shall be in an amount at least equal to $1,000,000 and
in integral multiples of $100,000.
Section 2.06. Notes/Joint and Several Liability. The Loan shall be evidenced by
notes of Borrower in the form of EXHIBIT D, duly completed and executed by Borrower (one for each
Lender in an amount equal to such Lender’s Individual Loan Commitment, payable for the account of
such Lender’s Applicable Lending Office), in an aggregate principal amount equal to the Loan Amount
(such notes, as the same may hereafter be amended, modified, extended, severed, assigned,
substituted, renewed or restated from time to time (including, without limitation, any substitute
notes pursuant to Section 8.07), each, a “Note” and collectively, the “Notes”). The Notes shall
mature, and all outstanding principal and other sums thereunder shall be paid in full, on the
Maturity Date, as the same may be accelerated or extended. All entities which comprise Borrower
hereunder shall be jointly and severally liable for all Obligations of Borrower hereunder and under
the Notes and other Loan Documents. Each Borrower hereby (i) acknowledges that all of the
conditions to funding hereunder are solely for the benefit of
17
Lenders and Administrative Agent and Administrative Agent and/or Lenders may, in their sole
and absolute discretion, waive any condition hereunder to funding any portion of the Loan to
Borrower and (ii) agrees that no Borrower shall have any offset or defense to its obligations
hereunder or under the other Loan Documents, or any claim whatsoever against Administrative Agent
or any Lender, based upon Lenders making any advance of Loan proceeds to any Borrower.
Each Lender is hereby authorized by Borrower to endorse on the schedule attached to the Note
held by it, the amount of each advance and each payment of principal received by such Lender for
the account of its Applicable Lending Office(s) on account of its Loan, which endorsement shall, in
the absence of manifest error, be conclusive as to the outstanding balance of the Loan made by such
Lender. The failure by any Lender to make such notations with respect to its Loans or each advance
or payment shall not limit or otherwise affect the obligations of Borrower under this Agreement or
the Notes.
In case of any loss, theft, destruction or mutilation of any Lender’s Note, Borrower shall,
upon its receipt of an affidavit of an officer of such Lender as to such loss, theft, destruction
or mutilation and an appropriate indemnification, execute and deliver a replacement Note to such
Lender in the same principal amount and otherwise of like tenor as the lost, stolen, destroyed or
mutilated Note.
Section 2.07. Payments and Distributions; Certain Consequences of Delinquent Lender
Status. Borrower shall make each payment under this Agreement and under the Notes not later
than 11:00 a.m. (New York time) on the date when due to Administrative Agent at Administrative
Agent’s Office in immediately available funds. Administrative Agent will thereafter, on the day of
its receipt of each such payment, cause to be distributed to each Lender (i) such Lender’s
appropriate share (based upon the respective outstanding principal amounts of the Notes and the
respective rates of interest thereunder) of the payments of principal and interest, and its
appropriate share of the payments of other sums, in like funds for the account of such Lender’s
Applicable Lending Office. Payments by Borrower hereunder or under the Notes or other Loan
Documents shall be made without setoff or counterclaim.
Except to the extent otherwise provided in this Agreement, whenever any payment to be made
under this Agreement or under the Notes is due on any day other than a Business Day, such payment
shall be made on the next succeeding Business Day, and such extension of time shall in such case be
included in the computation of the payment of interest and, if applicable, fees, as the case may
be.
Notwithstanding the foregoing provisions of this Section, (i) Administrative Agent shall make
no payment to a Delinquent Lender until the Non-Delinquent Lenders have been paid in full all
outstanding principal, accrued and unpaid interest and any other sums owing to them under the Loan
Documents, it being understood that payments of interest on account of the outstanding principal
amount of the Note held by the Delinquent Lender shall be held by Administrative Agent in a
non-interest bearing account and not distributed to the Delinquent Lender until such time as all
principal,
18
interest and other sums due to the Non-Delinquent Lenders have been paid in full; (ii) any
payments (other than interest, as provided in clause (i) above) which would otherwise be due a
Delinquent Lender shall be distributed to the Non-Delinquent Lenders until such time as all
principal, interest and other sums due to the Non-Delinquent Lenders have been paid in full (except
that any such amounts otherwise due a Delinquent Lender received by Administrative Agent during an
Election Period shall be retained by Administrative Agent until the expiration of the Election
Period and either paid to the Delinquent Lender, if the delinquency is cured, or paid to the
Non-Delinquent Lenders, if the delinquency is not cured); and (iii) Administrative Agent shall
deduct, from amounts due (or, in the case of a Delinquent Lender, amounts that would otherwise be
payable to such Delinquent Lender being held by Administrative Agent pursuant to clause (i) above)
a Lender in default under its obligations under Section 7.05 or the reimbursement provisions of
this Section 2.07 regarding interpleader actions, the amount owing by such Lender pursuant to said
Section 7.05 or the reimbursement provisions of this Section 2.07 regarding interpleader actions
and pay the amount so deducted to itself, the other Lenders, or such other party as is entitled to
such amount, as applicable.
If, following such time as all amounts owing under the Loan to the Non-Delinquent Lenders and
Administrative Agent have been paid in full, Administrative Agent is holding funds in respect of
amounts payable to the Delinquent Lender as provided in the third paragraph of this Section,
Administrative Agent shall file an interpleader action in New York State Supreme Court, New York
County and shall deposit the funds so held (less a sum equal to Administrative Agent’s reasonable
fees and expenses in connection with said interpleader action and deposit) with said court and
Administrative Agent shall thereupon be relieved of responsibility to any party with respect to the
funds deposited. Borrower and each Delinquent Lender hereby jointly and severally agree to
reimburse Administrative Agent for all costs and expenses that Administrative Agent may incur in
connection with the foregoing interpleader action.
Except as provided above in this Section and in Section 7.16, each Lender’s interest in the
Loan shall be of equal priority with the interest of each other Lender.
Section 2.08. Interest. Borrower shall have the option, subject to the terms and
conditions set forth in this Agreement, of paying interest on the Principal Amount or portions
thereof at the Prime Based Rate or the LIBO Based Rate. If Borrower desires the application of the
LIBO Based Rate, it shall submit a LIBO Rate Request to Administrative Agent, which LIBO Rate
Request shall be irrevocable, subject to Borrower’s right to convert the rate of interest payable
under the Notes with respect to any LIBOR Amount from the LIBO Based Rate to the Prime Based Rate
as provided in Section 2.10. Administrative Agent shall, on the day of its receipt of the LIBO
Rate Request from Borrower, notify each Lender by facsimile of the specified LIBOR Amount and the
amount of the Lender’s portion thereof, the Interest Period and date of commencement thereof, and
the interest rate applicable to such LIBOR Amount. Each LIBO Rate Request shall be applicable to
the Notes in accordance with the Lenders’ respective Pro Rata Shares, so that, barring a conversion
or suspension of the LIBO Based Rate by one or more, but not all, Lenders, pursuant to Article III,
the outstanding principal amounts of each of the Notes shall contain segments bearing interest at
the
19
Prime Based Rate and/or LIBO Based Rate(s) under particular Interest Period(s), each of which
segments shall correspond to a proportional segment of the outstanding principal amount of every
other Note. In the event that Borrower fails to submit a LIBO Rate Request with respect to a LIBOR
Amount not later than 12 Noon (New York time) three (3) Business Days prior to the last day of the
relevant Interest Period, the LIBOR Amount in question shall bear interest, commencing at the end
of such Interest Period, at the Prime Based Rate for a one (1) month Interest Period.
Interest shall be computed on an actual/360-day basis (i.e., interest for each
day during which any portion of the Principal Amount is bearing interest at a particular interest
rate per annum shall be computed at such rate divided by 360).
Borrower shall pay interest on the Principal Amount to Administrative Agent for the account of
Lenders. Interest on the Principal Amount shall be payable, in arrears, monthly on the first day
of the first month following the Initial Advance and on the first day of each month thereafter
until the Notes are repaid in full.
Section 2.09. Limitation on Number of Interest Periods. Borrower shall not have the
right to have more than five (5) Interest Periods, in the aggregate, in respect of the Loan in
effect at any one time, whether or not any portion of the Principal Amount is then bearing interest
at the Prime Based Rate.
Section 2.10. Conversions of Interest Rate. Provided there exists no Event of
Default, Borrower shall have the right to convert, from time to time, the rate of interest payable
under the Notes with respect to any portion of the Principal Amount to the LIBO Based Rate or the
Prime Based Rate, subject to the terms of this Agreement (including, without limitation, the
payment of all amounts due in connection with any such conversion from the LIBO Based Rate on a
date other than the last day of an applicable Interest Period) and provided that, in the
case of a conversion from the LIBO Based Rate, the entire LIBOR Amount is the subject of the
conversion. Conversions shall be accomplished (i) in the case of a conversion from the Prime Based
Rate to the LIBO Based Rate, by Borrower’s submission of a LIBO Rate Request in accordance with
Section 2.08 or (ii) in the case of a conversion from the LIBO Based Rate to the Prime Based Rate,
by Borrower’s request to Administrative Agent by telephone (to be promptly confirmed in writing),
to be received by Administrative Agent at least three (3) Business Days prior to the date specified
for such conversion, specifying the LIBOR Amount with respect to which the interest rate is to be
converted and the date of the conversion. With respect to any portion of the Principal Amount
subject to the LIBO Based Rate, Borrower shall not have the right to convert from one Interest
Period to another other than the last day of an applicable Interest Period. On the date of its
receipt of such request, Administrative Agent shall notify each Lender thereof either by telephone
or by facsimile.
Section 2.11. Inapplicability of LIBO Based Rate. Any portion of the Principal
Amount to which the LIBO Based Rate is not or cannot pursuant to the terms of this Agreement be
applicable shall bear interest at the Prime Based Rate. Upon the occurrence of an Event of
Default, the entire Principal Amount shall, at the option of the
20
Required Lenders, immediately and without notice to Borrower, bear interest at the Prime Based
Rate. In addition, following the occurrence of an Event of Default, Borrower shall have no right
to submit a LIBO Rate Request with respect to any LIBOR Amount for which the current Interest
Period is expiring. The foregoing provisions shall not be construed as a waiver by Lenders of
their right to pursue any other remedies available to them under the Mortgage or any other Loan
Document nor shall they be construed to limit in any way the application of the Default Rate as
provided in the Mortgage.
Section 2.12. Late Payment Premium. Borrower shall pay to Administrative Agent for
the account of Lenders a late payment premium in the amount of 5% of any payments of principal or
interest under the Loan made more than ten (10) days after the due date thereof, which late payment
premium shall be due with any such late payment.
Section 2.13. Voluntary Prepayments. Borrower may, upon at least five (5) Business
Days’ notice (which notice shall be irrevocable) to Administrative Agent, prepay the Principal
Amount, in whole or part, without premium or penalty; provided, however, that (i)
any partial prepayment under this Section shall be in a principal amount of not less than
$1,000,000 and an integral multiple of $100,000, (ii) prepayment of a LIBOR Amount other than on
the last day of the applicable Interest Period shall be subject to the provisions of Section 3.03
and (iii) each prepayment under this Section shall include all interest accrued on the amount of
principal prepaid (and all late charges and other sums that may be payable) through the date of
prepayment.
Section 2.14. Annual Commitment Reduction/Required Amortization. Commencing on the
first day of December, 2007 and on the first day of each December thereafter until the Maturity
Date both the Loan Amount and the Total Loan Commitment shall reduce by the amount set forth on
Schedule A attached hereto and, to the extent the Loan Amount as so reduced would exceed
the Outstanding Credit Amount, Borrower shall, on the date of reduction make a mandatory principal
payment (or at Administrative Agent’s option deliver cash collateral for any Letter of Credit
outstanding) in the amount of such excess such that, at no time, shall the Outstanding Credit
Amount (excluding any portion of a Letter of Credit which is secured by cash collateral) exceed the
Loan Amount as reduced from time to time. After any release of a Property, in accordance with
Section 8.18 or otherwise, Administrative Agent shall recalculate the required annual amortization
payments due hereunder in accordance with a constant annual payment mortgage schedule based on the
Funding Cap at such time and an assumed interest rate of 8% per annum, which would fully amortize
over a term equal to (x) twenty-five (25) years less (y) the number of full twelve (12) month
periods elapsed since the date hereof. Administrative Agent shall provide Borrower with a schedule
of such recalculated amortization payment schedule upon request and such schedule shall be final
and binding upon Borrower absent manifest error.
Section 2.15. Nature of Lenders’ Obligations; Borrower’s Rights and Obligations in Event a
Lender Fails to Make an Advance. The obligations of Lenders under this Agreement are several,
and no Lender shall be responsible for the failure of any other Lender to fund the portion required
to be funded by such other Lender of an advance of the Loan.
21
Section 2.16. Extension of Maturity.
(a) Borrower shall have the right to extend the Maturity Date for a period of one (1) year, to
December 1, 2011 (the “First Extension Term”), upon satisfaction of the following conditions: (i)
Borrower shall give notice to Administrative Agent of Borrower’s election to so extend the Maturity
Date no later than thirty (30) days prior to the original Maturity Date and no earlier than ninety
(90) days prior to the original Maturity Date, (ii) no Default or Event of Default exists at either
the time Borrowers gives notice of its exercise of such extension option or as of the original
Maturity Date, (iii) with Borrower’s notice exercising such extension option, Borrower shall pay to
BofA the extension fee required pursuant to the Supplemental Fee Letter, which fee shall be earned
by BofA upon receipt and (iv) without limiting the generality of the foregoing, Borrower shall be
in compliance with Section 6.06.
(b) Provided that Borrower has extended the Maturity Date in accordance with the terms of
Section 2.16(a), Borrowers shall have the right to further extend the Maturity Date for an
additional period of one (1) year, to December 1, 2012 (the “Second Extension Term”), upon
satisfaction of the following conditions: (i) Borrower shall give notice to Administrative Agent
of Borrower’s election to so extend the Maturity Date no later than thirty (30) days prior to the
Maturity Date as extended by the First Extension Term and no earlier than ninety (90) days prior to
the Maturity Date as extended by the First Extension Term, (ii) no Default or Event of Default
exists at either the time Borrowers give notice of its exercise of such extension option or as of
the Maturity Date, as extended by the First Extension Term, (iii) with Borrower’s notice exercising
such extension option, Borrower shall pay to BofA the extension fee required pursuant to the
Supplemental Fee Letter, which fee shall be earned by BofA upon receipt and (iv) without limiting
the generality of the foregoing, Borrower shall be in compliance with Section 6.06.
ARTICLE III
YIELD MAINTENANCE ETC.
Section 3.01. Additional Costs and Other Effects of Regulatory Changes; Taxes.
Borrower shall pay directly to a Lender, promptly upon demand, such amounts as are necessary to
compensate such Lender for Additional Costs resulting from any Regulatory Change which (i) subjects
such Lender to any tax, duty or other charge with respect to the Loan or its Note, or changes the
basis of taxation of any amounts payable to such Lender under the Loan or its Note (other than
taxes imposed on the overall net income of such Lender or of its Applicable Lending Office by the
jurisdiction in which such Lender’s principal office or such Applicable Lending Office is located),
(ii) imposes, modifies or deems applicable any reserve, special deposit or similar requirements
relating to any extensions of credit or other assets of, or any deposits with or other liabilities
of, such Lender, (iii) imposes on such Lender or, in the case of LIBOR Amounts, on the London
interbank market, any other condition affecting the Loan or its Note, or any of such extensions of
credit or liabilities or (iv) imposes any capital adequacy requirements on such Lender by virtue of
the Loan or the Notes. Such Lender will notify Borrower (with
22
a copy to Administrative Agent) of any event occurring after the date hereof which would
entitle it to compensation pursuant to this paragraph as promptly as practicable after it obtains
knowledge thereof and determines to request such compensation, and will designate a different
Applicable Lending Office for those portions of the Loan affected by such event if such designation
will avoid the need for, or reduce the amount of, such compensation and will not, in such Lender’s
sole opinion, be disadvantageous to it, provided that such Lender shall have no obligation to so
designate an Applicable Lending Office located in the United States.
Without limiting the effect of the immediately preceding paragraph, in the event that, by
reason of any Regulatory Change, (i) a Lender incurs Additional Costs based on or measured by the
excess above a specified level of the amount of (1) a category of deposits or other liabilities of
such Lender which includes deposits by reference to which the LIBO Rate is determined as provided
in this Agreement and/or (2) a category of extensions of credit or other assets of such Lender
which includes loans the interest on which is determined on the basis of rates referred to in the
definition of “LIBO Rate” in Section 1.01, (ii) a Lender becomes subject to restrictions on the
amount of such a category of liabilities or assets which it may hold or (iii) it shall be unlawful
or impossible for a Lender to make or maintain its Pro Rata Share of the Loan (or any portion
thereof) at the LIBO Based Rate, then such Lender’s obligation to make or maintain its Pro Rata
Share of the Loan (or any portion thereof) at the LIBO Based Rate (and Borrower’s right to request
the same) shall be suspended and such Lender shall give notice thereof to Borrower (with a copy to
Administrative Agent) and, upon the giving of such notice, interest payable on the affected Note
shall be converted to the Prime Based Rate, unless such Lender may lawfully continue to maintain
its Pro Rata Share of the Loan (or any portion thereof) then bearing interest at the LIBO Based
Rate to the end of the current Interest Period(s), at which time the interest rate on the affected
Note shall convert to the Prime Based Rate. If subsequent to any conversion to the Prime Based
Rate as provided above such Lender determines that such Regulatory Change has ceased to be in
effect, such Lender will so notify Borrower (with a copy to Administrative Agent), and Borrower may
convert the rate of interest payable under the affected Note with respect to those portions of the
Principal Amount bearing interest at the Prime Based Rate to the LIBO Based Rate by submitting a
LIBO Rate Request in respect thereof and otherwise complying with the provisions of this Agreement
with respect thereto.
Determinations by each Lender of the existence or effect of any Regulatory Change on its costs
of making or maintaining its Pro Rate Share of the Loan, or portions thereof, at the LIBO Based
Rate, or on amounts receivable by it in respect thereof, and of the additional amounts required to
compensate such Lender in respect of Additional Costs, shall be conclusive, so long as made on a
reasonable basis.
Section 3.02. Limitations on Availability of LIBO Based Rate. Anything herein to the
contrary notwithstanding, if, at the time of or prior to the determination of the LIBO Based Rate
in respect of any LIBO Rate Request Amount as provided in this Agreement, (i) Administrative Agent
determines (which determination shall be conclusive, so long as made on a reasonable basis) that by
reason of circumstances affecting the London interbank market generally, adequate and fair means do
not or will
23
not exist for determining the LIBO Rate applicable to an Interest Period or (ii) a Lender
determines (which determination shall be conclusive, so long as made on a reasonable basis) that
the LIBO Rate will not accurately reflect the cost to such Lender of making or maintaining its Pro
Rata Share of the Loan (or any portion thereof) at the LIBO Based Rate, then Administrative Agent,
in the case of the circumstances described in clause (i) above, or such Lender, in the case of the
circumstances described in clause (ii) above, shall give Borrower prompt notice thereof (with a
copy to Administrative Agent in the case of the notice from such Lender), and the LIBO Rate Request
Amount in question, in the case of the circumstances described in clause (i) above, or such
Lender’s portion thereof, in the case of the circumstances described in clause (ii) above, shall
bear interest, or continue to bear interest, as the case may be, at the Prime Based Rate. If at
any time subsequent to Administrative Agent’s or such Lender’s giving of such notice,
Administrative Agent or such Lender, as the case may be, determines that because of a change in
circumstances the LIBO Based Rate is again available to Borrower, Administrative Agent or such
Lender, as the case may be, shall so notify Borrower (with a copy to Administrative Agent, in the
case of the notice from such Lender) and Borrower may convert the rate of interest payable under
the Notes or such Lender’s Note, as the case may be, from the Prime Based Rate to the LIBO Based
Rate by submitting a LIBO Rate Request in respect thereof and otherwise complying with the
provisions of this Agreement with respect thereto.
Section 3.03. Certain Compensation. Borrower shall pay directly to a Lender,
immediately upon request and notwithstanding contrary provisions contained in the Mortgage or other
Loan Documents, such amounts as shall, in the judgment of such Lender (which shall be conclusive so
long as made on a reasonable basis), compensate it for any loss, cost or expense incurred by it as
a result of (i) any payment or prepayment (under any circumstances whatsoever, whether voluntary or
involuntary) of any portion of the Principal Amount bearing interest at the LIBO Based Rate on a
date other than the last day of an applicable Interest Period, (ii) the conversion (for any reason
whatsoever, whether voluntary or involuntary) of the rate of interest payable under such Lender’s
Note from the LIBO Based Rate to the Prime Based Rate with respect to any portion of the Principal
Amount then bearing interest at the LIBO Based Rate on a date other than the last day of an
applicable Interest Period, (iii) the failure of all or a portion of an advance of the Loan which
was to have borne interest at the LIBO Based Rate pursuant to a LIBO Rate Request to be made, (iv)
any failure by Borrower to prepay any portion of the Principal Amount bearing interest at the LIBO
Based Rate on the date specified in Borrower’s notice of prepayment or (v) the failure of Borrower
to borrow, continue or convert in accordance with a LIBO Rate Request submitted by it, which
amounts shall include, without limitation, an amount equal the Present Value (determined as
hereinafter provided) of the dollar amount which is obtained by multiplying the number of days from
the date of the occurrence to the last day of the applicable Interest Period by a number which is
calculated by (i) multiplying the amount prepaid, converted, not advanced, not prepaid or not
borrowed, as the case may be, by the excess of the LIBO Based Rate applicable thereto over the
current rate for United States Treasury securities (bills on a discounted basis shall be converted
to a bond equivalent) with a maturity date closest to the last day of the applicable Interest
Period and (ii) dividing the product thereof by 360. For purposes of this Section, Present Value
shall be determined by using the number of
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days during the period from the date of occurrence to and including the last day of the
applicable Interest Period and using the above-referenced United States Treasury security rate. A
determination by a Lender as to the amounts payable to it pursuant to this Section shall be
conclusive absent manifest error.
Section 3.04. “Lender” to Include Participants. For purposes of this Article III and
of the definition of “Additional Costs” in Section 1.01, the term “Lender” shall, at each Lender’s
option, be deemed to include such Lender’s present and future Participants in the Loan to the
extent of each such Participant’s actual Additional Costs or other losses, costs or expenses
payable pursuant to this Article III.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent to Loan. Lenders shall not be obligated to make
the Initial Advance until the following conditions shall have been satisfied:
(a) There shall exist no Default or Event of Default, and no Default or Event of
Default would result from the making of the Loan;
(b) The representations and warranties made to Administrative Agent or Lenders herein,
in the other Loan Documents and in any other document, certificate or statement executed or
delivered to Administrative Agent or Lenders in connection with the Loan shall be true and
correct on and as of the date of the advance of the Loan with the same effect as if made on
such date;
(c) The Improvements shall not have been materially injured or damaged by fire or
other casualty; and
(d) Lenders shall have received and approved each of the following:
(1) Loan Fees and Expenses. (i) Those fees required by the
Supplemental Fee Letter to be paid on or before the date hereof, to be retained by
Administrative Agent and/or BofA of its own account (without credit for any amounts
paid under existing credit facilities refinanced hereby) to be retained by BofA
whether or not any advances are made hereunder, (ii) the first payment of the
Administration Fee required by Section 6.03 to be paid to Administrative Agent for
its own account and (iii) all fees and expenses incurred by Administrative Agent
(including, without limitation, the reasonable fees and expenses of Administrative
Agent’s Counsel, Lenders’ environmental and insurance consultants, and the preparer
of the appraisal required by paragraph (4) below);
(2) Loan Documents. This Agreement and each of the other Loan
Documents, duly executed by the parties thereto, and, where applicable, duly
acknowledged and in proper form for recording or filing,
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as the case may be, and all necessary or desirable recordings and filings
shall have been duly made;
(3) Financial Statements. Current Financial Statements and such other
financial data (including, without limitation, current financial statements of
tenants under leases in respect of the Mortgaged Property and of parties to any of
the Premises Documents, and of the guarantor(s), if any, of any such tenants or
parties) as Administrative Agent shall require;
(4) Appraisal. An independent M.A.I. appraisal of the Property and
Improvements complying in all respects with the standards for real estate
appraisals established pursuant to the Financial Institutions Reform, Recovery, and
Enforcement Act of 1989;
(5) Insurance Policies. The policies of insurance required by the
Mortgage, together with evidence of the payment of the premiums therefor;
(6) Hazardous Materials Report/Reliance Letter. A detailed report by
a properly qualified engineer, which shall include, inter alia, a
certification that such engineer has obtained and examined a list of prior owners,
tenants and other users of all or any portion of the Property or any improvements
thereon, and has made an on-site physical examination of the Property, and a visual
observation of the surrounding areas, and has found no evidence of past or present
Hazardous Materials activities or the presence of Hazardous Materials, together
with, if required by Administrative Agent, a “reliance letter” addressed to
Administrative Agent with respect to such report;
(7) Title Policy. A paid title insurance policy, in the amount of the
Loan Allocation for each property in ALTA 10-17-92 or other form approved by
Administrative Agent’s Counsel with such endorsements as shall be reasonably
requested by Administrative Agent’s Counsel (including “tie-in” endorsements
aggregating liability under such policies to the extent permitted by Law), issued
by the Title Insurer which shall insure the Mortgage to be a valid lien on
Borrower’s interest in the premises free and clear of all defects and encumbrances
except those previously received and approved by Administrative Agent’s Counsel,
and shall contain (i) full coverage against mechanics’ liens (filed and inchoate),
(ii) a reference to the survey but no survey exceptions except those theretofore
approved by Administrative Agent’s Counsel, (iii) such affirmative insurance and
endorsements as Administrative Agent’s Counsel may require, and (iv) if any such
policy is dated earlier than the date of the disbursement of the Loan, an
endorsement to such policy, in form approved by Administrative Agent’s Counsel,
redating the policy and setting forth no additional exceptions except those
approved by
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Administrative Agent’s Counsel; and shall be accompanied by such reinsurance
agreements between the Title Insurer and title companies approved by Lender, in
ALTA 1994 facultative form, as Lender may require;
(8) Survey. A current ALTA/ACSM, as-built survey of the Property,
certified to Lender and the Title Insurer showing (i) the location of the perimeter
of the Property by courses and distances, (ii) all easements, rights-of-way, and
utility lines referred to in the title policy required by this Agreement or which
actually service or cross the Property (with instrument, book and page number
indicated), (iii) the lines of the streets abutting the Property and the width
thereof, and any established building lines (and that such roads have been
dedicated for public use and are completed and have been accepted by all required
Governmental Authorities), (iv) any encroachments and the extent thereof upon the
Property, (v) locations of all portions (with the acreage thereof also identified)
of the Property, if any, which are located in an area designated as a “flood prone
area” as defined by U.S. Department of Housing and Urban Development pursuant to
the Flood Disaster Protection Act of 1973 and (vi) the Improvements, and the
relationship thereof by distances to the perimeter of the Property, established
building, setback and street lines and (vi) if the Property is described as being
on a filed map, a legend relating the survey to said map;
(9) Leases and Premises Documents. Certified copies of all leases in
respect of the Mortgaged Property, accompanied by, in the case of Anchors and any
other leases specified by Administrative Agent, estoppel certificates from the
tenants thereunder and executed notice-of-assignment letters in the form of EXHIBIT
B in respect thereof; executed subordination and attornment agreements, in
Administrative Agent’s usual form, in respect of such leases as Administrative
Agent may require; a certified copy of the standard form of lease or contract of
sale, as the case may be, Borrower will use in connection with the leasing of space
in the Improvements or the sale of portions of the Property; certified copies of
all Premises Documents, together with estoppel certificates from the parties
thereto and a certified current rent roll for the Improvements;
(10) Requisition. A Requisition for the Initial Advance,
(11) Counsel Opinions. Opinions of Borrower’s counsel and local
counsel (and, if required by Lender, of a local counsel selected by Lender
or Administrative Agent’s Counsel) to the effects set forth on EXHIBIT C; Borrower
hereby acknowledges that each of its counsel delivering opinion letters to
Administrative Agent on or about the date hereof has been requested and directed by
Borrower to do so;
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(12) Organizational Documents. If Borrower, the mortgagor or grantor
under any Mortgage (if different from Borrower), Guarantor or any general partner
or member of any of them is a corporation, current copies of the following
documents with respect to each (unless otherwise indicated):
(i) a good-standing certificate from the jurisdiction of its
incorporation and, as to Borrower and the mortgagor or grantor under the
Mortgage only, from the jurisdiction in which the Property is located,
(ii) a resolution, certified by the corporate secretary, of the
shareholders or directors of the corporation authorizing the consummation
of the transactions contemplated hereby and the execution, delivery and
performance of the Loan Documents and any other documents to be executed,
delivered or performed by said corporation (including any substitute or
replacement Notes to be executed and delivered pursuant to the terms
hereof), and
(iii) a certificate of the corporate secretary as to the incumbency
of the officers executing any of the documents required hereby,
and, if Borrower, the mortgagor or grantor under the Mortgage (if different from
Borrower), Guarantor or any general partner or member of any of them is a
partnership, venture, limited liability company or trust:
(iv) the entity’s organizational agreement and all amendments and
attachments thereto, certified by a general partner, venturer, member or
trustee to be true and complete,
(v) any certificates filed or required to be filed by the entity in
the jurisdictions of its formation and where the Property is located in
order for it to do business in those jurisdictions, and
(vi) evidence of the authorization of the consummation of the
transactions contemplated hereby and the execution, delivery and
performance of the Loan Documents and any other documents to be executed,
delivered or performed by said entity (including any substitute or
replacement notes to be executed and delivered pursuant to the terms
hereof), and including any required consents by partners, venturers,
members, trustees or beneficiaries;
(13) Management and Leasing Contracts. Copies, certified to be true
and complete, of all existing contracts providing for the management, maintenance,
operation or leasing of the Property and Improvements, together with, in each case,
such collateral assignments or “will-serve” letters as Administrative Agent may
require;
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(14) Permits and Approvals. Copies of the certificate(s) of occupancy
for the Improvements and of any and all other authorizations (including plot plan
and subdivision approvals, zoning variances, water, sewer, building and other
permits) required by Governmental Authorities or otherwise necessary for the use,
occupancy and operation of the Property and/or Improvements for their intended
purposes in accordance with all applicable Laws;
(15) Intentionally Omitted;
(16) Chattel Searches. UCC searches against Borrower or other owner
of the Mortgaged Property and advice from the Title Insurer to the effect that
searches of proper public records disclose no leases of personalty or financing
statements filed or recorded against the Mortgaged Property, Borrower or other
owner of any Mortgaged Property;
(17) Intentionally Omitted; and
(18) Additional Documentation. Such other approvals, opinions or
documents as Lender may reasonably request including, but not limited to, (i) a
current certified rent roll for the Mortgaged Property and tenant estoppel letters
for all Anchors, (ii) ground lessor estoppel certificates from the ground lessor
with respect to any ground leases encumbered by the Mortgage and (iii) current
financial statements of Guarantor showing a minimum net worth of $100,000,000 (the
“Net Worth Requirement”) and a minimum Unrestricted Cash and Cash Equivalents of
$10,000,000 (the “Liquidity Requirement”).
Section 4.02. Conditions to Advances After the Initial Advance. In addition to the
Initial Advance, an amount of Loan proceeds (each such advance, an “Additional Advance”) shall be
made available to Borrower subject to the satisfaction of the following conditions:
(a) Subject to the limitations set forth in Section 2.04 and Section 4.02(h) with
respect to any Additional Advance), the amount of each Additional Advance subsequent to the
Initial Advance shall be in the minimum amount of $100,000 (unless less than said amount is
available for disbursement pursuant to the terms hereof at the time of such Additional
Advance, in which case the amount of such subsequent advance shall be equal to such
remaining availability).
(b) All conditions of Section 4.01 shall have been and remain satisfied as of the date
of such advances;
(c) There shall exist no Default or Event of Default;
(d) The representations and warranties made to Administrative Agent and Lenders
herein, in the other Loan Documents and in any other document, certificate or statement
executed or delivered to Administrative Agent or Lenders
29
in connection with the Loan shall be true and correct on and as of the date of
the advance with the same effect as if made on such date (except for the updated rent
roll);
(e) Lender shall have received a Requisition, and, if required, a title continuation
report;
(f) There shall have occurred no material adverse change in the condition or value of
the “Mortgaged Property”, as defined in the Mortgage;
(g) Mortgagor shall furnish Administrative Agent with a statement, duly acknowledged,
of the amount due whether for principal or interest, on the Loan and whether any offsets,
counterclaims or defenses exist against the indebtedness secured hereby; and
(h) The aggregate outstanding proceeds of the Loan, including the amount of the
advance being requested, shall not exceed the amount necessary to satisfy the Loan to Value
Test and the DSC Test for Additional Advances.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Borrower and Guarantor represent and warrant to Administrative Agent and Lenders that:
Section 5.01. Due Formation, Power and Authority. If it, the mortgagor or grantor
under the Mortgage (if different from Borrower), Guarantor or any general partner or member of any
of them is a corporation, partnership, venture, limited liability company or trust, each such
entity is duly organized, validly existing and in good standing under the Laws of the jurisdiction
of its formation, is qualified to do business (if required) and is in good standing in the
jurisdiction in which the Property is located, and has full power and authority to consummate the
transactions contemplated hereby and to execute, deliver and perform this Agreement and any other
Loan Document to which it is a party.
Section 5.02. Legally Enforceable Agreements. Each Loan Document to which Borrower
or Guarantor is a party is a legal, valid and binding obligation of such party, enforceable against
Borrower or Guarantor, as the case may be, in accordance with its terms, except to the extent that
such enforcement may be limited by applicable bankruptcy, insolvency and other similar Laws
affecting creditors’ rights generally.
Section 5.03. Financial Statements. Financial Statements have been heretofore
delivered to Lenders which are true, correct and current in all respects and which fairly present
the respective financial conditions of the subjects thereof as of the respective dates thereof; no
material adverse change has occurred in the financial conditions reflected therein since the
respective dates thereof and no borrowings (other than the
30
Loan) which might give rise to a lien or claim against the Mortgaged Property or proceeds of
the Loan have been made by Borrower or others since the dates thereof.
Section 5.04. Compliance With Laws; Payment of Taxes. Borrower and Guarantor are in
compliance with, and the transactions contemplated hereby and by the other Loan Documents do not
and will not violate any provision of, or require any filing, registration, consent or approval
under, any Law presently in effect having applicability to Borrower or Guarantor; Borrower has
filed all tax returns (federal, state and local) required to be filed and has paid all taxes,
assessments and governmental charges and levies due and payable (including those in respect of the
Mortgaged Property), including interest and penalties.
Section 5.05. Litigation. There are no actions, suits or proceedings pending or
threatened against or affecting it, Guarantor, the Mortgaged Property, the validity or
enforceability of the Mortgage or the priority of the lien thereof at law, in equity or before or
by any Governmental Authorities except actions, suits or proceedings which have been disclosed to
Administrative Agent and Lenders in writing and which are fully covered by insurance or would, if
adversely determined, not substantially impair the ability of Borrower or Guarantor to pay when due
any amounts which may become payable under the Notes or Guaranty or to otherwise pay and perform
their respective obligations in connection with the Loan; to Borrower’s knowledge, neither it nor
Guarantor is in default with respect to any order, writ, injunction, decree or demand of any court
or Governmental Authorities.
Section 5.06. No Conflicts or Defaults. The consummation of the transactions
contemplated hereby and the performance hereof and of the other Loan Documents have not resulted
and will not result in any breach of, or constitute a default under, any mortgage, deed of trust,
lease, bank loan or credit agreement, corporate charter, by-laws, partnership agreement or other
instrument to which Borrower or Guarantor is a party or by which either of them may be bound or
affected.
Section 5.07. Solvency. Borrower and Guarantor are, and upon consummation of the
transactions contemplated by this Agreement, the other Loan Documents and any other related
documents, will be, Solvent.
Section 5.08. Governmental Regulation. Borrower is not subject to regulation under
the Investment Company Act of 1940 or any Law limiting its ability to incur indebtedness for money
borrowed as contemplated hereby.
Section 5.09. Insurance. Borrower has in force, and has paid the premiums in respect
of, all of the insurance required by the Mortgage.
Section 5.10. ERISA. Neither Borrower nor Guarantor nor any other Person, including
any fiduciary, has engaged in any prohibited transaction (as defined in Section 4975 of the Code or
Section 406 of ERISA) which could subject Borrower or Guarantor or any Person whom they have an
obligation to indemnify to any tax or penalty imposed under Section 4975 of the Code or Section 502
of ERISA; neither Borrower nor
31
Guarantor nor any ERISA Affiliate maintains, contributes to or has any liability with respect
to a Multiemployer Plan or any other plan subject to Title IV of ERISA; each Employee Benefit Plan
is administered in accordance with its terms and in compliance with all applicable Laws, including
any reporting requirements; each Pension Plan intending to qualify under Section 401(a) or 401(k)
of the Code does so qualify; there is no lien outstanding or security interest given in connection
with a Pension Plan; neither Borrower nor Guarantor nor any ERISA Affiliate has any liability with
respect to an accumulated funding deficiency (whether or not waived) under Section 412 of the Code
or Section 302 of ERISA; neither Borrower nor Guarantor has any liability for retiree medical or
death benefits (contingent or otherwise) other than as required by Section 4980B of the Code; and
no part of the funds to be used by Borrower or Guarantor in satisfaction of their respective
obligations under this Agreement and the other Loan Documents constitute “plan assets” of any
“employee benefit plan” within the meaning of ERISA or of any “plan” within the meaning of Section
4975(e)(1) of the Code, as interpreted by the Internal Revenue Service and the United States
Department of Labor in rules, regulations, releases or bulletins or as interpreted under applicable
case law.
Section 5.11. Other Documents. The Major Leases and Premises Documents are
unmodified and in full force and effect, there are no defaults (or events which with notice or the
passage of time, or both, would constitute such a default) under any thereof and all conditions to
the effectiveness and continuing effectiveness thereof required to be satisfied as of the date
hereof have been satisfied.
Section 5.12. No Defaults. There exists no Default or Event of Default.
Section 5.13. Accuracy of Information; Full Disclosure. Neither this Agreement nor
any documents, financial statements, reports, notices, schedules, certificates, statements or other
writings furnished by or on behalf of Borrower or Guarantor to Lender in connection with the
negotiation of this Agreement or the other Loan Documents or the consummation of the transactions
contemplated hereby, or required herein or by the other Loan Documents to be furnished by or on
behalf of Borrower or Guarantor, contains any untrue or misleading statement of a material fact or
omits a material fact necessary to make the statements herein or therein not misleading; there is
no fact which Borrower has not disclosed to Administrative Agent and Lenders in writing which
materially affects adversely nor, so far as Borrower can now foresee, will materially affect
adversely any of the Mortgaged Property or the business affairs or financial condition of Borrower
or Guarantor, or the ability of Borrower or Guarantor to perform this Agreement and the other Loan
Documents.
Section 5.14. Separate Tax and Zoning Lot. Each Mortgaged Property constitutes a
distinct parcel for purposes of zoning and of taxes, assessments and impositions (public or
private) and are not otherwise considered as part of a larger single lot for purposes of zoning or
of taxes, assessments or impositions (public or private).
Section 5.15. The Improvements. There are no structural defects in the Improvements
or violations of any requirement of any Governmental Authorities with respect thereto; the use,
occupancy and operation of the Improvements comply with all
32
applicable permits and restrictive covenants affecting the Mortgaged Property, as well as with
the Premises Documents and with all zoning, building, environmental, ecological, landmark,
subdivision and other Laws, and all requirements for such use, occupancy and operation have been
satisfied; there exist a sufficient number of parking spaces necessary to satisfy the requirements
of the Premises Documents and any leases and all zoning and other applicable legal requirements
with respect to the Mortgaged Property, and all required landscaping, sidewalks and other
amenities, and all off-site improvements, related to the Improvements have been completed.
Section 5.16. Utility Services. All utility services necessary for the use and
operation of the Improvements for their intended purposes are available and servicing the Property,
including water supply, storm and sanitary sewer, gas, electric power and telephone facilities.
Section 5.17. Creation of Liens. It has entered into no contract or arrangement of
any kind the performance of which by the other party thereto would give rise to a lien on the
Mortgaged Property or any part thereof.
Section 5.18. Roads. All roads necessary for the full utilization of the
Improvements for their intended purposes have been completed and dedicated to public use and
accepted by all appropriate Governmental Authorities.
Section 5.19. Requisition as Reaffirmation. Each Requisition submitted to
Administrative Agent, and the receipt of the funds requested thereby, shall constitute an
affirmation by Borrower that the representations and warranties contained herein and in the other
Loan Documents remain true and correct as of the respective dates of such Requisitions.
Section 5.20. Patriot Act.
(a) As of the date hereof, none of the funds or other assets of Borrower or of any of its
direct or indirect owners (including Guarantor) constitute property of, or are beneficially owned,
directly or indirectly, by, any Person subject to trade restrictions under United States Law,
including those who are covered by the International Emergency Economic Powers Act, 50 U.S.C.
§§1701 et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et
seq., and any Executive Orders or regulations promulgated thereunder (an “Embargoed
Person”) with the result that the investment in Borrower (whether directly or indirectly) is
prohibited by such applicable Law or the Loan is in violation of such Law; (ii) no Embargoed Person
has any interest of any nature whatsoever (whether directly or indirectly) in Borrower with the
result that the investment in Borrower (whether directly or indirectly) is prohibited by such
applicable Law or the Loan is in violation of such Law; and (iii) none of the funds of Borrower
have been derived from any unlawful activity with the result that the investment in Borrower
(whether directly or indirectly) is prohibited by such applicable Law or the Loan is in violation
of such Law.
33
(b) Neither Borrower nor any of its direct or indirect owners (including Guarantor) is in
violation of the U.S. Federal Bank Secrecy Act, as amended, and its implementing regulations (31
CFR part 103), the Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 and the regulations promulgated
thereunder, any order issued with respect to anti-money laundering by the U.S. Department of the
Treasury’s Office of Foreign Assets Control (“OFAC”), or any other anti-money laundering Law.
(c) Neither Borrower nor any if its direct or indirect owners (including Guarantor) is a
Person with whom United States Persons are restricted from doing business with under (a)
regulations issued by OFAC (including those persons and entities named on OFAC’s Specially
Designated Nationals and Blocked Persons list) or under any United States Law (including the
September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions With Persons Who
Commit, Threaten to Commit, or Support Terrorism) or (b) any other Law. Without limiting the
foregoing, Borrower is not presently funding its obligations hereunder with funds from any of the
Persons referred to in this paragraph (c).
(d) Guarantor has joined in this Agreement, for the purposes, among other things, of joining
in the representations to Administrative Agent and Lenders in this Section 5.20.
ARTICLE VI
COVENANTS OF BORROWER
Borrower covenants and agrees with Administrative Agent and Lenders that it will promptly:
Section 6.01. Compliance with Laws; Payment of Taxes. Comply with all Laws
applicable to it or the Mortgaged Property, or any part thereof, such compliance to include,
without limitation, paying before the same become delinquent all taxes, assessments and
governmental charges imposed on it or the Mortgaged Property, or any part thereof, and promptly
furnish Administrative Agent with reports of any official searches made by Governmental Authorities
and any claims of violations thereof.
Section 6.02. Leases and Premises Documents. Not enter into any Major Lease without
the prior written consent of Administrative Agent, not to be unreasonably withheld or delayed; and
deliver to Administrative Agent certified copies of all leases in respect of the Mortgaged Property
and all Premises Documents and all amendments to any thereof (in any case, whether executed before
or after the date hereof) together with (i) if requested by Administrative Agent, current financial
statements of the tenants thereunder or parties thereto as the case may be, and of the
guarantor(s), if any, of such tenants or parties and (ii) in the case of all Major Leases, a
notice-of-assignment letter in the form of EXHIBIT B; and keep all Premises Documents and, except
as may be permitted by the Mortgage, all leases in full force and effect.
34
Section 6.03. Administration Fee/Inspection Fee. During the term of the Loan,
Borrowers shall pay to Administrative Agent for its own account (and not for the pro rata benefit
of Lenders) an administration fee (the “Administration Fee”) in the amount set forth in the
Supplemental Fee Letter, payable in advance on the date hereof and on each anniversary of the date
hereof. Each payment of the Administration Fee shall be deemed earned in full upon payment.
Commencing on the first anniversary of the date hereof and on each anniversary thereafter during
the term of the Loan, deliver to Administrative Agent, for its own account, a non-refundable
administrative inspection fee (the “Inspection Fee”) in the amount set forth in the Supplemental
Fee Letter with respect to the costs associated with Lender’s annual inspection of the Property.
Section 6.04. Continuing Accuracy of Representations and Warranties. Cause all of
the representations and warranties made to Administrative Agent or Lenders herein and in the other
Loan Documents to be continuously true and correct.
Section 6.05. Covenants, Restrictions and Easements. Comply with all restrictions,
covenants and easements affecting the Mortgaged Property or the Improvements and cause the
satisfaction of all conditions hereof.
Section 6.06. Financial Covenants. In no event shall Borrower permit (i) the Funding
Cap to exceed 65% of the appraised value of the Mortgaged Property (the “Loan to Value Test”) as
determined by an independent appraisal conducted at Borrower’s expense by an appraiser selected by
Administrative Agent, which appraisal shall be conclusive as to value absent manifest error,
provided, however, that, except for appraisals performed in connection with a re-calculation of the
Funding Cap under Section 2.04, Borrower shall not be obligated to pay for more than one (1)
appraisal per any twelve (12) consecutive month period so long as no Event of Default exists or
(ii) Net Operating Income to be less than 130% of debt service on the Outstanding Credit Amount
equal to the Funding Cap (the “DSC Test”). For purposes of determining compliance with the DSC
Test, Net Operating Income shall be calculated on a semi-annual basis using six months’ actual
figures and the projected figures for the next succeeding six months and debt service shall be
calculated based upon a loan in the Outstanding Credit Amount using an interest rate equal to the
greatest of (a) the highest actual interest rate then applicable hereunder; (b) the Treasury Rate
plus 225 basis points or (c) an interest rate equal to 8.0% and a (25) year equal payment self
liquidating amortization schedule, provided, however, that such non-compliance shall not constitute
an Event of Default under the Mortgage and hereunder if, within forty-five (45) days of the date
upon which Mortgagor receives written notice from Administrative Agent of Borrower’s non-compliance
thereof (the “Notice Date”), Mortgagor complies with the provisions of this Section 6.06, by either
(i) agreeing in writing to reduce the Funding Cap by an amount which would bring Borrower into
compliance with the DSC Test and the Loan to Value Test and, to the extent the Funding Cap as so
reduced would exceed the Outstanding Credit Amount, making a mandatory principal payment (or at
Administrative Agent’s option deliver cash collateral for any Letter of Credit outstanding) in the
amount of such excess such that, at no time, shall the Outstanding Credit Amount (excluding any
portion of a Letter of Credit which is secured by cash collateral) exceed the Funding Cap as
reduced from time to time, with Borrower paying all applicable
35
prepayment or other charges, if any, provided for herein or in the Note with respect to such
mandatory principal payment or (ii) delivering to Administrative Agent cash, a letter of credit
from a financial institution acceptable to Administrative Agent, or such other collateral as may be
acceptable to Lender in its sole discretion in an amount equal to the amount that would have been
required to have been prepaid pursuant to (i) above in order to cure such default. In the case of
Guarantor, Guarantor shall comply at all times with the Liquidity Requirement and the Net Worth
Requirement.
Section 6.07. Payment of Costs. Pay all costs and expenses required for the
satisfaction of the conditions hereof, including, without limitation (i) all document and stamp
taxes, recording and filing expenses and fees and commissions lawfully due to brokers in connection
with the transactions contemplated hereby, (ii) any taxes, insurance premiums, liens, security
interests or other claims or charges against the Property or Improvements and (iii) all costs of
completion of the work to be performed by Borrower in space to be occupied in the Improvements
(including public space) to permit the lawful occupancy thereof for the purposes contemplated by
actual or prospective lessees or owners of such space as set forth in the individual leases,
subleases or purchase contracts thereof or in detailed work letters or other agreements or letters
of intent with respect thereto, or, in cases where there are no such leases, subleases, contracts,
work letters or other documents as aforesaid, as set forth in Borrower’s standard work letter or
the standard form of lease or contract, if any, required by paragraph (10) of Section 4.01(d), or,
in cases where none of the foregoing exists, to the level of building standard in accordance with
industry practices, as conclusively determined by the Engineering Consultant.
Section 6.08. Brokers. Indemnify Administrative Agent and Lenders against claims of
brokers arising by reason of the execution hereof or the consummation of the transactions
contemplated hereby.
Section 6.09. Correction of Defects. Upon demand of Administrative Agent or the
Engineering Consultant, correct any defects (including structural) in the Improvements.
Section 6.10. Unused Fee. Borrower shall, during the term of the Loan, pay to
Administrative Agent for the account of each Lender a fee (the “Unused Fee”), computed on the daily
unused Individual Loan Commitment (i.e., that portion of the Individual Loan
Commitment, without reduction for the Special Holdback, which (x) is not outstanding hereunder and
(y) is not allocated to an outstanding Letter of Credit) of such Lender based on the Loan Amount
for each day at a rate per annum equal to the Unused Fee Rate, calculated on the basis of a year of
three hundred sixty (360) days for the actual number of days elapsed. The accrued Unused Fee shall
be due and payable quarterly in arrears on the first day of July, October, January and April of
each year commencing on January 1, 2007, and upon the Maturity Date (as stated, by acceleration or
otherwise) or earlier termination of the Loan.
Section 6.11. Reporting and Miscellaneous Document Requirements. Furnish directly to
each Lender:
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(1) Semi-Annual Financial Statements of Borrower. On a semi-annual basis, as
soon as available and in any event within ninety (90) days after the end of each applicable
semi-annual period, Financial Statements of Borrower, in reasonable detail (including
detailed balance sheet, income statement, cash flow statement and one-year projections) and
stating in comparative form the respective figures for the corresponding date and period in
the prior semi-annual period;
(2) Annual Financial Statements of Borrower. On a annual basis, as soon as
available and in any event within ninety (90) days after the end of each applicable annual
period, Financial Statements of Borrower, in reasonable detail (including detailed balance
sheet, income statement, cash flow statement and one-year projections) and stating in
comparative form the respective figures for the corresponding date and period in the prior
annual period;
(3) Quarterly and Annual Financial Statements of Acadia Realty Trust. As soon
as available and in any event within one hundred twenty (120) days after the end of each
calendar quarter and Fiscal Year, Financial Statements of Acadia Realty Trust, a Maryland
real estate investment trust (“Sponsor”), which is the parent of Guarantor, as of the end
of and for such calendar quarter and Fiscal Year, in reasonable detail (including detailed
balance sheet, income statement, cash flow statement, and contingent liability schedule)
and stating in comparative form the respective figures for the corresponding date and
period in the prior Fiscal Year, audited (with respect to the annual financial statements
only) by BDO Seidman or one of the so-called “Big Four” accounting firms or another firm of
certified public accountants reasonably acceptable to Administrative Agent , provided that,
notwithstanding the foregoing, so long as Sponsor timely files 10Q and 10K reports with the
Securities and Exchange Commission, Sponsor shall have complied with this clause (3);
(4) Covenant Compliance Certificates. Within sixty (60) days after the end of
each fiscal quarter, Guarantor shall submit to Lender a Covenant Compliance Certificate
certified by a principal financial or accounting officer or general partner, as the case
may be, in the Form of EXHIBIT E-1 hereto certifying, on the basis of Guarantor’s unaudited
financial statements, that Guarantor has met the Liquidity Requirement for the applicable
period. As soon as available and in any event within one hundred twenty (120) days after
the end of each Fiscal Year, Guarantor shall submit to Lender a Covenant Compliance
Certificate certified by a principal financial or accounting officer or general partner, as
the case may be, in the Form of EXHIBIT E-2 hereto certifying, on the basis of Guarantor’s
audited Financial Statements as of the end of and for such Fiscal Year, that Guarantor has
met the Net Worth Requirement and the Liquidity Requirement;
(5) Notice of Litigation. Promptly after the commencement and knowledge
thereof, notice of all actions, suits, and proceedings before any court or arbitrator or
any Governmental Authority, affecting (i) Borrower which, if
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determined adversely to Borrower are likely to result in a Material Adverse Change or
(ii) all or any portion of the Mortgaged Property under any Mortgage;
(6) Notices of Defaults and Events of Default. As soon as possible and in any
event within ten (10) days after Borrower becomes aware of the occurrence of a Default or
any Event of Default, a written notice setting forth the details of such Default or Event
of Default and the action which is proposed to be taken with respect thereto;
(7) Material Adverse Change. As soon as is practicable and in any event
within five (5) days after knowledge of the occurrence of any event or circumstance which
is likely to result in or has resulted in a Material Adverse Change, written notice
thereof;
(8) Offices. Thirty (30) days’ prior written notice of any change in the
chief executive office or principal place of business of Borrower;
(9) Environmental and Other Notices. As soon as possible and in any event
within ten (10) days after receipt, copies of (i) all Environmental Notices received by
Borrower which are not received in the ordinary course of business and which relate to any
Property or a situation which is likely to result in a Material Adverse Change and (ii) all
reports of any official searches made by any Governmental Authority having jurisdiction
over any Property or the Improvements thereon, and of any claims of violations thereof and,
on an annual basis, delivered with Borrower’s annual Financial Statements, a report from
Borrower regarding the status of the environmental matters discussed in Section 6.12;
(10) Insurance Coverage. Promptly, such information concerning Borrower’s
insurance coverage as Administrative Agent may reasonably request;
(11) Bankruptcy of Tenants. Promptly after becoming aware of the same,
written notice of the bankruptcy, insolvency or cessation of operations of any tenant in
the Improvements on any Property to which 5% or more of the aggregate minimum rent from
such Improvements is attributable;
(12) Leasing Reports and Property Information. (i) Upon request by
Administrative Agent, but no more often than quarterly, an updated rent roll, leasing
report, and operating and cash statements for each Property and (ii) (ii) as soon as
available and in any event within ninety (90) days after the end of each Fiscal Year,
tenant sales report for each Property, to the extent Borrower is entitled to receive same
pursuant to the terms of the respective leases; and
(13) General Information. Promptly, such other information respecting the
condition or operations, financial or otherwise, of Borrower, Guarantor or any Properties
of Borrower as Administrative Agent may from time to time reasonably request.
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ARTICLE VII
ADMINISTRATIVE AGENT; RELATIONS AMONG LENDERS
Section 7.01. Appointment, Powers and Immunities of Administrative Agent. Each
Lender hereby irrevocably appoints and authorizes Administrative Agent to act as its agent
hereunder and under any other Loan Document with such powers as are specifically delegated to
Administrative Agent by the terms of this Agreement and any other Loan Document, together with such
other powers as are reasonably incidental thereto. Administrative Agent shall have no duties or
responsibilities except those expressly set forth in this Agreement and any other Loan Document or
required by Law, and shall not by reason of this Agreement be a fiduciary or trustee for any Lender
except to the extent that Administrative Agent acts as an agent with respect to the receipt or
payment of funds, nor shall Administrative Agent have any fiduciary duty to Borrower nor shall any
Lender have any fiduciary duty to Borrower or any other Lender. No implied covenants,
responsibilities, duties, obligations or liabilities shall be read into this Agreement or otherwise
exist against Administrative Agent. Neither Administrative Agent nor any of its directors,
officers, employees, agents, attorneys-in-fact or Affiliates shall be responsible to Lenders for
any recitals, statements, representations or warranties made by Borrower or any officer, partner or
official of Borrower or any other Person contained in this Agreement or any other Loan Document, or
in any certificate or other document or instrument referred to or provided for in, or received by
any of them under, this Agreement or any other Loan Document, or for the value, legality, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Loan
Document or any other document or instrument referred to or provided for herein or therein, for the
perfection or priority of any lien securing the obligations hereunder or thereunder or for any
failure by Borrower or any Guarantor to perform any of its obligations hereunder or thereunder.
Administrative Agent may employ agents and attorneys-in-fact and shall not be responsible, except
as to money or securities received by it or its authorized agents, for the negligence or misconduct
of any such agents or attorneys-in-fact selected by it with reasonable care. Neither
Administrative Agent nor any of its directors, officers, employees, agents, attorneys-in-fact or
Affiliates shall be liable or responsible for any action taken or omitted to be taken by it or them
hereunder or under any other Loan Document or in connection herewith or therewith, except for its
or their own gross negligence or willful misconduct.
Section 7.02. Reliance by Administrative Agent. Administrative Agent shall be
entitled to rely upon any certification, notice or other communication (including any thereof by
telephone, telex, telegram or cable) believed by it to be genuine and correct and to have been
signed or sent by or on behalf of the proper Person or Persons, and upon advice and statements of
legal counsel, independent accountants and other experts selected by Administrative Agent.
Administrative Agent may deem and treat each Lender as the holder of its Note and interest in the
Loan for all purposes hereof and shall not be required to deal with any Person who has acquired a
Participation in the Loan from a Lender. As to any matters not expressly provided for by this
Agreement or any other Loan Document, Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, in accordance with instructions signed by the Required
Lenders,
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and such instructions of the Required Lenders and any action taken or failure to act pursuant
thereto shall be binding on all of Lenders and any other holder of all or any portion of the Loan
or Participation therein.
Section 7.03. Defaults. Administrative Agent shall not be deemed to have knowledge
of the occurrence of a Default or of an Event of Default unless Administrative Agent has actual
knowledge thereof or has received notice from a Lender or Borrower specifying such Default or Event
of Default and stating that such notice is a “Notice of Default.” In the event that Administrative
Agent has such actual knowledge or receives such a notice of the occurrence of a Default or Event
of Default, Administrative Agent shall give prompt notice thereof to Lenders. Administrative Agent
shall promptly send to each Lender a copy of any notice of a Default or Event of Default that
Administrative Agent sends to Borrower or Guarantor. Administrative Agent, following consultation
with Lenders, shall (subject to Section 7.07) take such action with respect to such Default or
Event of Default which is continuing, including with respect to the exercise of remedies or the
realization on, or operation or disposition of, any or all of the Mortgaged Property or any other
collateral for the Loan, as shall be directed by the Required Lenders; provided,
however, that, unless and until Administrative Agent shall have received such directions,
Administrative Agent may take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem to be in the best interest of Lenders. In no event
shall Administrative Agent be required to take any such action which it determines would be
contrary to the Loan Documents or to Law. Each of Lenders acknowledges and agrees that no
individual Lender may separately enforce or exercise any of the provisions of any of the Loan
Documents (including, without limitation, the Notes) other than through Administrative Agent.
Section 7.04. Rights of Administrative Agent as Lender. With respect to its Note and
interest in the Loan, Administrative Agent in its capacity as a Lender hereunder shall have the
same rights and powers hereunder as any other Lender and may exercise the same as though it were
not acting as Administrative Agent, and the terms “Lender” and “Lenders” shall include
Administrative Agent in its capacity as a Lender. Administrative Agent and its affiliates may
(without having to account therefor to any Lender) accept deposits from, lend money to (on a
secured or unsecured basis), and generally engage in any kind of banking, trust or other business
with, Borrower or Guarantor (and any affiliates of them) as if it were not acting as Administrative
Agent.
Section 7.05. Sharing of Costs by Lenders; Indemnification of Administrative Agent.
Each Lender shall pay its ratable share, based on the respective outstanding principal balances
under its Note and the other Notes, of any expenses incurred (and not paid or reimbursed by
Borrower after demand for payment is made by Administrative Agent) by or on behalf of Lenders in
connection with any Default or Event of Default, including, without limitation, costs of
enforcement of the Loan Documents and any advances to pay taxes or insurance premiums, to complete
the Improvements or otherwise to preserve the lien of the Mortgage or to preserve or protect the
Mortgaged Property. In the event a Lender fails to pay its share of expenses as aforesaid, and all
or a portion of such unpaid amount is paid by Administrative Agent and/or one or more of the other
Lenders, then the defaulting Lender shall reimburse Administrative Agent and/or
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the other Lender(s) for the portion of such unpaid amount paid by it or them, as the case may
be, together with interest thereon at the Prime Based Rate from the date of payment by
Administrative Agent and/or the other Lender(s). In addition, each Lender agrees to reimburse and
indemnify Administrative Agent (to the extent it is not paid by on or behalf of Borrower, after
demand for payment is made by Administrative Agent, under Section 8.13 or under the applicable
provisions of any other Loan Document, but without limiting the obligation of Borrower under said
Section 8.13 or such provisions), for such Lender’s ratable share, based upon the respective
outstanding principal balances under its Note and the other Notes, of any and all 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 Administrative Agent in any way relating to or arising out of this Agreement, any other
Loan Document or any other documents contemplated by or referred to herein or the transactions
contemplated hereby or thereby (including, without limitation, the costs and expenses which
Borrower is obligated to pay under Section 8.13 or under the applicable provisions of any other
Loan Document) or the enforcement of any of the terms hereof or thereof or of any such other
documents or instruments; provided, however, that no Lender shall be liable for (i)
any of the foregoing to the extent they arise from the gross negligence or willful misconduct of
the party to be indemnified or (ii) any loss of principal or interest with respect to
Administrative Agent’s Note or interest in the Loan.
Section 7.06. Non-Reliance on Administrative Agent and Other Lenders. Each Lender
acknowledges that it has, independently and without reliance on Administrative Agent or any other
Lender, and based on such documents and information as it has deemed appropriate, made its own
analysis of the collateral for the Loan and of the credit of Borrower and Guarantor, and its own
decision to enter into this Agreement, and that it will, independently and without reliance upon
Administrative Agent or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own analysis and decisions in taking or not
taking action under this Agreement or any other Loan Document. Administrative Agent shall not be
required to keep itself informed as to the performance or observance by Borrower of this Agreement
or any other Loan Document or any other document referred to or provided for herein or therein or
to inspect the properties (including, without limitation, the Properties) or books of Borrower.
Except for notices, reports and other documents and information expressly required to be furnished
to Lenders by Administrative Agent hereunder, Administrative Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information concerning the affairs,
financial condition or business of Borrower or Guarantor (or any Affiliate of them) which may come
into the possession of Administrative Agent or any of its Affiliates. Administrative Agent shall
not be required to file this Agreement, any other Loan Document or any document or instrument
referred to herein or therein, for record or give notice of this Agreement, any other Loan Document
or any document or instrument referred to herein or therein, to anyone.
Section 7.07. Failure of Administrative Agent to Act. Except for action expressly
required of Administrative Agent hereunder, Administrative Agent shall in all cases be fully
justified in failing or refusing to act hereunder unless it shall have received further assurances
(which may include cash collateral) of the indemnification obligations
41
of Lenders under Section 7.05 in respect of any and all liability and expense which may be
incurred by it by reason of taking or continuing to take any such action. If any indemnity
furnished to Administrative Agent for any purpose shall, in the opinion of Administrative Agent, be
insufficient or become impaired, Administrative Agent may call for additional indemnity and cease,
or not commence, the action indemnified against until such additional indemnity is furnished.
Section 7.08. Resignation or Removal of Administrative Agent. Administrative Agent
may resign on at least thirty (30) days’ written notice to Lenders and Borrower or upon the
occurrence of an Event of Default. Administrative Agent may be removed at any time with cause by
the Required Lenders, provided that Borrower and the other Lenders shall be promptly notified
thereof. Upon such resignation or removal of Administrative Agent, the Required Lenders shall have
the right to appoint a successor Administrative Agent, which successor Administrative Agent shall
(provided there exists no Event of Default) be subject to Borrower’s approval, such approval not to
be unreasonably withheld or delayed. If no successor Administrative Agent shall have been so
appointed by the Required Lenders, and shall have accepted such appointment, within twenty (20)
days after the resignation or the Required Lenders’ removal of the retiring Administrative Agent,
then the retiring Administrative Agent may, on behalf of Lenders, appoint a successor
Administrative Agent, which shall be one of Lenders, within ten (10) days. The Required Lenders or
the retiring Administrative Agent, as the case may be, shall upon the appointment of a successor
Administrative Agent promptly so notify Borrower and the other Lenders. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations hereunder. After any retiring Administrative
Agent’s resignation or removal hereunder as Administrative Agent, the provisions of this Article
VII shall continue in effect for its benefit in respect of any actions taken or omitted to be taken
by it while it was acting as Administrative Agent. The annual Administration Fee paid to the
retiring Administrative Agent shall be deemed earned by such retiring Administrative Agent only to
the extent of the actual days elapsed in the year to which such Administration Fee relates, and
upon appointment of a successor Administrative Agent, the retiring Administrative Agent shall pay
to such successor a pro-rata portion of such yearly Administration Fee based upon the number of
days remaining in such year.
Section 7.09. Amendments Concerning Agency Function. Notwithstanding anything to the
contrary contained in this Agreement, Administrative Agent shall not be bound by any waiver,
amendment, supplement or modification of this Agreement or any other Loan Document which affects
its duties, rights, and/or function hereunder or thereunder unless it shall have given its prior
written consent thereto.
Section 7.10. Liability of Administrative Agent. Administrative Agent shall not have
any liabilities or responsibilities to Borrower on account of the failure of any Lender to perform
its obligations hereunder or to any Lender on account of the failure of Borrower to perform its
obligations hereunder or under any other Loan Document.
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Section 7.11. Transfer of Agency Function. Without the consent of Borrower or any
Lender, Administrative Agent may at any time or from time to time transfer its functions as
Administrative Agent hereunder to any of its offices wherever located in the United States,
provided that Administrative Agent shall promptly notify Borrower and Lenders thereof.
Section 7.12. Non-Receipt of Funds by Administrative Agent; Adjustments.
(a) Unless Administrative Agent shall have received notice from a Lender or Borrower (either
one as appropriate being the “Payor”) prior to the date on which such Lender is to make payment
hereunder to Administrative Agent of Loan proceeds or Borrower is to make payment to Administrative
Agent, as the case may be (either such payment being a “Required Payment”), which notice shall be
effective upon receipt, that the Payor will not make the Required Payment in full to Administrative
Agent, Administrative Agent may assume that the Required Payment has been made in full to
Administrative Agent on such date, and Administrative Agent in its sole discretion may, but shall
not be obligated to, in reliance upon such assumption, make the amount thereof available to the
intended recipient on such date. If and to the extent the Payor shall not have in fact so made the
Required Payment in full to Administrative Agent, the recipient of such payment shall repay to
Administrative Agent forthwith on demand such amount made available to it together with interest
thereon, for each day from the date such amount was so made available by Administrative Agent until
the date Administrative Agent recovers such amount, at the Federal Funds Rate.
(b) If, after Administrative Agent has paid each Lender’s share of any payment received or
applied by Administrative Agent in respect of the Loan, that payment is rescinded or must otherwise
be returned or paid over by Administrative Agent, whether pursuant to any bankruptcy or insolvency
Law, sharing of payments clause of any loan agreement or otherwise, such Lender shall, at
Administrative Agent’s request, promptly return its share of such payment or application to
Administrative Agent, together with such Lender’s proportionate share of any interest or other
amount required to be paid by Administrative Agent with respect to such payment or application. In
addition, if a court of competent jurisdiction shall adjudge that any amount received and
distributed by Administrative Agent is to be repaid, each Person to whom any such distribution
shall have been made shall either repay to Administrative Agent its share of the amount so adjudged
to be repaid or shall pay over the same in such manner and to such Persons as shall be determined
by such court.
Section 7.13. Withholding Taxes. Each Lender represents that it is entitled to
receive any payments to be made to it hereunder without the withholding of any tax and will furnish
to Administrative Agent such forms, certifications, statements and other documents as
Administrative Agent may reasonably request from time to time to evidence such Lender’s exemption
from the withholding of any tax imposed by any jurisdiction or to enable Administrative Agent to
comply with any applicable Laws relating thereto. Without limiting the effect of the foregoing, if
any Lender is not created or organized under the Laws of the United States or any state thereof,
such Lender will furnish to Administrative Agent Form W-8ECI or Form W-8BEN of the U.S. Internal
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Revenue Service, or such other forms, certifications, statements or documents, duly executed
and completed by such Lender, as evidence of such Lender’s complete exemption from the withholding
of United States tax with respect thereto. Administrative Agent shall not be obligated to make any
payments hereunder to such Lender in respect of the Loan until such Lender shall have furnished to
Administrative Agent the requested form, certification, statement or document.
Section 7.14. Sharing of Payments among Lenders. If a Lender shall obtain payment of
any principal of its Note or of interest thereon through the exercise of any right of setoff,
banker’s lien or counterclaim, or by any other means (including direct payment), and such payment
results in such Lender receiving a greater payment than it would have been entitled to had such
payment been paid directly to Administrative Agent for disbursement to Lenders, then such Lender
shall promptly purchase for cash from the other Lenders Participations in the Loan in such amounts,
and make such other adjustments from time to time as shall be equitable, to the end that all
Lenders shall share ratably the benefit of such payment. To such end Lenders shall make
appropriate adjustments among themselves (by the resale of Participations sold or otherwise) if
such payment is rescinded or must otherwise be restored.
Section 7.15. Possession of Documents. Each Lender shall maintain possession of its
own Note. Administrative Agent shall hold all other Loan Documents and related documents in its
possession and maintain separate records and accounts with respect to the Loan, reflecting the
interests of Lenders in the Loan, and shall permit Lenders and their representatives access at all
reasonable times to inspect such Loan Documents, related documents, records and accounts.
Section 7.16. Effect of a Lender’s Failure to Make an Advance. In the event any
Lender fails for any reason to fund the portion it is required to fund of any advance of Loan
proceeds by 3:00 p.m. on the second Business Day after the date established by Administrative Agent
as the date such advance is to be made, such Lender shall be a “Delinquent Lender” for all purposes
hereunder until and unless such delinquency is cured in accordance with the terms of and by the
time permitted under Section 7.17, and the following provisions shall apply:
(a) Administrative Agent shall notify (such notice being referred to as the
“Delinquency Notice”) each Lender and Borrower of any Lender’s failure to fund. Each
Non-Delinquent Lender shall have the right, but in no event or under any circumstance the
obligation, to fund such Delinquent Lender’s portion of such advance, provided that, within
twenty (20) days of the date of the Delinquency Notice (the “Election Period”), such
Non-Delinquent Lender or Lenders (each such Lender, an “Electing Lender”) irrevocably
commit(s) by notice in writing (an “Election Notice”) to Administrative Agent, the other
Lenders and Borrower to fund the Delinquent Lender’s portion of the advance that is the
subject of the delinquency and to assume the Delinquent Lender’s obligations with respect
to the advancing of the entire undisbursed portion of the Delinquent Lender’s Individual
Loan Commitment (such entire undisbursed portion of the Delinquent Lender’s Individual Loan
Commitment, including its portion of the advance that is the
44
subject of the delinquency, the “Delinquency Amount”). If Administrative Agent
receives more than one Election Notice within the Election Period, then the Electing
Lenders sending such notices shall be deemed to have committed to fund ratable shares of
the Delinquency Amount based upon the amounts of their respective Individual Loan
Commitments. If there are one or more Electing Lenders and the Delinquent Lender fails to
cure during the Election Period as provided in Section 7.17, then upon the expiration of
the Election Period, each Electing Lender’s Individual Loan Commitment shall be
automatically increased by the Delinquency Amount (if there is only one Electing Lender) or
such Electing Lender’s ratable share, determined as aforesaid, of the Delinquency Amount
(if there are two or more Electing Lenders), and the Delinquent Lender’s Individual Loan
Commitment shall automatically be reduced by the Delinquency Amount. Administrative Agent
shall thereupon notify Borrower and each Lender of (i) the adjusted amounts of the
Individual Loan Commitments and (ii) if the advance that was the subject of the delinquency
was not made pursuant to Section 7.12 or was refunded by Borrower pursuant to paragraph (e)
of this Section, the rescheduled date of such advance (which shall be no sooner than three
(3) Business Days after such notice). In the event Administrative Agent shall have funded,
pursuant to Section 7.12, the entire advance that was the subject of the delinquency
(including the Delinquent Lender’s portion), and Borrower shall not have refunded such
advance pursuant to paragraph (e) of this Section, the Electing Lender(s) shall remit to
Administrative Agent the Delinquent Lender’s portion of the advance, or their ratable shares thereof, as the case may be, within three (3) Business Days of the notice provided
for in the immediately preceding sentence, and Administrative Agent shall reimburse itself
from such funds for making the Delinquent Lender’s portion of the advance. Notwithstanding
anything to the contrary contained herein, if Administrative Agent advances its own funds
in respect of a Delinquent Lender’s portion of an advance, Administrative Agent shall be
entitled to the interest on the portion of the Principal Amount represented thereby, from
the date Administrative Agent makes such advance until the date it is reimbursed therefor.
(b) In connection with the adjustment of the amounts of the Individual Loan
Commitments of the Delinquent Lender and Electing Lender(s) upon the expiration of the
Election Period as aforesaid, Borrower covenants that it shall, promptly following the
request of the Electing Lender(s), execute and deliver to each Electing Lender and the
Delinquent Lender substitute notes substantially in the form of EXHIBIT D and stating:
“This Note is a substitute note as contemplated by Section 7.16 of the Loan Agreement; it
replaces and is in lieu of that certain note made by Maker dated [date of Note] to the
order of [Lender] in the principal sum of [Lender’s original Individual Loan Commitment].”
Such substitute notes shall be in amounts equal to such Lenders’ respective Individual Loan
Commitments, as adjusted. All such substitute notes shall constitute “Notes” and the
obligations evidenced by such substitute notes shall be secured by the Mortgage. In
connection with Borrower’s execution of substitute notes as aforesaid, Borrower shall
deliver to Administrative Agent evidence, satisfactory to Administrative Agent, of all
requisite partnership, corporate or other action to
45
authorize Borrower’s execution and delivery of the substitute notes and any related
documents. The execution and delivery of substitute notes as required above shall be a
condition precedent to any further advances of Loan proceeds. Upon receipt of its
substitute note, the Electing Lender and the Delinquent Lender will return to Borrower
their notes that were replaced, provided that the delivery of a substitute note to
the Delinquent Lender pursuant to this Section 7.16 shall operate to void and replace the
note previously held by the Delinquent Lender regardless of whether the Delinquent Lender
returns same as required hereby. Borrower, Administrative Agent and Lenders shall execute
such modifications to the Loan Documents as shall, in the reasonable judgment of
Administrative Agent, be necessary or desirable in connection with the adjustment of the
amounts of Individual Loan Commitments in accordance with the foregoing provisions of this
Section.
(c) In the event that no Lender elects to commit to fund the Delinquency Amount within
the Election Period as provided in paragraph (a) of this Section, Administrative Agent
shall, upon the expiration of the Election Period, so notify Borrower and each Lender and
the provisions of Section 2.15 shall apply.
(d) Subject to a Delinquent Lender’s right to cure as provided in Section 7.17, but
notwithstanding anything else to the contrary contained in this Agreement, the Delinquent
Lender’s interest in, and any and all amounts due to a Delinquent Lender under, the Loan
Documents (including, without limitation, all principal, interest, fees and expenses) shall
be subordinate in lien priority and to the repayment of all amounts (including, without
limitation, interest) then or thereafter due or to become due to the Non-Delinquent Lenders
under the Loan Documents (including future advances), and the Delinquent Lender thereafter
shall have no right to participate in any discussions among and/or decisions by Lenders
hereunder and/or under the other Loan Documents. Further, any Delinquent Lender shall be
bound by any amendment to, or waiver of, any provision of, or any action taken or omitted
to be taken by Administrative Agent and/or the Non-Delinquent Lenders under, any Loan
Document which is made subsequent to the Delinquent Lender’s becoming a Delinquent Lender.
(e) If, pursuant to the operation of Section 7.12, an advance of Loan proceeds is made
without Administrative Agent’s receipt of a Delinquent Lender’s portion thereof, Borrower
shall, upon demand of Administrative Agent, refund the entire such advance to
Administrative Agent. Borrower’s failure to do so within ten (10) days of such demand
shall, notwithstanding anything to the contrary contained herein or in the Mortgage,
constitute an Event of Default under the Mortgage. Upon its receipt of such funds from
Borrower, Administrative Agent shall promptly remit to each Non-Delinquent Lender its
appropriate share thereof.
Section 7.17. Cure by Delinquent Lender. A Delinquent Lender may cure a delinquency
arising out of its failure to fund its required portion of any advance if, within the Election
Period, it remits to Administrative Agent its required portion of such
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advance (together with interest thereon at the Default Rate from the date such advance was to
have been made if such advance was made by Administrative Agent and not refunded by Borrower
pursuant to paragraph (e) of Section 7.16), in which event Administrative Agent shall so notify
Borrower and the Non-Delinquent Lenders (i) of its receipt of such funds and (ii)(A) if the advance
that was the subject of the delinquency shall not have been made (or shall have been refunded by
Borrower pursuant to paragraph (e) of Section 7.16), of the rescheduled date of the advance (which
shall be no sooner then three (3) Business Days after such notice) or (B) if Administrative Agent
shall have funded the entire advance that was the subject of the delinquency (including the
Delinquent Lender’s portion) and Borrower shall not have refunded such advance pursuant to
paragraph (e) of Section 7.16, of its intention to reimburse itself from funds received from the
Delinquent Lender (which reimbursement is hereby authorized) for funding the Delinquent Lender’s
required portion of the advance. In the event any Delinquent Lender cures a delinquency prior to
the expiration of the Election Period (or thereafter with the consent of all of the Non-Delinquent
Lenders), such Delinquent Lender nonetheless shall be bound by any amendment to or waiver of any
provision of, or any action taken or omitted to be taken by Administrative Agent and/or the
Non-Delinquent Lenders under, any Loan Document which is made subsequent to that Lender’s becoming
a Delinquent Lender and prior to its curing the delinquency as provided in this Section, provided
that such amendment or waiver of action was taken in accordance with the provisions of this
Agreement. A Delinquent Lender shall have absolutely no right to cure any delinquency after the
expiration of the Election Period unless all Non-Delinquent Lenders in their sole discretion elect
to permit such cure.
Section 7.18. Delinquent Lender Not Excused. Nothing contained in Sections 7.16 or
7.17 shall release or in any way limit a Delinquent Lender’s obligations as a Lender hereunder
and/or under any other of the Loan Documents. Further, a Delinquent Lender shall indemnify and
hold harmless Administrative Agent, each of the Non-Delinquent Lenders and Borrower from any claim,
loss, or costs incurred by any of them as a result of a Delinquent Lender’s failure to comply with
the requirements of this Agreement, including, without limitation, any and all additional losses,
damages, costs and expenses (including, without limitation, attorneys’ fees) incurred by
Administrative Agent and any Lender as a result of and/or in connection with (i) a Non-Delinquent
Lender’s acting as an Electing Lender, (ii) any enforcement action brought by Administrative Agent
against a Delinquent Lender, and (iii) any action brought against Administrative Agent and/or
Lenders. The indemnification provided above shall survive any termination of this Agreement.
Section 7.19. Notices Regarding Delinquent Lender. Notices by Administrative Agent
or Lenders pursuant to Sections 7.16 or 7.17 may be by telephone (to be promptly confirmed in
writing).
Section 7.20. Replacement Lender. In the event any Lender becomes a Delinquent
Lender and none of the other Lenders elects to be an Electing Lender pursuant to Section 7.16,
Borrower shall have the right, provided there exists no Default or Event of Default, to cause
another financial institution, reasonably acceptable to (x) the Required Lenders if such
institution is not an Eligible Assignee or (y) Administrative
47
Agent if such institution is an Eligible Assignee, to assume the Delinquent Lender’s
obligations with respect to the Delinquency Amount on the then-existing terms and conditions of the
Loan Documents (such replacement institution, a “Replacement Lender”). Such assumption shall be
pursuant to a written instrument reasonably satisfactory to Administrative Agent. Upon such
assumption, the Replacement Lender shall become a “Lender” for all purposes hereunder, with an
Individual Loan Commitment in an amount equal to the Delinquency Amount, and the Delinquent
Lender’s Individual Loan Commitment shall automatically be reduced by the Delinquency Amount. In
connection with the foregoing, Borrower shall execute and deliver to the Replacement Lender and the
Delinquent Lender substitute notes substantially in the form of EXHIBIT D and stating: “This Note
is a substitute note as contemplated by Section 7.20 of the Loan Agreement; it replaces and is in
lieu of that certain note made by Maker dated [date of Note] to the order of [Delinquent Lender] in
the principal sum of [Delinquent Lender’s original Individual Loan Commitment].” Such substitute
notes shall be in amounts equal to, in the case of the Replacement Lender’s note, the Delinquency
Amount and, in the case of the Delinquent Lender’s note, its Individual Loan Commitment, as reduced
as aforesaid. Such substitute notes shall constitute “Notes” and the obligations evidenced by such
substitute notes shall be secured by the Mortgage. In connection with Borrower’s execution of
substitute notes as aforesaid, Borrower shall deliver to Administrative Agent evidence,
satisfactory to Administrative Agent, of all requisite partnership/corporate action to authorize
Borrower’s execution and delivery of the substitute notes and any related documents. Upon delivery
of the foregoing substitute note(s), each Delinquent Lender shall return to Borrower its note which
was replaced, provided that the delivery of a substitute note to the Delinquent Lender
pursuant to this Section 7.20 shall operate to void and replace the note previously held by the
Delinquent Lender regardless of whether Delinquent Lender returns same as required hereby.
Borrower, Administrative Agent and Lenders shall execute such modifications to the Loan
Documents as shall, in the reasonable judgment of Administrative Agent, be necessary or desirable
in connection with the substitution of Lenders in accordance with the foregoing provisions of this
Section.
Lenders shall reasonably cooperate with Borrower’s attempts to obtain a Replacement Lender,
but they shall not be obligated to modify the Loan Documents in connection therewith, other than
modifications pursuant to the immediately preceding paragraph or modifications which are favorable
to Lenders.
ARTICLE VIII
GENERAL CONDITIONS AND PROVISIONS
Section 8.01. Disbursement Not Waiver. The disbursement by Lenders of the Loan made
prior to or without the fulfillment by Borrower of all of the conditions precedent thereto, whether
or not known to Lenders, shall not constitute a waiver by Lenders of the requirement that all
conditions, including the non-performed conditions, shall be satisfied.
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Section 8.02. No Third-Party Beneficiaries. This Agreement is solely for the benefit
of Administrative Agent, Lenders and Borrower. All conditions of the obligations of Lenders
hereunder are imposed solely and exclusively for the benefit of Lenders and may be freely waived or
modified in whole or in part by Lenders at any time if in their sole discretion it deems it
advisable to do so, and no person other than Borrower (provided, however, that all
conditions have been satisfied) shall have standing to require Lenders to disburse the Loan or to
be a beneficiary of this Agreement.
Section 8.03. Documentation Etc. Satisfactory. All documentation and proceedings
deemed by Administrative Agent or Administrative Agent’s Counsel to be necessary or required in
connection herewith and the documents relating hereto shall be subject to the prior approval of,
and satisfactory to, both of them as to form and substance. In addition, the Persons responsible
for the execution and delivery of, and signatories to, all of such documentation, shall be
acceptable to, and subject to the approval of, Administrative Agent and Administrative Agent’s
Counsel. Administrative Agent or Administrative Agent’s Counsel shall receive copies, certified if
requested by either of them, of all documents which they may require in connection with the
transactions contemplated hereby.
Section 8.04. Lender’s Determination Conclusive. Administrative Agent shall, at all
times, be free to independently establish to its satisfaction and in its absolute discretion the
existence or nonexistence of any fact or facts the existence or nonexistence of which is a
condition hereof.
Section 8.05. Notices. Except as expressly provided otherwise, all notices, demands,
consents, approvals and statements required or permitted hereunder shall be in writing and shall be
deemed to have been sufficiently given or served for all purposes when presented personally, three
(3) days after mailing by registered or certified mail, postage prepaid, or one (1) day after
delivery to a nationally recognized overnight courier service providing evidence of the date of
delivery, addressed to a party at its address on the signature page hereof or of the applicable
Assignment and Assumption Agreement, or at such other address of which a party shall have notified
the party giving such notice in writing in accordance with the foregoing requirements. Notices
validly given to any Borrower shall be deemed validly given to all Borrowers and notices from any
Borrower shall be deemed given by all Borrowers. Notwithstanding anything to the contrary
contained herein, in the event of separate notices received from less than all Borrowers which are
inconsistent, Administrative Agent may, in its discretion, (i) elect to treat any or all
inconsistent provisions of such notices as null and void and/or (ii) determine which of such
inconsistent provisions shall be considered valid hereunder.
Section 8.06. Amendments and Waivers. No amendment or material waiver of any
provision of this Agreement or any other Loan Document, nor consent to any material departure by
Borrower or any Guarantor therefrom, shall in any event be effective unless the same shall be in
writing and signed by the party against whom such amendment, waiver or consent is sought to be
enforced (it being understood, however, that the signatures of the Required Lenders and, solely for
purposes of its acknowledgement thereof, Administrative Agent, shall be sufficient to bind Lenders
to
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any such amendment, waiver or consent), and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given; provided,
however, that no amendment, waiver or consent shall, unless in writing and signed by all
Lenders, do any of the following: (i) reduce the principal of, or interest on, the Notes or any
fees due hereunder or any other amount due hereunder or under any other Loan Document; (ii)
postpone any date fixed for any payment of principal of, or interest on, the Notes or any fees due
hereunder or under any other Loan Document; (iii) change the definition of Required Lenders; (iv)
release any material portion of the Mortgaged Property or other collateral for the Loan other than
in accordance with the Loan Documents; (v) amend this Section or any other provision requiring the
consent of all Lenders; (vi) release, in whole or in part, any Guarantor other than in accordance
with the Loan Documents; or (vii) increase the Loan Amount. Without limiting the foregoing,
acceptance by Administrative Agent or Lenders of any sum required to be paid pursuant hereto or any
other Loan Document, after its due date, or in an amount less than the sum then due, shall not
constitute a waiver by Administrative Agent or Lenders of their right to require prompt payment
when due of all other such sums or to declare a default or to exercise such other rights provided
herein or in the other Loan Documents for such late or reduced payment.
All communications from Administrative Agent to Lenders requesting Lenders’ determination,
consent, approval or disapproval (i) shall be given in the form of a written notice to each Lender,
(ii) shall be accompanied by or include a description or copy of the matter or thing as to which
such determination, approval, consent or disapproval is requested and (iii) shall include
Administrative Agent’s recommended course of action or determination in respect thereof. Each
Lender shall reply promptly, but in any event within ten (10) Business Days (or five (5) Business
Days with respect to any decision to accelerate or stop acceleration of the Loan) after receipt of
the request therefor by Administrative Agent (the “Lender Reply Period”). Unless a Lender shall
give written notice to Administrative Agent that it objects to the recommendation or determination
of Administrative Agent (together with a written explanation of the reasons behind such objection)
within the Lender Reply Period, such Lender shall be deemed to have approved or consented to such
recommendation or determination.
Section 8.07. Assignment; Participation. Any Non-Delinquent Lender may at any time
grant to one or more banks or other institutions not affiliated with Borrower or Guarantor (each a
“Participant”) participating interests in its Pro Rata Share of the Loan (the “Participations”).
In the event of any such grant by a Lender of a Participation to a Participant, such Lender shall
remain responsible for the performance of its obligations hereunder, and Borrower and
Administrative Agent shall continue to deal solely and directly with such Lender in connection with
such Lender’s rights and obligations hereunder. Any agreement pursuant to which any Lender may
grant a Participation shall provide that such Lender shall retain the sole right and responsibility
to enforce the obligations of Borrower hereunder and under any other Loan Document, including,
without limitation, the right to approve any amendment, modification or waiver of any provision of
this Agreement or any other Loan Document; provided that such participation agreement may
provide that such Lender will not agree to any modification,
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amendment or waiver described in clauses (i) through (vii) of Section 8.06 without the consent
of the Participant.
Upon request by Borrower, each Lender agrees to provide Borrower with notice of all
Participations sold by such Lender. Borrower agrees to provide all assistance reasonably requested
by a Lender to enable such Lender to sell Participations as aforesaid, or make assignments of its
interest in the Loan as hereinafter provided in this Section.
A Lender may at any time assign to any Eligible Assignee not affiliated with Borrower or
Guarantor with the consent of Administrative Agent, which consents shall not be unreasonably
withheld or delayed (such assignee, a “Consented Assignee”), or to one or more banks or other
institutions which are majority owned subsidiaries of a Lender or of the parent of a Lender (each
Consented Assignee or subsidiary bank or institution, an “Assignee”) all or a proportionate part of
all of its rights and obligations under this Agreement and its Note, and such Assignee shall assume
rights and obligations, pursuant to an Assignment and Assumption Agreement executed by such
Assignee and the assigning Lender, provided that, after giving effect to such assignment, in each
case, the Assignee’s portion of the Loan and, in the case of a partial assignment of a Lender’s
interest, the assigning Lender’s portion of the Loan will each be equal to or greater than
$5,000,000. Upon (i) execution and delivery of such instrument, (ii) payment by such Assignee to
the assigning Lender of an amount equal to the purchase price agreed between such Lender and such
Assignee and (iii) payment by such Assignee to Administrative Agent of a fee, for Administrative
Agent’s own account, in the amount of $3,500, such Assignee shall be a party to this Agreement and
shall have all the rights and obligations of a Lender as set forth in such Assignment and
Assumption Agreement, and the assigning Lender shall be released from its obligations hereunder to
a corresponding extent, and no further consent or action by any party shall be required. Upon the
consummation of any assignment pursuant to this paragraph, substitute notes, in the form of EXHIBIT
D, shall be issued to the assigning Lender (in the case of a partial assignment) and Assignee by
Borrower, in exchange for the return of the assigning Lender’s original Note. All such substitute
notes shall constitute “Notes” and the obligations evidenced by such substitute notes shall
constitute obligations secured by the Mortgage. In connection with Borrower’s execution of
substitute notes as aforesaid, Borrower shall deliver to Administrative Agent such evidence of the
due authorization, execution and delivery of the substitute notes and any related documents as
Administrative Agent may reasonably request. If the Assignee is not incorporated under the Laws of
the United States or a state thereof, it shall, prior to the first date on which interest or fees
are payable hereunder for its account, deliver to Borrower and Administrative Agent certification
as to exemption from deduction or withholding of any United States federal income taxes in
accordance with Section 7.13.
Borrower, Administrative Agent and Lenders shall execute such modifications to the Loan
Documents as shall, in the reasonable judgment of Administrative Agent, be necessary or desirable
in connection with assignments in accordance with the foregoing provisions of this Section.
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Any Lender may at any time assign all or any portion of its rights under this Agreement and
its Note to a Federal Reserve Bank. No such assignment shall release the transferor Lender from
its obligations hereunder.
Borrower recognizes that in connection with a Lender’s selling of Participations or making of
assignments, any or all documentation, financial statements, appraisals and other data, or copies
thereof, relevant to Borrower, Guarantor or the Loan may be exhibited to and retained by any such
Participant or Assignee or prospective Participant or Assignee.
Section 8.08. Setoff. In addition to (and without limitation of) any right of
setoff, bankers’ lien or counterclaim Administrative Agent or any Lender may otherwise have,
Administrative Agent and each Lender shall be entitled, but only with the prior consent of
Administrative Agent, to offset balances (general or special, time or demand, provisional or final)
held by it for the account of Borrower at any of Administrative Agent’s or such Lender’s offices
against any amount payable by Borrower to Administrative Agent or such Lender hereunder or under
any other Loan Document which is not paid when due (regardless of whether such balances are then
due to Borrower), in which case it shall promptly notify Borrower and (in the case of a Lender)
Administrative Agent thereof; provided, however, that Administrative Agent’s or
such Lender’s failure to give such notice shall not affect the validity thereof. Payments by
Borrower hereunder or under the other Loan Documents shall be made without setoff or counterclaim.
Section 8.09. Successors and Assigns. Except as herein provided, this Agreement
shall be binding upon and inure to the benefit of Borrower, Administrative Agent and Lenders and
their respective heirs, personal representatives, successors and assigns. Notwithstanding the
foregoing, Borrower, without the prior written consent of Lender in each instance, may not assign,
transfer or set over to another, in whole or in part, all or any part of its benefits, rights,
duties and obligations hereunder, including, but not limited to, performance of and compliance with
conditions hereof and the right to receive the proceeds of the Loan.
Section 8.10. Severability. The provisions hereof are intended to be severable. Any
provisions hereof, or the application thereof to any Person or circumstance, which, for any reason,
in whole or in part, is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof (or the remaining portions of such provision) or the
application thereof to any other Person or circumstance, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision
(or portion thereof) or the application thereof to any Person or circumstance in any other
jurisdiction.
Section 8.11. Non-Waiver; Remedies Cumulative. No failure or delay on Lender’s part
in exercising any right, remedy, power or privilege (hereinafter in this Section, each a “Remedy”)
hereunder or under any of the other Loan Documents shall operate as a waiver of any such Remedy or
shall be deemed to constitute Administrative
52
Agent’s or any Lender’s acquiescence in any default by Borrower or Guarantor under any of said
documents. A waiver by Administrative Agent or any Lender of any Remedy hereunder or under any of
the other Loan Documents on any one occasion shall not be construed as a bar to any other or future
exercise thereof or of any other Remedy. The Remedies provided in said documents are cumulative,
may be exercised singly or concurrently and are not exclusive of any Remedies provided therein or
by Law.
Section 8.12. Certain Waivers. Borrower hereby irrevocably and unconditionally
waives (i) promptness and diligence, (ii) notice of any actions taken by Administrative Agent or
any Lender hereunder or under any other Loan Document or any other agreement or instrument relating
hereto or thereto except to the extent otherwise provided herein, (iii) all other notices, demands
and protests, and all other formalities of every kind in connection with the enforcement of
Borrower’s obligations hereunder and under the other Loan Documents, the omission of or delay in
which, but for the provisions of this Section, might constitute grounds for relieving Borrower of
any of its obligations hereunder or under the other Loan Documents, (iv) any requirement that
Administrative Agent or any Lender protect, secure, perfect or insure any lien on any collateral
for the Loan or exhaust any right or take any action against Borrower, Guarantor or any other
Person or against any collateral for the Loan, (v) any right or claim of right to cause a
marshalling of Borrower’s assets and (vi) all rights of subrogation or contribution, whether
arising by contract or operation of law or otherwise by reason of payment by Borrower pursuant
hereto or to any other Loan Document. BORROWER FURTHER HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES, IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING BROUGHT BY OR ON BEHALF OF ADMINISTRATIVE
AGENT OR LENDERS WITH RESPECT TO THIS AGREEMENT, THE NOTES OR OTHERWISE IN RESPECT OF THE LOAN, ANY
AND EVERY RIGHT BORROWER MAY HAVE TO (W) INJUNCTIVE RELIEF, (X) A TRIAL BY JURY, (Y) INTERPOSE ANY
COUNTERCLAIM THEREIN, OTHER THAN A COMPULSORY COUNTERCLAIM, AND (Z) HAVE THE SAME CONSOLIDATED WITH
ANY OTHER OR SEPARATE SUIT, ACTION OR PROCEEDING. NOTHING CONTAINED IN THE IMMEDIATELY PRECEDING
SENTENCE SHALL PREVENT OR PROHIBIT BORROWER FROM INSTITUTING OR MAINTAINING A SEPARATE ACTION
AGAINST ADMINISTRATIVE AGENT OR LENDERS WITH RESPECT TO ANY ASSERTED CLAIM.
Section 8.13. Expenses; Indemnification. The Loan shall be made without cost to
Lender. Borrower covenants and agrees to pay all costs, expenses and charges (including, without
limitation, all fees and charges of engineers, appraisers, the Engineering Consultant and
Administrative Agent’s Counsel) incurred by Administrative Agent or any Lender in connection with
(i) the preparation for and consummation of the transactions contemplated hereby or for the
performance hereof and of the other Loan Documents, and for any services which may be required in
addition to those normally and reasonably contemplated hereby and (ii) the enforcement hereof or of
any or all of the other Loan Documents; provided, however, that Borrower shall not
be responsible for (1) the fees and expenses of legal counsel for Lenders other than BofA incurred
in connection with said counsel’s review of this Agreement and the other Loan Documents
53
prior to execution and (2) costs, expenses and charges incurred by Administrative Agent and
Lenders in connection with the administration of the Loan (other than the fees payable pursuant to
Section 6.03). If Borrower fails to pay promptly any costs, charges or expense required to be paid
by it as aforesaid, and Administrative Agent or any Lender pays such costs, charges or expenses,
Borrower shall reimburse Administrative Agent or such Lender, as appropriate, on demand for the
amounts so paid, together with interest thereon at the Default Rate. Borrower further agrees to
indemnify Administrative Agent and each Lender and their respective directors, officers, employees
and agents from, and hold each of them harmless against, (x) any and all losses arising out of or
by reason of any investigation or litigation or other proceedings (including any threatened
investigation or litigation or other proceedings) relating to any actual or proposed use by
Borrower of the proceeds of the Loan, including, without limitation, the fees and disbursements of
counsel incurred in connection with any such investigation, litigation or other proceedings and (y)
any and all claims, actions, suits, proceedings, costs, expenses, losses, damages and liabilities
of any kind, including in tort, penalties and interest, arising out or by reason of any matter
relating, directly or indirectly, to the Mortgage or the ownership, condition, development,
construction, sale, rental or financing of the Property or Improvements or any part thereof (but
excluding any such losses, liabilities, claims, damages or expenses incurred solely by reason of
the gross negligence or willful misconduct of the party to be indemnified). The obligations of
Borrower under this Section and under Sections 3.01, 3.03 and 6.08 shall survive the repayment of
all amounts due under or in connection with any of the Loan Documents and the termination of the
Loan.
Section 8.14. Gross-Up For Taxes. All payments made by Borrower under the Note and
other Loan Documents shall be made free and clear of, and without deduction or withholding for or
on account of, any present or future stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by
any Governmental Authority, excluding income taxes and franchise or other taxes (imposed in lieu of
income taxes) imposed on Lender as a result of a present or former connection between Lender and
the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or
taxing authority thereof or therein (other than any such connection arising solely from Lender’s
having executed, delivered or performed its obligations or received a payment under, or enforced,
this Agreement or the Note). If any such non-excluded taxes, levies, imposts, duties, charges,
fees, deductions or withholdings (“Non-Excluded Taxes”) is required to be withheld from any amounts
payable to Lender under the Note or other Loan Documents, the amounts so payable to Lender shall be
increased to the extent necessary to yield to Lender (after payment of all Non-Excluded Taxes)
interest or any such other amounts payable with respect to the Loan at the rates or in the amounts
specified in the Note or other Loan Documents. Whenever any Non-Excluded Taxes are payable by
Borrower, as promptly as possible thereafter Borrower shall send to Lender a certified copy of an
original official receipt received by Borrower showing payment thereof. If Borrower fails to pay
any Non-Excluded Taxes when due to the appropriate taxing authority or fails to remit to Lender the
required receipts or other required documentary evidence, Borrower shall indemnify Lender for any
incremental taxes, interest or penalties that may become payable by Lender as a result of any such
failure. The
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agreements in this Section shall survive the termination of this Agreement and the payment of
the Note and all other amounts payable in respect of the Loan.
Section 8.15. Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same instrument, and any
party hereto may execute this Agreement by signing any such counterpart.
Section 8.16. Governing Law; Jurisdiction. This Agreement and the rights and
obligations of the parties hereunder shall in all respects be governed by, and construed and
enforced in accordance with, the Laws of the State of New York (without giving effect to New York’s
principles of conflicts of law). Borrower, Administrative Agent and each Lender hereby irrevocably
submit to the non-exclusive jurisdiction of any New York State or Federal court sitting in The City
of New York (or any county in New York State where any portion of the Property is located) over any
suit, action or proceeding arising out of or relating to this Agreement, and Borrower 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 sitting in The City of New York (or such other county in New York State) may be made by
certified or registered mail, return receipt requested, directed to Borrower at the address
indicated on the cover page hereof, and service so made shall be complete five (5) days after the
same shall have been so mailed.
Section 8.17. Integration. The Loan Documents constitute the entire agreement among
Administrative Agent, Borrower and Lenders relating to the transactions contemplated thereby
(except with respect to agreements among Lenders or with Administrative Agent relating solely to
compensation, consideration and the syndication of the Loan) and supersede any prior oral or
written statements or agreements with respect to such transactions.
Section 8.18. Releases. Provided no Default or Event of Default exists, Borrower
shall have the right to obtain the release of any of the Properties from the Mortgage encumbering
the same, at Borrower’s expense, so long as (i) Borrower pays to Administrative Agent for the
account of Lenders an amount equal to the lesser of (x) the greater of (A) the Release Price for
the Property that is the subject of such release and (B) the amount necessary to reduce the Funding
Cap and the Outstanding Credit Amount to an amount which satisfies the DSC Test on the basis of Net
Operating Income from the parcels not being released or (y) the Maximum Release Price, which amount
shall be applied to the reduction of outstanding principal under the Loan, (ii) Administrative
Agent receives such reasonable documentation as Administrative Agent shall request confirming that
the amount of any Additional Interest secured by the Mortgage encumbering the Property which is
being released shall be secured by the credit of Guarantor, and (iii) Administrative Agent receives
such other documents, opinions and assurances as Administrative Agent may reasonably request. Upon
any such release of a Property, such Property shall no longer constitute a “Property” hereunder and
the Total Loan Commitment shall be reduced by the amount of the Loan Allocation for such Property.
As used herein, the term “Maximum Release Price” shall mean the amount
55
(which shall in no event be less than zero) by which (x) the Outstanding Credit Amount exceeds
(y) the Funding Cap determined as if such Property were released.
Section 8.19. Substitution of Collateral.
(a) Not more than twice in any twelve (12) month period Borrower may obtain the release of a
Property as specified in a request to Lender by Borrower (the Property, the “Release Property”),
provided that Borrower grants to Administrative Agent a Mortgage encumbering substitute property
(“Substitute Collateral”) owned by a Borrower, and provided, further, that, as to each such release
and substitution, all of the following requirements are satisfied in full:
(i) Required Lenders have given prior approval of the release and substitution;
(ii) the Substitute Collateral is not located in the State of New York or in any other
jurisdiction in which Administrative Agent determines it is impractical or disadvantageous
to secure a revolving credit facility such as the Loan with real property;
(iii) Administrative Agent receives at least ninety (90) days’ prior notice of the
proposed release and substitution, which notice will contain sufficient documentation to
enable Administrative Agent to determine whether the criteria set forth herein have been
satisfied including, without limitation, operating statements and rent rolls for the
Substitute Collateral for the six (6) most recent month period;
(iv) no default or Event of Default exists at the time of Borrower’s request for
release and no default or Event of Default exists at the time of release and substitution
under the Loan Documents;
(v) the Substitute Collateral will be encumbered by a Mortgage in an amount equal to
the Loan Amount, except that if the Substitute Collateral is located in a jurisdiction with
a material mortgage recording tax based on the principal amount secured by the Mortgage,
the amount of the Mortgage encumbering such Property shall be an amount equal to the
product of (x) the as-is appraised value (the “Substitute Collateral Value”) of the
Substitute Collateral based on an appraisal thereof acceptable to Administrative Agent,
which appraisal shall be at Borrower’s cost and (y) 1.25;
(vi) Borrower will have complied with each and every covenant and condition to the
Initial Advance set forth in Section 4.01 that would have been applicable if such
Substitute Collateral had been included as a Property;
(vii) each property constituting Substitute Collateral will have satisfied Lenders’
underwriting criteria including leasing criteria, tenant credit risk, tenant quality and
lease expiration risk;
56
(viii) Guarantor indemnifies Administrative Agent and Lenders against losses related
to environmental matters related to the Substitute Collateral pursuant to an indemnity
agreement in substantially the same form executed with respect to the Release Property;
(ix) Borrower will have caused the Title Insurer to deliver, in form and substance
satisfactory to Administrative Agent, a mortgagee’s title policy in at least the amount of
the Loan Allocation for the Substitute Collateral, together with tie-in endorsements to
such new policy and each of the mortgagee title insurance policies insuring the other
Mortgages, provided, however, that if the Substitute Collateral is located in a state in
which a title policy tie-in or aggregation endorsement is not permitted, the policy
insuring the Mortgage encumbering such Property shall be in an amount equal to the product
of (x) the Substitute Collateral Value and (y) 1.25;
(x) Borrower will have paid for all of Lenders’ costs and expenses associated with the
substitution of collateral including attorneys’ fees incurred by Administrative Agent and
Lenders, title, survey, and engineering and environmental costs and charges; and
(xi) the Substitute Collateral will conform in all respects to such other underwriting
standards and criteria as well as such other appraisal, legal, business, environmental,
engineering, diversification, leasing and title requirements, all as Lender may determine
in its sole discretion, and, in connection therewith, Lenders will have the right to
conduct with respect to the Substitute Collateral, at Borrower’s cost and expense,
engineering audits and/or reports, reports, or audits as to the compliance by the
Substitute Collateral with Law regarding access for persons with disabilities and
environmental audits and/or reports.
(b) If Administrative Agent determines that the criteria set forth in this Section 8.19 have
been satisfied and so notifies Borrower, then, (x) Borrower will grant a new Mortgage in favor of
Administrative Agent in substantially the form of the other Mortgages and which will encumber the
Substitute Collateral as a first priority lien, (y) as determined by Administrative Agent,
Administrative Agent, Lenders, Borrower and Guarantor will otherwise modify or amend the Loan
Documents to add the Substitute Collateral to the security encumbered by the Loan Documents and
Borrower will execute and deliver to Administrative Agent such documents or instruments, as
Administrative Agent requires to effect such modification or amendment, including, without
limitation, modifications to (A) reflect the Allocated Amount for the Substitute Collateral (which
Administrative Agent shall determine to be at an amount at which the Substitute Collateral would,
if it were the only Property, satisfy the Loan to Value Test and the DSC Test) and the Funding
Amount, provided that in no event shall (1) the Loan Amount be increased or (2) the Funding Amount
exceed the Loan Amount and (B) reflect the deletion therefrom of references to the Release Property
and the addition thereto of the Substitute Collateral, and (z) subject to the satisfaction in full
of all of the requirements of clauses (x) and (y) above, Administrative Agent will release from the
lien of this Mortgage such Release Property as Lender has theretofore agreed to reconvey.
57
Notwithstanding any of the above requirements, Administrative Agent reserves the right to
reject the proposed Substitute Collateral if Administrative Agent concludes, in its sole judgment,
that the proposed Substitute Collateral does not satisfy any of the conditions set forth above.
Section 8.20. Exculpation. Neither Borrower nor any Guarantor shall be personally
liable for payment of the principal of the Note or interest thereon, and in the event of any
failure by Borrower to pay any portion of such principal or interest, Lenders will look, with
respect to the then outstanding balance of such principal and interest, solely to the Mortgaged
Property and such other collateral as has been, or hereafter shall be, given to secure payment of
the Note. The foregoing limitation on liability shall not impair or otherwise affect the validity
or enforceability of (a) the debt evidenced by the Note or the Loan Agreement or of any other
obligations evidenced by the Note, the Loan Agreement, the Mortgage or any of the Loan Documents or
(b) Lenders’ liens, security interests, rights and remedies (including, without limitation, the
remedies of foreclosure and/or sale) with respect to the Mortgaged Property or any other property,
security, collateral and/or assets (including the proceeds thereof) encumbered, pledged or assigned
by the Mortgages or any other security for the Loan. In addition, the foregoing limitation on
liability shall not limit anyone’s obligations or be applicable with respect to: (i) liability
under any guaranty(ies) or indemnity(ies) delivered or afforded to Lenders; (ii) any fraud or
material misrepresentation; (iii) taxes of any kind (whether characterized as transfer, gains or
other taxes) payable in connection with the foreclosure sale of the Mortgaged Property,
irrespective of who pays such taxes; (iv) application of any proceeds of the Loan to any purpose
other than as provided in the Loan Documents; (v) the application of any insurance or condemnation
proceeds or other funds or payments other than strictly in accordance with the Loan Documents; (vi)
the misapplication of any security deposits; (vii) rents, sales proceeds, or other sums received
after default under the Loan Documents which are not applied to expenses of operating the Mortgaged
Property or paid to Lenders or a duly appointed receiver of the Mortgaged Property; (viii) any
failure to deliver to Lenders, after demand therefor, any agreements relating to the operation,
management, leasing, use, occupancy or construction of the Mortgaged Property; (ix) any intentional
physical waste in respect of the Mortgaged Property; (x) any failure to pay or discharge any real
estate tax, other tax, assessment, fine, penalty or lien against the Mortgaged Property to the
extent revenue from leases of the Mortgaged Property was available to pay same; (xi) liability as
landlord under any lease(s) relating to the Mortgaged Property which liability accrued prior to
Lenders’ succeeding to such interest of Borrower, which Lenders are or become obligated for by
virtue of Lenders succeeding to the interests of Borrower, provided, however, that
such liability shall only apply with respect to any liability of Borrower under such leases which
Lenders assumes pursuant to subordination, non-disturbance and attornment agreements required
pursuant to the terms of such leases; (xii) liability under any agreement relating to the operation
or maintenance of the Mortgaged Property which liability accrued prior to Lenders’ succeeding to
such interest of Borrower which Lenders are or become obligated for by virtue of Lenders succeeding
to the interests of Borrower, provided, however, that such liability shall only apply with respect
to agreements which are not terminable by their terms upon thirty (30) days’ written notice; (xiii)
liability to pay for the premiums on and keep in full force and effect insurance in respect of the
Mortgaged Property in accordance
58
with the Loan Documents to the extent revenue from leases of the Mortgaged Property was
available to pay same; or (xiv) liability for Hazardous Substances that may exist upon or be
discharged from the Mortgaged Property. Borrower and any Guarantor shall in any event be and shall
remain personally liable for each of the matters to which reference is made in the preceding
sentence and Lenders may seek, obtain and enforce one or more money judgments in any appropriate
proceeding(s) with respect thereto. The limitation on personal liability contained in this
paragraph shall become automatically null and void and shall be of no further force or effect, and
Borrower and each Guarantor shall be and remain personally liable for payment of the principal of
the Note and interest thereon, in accordance with the terms and provisions of this Loan Agreement,
in the event that Borrower, or anyone acting on behalf of Borrower, shall (A) file a petition or
answer seeking any relief of any kind under the bankruptcy laws of the United States (or if an
Insolvency Event shall otherwise occur), (B) assert in writing or in any legal proceedings of any
kind that any provisions of any of the Loan Documents are in whole or in part unenforceable,
invalid or not legally binding, or (C) fail fully to cooperate with Lenders or a receiver in
Lenders’ or such receiver’s efforts to collect Rents directly from tenants after a default under
the Loan Documents.
Section 8.21. Letters of Credit.
(a) Borrower, with the consent of Administrative Agent, may request, in lieu of advances of
proceeds of the Loan, that Administrative Agent issue unconditional, irrevocable standby letters of
credit (each, a “Letter of Credit”) for the account of Borrower. Promptly upon Borrower’s request
for, and then upon issuance of, a Letter of Credit, Administrative Agent shall notify each Lender.
As of the date hereof, the parties acknowledge that the Existing Letters of Credit constitute
Letters of Credit issued hereunder. Each Borrower hereby assumes the reimbursement obligations
agreed to by the Borrowers which executed the applications or agreements related to the issuance of
the Existing Letters of Credit and all Borrowers shall hereafter be jointly and severally liable
therefor. Notwithstanding anything to the contrary contained herein, in no event shall Borrower be
permitted to have Letters of Credit with an aggregate face amount of more than $15,000,000
outstanding at any one time.
(b) The amount of any Letter of Credit shall be limited to the amount of proceeds of the Loan
available to be advanced hereunder, it being understood that the amount of each Letter of Credit
issued and outstanding shall effect a reduction, by an equal amount, of proceeds available to
Borrower under the Loan. Administrative Agent’s issuance of each Letter of Credit shall be subject
to Borrower having satisfied all conditions precedent to its entitlement to an advance of Loan
proceeds. Each Letter of Credit shall expire no later than one (1) month prior to the Maturity
Date. If the Letter of Credit is returned undrawn upon or expires without being drawn upon, then
the amount of Loan proceeds allocated to the Letter of Credit shall again become available to be
advanced with the terms hereof.
(c) In connection with, and as a further condition to the issuance of, each Letter of Credit,
Borrower shall execute and deliver to Administrative Agent an application for the Letter of Credit
on Administrative Agent’s standard form therefor,
59
together with such other documents, opinions and assurances as Administrative Agent shall
reasonably require, and shall pay such fees as Administrative Agent shall require.
(d) The parties hereto acknowledge and agree that, immediately upon notice from Administrative
Agent of any drawing under a Letter of Credit, each Lender shall, notwithstanding the existence of
a Default or Event of Default or the non-satisfaction of any conditions precedent to the making of
an advance of the Loan, advance proceeds of the Loan, in an amount equal to its ratable share
(based upon the undisbursed amounts of the Lenders’ respective Individual Loan Commitments) of such
drawing, which advance shall be made to Administrative Agent to reimburse Administrative Agent, for
its own account, for such drawing. Borrower hereby irrevocably authorizes Lenders to make such
advances. Each Lender further acknowledges that its obligation to fund its share of drawings under
Letters of Credit as aforesaid shall survive the Lenders’ termination of this Agreement or
enforcement of remedies hereunder or under the other Loan Documents. In the event that any advance
cannot for any reason be made on the date otherwise required above (including, without limitation,
as a result of the commencement of a proceeding under any applicable bankruptcy or insolvency Law
with respect to Borrower), then each Lender shall purchase (on or as of the date such advance would
otherwise have been made) from Administrative Agent a participation interest in any unreimbursed
drawing in an amount equal to its Pro Rata Share of such unreimbursed drawing.
(e) Borrower agrees, upon the occurrence of an Event of Default and at the written request of
Administrative Agent, (i) to deposit with Administrative Agent cash collateral in the amount of all
the outstanding Letters of Credit, which cash collateral shall be held by Administrative Agent as
security for Borrower’s obligations in connection with the Letters of Credit and (ii) to execute
and deliver to Administrative Agent such documents as Administrative Agent reasonably requests to
confirm and perfect the assignment of such cash collateral to Administrative Agent.
(f) In connection with each Letter of Credit, Borrower hereby covenants to pay to
Administrative Agent the following fees, payable annually in advance upon the issuance of the
Letter of Credit and on each anniversary date thereof): (1) a fee (the “Lenders L/C Fee”) for the
account of Lenders, computed daily on the amount of the Letter of Credit issued and outstanding at
a per annum rate equal to 0.75% and (2) a fee (the “Fronting Fee”) for Administrative Agent’s own
account, computed daily on the amount of the Letter of Credit issued and outstanding at a rate per
annum equal to 0.15%. It is understood and agreed that the last installment of the foregoing fees
provided for in this paragraph (f) with respect to any particular Letter of Credit shall be due and
payable on the first day of the calendar quarter following the return, undrawn, or cancellation, of
such Letter of Credit. In addition, Borrower shall pay to Administrative Agent, Administrative
Agent’s customary Administration Fees in connection with the issuance, extension, amendment and
drawing of all Letters of Credit.
Section 8.22. Concerning Irrevocable Authorizations. Any and all advances made at
any time by Lenders pursuant to the irrevocable authorizations granted by Section 8.20 shall
require no further direction, authorization or request for disbursement
60
from Borrower and may be made whether or not there exists a Default or Event of Default. Any
and all such disbursements shall be added to the outstanding principal balance evidenced by the
Notes and shall be secured by the Mortgage.
Section 8.23. Usury. Anything herein to the contrary notwithstanding, the
obligations of Borrower under this Agreement and the Notes shall be subject to the limitation that
payments of interest shall not be required to the extent that receipt thereof would be contrary to
provisions of Law applicable to a Lender limiting rates of interest which may be charged or
collected by such Lender.
Section 8.24. Documentation Satisfactory. All documentation required from or to be
submitted on behalf of Borrower in connection with this Agreement and the documents relating hereto
shall be subject to the prior approval of, and be satisfactory in form and substance to,
Administrative Agent, its counsel and, where specifically provided herein, Lenders. In addition,
the persons or parties responsible for the execution and delivery of, and signatories to, all of
such documentation, shall be acceptable to, and subject to the approval of, Administrative Agent
and its counsel.
[Remainder of page intentionally left blank]
61
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the day and
year first above written, the execution hereof by Borrower constituting a certification by the
party or parties executing on its behalf that the representations and warranties made in Article IV
are true and correct as of the date hereof and that each of them duly holds and is incumbent in the
position indicated under his or her name.
| BANK OF AMERICA, N.A. (as Lender and Administrative Agent) | ||||||
| By | ||||||
| Senior Vice President | ||||||
| Address for notices and Applicable Lending Office: | ||||||
| Bank of America, N.A. | ||||||
| 1185 Avenue of the Americas, 16th Floor | ||||||
| New York, New York 10036 | ||||||
| Attention: Ms. Denise M. Smyth | ||||||
| Telephone: 212/819-6144 | ||||||
| Telefax: 212/819-6294 | ||||||
| RD ABSECON ASSOCIATES, L.P., a Delaware limited partnership | ||||||
| By: | RD Absecon, Inc., a Delaware corporation, its general partner | |||||
| By | ||||||
| Title: | ||||||
| RD BLOOMFIELD ASSOCIATES, LIMITED PARTNERSHIP, a Delaware limited partnership | ||||||
| By: | Acadia Property Holdings, LLC, its general partner | |||||
| By: | Acadia Realty Limited Partnership, its sole member | |||||
| By: | Acadia Realty Trust, its general partner | |||||
| By | ||||||
| Senior Vice President | ||||||
| RD HOBSON ASSOCIATES, L.P., a Delaware limited partnership | ||||||
| By: | Acadia Property Holdings, LLC, its general partner | |||||
| By: | Acadia Realty Limited Partnership, its sole member | |||||
| By: | Acadia Realty Trust, its general partner | |||||
| By | ||||||
| Senior Vice President | ||||||
| RD VILLAGE ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership | ||||||
| By: | Acadia Property Holdings, LLC, its general partner | |||||
| By: | Acadia Realty Limited Partnership, its sole member | |||||
| By: | Acadia Realty Trust, its general partner | |||||
| By | ||||||
| Senior Vice President | ||||||
| RD ABINGTON ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership | ||||||
| By: | Acadia Property Holdings, LLC, its general partner | |||||
| By: | Acadia Realty Limited Partnership, its sole member | |||||
| By: | Acadia Realty Trust, its general partner | |||||
| By | ||||||
| Senior Vice President | ||||||
| ACADIA TOWN LINE, LLC, a Connecticut limited liability company | ||||||
| By: | Acadia Realty Limited Partnership, a Delaware limited partnership, its sole member |
|||||
| By: | Acadia Realty Trust, a Maryland real estate investment trust, its general partner |
|||||
| By | ||||||
| Senior Vice President | ||||||
| RD METHUEN ASSOCIATES LIMITED PARTNERSHIP, a Massachusetts limited partnership | ||||||
| By: | Acadia Property Holdings, LLC, its general partner | |||||
| By: | Acadia Realty Limited Partnership, its sole member | |||||
| By: | Acadia Realty Trust, its general partner | |||||
| By | ||||||
| Senior Vice President | ||||||
| Address for notices for all Borrowers: | ||||||
| c/o Acadia Realty Trust 1311 Mamaroneck Avenue, Suite 260 White Plains, New York 10605 Attention: Mr. Robert Masters |
||||||
EXHIBIT A
Assignment and Assumption Agreement
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of , 200___, among [NAME OF ASSIGNING
BANK] (“Assignor”) and [NAME OF ASSIGNEE] (“Assignee”).
Preliminary Statement
1. This Assignment and Assumption Agreement (this “Agreement”) relates to the Amended and
Restated Revolving Loan Agreement (as the same may be amended from time to time, the “Loan
Agreement”) dated December 19, 2006 among (“Borrower”), the lender(s)
party thereto (each a “Lender” and, collectively, “Lenders”) and , as
administrative agent (“Administrative Agent”). All capitalized terms not otherwise defined herein
shall have the respective meanings set forth in the Loan Agreement.
2. Subject to the terms and conditions set forth in the Loan Agreement, Assignor has made an
Individual Loan Commitment to Borrower in an aggregate principal amount of $
(“Assignor’s Loan Commitment”).
3. The aggregate outstanding principal amount under Assignor’s Loan Commitment at the
commencement of business on the date hereof is $ .
4. Assignor desires to assign to Assignee all of the rights of Assignor under the Loan
Agreement in respect of a portion of Assignor’s Loan Commitment and the loan made pursuant thereto,
such portion being in an amount equal to $ (the “Assigned Loan and Commitment”), of
which $ is currently outstanding and $ is still to be disbursed to Borrower
pursuant to the Loan Agreement; and Assignee desires to accept assignment of such rights and assume
the corresponding obligations from Assignor on such terms.
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements contained herein,
the parties hereto agree as follows:
SECTION 1. Assignment. Assignor hereby assigns and sells to Assignee all of the
rights of Assignor under the Loan Agreement in and to the Assigned Loan and Commitment, and
Assignee hereby accepts such assignment from Assignor and assumes all of the obligations of
Assignor under the Loan Agreement with respect to the Assigned Loan and Commitment, including,
without limitation, Assignor’s obligations with respect to the undisbursed `ortion, if any,
thereof. Upon the execution and delivery hereof by Assignor, Assignee, Administrative Agent and
the payment of the amount specified in Section 2 hereof required to be paid on the date hereof, (1)
Assignee shall, as of the commencement of business on the date hereof, succeed to the rights and
obligations of a Lender under the Loan Agreement with an Individual Loan Commitment in an amount
equal to the Assigned Loan and Commitment, and (2) the Individual Loan Commitment of Assignor
shall, as of the commencement of business on the date hereof, be reduced correspondingly and
Assignor released from its obligations under the Loan Agreement to the extent such obligations have
been assumed by Assignee. Assignor represents and warrants that it (x) owns the Assigned Loan and
Commitment free and clear of all liens and other encumbrances and (y) is legally authorized to
enter into and perform this Agreement. Except as provided in the immediately preceding sentence,
the assignment provided for herein shall be without representation or warranty by, or recourse to,
Assignor.
SECTION 2. Payments. As consideration for the assignment and sale contemplated in
Section 1 hereof, Assignee shall pay to Assignor on the date hereof, in immediately available
funds, an amount equal to the outstanding principal amount under the Assigned Loan and Commitment
recited in paragraph 4 of the Preliminary Statement above. Each of Assignor and Assignee hereby
agrees that if it receives any amount under the Loan Agreement which is for the account of the
other party hereto, it shall receive the same for the account of such other party to the extent of
such other party’s interest therein and shall promptly pay the same to such other party.
SECTION 3. Consent; Execution and Delivery of Note. This Agreement is conditioned
upon the consent of Administrative Agent. The execution of this Agreement and Administrative Agent
is evidence of this consent; [Consents not required for certain assignments to entities related to
a Lender.] Pursuant to Section 8.07 of the Loan Agreement, Borrower has agreed to execute and
deliver Notes payable to the respective orders of Assignee and Assignor to evidence the assignment
and assumption provided for herein. Assignee has designated as its Applicable Lending Office, and
as its address for notices, the office identified as such below.
SECTION 4. Non-Reliance on Assignor. Assignor makes no representation or warranty in
connection with, and shall have no responsibility with respect to, the solvency, financial
condition, or statements of Borrower or any other party to any Loan Document, or the validity and
enforceability of the obligations of Borrower or any other party to a Loan Document in respect of
the Loan Agreement or any other Loan Document. Assignee acknowledges that it has, independently
and without reliance on Assignor, and based on such documents and information as it has deemed
appropriate, made its own analysis of the collateral for the Loan, credit analysis of Borrower and
Guarantor and decision to enter into this Agreement and will continue to be responsible for making
its own independent appraisal of the collateral for the Loan and of the business, affairs and
financial condition of Borrower and the other parties to the Loan Documents.
SECTION 5. Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the Laws of the State of New York (without giving effect to New York’s
principles of conflicts of law).
2
SECTION 6. Counterparts. This Agreement may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the signatures thereto and hereto
were upon the same instrument.
SECTION 7. Certain Representations and Agreements by Assignee. Assignee represents
that it is legally authorized to enter into and perform this Agreement. In addition, Assignee
hereby represents that it is entitled to receive any payments to be made to it under the Loan
Agreement or hereunder without the withholding of any tax and agrees to furnish the evidence of
such exemption as specified therein and otherwise to comply with the provisions of Section 7.13 of
the Loan Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and delivered by
their duly authorized officers as of the date first above written.
| [NAME OF ASSIGNOR] | ||||||
| By | ||||||
| Title: | ||||||
| [NAME OF ASSIGNEE] | ||||||
| By | ||||||
| Title: | ||||||
| Assignee’s Applicable Lending Office and Address for Notices: | ||||||
| [Assignee] | ||||||
| [Address] | ||||||
| Attention: ________________________________ | ||||||
| Telephone: (___) ________________________ | ||||||
| [NAME OF ADMINISTRATIVE AGENT] | ||||||
| By | ||||||
| Title: | ||||||
3
| [NAME OF BORROWER] | ||||||
| By | ||||||
| Title: | ||||||
4
EXHIBIT B
Notice-of-Assignment of Lease
(On Letterhead of Borrower)
(On Letterhead of Borrower)
, 200_
[Name and Address of Tenant]
Re: Lease Dated:
Lender:
Address of Lender:
Mortgage Dated:
Lender:
Address of Lender:
Mortgage Dated:
Dear Sir/Madam:
The undersigned has assigned by a mortgage or deed of trust (the “Mortgage”) dated as shown
above to the Lender identified above (hereinafter “Lender”) all its estate, right, title and
interest in, to and under the Lease between you and the undersigned dated as set forth above, as
said Lease may have been heretofore modified or amended (the “Lease”), together with all right,
title and interest of the undersigned as lessor thereunder, including, without limitation, the
right upon the occurrence of an Event of Default (as defined in the Mortgage) to collect and
receive all earnings, revenues, rents, issues, profits and income of the property subject to the
Mortgage.
[Certain provisions of the Mortgage, the text of which are attached hereto, restrict
some of the undersigned’s rights under the Lease. However, s][S]aid assignment does not impair or
diminish any of our obligations to you under the provisions of the Lease, nor are any such
obligations imposed upon Lender, its successors or assigns.
Pursuant to said assignment you are hereby notified that in the event of a demand on you by
Lender or its successors and assigns for the payment to it of the rents due under the Lease, you
may, and are hereby authorized and directed to, pay said rent to Lender and we hereby agree that
the receipt by you of such a demand shall be conclusive evidence of Lender’s right to the receipt
thereof and that the payment of the rents by you to Lender pursuant to such demand shall constitute
performance in full of your obligation under the Lease for the payment of rent to the undersigned.
| NOTE: | To be sent in accordance with notice requirements of the Lease. | |
| * | To be used if property located in New York |
| Kindly indicate your receipt of this letter and your agreement to the effect set forth below by signing the enclosed copy thereof and mailing it to Lender at its address identified above to the attention of its Real Estate Finance Office. |
| [BORROWER] | ||||||
| By | ||||||
| Title: | ||||||
The undersigned acknowledges receipt of the original of this letter and agrees for the benefit
of Lender that it shall notify Lender of any default on the part of the landlord under the Lease
which would entitle the undersigned to cancel the Lease or to abate the rent payable thereunder,
and further agrees that, notwithstanding any provision of the Lease, no notice of cancellation
thereof, nor of any abatement, shall be effective unless Lender has received the notice aforesaid
and has failed within 30 days of the date thereof to cure, or if the default cannot be cured within
30 days has failed to commence and to diligently prosecute the cure, of landlord’s default which
gave rise to the right to cancel or abate.
| [NAME OF TENANT] | ||||||
| By | ||||||
| , | ||||||
2
EXHIBIT C
Required Contents of Borrower’s Counsel Opinion
(1) If Borrower, the mortgagor or grantor under the Mortgage (if different from Borrower),
Guarantor or any general partner or member of any of them is a corporation, partnership, venture,
limited liability company or trust, each such entity is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its formation, is qualified to do business
(or such opinion shall specifically state that such qualification is not required) and is
in good standing in the jurisdiction in which the Property is located, and has full power and
authority to consummate the transactions contemplated by the Loan Documents and to execute, deliver
and perform all Loan Documents to which it is a party.
(2) There are no actions, suits or proceedings pending or threatened against or affecting
Borrower, Guarantor, the Mortgaged Property, the validity or enforceability of the Mortgage or the
priority of the lien thereof at law, in equity or before or by any Governmental Authorities except
actions, suits or proceedings which have been disclosed to Lender in writing and which are fully
covered by insurance or would, if adversely determined, not substantially impair the ability of
Borrower or Guarantor to pay when due any amounts which may become payable under the Note or
Guaranty or to otherwise pay and perform their respective obligations in connection with the Loan;
neither Borrower nor Guarantor is in default with respect to any order, writ, injunction, decree or
demand of any court or Governmental Authorities.
(3) The consummation of the transactions contemplated by and the performance of the Loan
Documents have not resulted and will not result in any breach of, or constitute a default under,
any mortgage, deed of trust, lease, bank loan or credit agreement, corporate charter, by-laws,
partnership agreement or other instrument to which Borrower or Guarantor is a party or by which
either of them may be bound or affected.
(4) There exist no violations of any laws, statutes, ordinances, rules, orders, regulations or
requirements of any Governmental Authorities with respect to the Improvements and that the use
thereof complies with all applicable zoning and other laws, etc. and with all restrictions,
covenants, leases and easements affecting the Mortgaged Property.
(5) The Property is not part of a larger tract of land owned by Borrower, its affiliates or
Guarantor, or otherwise considered as part of one zoning or tax lot, or, if they are, that any
authorization or variance required for the subdivision of such larger tract which a sale of the
Property would entail has been obtained from all appropriate Governmental Authorities so that the
Property and Improvements constitute one zoning or tax lot (including parking and utility
facilities and street access, if relevant) capable of being conveyed as such.
Required Contents of Borrower’s Local Counsel Opinion (and, if required by Lender,
of a local counsel selected by Lender or its counsel)
(1) The Loan Documents have each been duly authorized, executed and delivered by the parties
thereto (other than Lender) and, under the laws of the jurisdiction in which the Property is
located (were such laws to apply), are valid and binding instruments enforceable against such
parties in accordance with their respective terms, subject, however, to the qualifications that (a)
some of the rights and remedies set forth in the Note and Mortgage may be limited by bankruptcy,
insolvency, reorganization and other laws of general application to the enforcement of creditors’
rights and (b) certain remedies and waivers contained in the Mortgage may be limited by applicable
laws of said jurisdiction, none of which qualifications will materially interfere with the
practical realization of the benefits and security provided by said documents except for the
economic consequences of any procedural delay which may result therefrom.
(2) Considering the significant relationship that the State of New York has to the Loan, the
courts of the jurisdiction in which the Property is located will, in all likelihood, honor any
designations by the parties of New York as the governing law contained in the Loan Documents.
(3) The Mortgage will create the lien it purports to create on the property covered by the
Mortgage and will effectively assign the leases purported to be assigned thereby if the Mortgage
and any necessary UCC-1 financing statements are recorded or filed, as the case may be, and
specifying local law requirements as to (1) the manner in which, and offices where, such recording
and filing must be made and (2) the re-recording of the Mortgage and refiling of the financing
statements, all in order to establish, preserve and protect such lien and assignment and Lender’s
interest in the property covered by the Mortgage.
(4) In the event of a foreclosure or other method of enforcement of the remedies provided for
in the Mortgage, any leases of the Mortgaged Property will, at the option of the holder of the
Mortgage, remain in full force and effect between the lessees thereunder and such holder or any
purchaser of the Mortgaged Property pursuant to such remedial action. The opinion shall state
whether the foregoing results as a matter of law or by reason of compliance with Section 1.14(c)
of the Mortgage.
(5) All rights of redemption in respect of the Mortgage will be extinguished upon the
consummation of a sale of the Mortgaged Property pursuant to any remedial provisions provided for
in the Mortgage, [or if the foregoing is not the case, the opinion shall specify the period of time
which must expire following such consummation in order for said rights of redemption to be
extinguished under local law, and shall state whether the applicable result obtains as a matter of
law or pursuant to any waiver provided for in the Mortgage].
(6) There are no changes or additions to the Mortgage and other Loan Documents which are
required by local law, and none which are customary in local
2
practice and which would not unsubstantially enhance the rights and benefits of Lender
thereunder.
(7) To such other effects as Lender or its counsel may reasonably require.
3
EXHIBIT D
Note
| $ | New York, New York ___, 200___ |
For value received, RD ABSECON ASSOCIATES, L.P., a Delaware limited partnership (“RD
Absecon”), RD BLOOMFIELD ASSOCIATES, LIMITED PARTNERSHIP, a Delaware limited partnership (“RD
Bloomfield”), RD HOBSON ASSOCIATES, L.P., a Delaware limited partnership (“RD Hobson”), RD VILLAGE
ASSOCIATES LIMITED PARTNERSHIP (“RD Village”), a Delaware limited partnership, RD ABINGTON
ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership (“RD Abington”), ACADIA TOWN LINE,
LLC, a Connecticut limited liability company (“Acadia Town Line”) and RD METHUEN ASSOCIATES LIMITED
PARTNERSHIP, a Massachusetts limited partnership (“RD Methuen”; RD Absecon, RD Bloomfield, RD
Hobson, RD Village, RD Abington, Acadia Town Line and RD Methuen, collectively and individually, as
the context requires, “Maker”) hereby covenant and promise to pay to the order of [NAME OF LENDER],
or its successors or assigns (collectively, “Lender”), at the principal office of BANK OF AMERICA,
N.A., located at 1185 Avenue of the Americas, New York, New York 10036 (“Administrative Agent”) for
the account of the Applicable Lending Office of Lender, the principal sum of
Dollars ($ ) or, if less, the amount loaned by the Lender
under its Loan to Borrower pursuant to the Loan Agreement (as defined below) and actually
outstanding, in lawful money of the United States and in immediately available funds, in accordance
with the terms set forth in the Loan Agreement. Maker also covenants and promises to pay interest
on the unpaid principal balance hereof, for the period such balance is outstanding, in like money,
at said office for the account of said Applicable Lending Office, at the time and at a rate per
annum as provided in the Loan Agreement (as defined below). Any amount or principal hereof which
is not paid when due, whether at stated maturity, by acceleration, or otherwise, shall bear
interest from the date when due until said principal amount is paid in full, payable on demand, at
the Default Rate. The entities comprising Maker are jointly and severally liable under this Note.
The date and amount of each advance of the Loan made by Lender to Borrower under the Loan
Agreement referred to below, and each payment of said Loan, shall be recorded by Lender on its
books and, prior to any transfer of this Note (or, at the discretion of Lender, at any other time),
may be endorsed by Lender on the schedule attached hereto and any continuance thereof.
This Note is one of the Notes referred to in the Amended and Restated Revolving Loan Agreement
dated as of the date hereof (as the same may be amended or supplemented from time to time, the
“Loan Agreement”) among Maker, as Borrower, the lenders named therein (including Lender), as
Lenders, and Administrative Agent, as
Administrative Agent for Lenders. All of the terms, conditions and provisions of the Loan
Agreement are hereby incorporated by reference. All capitalized terms used herein and not defined
herein shall have the meanings given to them in the Loan Agreement.
This Note is secured by the various Mortgages which contain, among other things, provisions
for the prepayment of and acceleration of this Note upon the happening of certain stated events.
Reference to such of the Mortgages is hereby made for a description of the “Mortgaged Property”
encumbered thereby and the rights of Maker and Lenders (including Lender) with respect to such
Mortgaged Property.
Maker agrees that it shall be bound by any agreement extending the time or modifying the terms
of payment set forth above and in the Loan Agreement, made by or on behalf of Lenders and the owner
or owners of the Mortgaged Property, whether with or without notice to Maker, and Maker shall
continue liable to pay the amount due hereunder in accordance with the terms set forth herein and
in the Loan Agreement, but with interest at a rate no greater than the rate of interest provided
therein, according to the terms of any such agreement of extension or modification.
Should the indebtedness represented by this Note or any part thereof be collected at law or in
equity, or in bankruptcy, receivership or any other court proceeding (whether at the trial or
appellate level), or should this Note be placed in the hands of attorneys for collection upon
default, Maker agrees to pay, in addition to the principal, interest and other sums due and payable
hereon, all costs of collecting or attempting to collect this Note, including reasonable attorneys’
fees and expenses.
All parties to this Note, whether principal, surety, guarantor or endorser, hereby waive
presentment for payment, demand, protest, notice of protest and notice of dishonor.
This Note shall be governed by the Laws of the State of New York (without giving effect to New
York’s principles of conflicts of law), provided that, as to the maximum lawful rate of interest
which may be charged or collected, if the Laws applicable to Lender permit it to charge or collect
a higher rate than the Laws of the State of New York, then such Law applicable to Lender shall
apply to Lender under this Note.
IN WITNESS WHEREOF, Maker has executed and delivered this Note as of the date first above
written.
| [NAME OF BORROWER] |
||||||
| By | ||||||
| Name: | ||||||
| Title: | ||||||
2
Date
|
Amount of Advance | Amount of Payment | Balance Outstanding |
Notation By | ||||
3
EXHIBIT E-1
FINANCIAL COVENANT COMPLIANCE CERTIFICATE
This Certificate is furnished pursuant to Section 6.11(3) of that certain Amended and Restated
Revolving Loan Agreement dated December 19, 2006 (the “Loan Agreement”) by and among RD ABSECON
ASSOCIATES, L.P., RD BLOOMFIELD ASSOCIATES, LIMITED PARTNERSHIP, RD HOBSON ASSOCIATES, L.P., RD
VILLAGE ASSOCIATES LIMITED PARTNERSHIP, RD ABINGTON ASSOCIATES LIMITED PARTNERSHIP, ACADIA TOWN
LINE, LLC and RD METHUEN ASSOCIATES LIMITED PARTNERSHIP (collectively and individually, as the
context requires, “Borrower”) and BANK OF AMERICA, N.A. (in its individual capacity and not as
Administrative Agent, “BofA”) and BofA, in its capacity as Administrative Agent, Section 6.11(3) of
which Loan Agreement was agreed to and acknowledged by ACADIA REALTY LIMITED PARTNERSHIP
(“Guarantor”). Capitalized terms used in this Certificate and Schedule 1 attached hereto, unless
otherwise defined herein or in said Schedule 1, have the meanings given to them in the Loan
Agreement.
The undersigned, the ___of Guarantor, hereby certifies to Lender that
Schedule 1 attached hereto sets forth the financial data and computations relating to Guarantor’s
compliance with the Liquidity Requirement, which data and computations, to the best knowledge and
belief of the undersigned, are true, complete and correct.
The undersigned certifies that he/she is authorized to execute and deliver this Certificate on
behalf of Guarantor.
WITNESS my hand this ___day of ___, ___.
EXHIBIT E-2
FINANCIAL COVENANT COMPLIANCE CERTIFICATE
This Certificate is furnished pursuant to Section 6.11(3) of that certain Amended and Restated
Revolving Loan Agreement dated December 19, 2006 (“Loan Agreement”) by and among RD ABSECON
ASSOCIATES, L.P., RD BLOOMFIELD ASSOCIATES, LIMITED PARTNERSHIP, RD HOBSON ASSOCIATES, L.P., RD
VILLAGE ASSOCIATES LIMITED PARTNERSHIP, RD ABINGTON ASSOCIATES LIMITED PARTNERSHIP, ACADIA TOWN
LINE, LLC and RD METHUEN ASSOCIATES LIMITED PARTNERSHIP (collectively and individually, as the
context requires, “Borrower”) and BANK OF AMERICA, N.A. (in its individual capacity and not as
Administrative Agent, “BofA”) and BofA, in its capacity as Administrative Agent, Section 6.11(3) of
which Loan Agreement was agreed to and acknowledged by ACADIA REALTY LIMITED PARTNERSHIP
(“Guarantor”). Capitalized terms used in this Certificate and Schedule 1 attached hereto, unless
otherwise defined herein or in said Schedule 1, have the meanings given to them in the Loan
Agreement.
The undersigned, the ___of Guarantor, hereby certifies to Lender that
Schedule 1 attached hereto sets forth the audited financial data and computations relating to
Guarantor’s compliance with the Net Worth Requirement and the Liquidity Requirement, which data and
computations, to the best knowledge and belief of the undersigned, are true, complete and correct.
The undersigned certifies that he/she is authorized to execute and deliver this Certificate on
behalf of Guarantor.
WITNESS my hand this ___day of _____________, ___.
EXHIBIT F
AUTHORIZATION LETTER
, 2006
[Name and address of Administrative Agent]
| Re: | Amended and Restated Revolving Loan Agreement dated as of December 19, 2006 (the “Loan Agreement”; capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in the Loan Agreement) among us, as Borrower, the Lenders named therein, and you, as Administrative Agent for said Lenders |
Dear Sir/Madam:
In connection with the captioned Loan Agreement, we hereby designate any of the following
persons to give to you instructions, including notices required pursuant to the Loan Agreement,
orally, by telephone or teleprocess, or in writing:
Michael Nelsen
Robert Masters
Richard Hartmann
Jon Grisham
Robert Masters
Richard Hartmann
Jon Grisham
Instructions may be honored on the oral, telephonic, teleprocess or written instructions of
anyone purporting to be any one of the above designated persons even if the instructions are for
the benefit of the person delivering them. We will furnish you with written confirmation of each
such instruction signed by any person designated above (including any telecopy which appears to
bear the signature of any person designated above) on the same day that the instruction is provided
to you, but your responsibility with respect to any instruction shall not be affected by your
failure to receive such confirmation or by its contents.
You and Lenders shall be fully protected in, and shall incur no liability to us for, acting
upon any instructions which you in good faith believe to have been given by any person designated
above, and in no event shall you or Lenders be liable for special, consequential or punitive
damages. In addition, we agree to hold you and Lenders and your and their respective agents
harmless from any and all liability, loss and expense arising directly or indirectly out of
instructions that we provide to you in connection with the Loan Agreement except for liability,
loss or expense occasioned by your gross negligence or willful misconduct.
Upon notice to us, you may, at your option, refuse to execute any instruction, or part
thereof, without incurring any responsibility for any loss, liability or expense arising out of
such refusal if you in good faith believe that the person delivering the instruction is not one of
the persons designated above or if the instruction is not accompanied by an authentication method
that we have agreed to in writing.
We will promptly notify you in writing of any change in the persons designated above and,
until you have actually received such written notice and have had a reasonable opportunity to act
upon it, you are authorized to act upon instructions, even though the person delivering them may no
longer be authorized.
| Very truly yours, |
||||||
| [BORROWERS] |
||||||
| By | ||||||
| Name: | ||||||
| Title: | ||||||
2
EXHIBIT G
SOLVENCY CERTIFICATE
The person executing this certificate is the Senior Vice President and/or Chief Financial
Officer of Acadia Realty Trust, the General Partner of Acadia Realty Limited Partnership, sole
member of Acadia Property Holdings, LLC, the General Partner of ___, a ___
(“Borrower”), and is familiar with its properties, assets and businesses, and is duly authorized to
execute this certificate on behalf of Borrower pursuant to Section 4.01(2) of the Amended and
Restated Revolving Loan Agreement dated the date hereof (the “Loan Agreement”) among Borrower along
with certain affiliated co-borrowers, the lenders party thereto (each a “Lender” and collectively,
“Lenders”) and Bank of America, N.A., as administrative agent for Lenders (in such capacity,
together with its successors in such capacity, “Administrative Agent”). In executing this
Certificate, such person is acting solely in his or her capacity as the Senior Vice President
and/or Chief Financial Officer of Borrower, and not in his or her individual capacity. Unless
otherwise defined herein, terms defined in the Loan Agreement are used herein as therein defined.
The undersigned further certifies that he has carefully reviewed the Loan Agreement and the
other Loan Documents and the contents of this Certificate and, in connection herewith, has made
such investigation and inquiries as he deems reasonably necessary and prudent therefor. The
undersigned further certifies that the financial information and assumptions which underlie and
form the basis for the representations made in this Certificate were reasonable when made and were
made in good faith and continue to be reasonable as of the date hereof.
The undersigned understands that Administrative Agent and Lenders are relying on the truth and
accuracy of this Certificate in connection with the transactions contemplated by the Loan
Agreement.
The undersigned certifies that Borrower is Solvent.
IN WITNESS WHEREOF, the undersigned has executed this Certificate on __________, 2006.
| By | ||||||
| Name: | ||||||
| Title: | ||||||
SCHEDULE A
| Annual Loan Amount Reduction/ | ||||
| Payment Date | Amortization Payment | |||
October 1, 2007
|
$ | 981,828 | ||
October 1, 2008
|
$ | 1,063,319 | ||
October 1, 2009
|
$ | 1,151,574 | ||
October 1, 2010
|
$ | 1,247,154 | ||
October 1, 2011
|
$ | 1,350,668 | ||
October 1, 2012
|
$ | 1,462,772 | ||
October 1, 2013
|
$ | 1,584,182 | ||
TABLE OF CONTENTS
| Page | ||||||
ARTICLE I |
DEFINITIONS AND RULES OF CONSTRUCTION | 2 | ||||
Section 1.01. |
Definitions | 2 | ||||
Section 1.02. |
Accounting Terms | 15 | ||||
Section 1.03. |
Computation of Time Periods | 15 | ||||
Section 1.04. |
Rules of Construction | 15 | ||||
ARTICLE II |
THE LOAN | 15 | ||||
Section 2.01. |
Generally | 15 | ||||
Section 2.02. |
Nature of Lenders’ Obligations | 16 | ||||
Section 2.03. |
Purpose | 16 | ||||
Section 2.04. |
Advances | 16 | ||||
Section 2.05. |
Procedure for Advance | 17 | ||||
Section 2.06. |
Notes/Joint and Several Liability | 17 | ||||
Section 2.07. |
Payments and Distributions; Certain Consequences of Delinquent Lender Status | 18 | ||||
Section 2.08. |
Interest | 19 | ||||
Section 2.09. |
Limitation on Number of Interest Periods | 20 | ||||
Section 2.10. |
Conversions of Interest Rate | 20 | ||||
Section 2.11. |
Inapplicability of LIBO Based Rate | 20 | ||||
Section 2.12. |
Late Payment Premium | 21 | ||||
Section 2.13. |
Voluntary Prepayments | 21 | ||||
Section 2.14. |
Annual Commitment Reduction/Required Amortization | 21 | ||||
Section 2.15. |
Nature of Lenders’ Obligations; Borrower’s Rights and Obligations in Event a Lender Fails to Make an Advance | 21 | ||||
Section 2.16. |
Extension of Maturity | 22 | ||||
ARTICLE III |
YIELD MAINTENANCE ETC | 22 | ||||
Section 3.01. |
Additional Costs and Other Effects of Regulatory Changes; Taxes | 22 | ||||
Section 3.02. |
Limitations on Availability of LIBO Based Rate | 23 | ||||
Section 3.03. |
Certain Compensation | 24 | ||||
Section 3.04. |
“Lender” to Include Participants | 25 | ||||
ARTICLE IV |
CONDITIONS PRECEDENT | 25 | ||||
Section 4.01. |
Conditions Precedent to Loan | 25 | ||||
Section 4.02. |
Conditions to Advances After the Initial Advance | 29 | ||||
ARTICLE V |
REPRESENTATIONS AND WARRANTIES | 30 | ||||
Section 5.01. |
Due Formation, Power and Authority | 30 | ||||
Section 5.02. |
Legally Enforceable Agreements | 30 | ||||
Section 5.03. |
Financial Statements | 30 | ||||
| Page | ||||||
Section 5.04. |
Compliance With Laws; Payment of Taxes | 31 | ||||
Section 5.05. |
Litigation | 31 | ||||
Section 5.06. |
No Conflicts or Defaults | 31 | ||||
Section 5.07. |
Solvency | 31 | ||||
Section 5.08. |
Governmental Regulation | 31 | ||||
Section 5.09. |
Insurance | 31 | ||||
Section 5.10. |
ERISA | 31 | ||||
Section 5.11. |
Other Documents | 32 | ||||
Section 5.12. |
No Defaults | 32 | ||||
Section 5.13. |
Accuracy of Information; Full Disclosure | 32 | ||||
Section 5.14. |
Separate Tax and Zoning Lot | 32 | ||||
Section 5.15. |
The Improvements | 32 | ||||
Section 5.16. |
Utility Services | 33 | ||||
Section 5.17. |
Creation of Liens | 33 | ||||
Section 5.18. |
Roads | 33 | ||||
Section 5.19. |
Requisition as Reaffirmation | 33 | ||||
Section 5.20. |
Patriot Act | 33 | ||||
ARTICLE VI |
COVENANTS OF BORROWER | 34 | ||||
Section 6.01. |
Compliance with Laws; Payment of Taxes | 34 | ||||
Section 6.02. |
Leases and Premises Documents | 34 | ||||
Section 6.03. |
Administration Fee/Inspection Fee | 35 | ||||
Section 6.04. |
Continuing Accuracy of Representations and Warranties | 35 | ||||
Section 6.05. |
Covenants, Restrictions and Easements | 35 | ||||
Section 6.06. |
Financial Covenants | 35 | ||||
Section 6.07. |
Payment of Costs | 36 | ||||
Section 6.08. |
Brokers | 36 | ||||
Section 6.09. |
Correction of Defects | 36 | ||||
Section 6.10. |
Unused Fee | 36 | ||||
Section 6.11. |
Reporting and Miscellaneous Document Requirements | 36 | ||||
ARTICLE VII |
ADMINISTRATIVE AGENT; RELATIONS AMONG LENDERS | 39 | ||||
Section 7.01. |
Appointment, Powers and Immunities of Administrative Agent | 39 | ||||
Section 7.02. |
Reliance by Administrative Agent | 39 | ||||
Section 7.03. |
Defaults | 40 | ||||
Section 7.04. |
Rights of Administrative Agent as Lender | 40 | ||||
Section 7.05. |
Sharing of Costs by Lenders; Indemnification of Administrative Agent | 40 | ||||
Section 7.06. |
Non-Reliance on Administrative Agent and Other Lenders | 41 | ||||
Section 7.07. |
Failure of Administrative Agent to Act | 41 | ||||
Section 7.08. |
Resignation or Removal of Administrative Agent | 42 | ||||
Section 7.09. |
Amendments Concerning Agency Function | 42 | ||||
Section 7.10. |
Liability of Administrative Agent | 42 | ||||
2
| Page | ||||||
Section 7.11. |
Transfer of Agency Function | 43 | ||||
Section 7.12. |
Non-Receipt of Funds by Administrative Agent; Adjustments | 43 | ||||
Section 7.13. |
Withholding Taxes | 43 | ||||
Section 7.14. |
Sharing of Payments among Lenders | 44 | ||||
Section 7.15. |
Possession of Documents | 44 | ||||
Section 7.16. |
Effect of a Lender’s Failure to Make an Advance | 44 | ||||
Section 7.17. |
Cure by Delinquent Lender | 46 | ||||
Section 7.18. |
Delinquent Lender Not Excused | 47 | ||||
Section 7.19. |
Notices Regarding Delinquent Lender | 47 | ||||
Section 7.20. |
Replacement Lender | 47 | ||||
ARTICLE VIII |
GENERAL CONDITIONS AND PROVISIONS | 48 | ||||
Section 8.01. |
Disbursement Not Waiver | 48 | ||||
Section 8.02. |
No Third-Party Beneficiaries | 49 | ||||
Section 8.03. |
Documentation Etc. Satisfactory | 49 | ||||
Section 8.04. |
Lender’s Determination Conclusive | 49 | ||||
Section 8.05. |
Notices | 49 | ||||
Section 8.06. |
Amendments and Waivers | 49 | ||||
Section 8.07. |
Assignment; Participation | 50 | ||||
Section 8.08. |
Setoff | 52 | ||||
Section 8.09. |
Successors and Assigns | 52 | ||||
Section 8.10. |
Severability | 52 | ||||
Section 8.11. |
Non-Waiver; Remedies Cumulative | 52 | ||||
Section 8.12. |
Certain Waivers | 53 | ||||
Section 8.13. |
Expenses; Indemnification | 53 | ||||
Section 8.14. |
Gross-Up For Taxes | 54 | ||||
Section 8.15. |
Counterparts | 55 | ||||
Section 8.16. |
Governing Law; Jurisdiction | 55 | ||||
Section 8.17. |
Integration | 55 | ||||
Section 8.18. |
Releases | 55 | ||||
Section 8.19. |
Substitution of Collateral | 56 | ||||
Section 8.20. |
Exculpation | 58 | ||||
Section 8.21. |
Letters of Credit | 59 | ||||
Section 8.22. |
Concerning Irrevocable Authorizations | 60 | ||||
Section 8.23. |
Usury | 61 | ||||
Section 8.24. |
Documentation Satisfactory | 61 | ||||
3
FIRST AMENDMENT TO
AMENDED AND RESTATED REVOLVING LOAN AGREEMENT
AMENDED AND RESTATED REVOLVING LOAN AGREEMENT
dated as of February ___, 2007
between
BANK OF AMERICA, N.A.,
as a Lender and Arranger
(“Lender”),
as a Lender and Arranger
(“Lender”),
BANK OF AMERICA, N.A.,
as Administrative Agent
(“Administrative Agent”)
as Administrative Agent
(“Administrative Agent”)
and
RD ABINGTON ASSOCIATES LIMITED PARTNERSHIP (“RD Abington”),
ACADIA TOWN LINE, LLC (“Acadia Town Line”),
RD METHUEN ASSOCIATES LIMITED PARTNERSHIP (“RD Methuen”),
RD ABSECON ASSOCIATES, L.P. (“RD Absecon”),
RD BLOOMFIELD ASSOCIATES, LIMITED PARTNERSHIP (“RD Bloomfield”),
RD HOBSON ASSOCIATES, L.P. (“RD Hobson”),
and
RD VILLAGE ASSOCIATES LIMITED PARTNERSHIP (“RD Village”),
as Borrowers
ACADIA TOWN LINE, LLC (“Acadia Town Line”),
RD METHUEN ASSOCIATES LIMITED PARTNERSHIP (“RD Methuen”),
RD ABSECON ASSOCIATES, L.P. (“RD Absecon”),
RD BLOOMFIELD ASSOCIATES, LIMITED PARTNERSHIP (“RD Bloomfield”),
RD HOBSON ASSOCIATES, L.P. (“RD Hobson”),
and
RD VILLAGE ASSOCIATES LIMITED PARTNERSHIP (“RD Village”),
as Borrowers
(RD Abington, Acadia Town Line, RD Methuen, RD Absecon, RD Bloomfield,
RD Hobson and RD Village, individually and collectively, as the context requires, “Borrower”)
RD Hobson and RD Village, individually and collectively, as the context requires, “Borrower”)
FIRST AMENDMENT TO
AMENDED AND RESTATED REVOLVING LOAN AGREEMENT
AMENDED AND RESTATED REVOLVING LOAN AGREEMENT
FIRST AMENDMENT TO AMENDED AND RESTATED REVOLVING LOAN AGREEMENT (this “Amendment”) dated as
of February ___, 2007 by and among RD ABINGTON ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited
partnership (“RD Abington”), ACADIA TOWN LINE, LLC, a Connecticut limited liability company
(“Acadia Town Line”), RD METHUEN ASSOCIATES LIMITED PARTNERSHIP, a Massachusetts limited
partnership (“RD Methuen”), RD ABSECON ASSOCIATES, L.P., a Delaware limited partnership (“RD
Absecon”), RD BLOOMFIELD ASSOCIATES, LIMITED PARTNERSHIP, a Delaware limited partnership (“RD
Bloomfield”), RD HOBSON ASSOCIATES, L.P., a Delaware limited partnership (“RD Hobson”) and RD
VILLAGE ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership (“RD Village”; RD Abington,
Acadia Town Line, RD Methuen, RD Absecon, RD Bloomfield, RD Hobson and RD Village, collectively and
individually, as the context requires, “Borrower”) and BANK OF AMERICA, N.A. (in its individual
capacity and not as Administrative Agent, “BofA”; BofA and each other lender who may become a
Lender pursuant to Section 8.07, each, a “Lender” and collectively, “Lenders”) and BANK OF AMERICA,
N.A., as Administrative Agent for Lenders (together with its successors in such capacity,
“Administrative Agent”).
WITNESSETH:
WHEREAS, Lender, Administrative Agent and Borrower are all of the parties to that certain
Amended and Restated Revolving Loan Agreement dated as of December 19, 2006 (the “Loan Agreement”;
capitalized terms used herein and not otherwise defined shall have the meanings attached to them in
the Loan Agreement); and
WHEREAS, Lenders, Administrative Agent and Borrower have agreed to modify the Loan Agreement
in the manner hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises and agreements herein contained,
Borrower, Administrative Agent and Lenders hereby agree as follows:
ARTICLE IX The definition of “Special Holdback” in Section 1.01 of the Loan Agreement is
hereby deleted in its entirety and replaced with the following new definition:
“
‘Special Holdback’ — $1,330,000, provided, however, that the Special
Holdback shall be $0 (zero) if, as and when RD Bloomfield delivers to Administrative Agent
an estoppel from Circuit City Stores, Inc. (‘CC’) certifying that, pursuant to the lease
between RD Bloomfield and CC, RD Bloomfield has completed ‘Landlord’s Work’ under such
lease, CC has accepted occupancy of the demised premises, has opened for business to the
public therein and has received
all required ‘Landlord Reimbursements’ thereunder and that there is no default under
such lease.”
ARTICLE X Except as modified hereby, the Loan Agreement remains unmodified and in full force
and effect. Borrower hereby acknowledges that it is justly indebted to Lender under the Loan
Agreement, and reaffirms its representations, warranties, agreements and covenants set forth in the
Loan Agreement and the other Loan Documents, as modified hereby.
ARTICLE XI Borrower represents and warrants that there exist no defenses, offsets or
counterclaims with respect to its obligations under any of the Loan Documents.
ARTICLE XII Borrower agrees to pay Lender’s costs and expenses, including, without limitation,
reasonable attorneys’ fees and expenses in connection with the preparation, execution and delivery
of this Amendment.
ARTICLE XIII The terms and provisions hereof shall be binding upon and inure to the benefit of
the parties hereto and their heirs, representatives, successors and assigns.
ARTICLE XIV This Amendment and the rights and obligations of the parties hereto shall in all
respects be governed by, and construed and enforced in accordance with, the laws of the State of
New York (without giving effect to New York’s choice of law principles).
ARTICLE XV This Amendment may be executed in multiple counterparts, each of which shall
constitute an original and together which shall constitute but one and the same instrument.
[Remainder of page intentionally left blank]
2
IN WITNESS WHEREOF, the parties have executed and delivered this Amendment as of the day and
year first above written, intending the same to take effect as a sealed instrument. The execution
hereof by Borrower, Administrative Agent and Lenders constitutes a certification by the party or
parties executing on its behalf that each of them duly holds and is incumbent in the position
indicated under his or her name.
| BANK OF AMERICA, N.A. (as Lender and Administrative Agent) | ||||||||
| By | ||||||||
| Denise M. Smyth | ||||||||
| Senior Vice President | ||||||||
RD BLOOMFIELD ASSOCIATES, LIMITED PARTNERSHIP, a Delaware limited partnership |
||||||||
RD HOBSON ASSOCIATES, L.P., a Delaware limited partnership |
||||||||
RD VILLAGE ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership |
||||||||
RD ABINGTON ASSOCIATES LIMITED PARTNERSHIP, a Delaware limited partnership |
||||||||
RD METHUEN ASSOCIATES LIMITED PARTNERSHIP, a Massachusetts limited partnership |
||||||||
| By: Acadia
Property Holdings, LLC, its general partner |
||||||||
| By: Acadia
Realty Limited Partnership, its sole member |
||||||||
| By: Acadia Realty Trust, its general partner | ||||||||
| By | ||||||||
| Robert Masters | ||||||||
| Senior Vice President | ||||||||
i
| RD ABSECON ASSOCIATES, L.P., a Delaware limited partnership | ||||||||
| By: | RD Absecon, Inc., a Delaware corporation, its general partner | |||||||
| By | ||||||||
| Robert Masters | ||||||||
| Senior Vice President | ||||||||
| ACADIA TOWN LINE, LLC, a Connecticut limited liability company | ||||||||
| By: | Acadia Realty Limited Partnership, a Delaware limited partnership, its sole member | |||||||
| By: | Acadia Realty Trust, a Maryland real estate | |||||||
| investment trust, its general partner | ||||||||
| By | ||||||||
| Robert Masters | ||||||||
| Senior Vice President | ||||||||
ii
Exhibit
10.60
LOAN AGREEMENT
dated as of December 19, 2006
between
BANK OF AMERICA, N.A.
(“Lender”)
(“Lender”)
| Address of Lender: | 1185 Avenue of the Americas, 16th Floor | |||||
| New York, New York 10036 |
BANK OF AMERICA, N.A., as Administrative Agent
(“Administrative Agent”)
(“Administrative Agent”)
| Address of Lender: | 1185 Avenue of the Americas, 16th Floor | |||||
| New York, New York 10036 |
and
RD BRANCH ASSOCIATES, L.P.
(“Borrower”),
(“Borrower”),
| Address of Borrower: | c/o Acadia Realty Trust | |||||
| 1311 Mamaroneck Avenue, Suite 260 | ||||||
| White Plains, New York 10605 |
LOCATION OF MORTGAGED PROPERTY:
The Branch Plaza Property located on Route 25 in Smithtown, New York
THIS LOAN AGREEMENT (“this Agreement”) dated as of December 19, 2006 by and among RD BRANCH
ASSOCIATES, L.P. (“Borrower”) and BANK OF AMERICA, N.A. (in its individual capacity and not as
Administrative Agent, “BofA”) and each other lender who may become a Lender pursuant to Section
8.07, each, a “Lender” and collectively, “Lenders”) and BANK OF AMERICA, N.A., as Administrative
Agent for Lenders (together with its successors in such capacity, “Administrative Agent”).
WHEREAS, BofA is the holder of that certain Severed Note made by Borrower in favor of BofA
dated the date hereof in the amount of $15,000,000 (the “Existing Note”), which was made pursuant
to that certain Note Modification and Severance Agreement between Borrower, certain affiliates of
Borrower and BofA dated the date hereof; and
WHEREAS, Borrower has requested, and Lender and Administrative Agent have agreed, subject to
the terms and conditions hereof, to make an additional loan to Borrower in the amount of $1,000,000
to be evidenced by a note dated the date hereof made by Borrower to Lender in the amount of
$1,000,000 (the “New Note”) and Lender is prepared to do so on the terms and conditions hereinafter
set forth.
NOW, THEREFORE, in consideration of the mutual promises and agreements herein contained,
Borrower, Administrative Agent and Lenders hereby agree that this Agreement consolidates, amends
and restates the Existing Note and the New Note in their entirety such that from and after the date
hereof the Loan shall be evidenced, administered and repaid pursuant to and in accordance with the
following terms:
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.01. Definitions. The following terms, as used in this Agreement, shall
have the following meanings:
“Additional Interest” — Any and all sums that shall become due and payable by Borrower
under the Hedging Agreement.
“Anchors” — North Fork Bank and A&P Grocery.
“Applicable Lending Office” — For each Lender and for the portions of the outstanding
principal balance under its Note bearing interest at the Prime Based Rate or LIBO Based Rate,
as applicable, the lending office of such Lender (or of an affiliate of such Lender)
designated as such on the signature page hereof or in the applicable Assignment and Assumption
Agreement, or such other office of such Lender (or of an affiliate of such Lender) as such
Lender may from time to time specify to Administrative Agent and Borrower as the office by the
portions of the outstanding principal balance under its Note bearing interest at the Prime
Based Rate or LIBO Based Rate , as applicable, are to be made and maintained.
“Applicable Margin” — With respect to the Prime Based Rate, 0.50% per annum; and with
respect to the LIBO Based Rate, 1.30% per annum.
“Assignee” — Has the meaning specified in Section 8.07.
“Assignment and Assumption Agreement” — An Assignment and Assumption Agreement,
substantially in the form of EXHIBIT A, pursuant to which a Lender assigns and an Assignee
assumes rights and obligations in accordance with Section 8.07.
“Authorization Letter” — The letter in the form of EXHIBIT F.
“Business Day” — Any day on which commercial banks are not authorized or required to close
in New York City; and, whenever such day relates to a LIBOR Amount, an Interest Period with
respect to a LIBOR Amount, or notice with respect to a LIBOR Amount, any such day in which
dealings in Dollar deposits are also carried out in the London interbank market and banks are
also open for business in London.
“Code” — The Internal Revenue Code of 1986.
“Counterparty” — Bank of America, N.A., in its capacity as a party to the Hedging
Agreement, and its successors and assigns in such capacity.
“Default” — Any event or circumstance which, with the giving of notice or the passage of
time, or both, would become an Event of Default.
“DSC Test” — Has the meaning set forth in Section 2.04 of this Agreement.
“Dollars” and “$” — Lawful money of the United States of America.
“Employee Benefit Plan” — Any employee benefit or other plan established or maintained, or
to which contributions have been made, by Borrower or Guarantor.
“ERISA” — The Employee Retirement Income Security Act of 1974, including the rules and
regulations promulgated thereunder.
“ERISA Affiliate” — Any corporation which is a member of the same controlled group of
corporations (within the meaning of Section 414(b) of the Code) as Borrower and/or Guarantor,
or any trade or business which is under common control (within the meaning of Section 414(c)
of the Code) with Borrower and/or Guarantor, or any organization which is required to be
treated as a single employer with Borrower and/or Guarantor under Section 414(m) or 414(o) of
the Code.
“Event of Default” — Has the meaning given to such term in the Mortgage.
“Existing Note” — Has the meaning specified in the preamble hereto.
2
“Fiscal Year” — The calendar year or such other annual period as Borrower and
Administrative Agent may mutually agree upon.
“Financial Statements” — Statements of the assets, liabilities (direct or
contingent), income, expenses and cash flow of Borrower and Guarantor, prepared
in accordance with generally accepted accounting principles in the United States
as in effect from time to time and consistently applied.
“Governmental Authorities” — The United States, the state in which the Property
is located and any political subdivision, agency, department, commission, board,
bureau or instrumentality of either of them, including any local authorities,
which exercises jurisdiction over Borrower, Guarantor, the Property or the
Improvements.
“Guarantor” — Jointly and severally, Acadia Realty Limited Partnership, a
Delaware limited partnership and any other person(s) or entity(ies) who may
hereafter become a guarantor of any or all of Borrower’s obligations in respect
of the Loan.
“Guaranty” — The guaranty(ies) of all or part of Borrower’s obligations, to be
executed by Guarantor.
“Hazardous Materials” — Has the meaning given to such term in the Mortgage.
“Hedging Agreement” — Any ISDA Master Agreement or other documentation with
respect to an interest rate hedging transaction entered into by and between
Borrower and Counterparty, as may be amended, modified or supplemented from time
to time, including any and all “confirmations” under any thereof.
“Improvements” — A one story neighborhood shopping center containing 125,840
square feet with respect to the Branch Plaza Property.
“Indemnity” — An agreement from Borrower and Guarantor or, if there is no
Guarantor, such other persons or entities as shall be satisfactory to Lender,
whereby, among other things, Lender is indemnified regarding Hazardous Materials.
“Individual Loan Commitment” — With respect to each Lender, the amount set forth
below opposite the name of such Lender (subject to change in accordance with the
terms of this Agreement).
| Lender | Individual Loan Commitment | |
| BofA | $16,000,000 |
“Insolvency Event” — The occurrence of any of the Events of Default described in clauses
(d) through (h) of the Mortgage.
3
“Interest Period” — The period during which interest at the LIBO Based Rate, determined as
provided in this Agreement, shall be applicable to the LIBO Rate Request Amount in question,
provided, however, that each such period shall be either one (1), two (2),
three (3) (or, if available, four (4), or six (6)) months, which shall be measured from the
date specified by Borrower in each LIBO Rate Request for the commencement of the computation
of interest at the LIBO Based Rate, to the numerically corresponding day in the calendar month
in which such period terminates (or, if there be no numerical correspondent in such month, or
if the date selected by Borrower for such commencement is the last Business Day of a calendar
month, then the last Business Day of the calendar month in which such period terminates, or if
the numerically corresponding day is not a Business Day then the next succeeding Business Day,
unless such next succeeding Business Day enters a new calendar month, in which case such
period shall end on the next preceding Business Day) and in no event shall any such period
extend beyond the Maturity Date.
“Law” — Any federal, state or local law, statute, rule, regulation, ordinance, order,
decree, directive, requirement, code, notice of violation or rule of common law, now or
hereafter in effect, and in each case as amended, and any judicial or administrative
interpretation thereof by a Governmental Authority or otherwise, including any judicial or
administrative order, determination, consent decree or judgment.
“Lender Reply Period” — Has the meaning specified in Section 8.06.
“Lender’s Counsel” — Schiff Hardin LLP, 623 Fifth Avenue, 28th Floor, New York, New York
10022.
“LIBO Based Rate” — With respect to any LIBOR Amount, the rate per annum (expressed as a
percentage) determined by Administrative Agent to be equal to the sum of (i) the quotient of
the LIBO Rate for the LIBOR Amount and Interest Period in question divided by [1 minus the
Reserve Requirement] (at Administrative Agent’s option, rounded up, if necessary, to the
nearest 1/100 of 1%) and (ii) the Applicable Margin.
“LIBO Rate” — With respect to any applicable Interest Period, the rate per annum equal to
the British Bankers Association LIBOR Rate (“BBA LIBOR”), as published by Reuters (or other
commercially available source providing quotations of BBA LIBOR as selected by Administrative
Agent from time to time) at approximately 11:00 a.m. London time two (2) Business Days before
the commencement of such Interest Period, for deposits in U.S. Dollars (for delivery on the
first day of such Interest Period) with a term equivalent to such Interest Period. If such
rate is not available at such time for any reason, then the rate for that Interest Period will
be determined by such alternate method as reasonably selected by Administrative Agent.
4
“LIBO Rate Request” — Borrower’s telephonic notice (to be promptly confirmed in writing),
to be received by Administrative Agent by 12 Noon (New York time) three (3) Business Days
prior to the date specified in the LIBO Rate Request for the commencement of the Interest
Period (which specified date must be a Business Day), of (a) its intention to have (i) all or
any portion of the Principal Amount which is not then the subject of an Interest Period (other
than an Interest Period which is terminating on the Business Day specified in the notice)
and/or (ii) all or any portion of any advance of proceeds of the Loan evidenced by the Notes
which is to be made on the Business Day specified in such notice, bear interest at the LIBO
Based Rate and (b) the Interest Period desired by Borrower in respect of the amount specified,
which notice shall be promptly communicated by Administrative Agent to each Lender.
“LIBO Rate Request Amount” — The amount, to be specified by Borrower in each LIBO Rate
Request, which Borrower desires bear interest at the LIBO Based Rate and which, at
Administrative Agent’s option, shall be an integral multiple of $100,000.
“LIBOR Amount” — All or any portion (as the context requires) of any Lender’s Loan which
shall accrue interest at the LIBOR Based Rate.
“Liquidity Requirement” — Has the meaning specified in Section 4.01(d)(18).
“Loan” — The loan in the Loan Amount made by Lender to Borrower under this Agreement.
“Loan Amount” — $16,000,000.
“Loan Documents” — This Agreement, the Note, the Mortgage, the Indemnity, the
Authorization Letter, Uniform Commercial Code financing statements in respect of the Mortgaged
Property and any other collateral given to Lender as security for the Loan, and any other
documents which evidence or secure the Loan.
“Loan to Value Test” — Has the meaning set forth in Section 2.03 of this Agreement.
“Major Lease” — Any lease for space in excess of 5,000 square feet of the rentable area
of the Improvements.
“Material Adverse Change” means either (1) a material adverse change in the status of the
business, results of operations, financial condition, property or prospects of Borrower or (2)
any event or occurrence of whatever nature which is likely to (x) have a material adverse
effect on the ability of Borrower to perform its obligations under the Loan Documents or (y)
create, in the sole and absolute judgment (reasonably exercised) of Lender, a material risk of
sale or forfeiture of any of the Mortgaged Property (other than an immaterial portion thereof)
under any Mortgage or otherwise materially impair any of the Mortgaged Property under any
Mortgage or Lenders’ rights therein.
“Maturity Date” — December 1, 2011.
5
“Mortgage” — Collectively, (i) that certain leasehold mortgage, assignment of leases and
rents and security agreement dated the date hereof from Borrower to Administrative Agent (the
“New Mortgage”) and (ii) those certain mortgage(s), assignments of leases and rents and
security agreements described in, and modified by, that certain Mortgage Modification
Agreement, dated the date hereof, by and between Borrower and Administrative Agent (the
“Existing Mortgage”), all to secure the payment and performance of Borrower’s obligations
hereunder, under the Note and otherwise in respect of the Loan.
“Mortgaged Property” means, for each Property, the Property, the Improvements thereon and
all other property constituting the “Mortgaged Property”, as said quoted term is defined in
the applicable Mortgage.
“Multiemployer Plan” — Any plan defined as such in Section 3(37) of ERISA.
“Net Operating Income”
(a) all revenues from the ownership, use, occupancy, leasing and operation of the
Property during the period in question, determined in accordance with GAAP (but adjusted to
eliminate the effects of straight-lining of rents and further adjusted to exclude
extraordinary and non-recurring sources of income), including all rental and other
payments, including, without limitation, base rent, additional rent, promotional revenues,
percentage rent and payments for common area maintenance, taxes, insurance and operating
expenses and proceeds of rental loss or business interruption service, excluding tenant
security deposits collected but not applied to tenants’ obligations, and interest on such
deposits;
minus
(b) all expenses in connection with the Property during such period, determined in
accordance with GAAP, including insurance premiums, real estate taxes, promotional
expenses, maintenance and repair expenses, management fees and any other operational
expenses, all as determined in accordance with GAAP, but not including debt service payable
under the Loan.
“Net Worth Requirement” — Has the meaning specified in Section 4.01(d)(18).
“New Note” — Has the meaning specified in the preamble hereto.
“Note”; “Notes” — Have the respective meanings specified in Section 2.06.
“Participant”; “Participation” — Have the respective meanings specified in Section
8.07.
“Pension Plan” — Any employee pension benefit plan within the meaning of Section 3(2) of
ERISA with respect to which Borrower, Guarantor or any ERISA Affiliate at any relevant time
has liability or an obligation to contribute.
6
“Person” — An individual, partnership, corporation, limited liability company,
business trust, joint stock company, trust, unincorporated association, joint
venture or other entity of whatever nature.
“Premises Documents” — Has the meaning given to such term in the Mortgage.
“Prime Based Rate” — The Applicable Margin plus the greater of (i) the Federal
Funds Rate plus 1/2 of 1% per annum or (ii) the prime commercial lending rate as
announced from time to time by Administrative Agent at Administrative Agent’s
Office (it being understood that said “prime commercial lending rate” is a
reference rate and does not necessarily represent the lowest or best rate being
charged to customers), each change in said rates to be effective, without notice
or demand of any kind, as of the date of such change.
“Principal Amount” — At any time, the aggregate outstanding principal amount of
the Notes.
“Property” — The leasehold interest in real property located on Route 25 in
Smithtown, New York owned by Branch Borrower.
“Pro Rata Share” — With respect to each Lender, the ratio of such Lender’s
Individual Loan Commitment to the Loan Amount. As of the date hereof, the
Lenders’ respective Pro Rata Shares are as follows:
| Lender | Pro Rata Share | |
| BofA | 100% |
“Regulation D” and “Regulation U” — Respectively, Regulation D and Regulation U of
the Board of Governors of the Federal Reserve System.
“Regulatory Change” — With respect to any Lender and the charging and collecting of
interest at the LIBO Based Rate, any change after the date hereof in federal, state or foreign
laws or regulations (including Regulation D) or the adoption or making after such date of any
interpretations, directives or requests applying to a class of banks including such Lender
under any federal, state or foreign laws or regulations (whether or not having the force of
law) by any court or governmental or monetary authority charged with the interpretation or
administration thereof, excluding any change the effect of which is reflected in a change in
the LIBO Based Rate.
“Required Lenders” — At any time, those Lenders holding at least 66-2/3% of the Principal
Amount.
“Reserve Requirement” — The rate at which reserves (including any marginal, supplemental
or emergency reserves) are actually required to be maintained by any Lender or any Lender’s
respective Participants, if any, under Regulation D against “Euro-Currency Liabilities”, as
such quoted term is used in Regulation D.
7
Without limiting the effect of the foregoing, the Reserve Requirement shall reflect any
other reserves required to be maintained by any Lender or any Lender’s respective
Participants, if any, by reason of any Regulatory Change against (i) any category of
liabilities which includes deposits by reference to which the LIBO Based Rate is to be
determined as provided in this Agreement or (ii) any category of extensions of credit or
other assets which includes loans the interest rate on which is determined on the basis of
rates used in determining the LIBO Rate.
“Requisition” — A written statement by or on behalf of Borrower, in form and substance
satisfactory to Administrative Agent, setting forth the amount of the Loan advance requested
and instructions for the payment of the same, and certifying the purpose for which such
advance is to be used.
“Supplemental Fee Letter” — That certain letter agreement, dated the date hereof, between
BofA and Borrower, providing for Borrower’s payment to Administrative Agent and/or BofA on the
date hereof and from time to time hereafter certain fees in connection with the Loan, each
such fee to be for Administrative Agent’s and/or BofA’s own account.
“Title Insurer” — The issuer(s), approved by Administrative Agent, of the title insurance
policy or policies insuring the Mortgage.
“Treasury Rate” — The yield rate (i) on the 10 year U.S. Treasury Security due on or
closest to the Maturity Date (as defined in the Note), as such yield rate is reported in the
Wall Street Journal on the second Business Day preceding the date of calculation.
“Unrestricted Cash and Cash Equivalents” means the following assets of Guarantor, in each
case, not subject to any lien, security interest or restriction: (i) cash, (ii) securities
issued or directly and fully guaranteed or insured by the United States of America or any
agency or instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more than six (6)
months from the date of acquisition, (iii) shares of money market funds invested in the
securities described in clause (ii) above and (iv) Dollar denominated demand deposits, time
deposits or certificates of deposit of any domestic United States commercial bank whose
long-term debt is rated at least A by Standard & Poor’s Rating Services, a division of The
McGraw-Hill Companies, Inc. or A2 by Moody’s Investors Service, Inc. and having capital and
surplus in excess of $500,000,000.
Section 1.02. Rules of Construction. Except as expressly provided otherwise, when
used in this Agreement (i) “or” is not exclusive, (ii) “hereunder”, “herein”, “hereof” and the like
refer to this Agreement as a whole, (iii) “Article”, “Section”, “Schedule” and “Exhibit” refer to
Articles, Sections, Schedules and Exhibits of this Agreement, (iv) terms defined in the singular
shall have a correlative meaning when used in the plural and vice versa, (v) a reference to a Law
includes any amendment, modification or supplement to, or replacement of, such Law and (vi) a
reference to a document shall mean such
8
document as the same may be amended, modified or supplemented from time to time in accordance
with its terms. The cover page and the Exhibits and Schedules, if any, annexed hereto are
incorporated as a part of this Agreement with the same effect as if set forth in the body hereof.
Any table of contents and all captions and headings herein are for convenience only and shall not
affect the interpretation or construction hereof.
ARTICLE II
THE LOAN
Section 2.01. Generally. Subject to the provisions of this Agreement, and on the
basis of the representations, warranties and covenants made herein and in the other Loan Documents,
each Lender severally agrees to advance its Pro Rata Share of the Loan and Borrower will accept the
Loan Amount in periodic disbursements as hereinafter set forth and upon the satisfaction of the
conditions set forth in Article IV hereof.
Section 2.02. Nature of Lenders’ Obligations. The obligations of Lenders under this
Agreement are several, and no Lender shall be responsible for the failure of any other Lender to
make any advance of the Loan to be made by such other Lender. However, the failure of any Lender
to make any advance of the Loan to be made by it hereunder on the date specified therefor shall not
relieve any other Lender of its obligation to make any advance of its portion of the Loan specified
hereby to be made on such date.
Section 2.03. Purpose. The Loan shall be made for the business purpose of financing
the Mortgaged Property. Borrower covenants and agrees that in no event shall proceeds of the Loan,
or any part thereof, be used, directly or indirectly, for any other purpose, for any illegal
purpose or for the purpose, whether immediate, incidental or ultimate, of buying or carrying
“margin stock” within the meaning of Regulation U of the Board of Governors of the Federal Reserve
System, or in connection with any hostile acquisition or for any illegal purpose.
Section 2.04. Advances. The portion of the Loan heretofore evidenced by the Existing
Note has been advanced and the outstanding principal balance thereof is $15,000,000. The
$1,000,000 portion of the Loan to be initially evidenced by the New Note shall be advanced in a
single advance in the amount of $1,000,000 and shall be made upon satisfaction of the conditions
set forth in Section 4.01.
Section 2.05. Intentionally Omitted.
Section 2.06. Notes. From and after the date hereof, the Existing Note and the New
Note are hereby modified and restated by, and the Loan shall be evidenced by notes of Borrower in
the form of EXHIBIT D, duly completed and executed by Borrower (with a separate note or notes for
each Lender in an aggregage amount equal to such Lender’s Individual Loan Commitment, payable for
the account of such Lender’s Applicable Lending Office), in an aggregate principal amount equal to
the Loan Amount (such notes, as the same may hereafter be amended, modified, extended, severed,
assigned, substituted, renewed or restated from time to time (including, without limitation, any
9
substitute notes pursuant to Section 8.07), each, a “Note” and collectively, the “Notes”).
The Existing Note, as modified hereby, shall be severed by, among other things, the Existing
Mortgage. The New Note shall be secured by, among other things, the New Mortgage. The Notes shall
mature, and all outstanding principal and other sums thereunder shall be paid in full, on the
Maturity Date, as the same may be accelerated or extended.
In case of any loss, theft, destruction or mutilation of any Lender’s Note, Borrower shall,
upon its receipt of an affidavit of an officer of such Lender as to such loss, theft, destruction
or mutilation and an appropriate indemnification, execute and deliver a replacement Note to such
Lender in the same principal amount and otherwise of like tenor as the lost, stolen, destroyed or
mutilated Note.
Section 2.07. Payments and Distributions. Borrower shall make each payment under
this Agreement and under the Notes not later than 11:00 a.m. (New York time) on the date when due
to Administrative Agent at Administrative Agent’s Office in immediately available funds.
Administrative Agent will thereafter, on the day of its receipt of each such payment, cause to be
distributed to each Lender such Lender’s appropriate share (based upon the respective outstanding
principal amounts of the Notes and the respective rates of interest thereunder) of the payments of
principal and interest, and its appropriate share of the payments of other sums, in like funds for
the account of such Lender’s Applicable Lending Office. Payments by Borrower hereunder or under
the Notes or other Loan Documents shall be made without setoff or counterclaim.
Except to the extent otherwise provided in this Agreement, whenever any payment to be made
under this Agreement or under the Notes is due on any day other than a Business Day, such payment
shall be made on the next succeeding Business Day, and such extension of time shall in such case be
included in the computation of the payment of interest and, if applicable, fees, as the case may
be.
Each Lender’s interest in the Loan shall be of equal priority with the interest of each other
Lender.
Section 2.08. Interest. Borrower shall have the option, subject to the terms and
conditions set forth in this Agreement, of paying interest on the Principal Amount or portions
thereof at the Prime Based Rate or the LIBO Based Rate. If Borrower desires the application of the
LIBO Based Rate, it shall submit a LIBO Rate Request to Administrative Agent, which LIBO Rate
Request shall be irrevocable, subject to Borrower’s right to convert the rate of interest payable
under the Notes with respect to any LIBOR Amount from the LIBO Based Rate to the Prime Based Rate
as provided in Section 2.10. Administrative Agent shall, on the day of its receipt of the LIBO
Rate Request from Borrower, notify each Lender by either telephone or by facsimile of the specified
LIBOR Amount and the amount of the Lender’s portion thereof, the Interest Period and date of
commencement thereof, and the interest rate applicable to such LIBOR Amount. Each LIBO Rate
Request shall be applicable to the Notes in accordance with the Lenders’ respective Pro Rata
Shares, so that, barring a conversion or suspension of the LIBO Based Rate by one or more, but not
all, Lenders, pursuant to Article III, the
10
outstanding principal amounts of each of the Notes shall contain segments bearing interest at
the Prime Based Rate and/or LIBO Based Rate(s) under particular Interest Period(s), each of which
segments shall correspond to a proportional segment of the outstanding principal amount of every
other Note. In the event that Borrower fails to submit a LIBO Rate Request with respect to a LIBOR
Amount not later than 12 Noon (New York time) three (3) Business Days prior to the last day of the
relevant Interest Period, the LIBOR Amount in question shall bear interest, commencing at the end
of such Interest Period, at the Prime Based Rate.
Interest shall be computed on an actual/360-day basis (i.e., interest for each
day during which any portion of the Principal Amount is bearing interest at a particular interest
rate per annum shall be computed at such rate divided by 360).
Borrower shall pay interest on the Principal Amount to Administrative Agent for the account of
Lenders. Interest on the Principal Amount shall be payable, in arrears, monthly on the first day
of the first month following the date hereof and on the first day of each month thereafter until
the Notes are repaid in full.
Section 2.09. Limitation on Number of Interest Periods. Borrower shall not have the
right to have more than five (5) Interest Periods, in the aggregate, in respect of the Loan in
effect at any one time, whether or not any portion of the Principal Amount is then bearing interest
at the Prime Based Rate.
Section 2.10. Conversions of Interest Rate. Provided there exists no Event of
Default, Borrower shall have the right to convert, from time to time, the rate of interest payable
under the Notes with respect to any portion of the Principal Amount to the LIBO Based Rate or the
Prime Based Rate, subject to the terms of this Agreement (including, without limitation, the
payment of all amounts due in connection with any such conversion from the LIBO Based Rate on a
date other than the last day of an applicable Interest Period) and provided that, in the
case of a conversion from the LIBO Based Rate, the entire LIBOR Amount is the subject of the
conversion. Conversions shall be accomplished (i) in the case of a conversion from the Prime Based
Rate to the LIBO Based Rate, by Borrower’s submission of a LIBO Rate Request in accordance with
Section 2.08 or (ii) in the case of a conversion from the LIBO Based Rate to the Prime Based Rate,
by Borrower’s request to Administrative Agent by telephone (to be promptly confirmed in writing),
to be received by Administrative Agent at least three (3) Business Days prior to the date specified
for such conversion, specifying the LIBOR Amount with respect to which the interest rate is to be
converted and the date of the conversion. On the date of its receipt of such request,
Administrative Agent shall notify each Lender thereof either by telephone or by facsimile.
Section 2.11. Inapplicability of LIBO Based Rate. Any portion of the Principal
Amount to which the LIBO Based Rate is not or cannot pursuant to the terms of this Agreement be
applicable shall bear interest at the Prime Based Rate. Upon the occurrence of an Event of
Default, the entire Principal Amount shall, at the option of the Required Lenders, immediately and
without notice to Borrower, bear interest at the Prime Based Rate. In addition, following the
occurrence of an Event of Default, Borrower shall
11
have no right to submit a LIBO Rate Request with respect to any LIBOR Amount for which the
current Interest Period is expiring. The foregoing provisions shall not be construed as a waiver
by Lenders of their right to pursue any other remedies available to them under the Mortgage or any
other Loan Document nor shall they be construed to limit in any way the application of the Default
Rate as provided in the Mortgage.
Section 2.12. Late Payment Premium. Borrower shall pay to Administrative Agent for
the account of Lenders a late payment premium in the amount of 5% of any payments of principal or
interest under the Loan made more than ten (10) days after the due date thereof, which late payment
premium shall be due with any such late payment.
Section 2.13. Voluntary Prepayments. Borrower may, upon at least fifteen (15)
Business Days’ notice (which notice shall be irrevocable) to Administrative Agent, prepay the
Principal Amount, in whole or part, without premium or penalty; provided, however,
that (i) any partial prepayment under this Section shall be in a principal amount of not less than
$1,000,000 and an integral multiple of $100,000, (ii) prepayment of a LIBOR Amount other than on
the last day of the applicable Interest Period shall be subject to the provisions of Section 3.03
and (iii) each prepayment under this Section shall include all interest accrued on the amount of
principal prepaid (and all late charges and other sums that may be payable) through the date of
prepayment. Amounts prepaid may not be reborrowed.
Section 2.14. Annual Commitment Reduction/Required Amortization. Commencing on the
first day of February, 2007 and on the first day of each month thereafter until the Maturity Date,
Borrower shall make mandatory principal payments in the amount of $20,603, each in reduction of the
Principal Amount. The aforesaid principal payments shall be applied first to the Principal Amount
evidenced by the New Note until repaid in full and then shall be applied to the Principal Amount
evidenced by the Existing Note.
Section 2.15. Extension of Maturity. Borrower shall have the right to extend the
Maturity Date for a period of one (1) year, to December 1, 2012 (the “First Extension Term”), upon
satisfaction of the following conditions: (i) Borrower shall give notice to Administrative Agent
of Borrower’s election to so extend the Maturity Date no later than thirty (30) days prior to the
original Maturity Date and no earlier than ninety (90) days prior to the original Maturity Date,
(ii) no Default or Event of Default exists at either the time Borrowers gives notice of its
exercise of such extension option or as of the original Maturity Date, (iii) with Borrower’s notice
exercising such extension option, Borrower shall pay to BofA the extension fee required pursuant to
the Supplemental Fee Letter, which fee shall be earned by BofA upon receipt and (iv) without
limiting the generality of the foregoing, Borrower shall be in compliance with Section 6.06.
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ARTICLE III
YIELD MAINTENANCE ETC.
Section 3.01. Additional Costs and Other Effects of Regulatory Changes; Taxes.
Borrower shall pay directly to a Lender, promptly upon demand, such amounts as are necessary to
compensate such Lender for Additional Costs resulting from any Regulatory Change which (i) subjects
such Lender to any tax, duty or other charge with respect to the Loan or its Note, or changes the
basis of taxation of any amounts payable to such Lender under the Loan or its Note (other than
taxes imposed on the overall net income of such Lender or of its Applicable Lending Office by the
jurisdiction in which such Lender’s principal office or such Applicable Lending Office is located),
(ii) imposes, modifies or deems applicable any reserve, special deposit or similar requirements
relating to any extensions of credit or other assets of, or any deposits with or other liabilities
of, such Lender, (iii) imposes on such Lender or, in the case of LIBOR Amounts, on the London
interbank market, any other condition affecting the Loan or its Note, or any of such extensions of
credit or liabilities or (iv) imposes any capital adequacy requirements on such Lender by virtue of
the Loan or the Notes. Such Lender will notify Borrower (with a copy to Administrative Agent) of
any event occurring after the date hereof which would entitle it to compensation pursuant to this
paragraph as promptly as practicable after it obtains knowledge thereof and determines to request
such compensation, and will designate a different Applicable Lending Office for those portions of
the Loan affected by such event if such designation will avoid the need for, or reduce the amount
of, such compensation and will not, in such Lender’s sole opinion, be disadvantageous to it,
provided that such Lender shall have no obligation to so designate an Applicable Lending Office
located in the United States.
Without limiting the effect of the immediately preceding paragraph, in the event that, by
reason of any Regulatory Change, (i) a Lender incurs Additional Costs based on or measured by the
excess above a specified level of the amount of (1) a category of deposits or other liabilities of
such Lender which includes deposits by reference to which the LIBO Rate is determined as provided
in this Agreement and/or (2) a category of extensions of credit or other assets of such Lender
which includes loans the interest on which is determined on the basis of rates referred to in the
definition of “LIBO Rate” in Section 1.01, (ii) a Lender becomes subject to restrictions on the
amount of such a category of liabilities or assets which it may hold or (iii) it shall be unlawful
or impossible for a Lender to make or maintain its Pro Rata Share of the Loan (or any portion
thereof) at the LIBO Based Rate, then such Lender’s obligation to make or maintain its Pro Rata
Share of the Loan (or any portion thereof) at the LIBO Based Rate (and Borrower’s right to request
the same) shall be suspended and such Lender shall give notice thereof to Borrower (with a copy to
Administrative Agent) and, upon the giving of such notice, interest payable on the affected Note
shall be converted to the Prime Based Rate, unless such Lender may lawfully continue to maintain
its Pro Rata Share of the Loan (or any portion thereof) then bearing interest at the LIBO Based
Rate to the end of the current Interest Period(s), at which time the interest rate on the affected
Note shall convert to the Prime Based Rate. If subsequent to any conversion to the Prime Based
Rate as provided above such Lender determines that such Regulatory Change has ceased
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to be in effect, such Lender will so notify Borrower (with a copy to Administrative Agent),
and Borrower may convert the rate of interest payable under the affected Note with respect to those
portions of the Principal Amount bearing interest at the Prime Based Rate to the LIBO Based Rate by
submitting a LIBO Rate Request in respect thereof and otherwise complying with the provisions of
this Agreement with respect thereto.
Determinations by each Lender of the existence or effect of any Regulatory Change on its costs
of making or maintaining its Pro Rate Share of the Loan, or portions thereof, at the LIBO Based
Rate, or on amounts receivable by it in respect thereof, and of the additional amounts required to
compensate such Lender in respect of Additional Costs, shall be conclusive, so long as made on a
reasonable basis.
Section 3.02. Limitations on Availability of LIBO Based Rate. Anything herein to the
contrary notwithstanding, if, at the time of or prior to the determination of the LIBO Based Rate
in respect of any LIBO Rate Request Amount as provided in this Agreement, (i) Administrative Agent
determines (which determination shall be conclusive, so long as made on a reasonable basis) that by
reason of circumstances affecting the London interbank market generally, adequate and fair means do
not or will not exist for determining the LIBO Rate applicable to an Interest Period or (ii) a
Lender determines (which determination shall be conclusive, so long as made on a reasonable basis)
that the LIBO Rate will not accurately reflect the cost to such Lender of making or maintaining its
Pro Rata Share of the Loan (or any portion thereof) at the LIBO Based Rate, then Administrative
Agent, in the case of the circumstances described in clause (i) above, or such Lender, in the case
of the circumstances described in clause (ii) above, shall give Borrower prompt notice thereof
(with a copy to Administrative Agent in the case of the notice from such Lender), and the LIBO Rate
Request Amount in question, in the case of the circumstances described in clause (i) above, or such
Lender’s portion thereof, in the case of the circumstances described in clause (ii) above, shall
bear interest, or continue to bear interest, as the case may be, at the Prime Based Rate. If at
any time subsequent to Administrative Agent’s or such Lender’s giving of such notice,
Administrative Agent or such Lender, as the case may be, determines that because of a change in
circumstances the LIBO Based Rate is again available to Borrower, Administrative Agent or such
Lender, as the case may be, shall so notify Borrower (with a copy to Administrative Agent, in the
case of the notice from such Lender) and Borrower may convert the rate of interest payable under
the Notes or such Lender’s Note, as the case may be, from the Prime Based Rate to the LIBO Based
Rate by submitting a LIBO Rate Request in respect thereof and otherwise complying with the
provisions of this Agreement with respect thereto.
Section 3.03. Certain Compensation. Borrower shall pay directly to a Lender,
immediately upon request and notwithstanding contrary provisions contained in the Mortgage or other
Loan Documents, such amounts as shall, in the judgment of such Lender (which shall be conclusive so
long as made on a reasonable basis), compensate it for any loss, cost or expense incurred by it as
a result of (i) any payment or prepayment (under any circumstances whatsoever, whether voluntary or
involuntary) of any portion of the Principal Amount bearing interest at the LIBO Based Rate on a
date other than the last day of an applicable Interest Period, (ii) the conversion (for any reason
whatsoever,
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whether voluntary or involuntary) of the rate of interest payable under such Lender’s Note
from the LIBO Based Rate to the Prime Based Rate with respect to any portion of the Principal
Amount then bearing interest at the LIBO Based Rate on a date other than the last day of an
applicable Interest Period, (iii) the failure of all or a portion of an advance of the Loan which
was to have borne interest at the LIBO Based Rate pursuant to a LIBO Rate Request to be made, (iv)
any failure by Borrower to prepay any portion of the Principal Amount bearing interest at the LIBO
Based Rate on the date specified in Borrower’s notice of prepayment or (v) the failure of Borrower
to borrow, continue or convert in accordance with a LIBO Rate Request submitted by it, which
amounts shall include, without limitation, an amount equal the Present Value (determined as
hereinafter provided) of the dollar amount which is obtained by multiplying the number of days from
the date of the occurrence to the last day of the applicable Interest Period by a number which is
calculated by (i) multiplying the amount prepaid, converted, not advanced, not prepaid or not
borrowed, as the case may be, by the excess of the LIBO Based Rate applicable thereto over the
current rate for United States Treasury securities (bills on a discounted basis shall be converted
to a bond equivalent) with a maturity date closest to the last day of the applicable Interest
Period and (ii) dividing the product thereof by 360. For purposes of this Section, Present Value
shall be determined by using the number of days during the period from the date of occurrence to
and including the last day of the applicable Interest Period and using the above-referenced United
States Treasury security rate. A determination by a Lender as to the amounts payable to it
pursuant to this Section shall be conclusive absent manifest error.
Section 3.04. “Lender” to Include Participants. For purposes of this Article III and
of the definition of “Additional Costs” in Section 1.01, the term “Lender” shall, at each Lender’s
option, be deemed to include such Lender’s present and future Participants in the Loan to the
extent of each such Participant’s actual Additional Costs or other losses, costs or expenses
payable pursuant to this Article III.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent to Loan. Lenders shall not be obligated to make
the Loan until the following conditions shall have been satisfied:
(a) There shall exist no Default or Event of Default, and no Default or Event of
Default would result from the making of the Loan;
(b) The representations and warranties made to Administrative Agent or Lenders herein,
in the other Loan Documents and in any other document, certificate or statement executed or
delivered to Administrative Agent or Lenders in connection with the Loan shall be true and
correct on and as of the date of the advance of the Loan with the same effect as if made on
such date;
(c) The Improvements shall not have been materially injured or damaged by fire or
other casualty; and
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(d) Lenders shall have received and approved each of the following:
(1) Loan Fees and Expenses. (i) Payment of the fees required by the
Supplemental Fee Letter and (ii) payment of all fees and expenses incurred by
Administrative Agent (including, without limitation, the reasonable fees and
expenses of Lenders’ Counsel, Lenders’ environmental and insurance consultants, and
the preparer of the appraisal required by paragraph (4) below);
(2) Loan Documents. This Agreement and each of the other Loan
Documents, duly executed by the parties thereto, and, where applicable, duly
acknowledged and in proper form for recording or filing, as the case may be, and
all necessary or desirable recordings and filings shall have been duly made;
(3) Financial Statements. Current Financial Statements and such other
financial data (including, without limitation, current financial statements of
tenants under leases in respect of the Mortgaged Property and of parties to any of
the Premises Documents, and of the guarantor(s), if any, of any such tenants or
parties) as Administrative Agent shall require;
(4) Appraisal. An independent M.A.I. appraisal of the Property and
Improvements complying in all respects with the standards for real estate
appraisals established pursuant to the Financial Institutions Reform, Recovery, and
Enforcement Act of 1989;
(5) Insurance Policies. The policies of insurance required by the
Mortgage, together with evidence of the payment of the premiums therefor;
(6) Hazardous Materials Report/Reliance Letter. A detailed report by
a properly qualified engineer, which shall include, inter alia, a
certification that such engineer has obtained and examined a list of prior owners,
tenants and other users of all or any portion of the Property or any improvements
thereon, and has made an on-site physical examination of the Property, and a visual
observation of the surrounding areas, and has found no evidence of past or present
Hazardous Materials activities or the presence of Hazardous Materials, together
with, if required by Administrative Agent, a “reliance letter” addressed to
Administrative Agent with respect to such report;
(7) Title Policy. A paid title insurance policy, in the amount of
$16,000,000 in ALTA 10-17-92 or other form approved by Lender’s Counsel with such
endorsements as shall be reasonably requested by Lender’s Counsel, issued by the
Title Insurer which shall insure the Mortgage to be a valid lien on Borrower’s
interest in the premises free and
16
clear of all defects and encumbrances except those previously received and
approved by Lender’s Counsel, and shall contain (i) full coverage against
mechanics’ liens (filed and inchoate), (ii) a reference to the survey but no survey
exceptions except those theretofore approved by Lender’s Counsel, (iii) such
affirmative insurance and endorsements as Lender’s Counsel may require, and (iv) if
any such policy is dated earlier than the date of the disbursement of the Loan, an
endorsement to such policy, in form approved by Lender’s Counsel, redating the
policy and setting forth no additional exceptions except those approved by Lender’s
Counsel; and shall be accompanied by such reinsurance agreements between the Title
Insurer and title companies approved by Lender, in ALTA 1994 facultative form, as
Lender may require;
(8) Survey. A current, as-built survey of the Property, certified to
Lender and the Title Insurer showing (i) the location of the perimeter of the
Property by courses and distances, (ii) all easements, rights-of-way, and utility
lines referred to in the title policy required by this Agreement or which actually
service or cross the Property, (iii) the lines of the streets abutting the Property
and the width thereof, and any established building and setback lines, (iv)
encroachments and the extent thereof upon the Property, (v) the Improvements and
the relationship thereof by distances to the perimeter of the Property, established
building, setback and street lines and (vi) if the Property is described as being
on a filed map, a legend relating the survey to said map, provided that
Administrative Agent hereby acknowledges that the surveys received on or prior to
the date hereof shall satisfy this requirement notwithstanding the fact that they
may not be current provided that no unacceptable survey exception is taken in the
title insurance policy insuring the Mortgage;
(9) Leases and Premises Documents. Certified copies of all leases in
respect of the Mortgaged Property, accompanied by, in the case of Anchors and any
other leases specified by Administrative Agent, estoppel certificates from the
tenants thereunder and executed notice-of-assignment letters in the form of EXHIBIT
B in respect thereof; executed subordination and attornment agreements, in
Administrative Agent’s usual form, in respect of such leases as Administrative
Agent may require; a certified copy of the standard form of lease or contract of
sale, as the case may be, Borrower will use in connection with the leasing of space
in the Improvements or the sale of portions of the Property; certified copies of
all Premises Documents, together with estoppel certificates from the parties
thereto and a certified current rent roll for the Improvements;
(10) Requisition. A Requisition for the advance of Loan proceeds,
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(11) Counsel Opinions. Opinions of Borrower’s counsel and local
counsel (and, if required by Lender, of a local counsel selected by Lender
or Lender’s Counsel) to the effects set forth on EXHIBIT C;
(12) Organizational Documents. If Borrower, the mortgagor or grantor
under the Mortgage (if different from Borrower), Guarantor or any general partner
or member of any of them is a corporation, current copies of the following
documents with respect to each (unless otherwise indicated):
(i) a good-standing certificate from the jurisdiction of its
incorporation and, as to Borrower and the mortgagor or grantor under the
Mortgage only, from the jurisdiction in which the Property is located,
(ii) a resolution, certified by the corporate secretary, of the
shareholders or directors of the corporation authorizing the consummation
of the transactions contemplated hereby and the execution, delivery and
performance of the Loan Documents and any other documents to be executed,
delivered or performed by said corporation (including any substitute or
replacement Notes to be executed and delivered pursuant to the terms
hereof), and
(iii) a certificate of the corporate secretary as to the incumbency
of the officers executing any of the documents required hereby,
and, if Borrower, the mortgagor or grantor under the Mortgage (if different from
Borrower), Guarantor or any general partner or member of any of them is a
partnership, venture, limited liability company or trust:
(iv) the entity’s organizational agreement and all amendments and
attachments thereto, certified by a general partner, venturer, member or
trustee to be true and complete,
(v) any certificates filed or required to be filed by the entity in
the jurisdictions of its formation and where the Property is located in
order for it to do business in those jurisdictions, and
(vi) evidence of the authorization of the consummation of the
transactions contemplated hereby and the execution, delivery and
performance of the Loan Documents and any other documents to be executed,
delivered or performed by said entity (including any substitute or
replacement notes to be executed and delivered pursuant to the terms
hereof), and including any required consents by partners, venturers,
members, trustees or beneficiaries;
(13) Intentionally Omitted;
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(14) Permits and Approvals. Copies of the certificate(s) of occupancy
for the Improvements and of any and all other authorizations (including plot plan
and subdivision approvals, zoning variances, water, sewer, building and other
permits) required by Governmental Authorities or otherwise necessary for the use,
occupancy and operation of the Property and/or Improvements for their intended
purposes in accordance with all applicable Laws;
(15) Intentionally Omitted;
(16) Chattel Searches. UCC searches against Borrower or other owner
of the Mortgaged Property and advice from the Title Insurer to the effect that
searches of proper public records disclose no leases of personalty or financing
statements filed or recorded against the Mortgaged Property, Borrower or other
owner of any Mortgaged Property;
(17) Intentionally Omitted; and
(18) Additional Documentation. Such other approvals, opinions or
documents as Lender may reasonably request including, but not limited to, (i) a
current certified rent roll for the Mortgaged Property and tenant estoppel letters
for all Anchors, (ii) ground lessor estoppel certificates from the ground lessor
with respect to the Property and (iii) current financial statements of Guarantor
showing a minimum net worth of $100,000,000 (the “Net Worth Requirement”) and a
minimum Unrestricted Cash and Cash Equivalents of $10,000,000 (the “Liquidity
Requirement”).
Section 4.02. Intentionally Omitted.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Borrower and Guarantor represent and warrant to Administrative Agent and Lenders that:
Section 5.01. Due Formation, Power and Authority. If it, the mortgagor or grantor
under the Mortgage (if different from Borrower), Guarantor or any general partner or member of any
of them is a corporation, partnership, venture, limited liability company or trust, each such
entity is duly organized, validly existing and in good standing under the Laws of the jurisdiction
of its formation, is qualified to do business (if required) and is in good standing in the
jurisdiction in which the Property is located, and has full power and authority to consummate the
transactions contemplated hereby and to execute, deliver and perform this Agreement and any other
Loan Document to which it is a party.
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Section 5.02. Legally Enforceable Agreements. Each Loan Document to which Borrower
or Guarantor is a party is a legal, valid and binding obligation of such party, enforceable against
Borrower or Guarantor, as the case may be, in accordance with its terms, except to the extent that
such enforcement may be limited by applicable bankruptcy, insolvency and other similar Laws
affecting creditors’ rights generally.
Section 5.03. Financial Statements. Financial Statements have been heretofore
delivered to Lenders which are true, correct and current in all respects and which fairly present
the respective financial conditions of the subjects thereof as of the respective dates thereof; no
material adverse change has occurred in the financial conditions reflected therein since the
respective dates thereof and no borrowings (other than the Loan) which might give rise to a lien or
claim against the Mortgaged Property or proceeds of the Loan have been made by Borrower or others
since the dates thereof.
Section 5.04. Compliance With Laws; Payment of Taxes. Borrower and Guarantor are in
compliance with, and the transactions contemplated hereby and by the other Loan Documents do not
and will not violate any provision of, or require any filing, registration, consent or approval
under, any Law presently in effect having applicability to Borrower or Guarantor; Borrower has
filed all tax returns (federal, state and local) required to be filed and has paid all taxes,
assessments and governmental charges and levies due and payable (including those in respect of the
Mortgaged Property), including interest and penalties.
Section 5.05. Litigation. There are no actions, suits or proceedings pending or
threatened against or affecting it, Guarantor, the Mortgaged Property, the validity or
enforceability of the Mortgage or the priority of the lien thereof at law, in equity or before or
by any Governmental Authorities except actions, suits or proceedings which have been disclosed to
Administrative Agent and Lenders in writing and which are fully covered by insurance or would, if
adversely determined, not substantially impair the ability of Borrower or Guarantor to pay when due
any amounts which may become payable under the Notes or Guaranty or to otherwise pay and perform
their respective obligations in connection with the Loan; to Borrower’s knowledge, neither it nor
Guarantor is in default with respect to any order, writ, injunction, decree or demand of any court
or Governmental Authorities.
Section 5.06. No Conflicts or Defaults. The consummation of the transactions
contemplated hereby and the performance hereof and of the other Loan Documents have not resulted
and will not result in any breach of, or constitute a default under, any mortgage, deed of trust,
lease, bank loan or credit agreement, corporate charter, by-laws, partnership agreement or other
instrument to which Borrower or Guarantor is a party or by which either of them may be bound or
affected.
Section 5.07. Solvency. Borrower and Guarantor are, and upon consummation of the
transactions contemplated by this Agreement, the other Loan Documents and any other related
documents, will be, solvent.
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Section 5.08. Governmental Regulation. Borrower is not subject to regulation under
the Investment Company Act of 1940 or any Law limiting its ability to incur indebtedness for money
borrowed as contemplated hereby.
Section 5.09. Insurance. Borrower has in force, and has paid the premiums in respect
of, all of the insurance required by the Mortgage.
Section 5.10. ERISA. Neither Borrower nor Guarantor nor any other Person, including
any fiduciary, has engaged in any prohibited transaction (as defined in Section 4975 of the Code or
Section 406 of ERISA) which could subject Borrower or Guarantor or any Person whom they have an
obligation to indemnify to any tax or penalty imposed under Section 4975 of the Code or Section 502
of ERISA; neither Borrower nor Guarantor nor any ERISA Affiliate maintains, contributes to or has
any liability with respect to a Multiemployer Plan or any other plan subject to Title IV of ERISA;
each Employee Benefit Plan is administered in accordance with its terms and in compliance with all
applicable Laws, including any reporting requirements; each Pension Plan intending to qualify under
Section 401(a) or 401(k) of the Code does so qualify; there is no lien outstanding or security
interest given in connection with a Pension Plan; neither Borrower nor Guarantor nor any ERISA
Affiliate has any liability with respect to an accumulated funding deficiency (whether or not
waived) under Section 412 of the Code or Section 302 of ERISA; neither Borrower nor Guarantor has
any liability for retiree medical or death benefits (contingent or otherwise) other than as
required by Section 4980B of the Code; and no part of the funds to be used by Borrower or Guarantor
in satisfaction of their respective obligations under this Agreement and the other Loan Documents
constitute “plan assets” of any “employee benefit plan” within the meaning of ERISA or of any
“plan” within the meaning of Section 4975(e)(1) of the Code, as interpreted by the Internal Revenue
Service and the United States Department of Labor in rules, regulations, releases or bulletins or
as interpreted under applicable case law.
Section 5.11. Other Documents. The Major Leases and Premises Documents are
unmodified and in full force and effect, there are no defaults (or events which with notice or the
passage of time, or both, would constitute such a default) under any thereof and all conditions to
the effectiveness and continuing effectiveness thereof required to be satisfied as of the date
hereof have been satisfied.
Section 5.12. No Defaults. There exists no Default or Event of Default.
Section 5.13. Accuracy of Information; Full Disclosure. Neither this Agreement nor
any documents, financial statements, reports, notices, schedules, certificates, statements or other
writings furnished by or on behalf of Borrower or Guarantor to Lender in connection with the
negotiation of this Agreement or the other Loan Documents or the consummation of the transactions
contemplated hereby, or required herein or by the other Loan Documents to be furnished by or on
behalf of Borrower or Guarantor, contains any untrue or misleading statement of a material fact or
omits a material fact necessary to make the statements herein or therein not misleading; there is
no fact which Borrower has not disclosed to Administrative Agent and Lenders in writing which
materially affects adversely nor, so far as Borrower can now foresee, will
21
materially affect adversely any of the Mortgaged Property or the business affairs or financial
condition of Borrower or Guarantor, or the ability of Borrower or Guarantor to perform this
Agreement and the other Loan Documents.
Section 5.14. Separate Tax and Zoning Lot. Each Mortgaged Property constitutes a
distinct parcel for purposes of zoning and of taxes, assessments and impositions (public or
private) and are not otherwise considered as part of a larger single lot for purposes of zoning or
of taxes, assessments or impositions (public or private).
Section 5.15. The Improvements. There are no structural defects in the Improvements
or violations of any requirement of any Governmental Authorities with respect thereto; the use,
occupancy and operation of the Improvements comply with all applicable permits and restrictive
covenants affecting the Mortgaged Property, as well as with the Premises Documents and with all
zoning, building, environmental, ecological, landmark, subdivision and other Laws, and all
requirements for such use, occupancy and operation have been satisfied; there exist a sufficient
number of parking spaces necessary to satisfy the requirements of the Premises Documents and any
leases and all zoning and other applicable legal requirements with respect to the Mortgaged
Property, and all required landscaping, sidewalks and other amenities, and all off-site
improvements, related to the Improvements have been completed.
Section 5.16. Utility Services. All utility services necessary for the use and
operation of the Improvements for their intended purposes are available and servicing the Property,
including water supply, storm and sanitary sewer, gas, electric power and telephone facilities.
Section 5.17. Creation of Liens. It has entered into no contract or arrangement of
any kind the performance of which by the other party thereto would give rise to a lien on the
Mortgaged Property or any part thereof.
Section 5.18. Roads. All roads necessary for the full utilization of the
Improvements for their intended purposes have been completed and dedicated to public use and
accepted by all appropriate Governmental Authorities.
Section 5.19. Requisition as Reaffirmation. Each Requisition submitted to
Administrative Agent, and the receipt of the funds requested thereby, shall constitute an
affirmation by Borrower that the representations and warranties contained herein and in the other
Loan Documents remain true and correct as of the respective dates of such Requisitions.
Section 5.20. Patriot Act.
(a) As of the date hereof, none of the funds or other assets of Borrower or of any of its
direct or indirect owners (including Guarantor) constitute property of, or are beneficially owned,
directly or indirectly, by, any Person subject to trade restrictions under United States Law,
including those who are covered by the International Emergency Economic Powers Act, 50 U.S.C.
§§1701 et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et
seq., and any Executive Orders or regulations
22
promulgated thereunder (an “Embargoed Person”) with the result that the investment in Borrower
(whether directly or indirectly) is prohibited by such applicable Law or the Loan is in violation
of such Law; (ii) no Embargoed Person has any interest of any nature whatsoever (whether directly
or indirectly) in Borrower with the result that the investment in Borrower (whether directly or
indirectly) is prohibited by such applicable Law or the Loan is in violation of such Law; and (iii)
none of the funds of Borrower have been derived from any unlawful activity with the result that the
investment in Borrower (whether directly or indirectly) is prohibited by such applicable Law or the
Loan is in violation of such Law.
(b) Neither Borrower nor any of its direct or indirect owners (including Guarantor) is in
violation of the U.S. Federal Bank Secrecy Act, as amended, and its implementing regulations (31
CFR part 103), the Uniting and Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 and the regulations promulgated
thereunder, any order issued with respect to anti-money laundering by the U.S. Department of the
Treasury’s Office of Foreign Assets Control (“OFAC”), or any other anti-money laundering Law.
(c) Neither Borrower nor any if its direct or indirect owners (including Guarantor) is a
Person with whom United States Persons are restricted from doing business with under (a)
regulations issued by OFAC (including those persons and entities named on OFAC’s Specially
Designated Nationals and Blocked Persons list) or under any United States Law (including the
September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions With Persons Who
Commit, Threaten to Commit, or Support Terrorism) or (b) any other Law. Without limiting the
foregoing, Borrower is not presently funding its obligations hereunder with funds from any of the
Persons referred to in this paragraph (c).
ARTICLE VI
COVENANTS OF BORROWER
Borrower covenants and agrees with Administrative Agent and Lenders that it will promptly:
Section 6.01. Compliance with Laws; Payment of Taxes. Comply with all Laws
applicable to it or the Mortgaged Property, or any part thereof, such compliance to include,
without limitation, paying before the same become delinquent all taxes, assessments and
governmental charges imposed on it or the Mortgaged Property, or any part thereof, and promptly
furnish Administrative Agent with reports of any official searches made by Governmental Authorities
and any claims of violations thereof.
Section 6.02. Leases and Premises Documents. Not enter into any Major Lease without
the prior written consent of Administrative Agent, not to be unreasonably withheld or delayed; and
deliver to Administrative Agent certified copies of all leases in respect of the Mortgaged Property
and all Premises Documents and all amendments to any thereof (in any case, whether executed before
or after the date hereof) together with
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(i) if requested by Administrative Agent, current financial statements of the tenants
thereunder or parties thereto as the case may be, and of the guarantor(s), if any, of such tenants
or parties and (ii) in the case of all Major Leases, a notice-of-assignment letter in the form of
EXHIBIT B; and keep all Premises Documents and, except as may be permitted by the Mortgage, all
leases in full force and effect.
Section 6.03. Continuing Accuracy of Representations and Warranties. Cause all of
the representations and warranties made to Administrative Agent or Lenders herein and in the other
Loan Documents to be continuously true and correct.
Section 6.04. Covenants, Restrictions and Easements. Comply with all restrictions,
covenants and easements affecting the Mortgaged Property or the Improvements and cause the
satisfaction of all conditions hereof.
Section 6.05. Guarantor Financial Covenants. Cause Guarantor to comply at all times
with the Liquidity Requirement and the Net Worth Requirement.
Section 6.06. Financial Covenants. At all times not permit or allow (i) the
Principal Amount to exceed 65% of the appraised value of the Mortgaged Property (the “Loan to Value
Test”) as determined by an independent appraisal conducted at Borrower’s expense by an appraiser
selected by Administrative Agent, which appraisal shall be conclusive as to value absent manifest
error, provided, however, that Borrower shall not be obligated to pay for more than one (1)
appraisal per any twelve (12) consecutive month period so long as no Event of Default exists or
(ii) Net Operating Income to be less than 140% of debt service on the Principal Amount (the “DSC
Test”). For purposes of determining compliance with the DSC Test, Net Operating Income shall be
calculated on a semi-annual basis using six months’ actual figures and the projected figures for
the next succeeding six months and debt service shall be calculated using an interest rate equal to
the greater of (a) the actual interest rate; (b) the Treasury Rate plus 225 basis points or (c) an
interest rate equal to 8.0% and a (25) year equal payment self liquidating amortization schedule.
For purposes of determining compliance with the Loan to Value Test, a new appraisal shall not be
required for each advance provided the appraisal required in connection therewith shall not be more
than twelve (12) months old and any required reappraisals shall be made at Borrower’s expense,
subject to the limitation set forth in clause (i) above. Failure to comply with the Loan to Value
Test or the DSC Test shall not constitute an Event of Default under the Mortgage and hereunder if,
within forty-five (45) days of the date upon which Mortgagor receives written notice from
Administrative Agent of Borrower’s non-compliance thereof (the “Notice Date”), Mortgagor complies
with the provisions of this Section 6.06, by either (i) partially prepaying the Note and the
Hedging Agreement and all applicable prepayment or other charges, if any, provided for in the Note
so that Borrower is in compliance herewith or (ii) delivering to Administrative Agent cash, a
letter of credit from a financial institution acceptable to Administrative Agent, or such other
collateral as may be acceptable to Lender in its sole discretion in an amount equal to the amount
that would have been required to have been prepaid pursuant to (i) above in order to cure such
default.
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Section 6.07. Payment of Costs. Pay all costs and expenses required for the
satisfaction of the conditions hereof, including, without limitation (i) all document and stamp
taxes, recording and filing expenses and fees and commissions lawfully due to brokers in connection
with the transactions contemplated hereby, (ii) any taxes, insurance premiums, liens, security
interests or other claims or charges against the Property or Improvements and (iii) all costs of
completion of the work to be performed by Borrower in space to be occupied in the Improvements
(including public space) to permit the lawful occupancy thereof for the purposes contemplated by
actual or prospective lessees or owners of such space as set forth in the individual leases,
subleases or purchase contracts thereof or in detailed work letters or other agreements or letters
of intent with respect thereto, or, in cases where there are no such leases, subleases, contracts,
work letters or other documents as aforesaid, as set forth in Borrower’s standard work letter or
the standard form of lease or contract, if any, required by paragraph (9) of Section 4.01(d), or,
in cases where none of the foregoing exists, to the level of building standard in accordance with
industry practices, as conclusively determined by Administrative Agent.
Section 6.08. Brokers. Indemnify Administrative Agent and Lenders against claims of
brokers arising by reason of the execution hereof or the consummation of the transactions
contemplated hereby.
Section 6.09. Correction of Defects. Upon demand of Administrative Agent, correct
any defects (including structural) in the Improvements.
Section 6.10. Intentionally Omitted.
Section 6.11. Reporting and Miscellaneous Document Requirements. Furnish directly to
each Lender:
(1) Semi-Annual Financial Statements of Borrower. On a semi-annual basis, as
soon as available and in any event within ninety (90) days after the end of each applicable
semi-annual period, Financial Statements of Borrower, in reasonable detail (including
detailed balance sheet, income statement, cash flow statement and one-year projections) and
stating in comparative form the respective figures for the corresponding date and period in
the prior semi-annual period;
(2) Annual Financial Statements of Borrower. On a annual basis, as soon as
available and in any event within ninety (90) days after the end of each applicable annual
period, Financial Statements of Borrower, in reasonable detail (including detailed balance
sheet, income statement, cash flow statement and one-year projections) and stating in
comparative form the respective figures for the corresponding date and period in the prior
annual period;
(3) Quarterly and Annual Financial Statements of Acadia Realty Trust. As soon
as available and in any event within one hundred (100) days after the end of each calendar
quarter and Fiscal Year, Financial Statements of Acadia Realty Trust, a Maryland real
estate investment trust (“Sponsor”), which is the parent of
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Guarantor, as of the end of and for such calendar quarter and Fiscal Year, in
reasonable detail (including detailed balance sheet, income statement, cash flow statement,
and contingent liability schedule) and stating in comparative form the respective figures
for the corresponding date and period in the prior Fiscal Year, audited (with respect to
the annual financial statements only) by BDO Seidman or one of the so-called “Big Four”
accounting firms or another firm of certified public accountants reasonably acceptable to
Administrative Agent , provided that, notwithstanding the foregoing, so long as Sponsor
timely files 10Q and 10K reports with the Securities and Exchange Commission, Sponsor shall
have complied with this clause (3);
(4) Covenant Compliance Certificates. Within sixty (60) days after the end of
each fiscal quarter, Guarantor shall submit to Lender a Covenant Compliance Certificate
certified by a principal financial or accounting officer or general partner, as the case
may be, in the Form of EXHIBIT E-1 hereto certifying, on the basis of Guarantor’s unaudited
financial statements, that Guarantor has met the Liquidity Requirement for the applicable
period. As soon as available and in any event within one hundred (100) days after the end
of each Fiscal Year, Guarantor shall submit to Lender a Covenant Compliance Certificate
certified by a principal financial or accounting officer or general partner, as the case
may be, in the Form of EXHIBIT E-2 hereto certifying, on the basis of Guarantor’s audited
Financial Statements as of the end of and for such Fiscal Year, that Guarantor has met the
Net Worth Requirement and the Liquidity Requirement;
(5) Notice of Litigation. Promptly after the commencement and knowledge
thereof, notice of all actions, suits, and proceedings before any court or arbitrator or
any Governmental Authority, affecting (i) Borrower which, if determined adversely to
Borrower are likely to result in a Material Adverse Change or (ii) all or any portion of
the Mortgaged Property under any Mortgage;
(6) Notices of Defaults and Events of Default. As soon as possible and in any
event within ten (10) days after Borrower becomes aware of the occurrence of a Default or
any Event of Default, a written notice setting forth the details of such Default or Event
of Default and the action which is proposed to be taken with respect thereto;
(7) Material Adverse Change. As soon as is practicable and in any event
within five (5) days after knowledge of the occurrence of any event or circumstance which
is likely to result in or has resulted in a Material Adverse Change, written notice
thereof;
(8) Offices. Thirty (30) days’ prior written notice of any change in the
chief executive office or principal place of business of Borrower;
(9) Environmental and Other Notices. As soon as possible and in any event
within ten (10) days after receipt, copies of (i) all Environmental Notices
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received by Borrower which are not received in the ordinary course of business and
which relate to any Property or a situation which is likely to result in a Material Adverse
Change and (ii) all reports of any official searches made by any Governmental Authority
having jurisdiction over any Property or the Improvements thereon, and of any claims of
violations thereof;
(10) Insurance Coverage. Promptly, such information concerning Borrower’s
insurance coverage as Administrative Agent may reasonably request;
(11) Bankruptcy of Tenants. Promptly after becoming aware of the same,
written notice of the bankruptcy, insolvency or cessation of operations of any tenant in
the Improvements on any Property to which 5% or more of the aggregate minimum rent from
such Improvements is attributable;
(12) Leasing Reports and Property Information. (i) Upon request by
Administrative Agent, but no more often than quarterly, an updated rent roll, leasing
report, and operating and cash statements for each Property and (ii) (ii) as soon as
available and in any event within ninety (90) days after the end of each Fiscal Year,
tenant sales report for each Property, to the extent Borrower is entitled to receive same
pursuant to the terms of the respective leases; and
(13) General Information. Promptly, such other information respecting the
condition or operations, financial or otherwise, of Borrower, Guarantor or any Properties
of Borrower as Administrative Agent may from time to time reasonably request.
ARTICLE VII
ADMINISTRATIVE AGENT; RELATIONS AMONG LENDERS
Section 7.01. Appointment, Powers and Immunities of Administrative Agent. Each
Lender hereby irrevocably appoints and authorizes Administrative Agent to act as its agent
hereunder and under any other Loan Document with such powers as are specifically delegated to
Administrative Agent by the terms of this Agreement and any other Loan Document, together with such
other powers as are reasonably incidental thereto. Administrative Agent shall have no duties or
responsibilities except those expressly set forth in this Agreement and any other Loan Document or
required by Law, and shall not by reason of this Agreement be a fiduciary or trustee for any Lender
except to the extent that Administrative Agent acts as an agent with respect to the receipt or
payment of funds, nor shall Administrative Agent have any fiduciary duty to Borrower nor shall any
Lender have any fiduciary duty to Borrower or any other Lender. No implied covenants,
responsibilities, duties, obligations or liabilities shall be read into this Agreement or otherwise
exist against Administrative Agent. Neither Administrative Agent nor any of its directors,
officers, employees, agents, attorneys-in-fact or affiliates shall be responsible to Lenders for
any recitals, statements, representations or warranties made by Borrower or any officer, partner or
official of Borrower or any other Person contained in this Agreement or any other Loan Document, or in any certificate or other
27
document or instrument referred to or provided for in, or received by any of them under, this
Agreement or any other Loan Document, or for the value, legality, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other Loan Document or any
other document or instrument referred to or provided for herein or therein, for the perfection or
priority of any lien securing the obligations hereunder or thereunder or for any failure by
Borrower or any Guarantor to perform any of its obligations hereunder or thereunder.
Administrative Agent may employ agents and attorneys-in-fact and shall not be responsible, except
as to money or securities received by it or its authorized agents, for the negligence or misconduct
of any such agents or attorneys-in-fact selected by it with reasonable care. Neither
Administrative Agent nor any of its directors, officers, employees, agents, attorneys-in-fact or
affiliates shall be liable or responsible for any action taken or omitted to be taken by it or them
hereunder or under any other Loan Document or in connection herewith or therewith, except for its
or their own gross negligence or willful misconduct.
Section 7.02. Reliance by Administrative Agent. Administrative Agent shall be
entitled to rely upon any certification, notice or other communication (including any thereof by
telephone, telex, telegram or cable) believed by it to be genuine and correct and to have been
signed or sent by or on behalf of the proper Person or Persons, and upon advice and statements of
legal counsel, independent accountants and other experts selected by Administrative Agent.
Administrative Agent may deem and treat each Lender as the holder of its Note and interest in the
Loan for all purposes hereof and shall not be required to deal with any Person who has acquired a
Participation in the Loan from a Lender. As to any matters not expressly provided for by this
Agreement or any other Loan Document, Administrative Agent shall in all cases be fully protected in
acting, or in refraining from acting, in accordance with instructions signed by the Required
Lenders, and such instructions of the Required Lenders and any action taken or failure to act
pursuant thereto shall be binding on all of Lenders and any other holder of all or any portion of
the Loan or Participation therein.
Section 7.03. Defaults. Administrative Agent shall not be deemed to have knowledge
of the occurrence of a Default or of an Event of Default unless Administrative Agent has actual
knowledge thereof or has received notice from a Lender or Borrower specifying such Default or Event
of Default and stating that such notice is a “Notice of Default.” In the event that Administrative
Agent has such actual knowledge or receives such a notice of the occurrence of a Default or Event
of Default, Administrative Agent shall give prompt notice thereof to Lenders. Administrative Agent
shall promptly send to each Lender a copy of any notice of a Default or Event of Default that
Administrative Agent sends to Borrower or Guarantor. Administrative Agent, following consultation
with Lenders, shall (subject to Section 7.07) take such action with respect to such Default or
Event of Default which is continuing, including with respect to the exercise of remedies or the
realization on, or operation or disposition of, any or all of the Mortgaged Property or any other
collateral for the Loan, as shall be directed by the Required Lenders; provided,
however, that, unless and until Administrative Agent shall have received such directions,
Administrative Agent may take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem to be in the best interest of Lenders. In no event shall Administrative Agent be required to take
28
any such action which it determines would be contrary to the Loan Documents or to Law. Each of
Lenders acknowledges and agrees that no individual Lender may separately enforce or exercise any of
the provisions of any of the Loan Documents (including, without limitation, the Notes) other than
through Administrative Agent.
Section 7.04. Rights of Administrative Agent as Lender. With respect to its Note and
interest in the Loan, Administrative Agent in its capacity as a Lender hereunder shall have the
same rights and powers hereunder as any other Lender and may exercise the same as though it were
not acting as Administrative Agent, and the terms “Lender” and “Lenders” shall include
Administrative Agent in its capacity as a Lender. Administrative Agent and its affiliates may
(without having to account therefor to any Lender) accept deposits from, lend money to (on a
secured or unsecured basis), and generally engage in any kind of banking, trust or other business
with, Borrower or Guarantor (and any affiliates of them) as if it were not acting as Administrative
Agent.
Section 7.05. Sharing of Costs by Lenders; Indemnification of Administrative Agent.
Each Lender shall pay its ratable share, based on the respective outstanding principal balances
under its Note and the other Notes, of any expenses incurred (and not paid or reimbursed by
Borrower after demand for payment is made by Administrative Agent) by or on behalf of Lenders in
connection with any Default or Event of Default, including, without limitation, costs of
enforcement of the Loan Documents and any advances to pay taxes or insurance premiums, to complete
the Improvements or otherwise to preserve the lien of the Mortgage or to preserve or protect the
Mortgaged Property. In the event a Lender fails to pay its share of expenses as aforesaid, and all
or a portion of such unpaid amount is paid by Administrative Agent and/or one or more of the other
Lenders, then the defaulting Lender shall reimburse Administrative Agent and/or the other Lender(s)
for the portion of such unpaid amount paid by it or them, as the case may be, together with
interest thereon at the Prime Based Rate from the date of payment by Administrative Agent and/or
the other Lender(s). In addition, each Lender agrees to reimburse and indemnify Administrative
Agent (to the extent it is not paid by on or behalf of Borrower, after demand for payment is made
by Administrative Agent, under Section 8.13 or under the applicable provisions of any other Loan
Document, but without limiting the obligation of Borrower under said Section 8.13 or such
provisions), for such Lender’s ratable share, based upon the respective outstanding principal
balances under its Note and the other Notes, of any and all 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 Administrative Agent in
any way relating to or arising out of this Agreement, any other Loan Document or any other
documents contemplated by or referred to herein or the transactions contemplated hereby or thereby
(including, without limitation, the costs and expenses which Borrower is obligated to pay under
Section 8.13 or under the applicable provisions of any other Loan Document) or the enforcement of
any of the terms hereof or thereof or of any such other documents or instruments; provided,
however, that no Lender shall be liable for (i) any of the foregoing to the extent they
arise from the gross negligence or willful misconduct of the party to be indemnified or (ii) any
loss of principal or interest with respect to Administrative Agent’s Note or interest in the Loan.
29
Section 7.06. Non-Reliance on Administrative Agent and Other Lenders. Each Lender
acknowledges that it has, independently and without reliance on Administrative Agent or any other
Lender, and based on such documents and information as it has deemed appropriate, made its own
analysis of the collateral for the Loan and of the credit of Borrower and Guarantor, and its own
decision to enter into this Agreement, and that it will, independently and without reliance upon
Administrative Agent or any other Lender, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own analysis and decisions in taking or not
taking action under this Agreement or any other Loan Document. Administrative Agent shall not be
required to keep itself informed as to the performance or observance by Borrower of this Agreement
or any other Loan Document or any other document referred to or provided for herein or therein or
to inspect the properties (including, without limitation, the Properties) or books of Borrower.
Except for notices, reports and other documents and information expressly required to be furnished
to Lenders by Administrative Agent hereunder, Administrative Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information concerning the affairs,
financial condition or business of Borrower or Guarantor (or any affiliate of them) which may come
into the possession of Administrative Agent or any of its affiliates. Administrative Agent shall
not be required to file this Agreement, any other Loan Document or any document or instrument
referred to herein or therein, for record or give notice of this Agreement, any other Loan Document
or any document or instrument referred to herein or therein, to anyone.
Section 7.07. Failure of Administrative Agent to Act. Except for action expressly
required of Administrative Agent hereunder, Administrative Agent shall in all cases be fully
justified in failing or refusing to act hereunder unless it shall have received further assurances
(which may include cash collateral) of the indemnification obligations of Lenders under Section
7.05 in respect of any and all liability and expense which may be incurred by it by reason of
taking or continuing to take any such action. If any indemnity furnished to Administrative Agent
for any purpose shall, in the opinion of Administrative Agent, be insufficient or become impaired,
Administrative Agent may call for additional indemnity and cease, or not commence, the action
indemnified against until such additional indemnity is furnished.
Section 7.08. Resignation or Removal of Administrative Agent. Administrative Agent
may be removed at any time with cause by the Required Lenders, provided that Borrower and the other
Lenders shall be promptly notified thereof. Upon such resignation or removal of Administrative
Agent, the Required Lenders shall have the right to appoint a successor Administrative Agent, which
successor Administrative Agent shall (provided there exists no Event of Default) be subject to
Borrower’s approval, such approval not to be unreasonably withheld or delayed. If no successor
Administrative Agent shall have been so appointed by the Required Lenders, and shall have accepted
such appointment, within twenty (20) days after the resignation or the Required Lenders’ removal of
the retiring Administrative Agent, then the retiring Administrative Agent may, on behalf of
Lenders, appoint a successor Administrative Agent, which shall be one of Lenders, within ten (10)
days. The Required Lenders or the retiring Administrative Agent, as the case may be, shall upon
the appointment of a successor Administrative Agent promptly so notify Borrower and the other
Lenders. Upon the acceptance of any
30
appointment as Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder. After any retiring
Administrative Agent’s resignation or removal hereunder as Administrative Agent, the provisions of
this Article VII shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as Administrative Agent.
Section 7.09. Amendments Concerning Agency Function. Notwithstanding anything to the
contrary contained in this Agreement, Administrative Agent shall not be bound by any waiver,
amendment, supplement or modification of this Agreement or any other Loan Document which affects
its duties, rights, and/or function hereunder or thereunder unless it shall have given its prior
written consent thereto.
Section 7.10. Liability of Administrative Agent. Administrative Agent shall not have
any liabilities or responsibilities to Borrower on account of the failure of any Lender to perform
its obligations hereunder or to any Lender on account of the failure of Borrower to perform its
obligations hereunder or under any other Loan Document.
Section 7.11. Transfer of Agency Function. Without the consent of Borrower or any
Lender, Administrative Agent may at any time or from time to time transfer its functions as
Administrative Agent hereunder to any of its offices wherever located in the United States,
provided that Administrative Agent shall promptly notify Borrower and Lenders thereof.
Section 7.12. Non-Receipt of Funds by Administrative Agent; Adjustments.
(a) Unless Administrative Agent shall have received notice from a Lender or Borrower (either
one as appropriate being the “Payor”) prior to the date on which such Lender is to make payment
hereunder to Administrative Agent of Loan proceeds or Borrower is to make payment to Administrative
Agent, as the case may be (either such payment being a “Required Payment”), which notice shall be
effective upon receipt, that the Payor will not make the Required Payment in full to Administrative
Agent, Administrative Agent may assume that the Required Payment has been made in full to
Administrative Agent on such date, and Administrative Agent in its sole discretion may, but shall
not be obligated to, in reliance upon such assumption, make the amount thereof available to the
intended recipient on such date. If and to the extent the Payor shall not have in fact so made the
Required Payment in full to Administrative Agent, the recipient of such payment shall repay to
Administrative Agent forthwith on demand such amount made available to it together with interest
thereon, for each day from the date such amount was so made available by Administrative Agent until
the date Administrative Agent recovers such amount, at the Federal Funds Rate.
(b) If, after Administrative Agent has paid each Lender’s share of any payment received or
applied by Administrative Agent in respect of the Loan, that payment is rescinded or must otherwise
be returned or paid over by Administrative
31
Agent, whether pursuant to any bankruptcy or insolvency Law, sharing of payments clause of any
loan agreement or otherwise, such Lender shall, at Administrative Agent’s request, promptly return
its share of such payment or application to Administrative Agent, together with such Lender’s
proportionate share of any interest or other amount required to be paid by Administrative Agent
with respect to such payment or application. In addition, if a court of competent jurisdiction
shall adjudge that any amount received and distributed by Administrative Agent is to be repaid,
each Person to whom any such distribution shall have been made shall either repay to Administrative
Agent its share of the amount so adjudged to be repaid or shall pay over the same in such manner
and to such Persons as shall be determined by such court.
Section 7.13. Withholding Taxes. Each Lender represents that it is entitled to
receive any payments to be made to it hereunder without the withholding of any tax and will furnish
to Administrative Agent such forms, certifications, statements and other documents as
Administrative Agent may reasonably request from time to time to evidence such Lender’s exemption
from the withholding of any tax imposed by any jurisdiction or to enable Administrative Agent to
comply with any applicable Laws relating thereto. Without limiting the effect of the foregoing, if
any Lender is not created or organized under the Laws of the United States or any state thereof,
such Lender will furnish to Administrative Agent Form W-8ECI or Form W-8BEN of the U.S. Internal
Revenue Service, or such other forms, certifications, statements or documents, duly executed and
completed by such Lender, as evidence of such Lender’s complete exemption from the withholding of
United States tax with respect thereto. Administrative Agent shall not be obligated to make any
payments hereunder to such Lender in respect of the Loan until such Lender shall have furnished to
Administrative Agent the requested form, certification, statement or document.
Section 7.14. Sharing of Payments among Lenders. If a Lender shall obtain payment of
any principal of its Note or of interest thereon through the exercise of any right of setoff,
banker’s lien or counterclaim, or by any other means (including direct payment), and such payment
results in such Lender receiving a greater payment than it would have been entitled to had such
payment been paid directly to Administrative Agent for disbursement to Lenders, then such Lender
shall promptly purchase for cash from the other Lenders Participations in the Loan in such amounts,
and make such other adjustments from time to time as shall be equitable, to the end that all
Lenders shall share ratably the benefit of such payment. To such end Lenders shall make
appropriate adjustments among themselves (by the resale of Participations sold or otherwise) if
such payment is rescinded or must otherwise be restored.
Section 7.15. Possession of Documents. Each Lender shall maintain possession of its
own Note. Administrative Agent shall hold all other Loan Documents and related documents in its
possession and maintain separate records and accounts with respect to the Loan, reflecting the
interests of Lenders in the Loan, and shall permit Lenders and their representatives access at all
reasonable times to inspect such Loan Documents, related documents, records and accounts.
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ARTICLE VIII
GENERAL CONDITIONS AND PROVISIONS
Section 8.01. Disbursement Not Waiver. The disbursement by Lenders of the Loan made
prior to or without the fulfillment by Borrower of all of the conditions precedent thereto, whether
or not known to Lenders, shall not constitute a waiver by Lenders of the requirement that all
conditions, including the non-performed conditions, shall be satisfied.
Section 8.02. No Third-Party Beneficiaries. This Agreement is solely for the benefit
of Administrative Agent, Lenders and Borrower. All conditions of the obligations of Lenders
hereunder are imposed solely and exclusively for the benefit of Lenders and may be freely waived or
modified in whole or in part by Lenders at any time if in their sole discretion it deems it
advisable to do so, and no person other than Borrower (provided, however, that all
conditions have been satisfied) shall have standing to require Lenders to disburse the Loan or to
be a beneficiary of this Agreement.
Section 8.03. Documentation Etc. Satisfactory. All documentation and proceedings
deemed by Administrative Agent or Lenders’ Counsel to be necessary or required in connection
herewith and the documents relating hereto shall be subject to the prior approval of, and
satisfactory to, both of them as to form and substance. In addition, the Persons responsible for
the execution and delivery of, and signatories to, all of such documentation, shall be acceptable
to, and subject to the approval of, Administrative Agent and Lenders’ Counsel. Administrative
Agent or Lenders’ Counsel shall receive copies, certified if requested by either of them, of all
documents which they may require in connection with the transactions contemplated hereby.
Section 8.04. Lender’s Determination Conclusive. Administrative Agent shall, at all
times, be free to independently establish to its satisfaction and in its absolute discretion the
existence or nonexistence of any fact or facts the existence or nonexistence of which is a
condition hereof.
Section 8.05. Notices. Except as expressly provided otherwise, all notices, demands,
consents, approvals and statements required or permitted hereunder shall be in writing and shall be
deemed to have been sufficiently given or served for all purposes when presented personally, three
(3) days after mailing by registered or certified mail, postage prepaid, or one (1) day after
delivery to a nationally recognized overnight courier service providing evidence of the date of
delivery, addressed to a party at its address on the signature page hereof or of the applicable
Assignment and Assumption Agreement, or at such other address of which a party shall have notified
the party giving such notice in writing in accordance with the foregoing requirements.
Section 8.06. Amendments and Waivers. No amendment or material waiver of any
provision of this Agreement or any other Loan Document, nor consent to any material departure by
Borrower or any Guarantor therefrom, shall in any event be effective unless the same shall be in
writing and signed by the party against whom such
33
amendment, waiver or consent is sought to be enforced (it being understood, however, that the
signatures of the Required Lenders and, solely for purposes of its acknowledgement thereof,
Administrative Agent, shall be sufficient to bind Lenders to any such amendment, waiver or
consent), and then such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given; provided, however, that no amendment, waiver
or consent shall, unless in writing and signed by all Lenders, do any of the following: (i) reduce
the principal of, or interest on, the Notes or any fees due hereunder or any other amount due
hereunder or under any other Loan Document; (ii) postpone any date fixed for any payment of
principal of, or interest on, the Notes or any fees due hereunder or under any other Loan Document;
(iii) change the definition of Required Lenders; (iv) release any material portion of the Mortgaged
Property or other collateral for the Loan other than in accordance with the Loan Documents; (v)
amend this Section or any other provision requiring the consent of all Lenders; (vi) release, in
whole or in part, any Guarantor other than in accordance with the Loan Documents; or (vii) increase
the Loan Amount. Without limiting the foregoing, acceptance by Administrative Agent or Lenders of
any sum required to be paid pursuant hereto or any other Loan Document, after its due date, or in
an amount less than the sum then due, shall not constitute a waiver by Administrative Agent or
Lenders of their right to require prompt payment when due of all other such sums or to declare a
default or to exercise such other rights provided herein or in the other Loan Documents for such
late or reduced payment.
All communications from Administrative Agent to Lenders requesting Lenders’ determination,
consent, approval or disapproval (i) shall be given in the form of a written notice to each Lender,
(ii) shall be accompanied by or include a description or copy of the matter or thing as to which
such determination, approval, consent or disapproval is requested and (iii) shall include
Administrative Agent’s recommended course of action or determination in respect thereof. Each
Lender shall reply promptly, but in any event within ten (10) Business Days (or five (5) Business
Days with respect to any decision to accelerate or stop acceleration of the Loan) after receipt of
the request therefor by Administrative Agent (the “Lender Reply Period”). Unless a Lender shall
give written notice to Administrative Agent that it objects to the recommendation or determination
of Administrative Agent (together with a written explanation of the reasons behind such objection)
within the Lender Reply Period, such Lender shall be deemed to have approved or consented to such
recommendation or determination.
Section 8.07. Assignment; Participation. Any Lender may at any time grant to one or
more banks or other institutions not affiliated with Borrower or Guarantor (each a “Participant”)
participating interests in its Pro Rata Share of the Loan (the “Participations”). In the event of
any such grant by a Lender of a Participation to a Participant, such Lender shall remain
responsible for the performance of its obligations hereunder, and Borrower and Administrative Agent
shall continue to deal solely and directly with such Lender in connection with such Lender’s rights
and obligations hereunder. Any agreement pursuant to which any Lender may grant a Participation
shall provide that such Lender shall retain the sole right and responsibility to enforce the
obligations of Borrower hereunder and under any other Loan Document, including, without limitation,
the right to approve any amendment, modification or waiver of any
34
provision of this Agreement or any other Loan Document; provided that such
participation agreement may provide that such Lender will not agree to any modification, amendment
or waiver described in clauses (i) through (vii) of Section 8.06 without the consent of the
Participant.
Upon request by Borrower, each Lender agrees to provide Borrower with notice of all
Participations sold by such Lender. Borrower agrees to provide all assistance reasonably requested
by a Lender to enable such Lender to sell Participations as aforesaid, or make assignments of its
interest in the Loan as hereinafter provided in this Section.
A Lender may at any time assign to any bank or other institution not affiliated with Borrower
or Guarantor with the consent of Administrative Agent, which consents shall not be unreasonably
withheld or delayed (such assignee, a “Consented Assignee”), or to one or more banks or other
institutions which are majority owned subsidiaries of a Lender or of the parent of a Lender (each
Consented Assignee or subsidiary bank or institution, an “Assignee”) all or a proportionate part of
all of its rights and obligations under this Agreement and its Note, and such Assignee shall assume
rights and obligations, pursuant to an Assignment and Assumption Agreement executed by such
Assignee and the assigning Lender, provided that, after giving effect to such assignment, in each
case, the Assignee’s portion of the Loan and, in the case of a partial assignment of a Lender’s
interest, the assigning Lender’s portion of the Loan will each be equal to or greater than
$5,000,000. Upon (i) execution and delivery of such instrument, (ii) payment by such Assignee to
the assigning Lender of an amount equal to the purchase price agreed between such Lender and such
Assignee and (iii) payment by such Assignee to Administrative Agent of a fee, for Administrative
Agent’s own account, in the amount of $3,500, such Assignee shall be a party to this Agreement and
shall have all the rights and obligations of a Lender as set forth in such Assignment and
Assumption Agreement, and the assigning Lender shall be released from its obligations hereunder to
a corresponding extent, and no further consent or action by any party shall be required. Upon the
consummation of any assignment pursuant to this paragraph, substitute notes, in the form of EXHIBIT
D, shall be issued to the assigning Lender (in the case of a partial assignment) and Assignee by
Borrower, in exchange for the return of the assigning Lender’s original Note. All such substitute
notes shall constitute “Notes” and the obligations evidenced by such substitute notes shall
constitute obligations secured by the Mortgage. In connection with Borrower’s execution of
substitute notes as aforesaid, Borrower shall deliver to Administrative Agent such evidence of the
due authorization, execution and delivery of the substitute notes and any related documents as
Administrative Agent may reasonably request. If the Assignee is not incorporated under the Laws of
the United States or a state thereof, it shall, prior to the first date on which interest or fees
are payable hereunder for its account, deliver to Borrower and Administrative Agent certification
as to exemption from deduction or withholding of any United States federal income taxes in
accordance with Section 7.13.
Borrower, Administrative Agent and Lenders shall execute such modifications to the Loan
Documents as shall, in the reasonable judgment of Administrative Agent, be
35
necessary or desirable in connection with assignments in accordance with the foregoing
provisions of this Section.
Any Lender may at any time assign all or any portion of its rights under this Agreement and
its Note to a Federal Reserve Bank. No such assignment shall release the transferor Lender from
its obligations hereunder.
Borrower recognizes that in connection with a Lender’s selling of Participations or making of
assignments, any or all documentation, financial statements, appraisals and other data, or copies
thereof, relevant to Borrower, Guarantor or the Loan may be exhibited to and retained by any such
Participant or Assignee or prospective Participant or Assignee.
Section 8.08. Setoff. In addition to (and without limitation of) any right of
setoff, bankers’ lien or counterclaim Administrative Agent or any Lender may otherwise have,
Administrative Agent and each Lender shall be entitled, but only with the prior consent of
Administrative Agent, to offset balances (general or special, time or demand, provisional or final)
held by it for the account of Borrower at any of Administrative Agent’s or such Lender’s offices
against any amount payable by Borrower to Administrative Agent or such Lender hereunder or under
any other Loan Document which is not paid when due (regardless of whether such balances are then
due to Borrower), in which case it shall promptly notify Borrower and (in the case of a Lender)
Administrative Agent thereof; provided, however, that Administrative Agent’s or
such Lender’s failure to give such notice shall not affect the validity thereof. Payments by
Borrower hereunder or under the other Loan Documents shall be made without setoff or counterclaim.
Section 8.09. Successors and Assigns. Except as herein provided, this Agreement
shall be binding upon and inure to the benefit of Borrower, Administrative Agent and Lenders and
their respective heirs, personal representatives, successors and assigns. Notwithstanding the
foregoing, Borrower, without the prior written consent of Lender in each instance, may not assign,
transfer or set over to another, in whole or in part, all or any part of its benefits, rights,
duties and obligations hereunder, including, but not limited to, performance of and compliance with
conditions hereof and the right to receive the proceeds of the Loan.
Section 8.10. Severability. The provisions hereof are intended to be severable. Any
provisions hereof, or the application thereof to any Person or circumstance, which, for any reason,
in whole or in part, is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof (or the remaining portions of such provision) or the
application thereof to any other Person or circumstance, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision
(or portion thereof) or the application thereof to any Person or circumstance in any other
jurisdiction.
36
Section 8.11. Non-Waiver; Remedies Cumulative. No failure or delay on Lender’s part
in exercising any right, remedy, power or privilege (hereinafter in this Section, each a “Remedy”)
hereunder or under any of the other Loan Documents shall operate as a waiver of any such Remedy or
shall be deemed to constitute Administrative Agent’s or any Lender’s acquiescence in any default by
Borrower or Guarantor under any of said documents. A waiver by Administrative Agent or any Lender
of any Remedy hereunder or under any of the other Loan Documents on any one occasion shall not be
construed as a bar to any other or future exercise thereof or of any other Remedy. The Remedies
provided in said documents are cumulative, may be exercised singly or concurrently and are not
exclusive of any Remedies provided therein or by Law.
Section 8.12. Certain Waivers. Borrower hereby irrevocably and unconditionally
waives (i) promptness and diligence, (ii) notice of any actions taken by Administrative Agent or
any Lender hereunder or under any other Loan Document or any other agreement or instrument relating
hereto or thereto except to the extent otherwise provided herein, (iii) all other notices, demands
and protests, and all other formalities of every kind in connection with the enforcement of
Borrower’s obligations hereunder and under the other Loan Documents, the omission of or delay in
which, but for the provisions of this Section, might constitute grounds for relieving Borrower of
any of its obligations hereunder or under the other Loan Documents, (iv) any requirement that
Administrative Agent or any Lender protect, secure, perfect or insure any lien on any collateral
for the Loan or exhaust any right or take any action against Borrower, Guarantor or any other
Person or against any collateral for the Loan, (v) any right or claim of right to cause a
marshalling of Borrower’s assets and (vi) all rights of subrogation or contribution, whether
arising by contract or operation of law or otherwise by reason of payment by Borrower pursuant
hereto or to any other Loan Document. BORROWER FURTHER HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES, IN CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING BROUGHT BY OR ON BEHALF OF ADMINISTRATIVE
AGENT OR LENDERS WITH RESPECT TO THIS AGREEMENT, THE NOTES OR OTHERWISE IN RESPECT OF THE LOAN, ANY
AND EVERY RIGHT BORROWER MAY HAVE TO (W) INJUNCTIVE RELIEF, (X) A TRIAL BY JURY, (Y) INTERPOSE ANY
COUNTERCLAIM THEREIN, OTHER THAN A COMPULSORY COUNTERCLAIM, AND (Z) HAVE THE SAME CONSOLIDATED WITH
ANY OTHER OR SEPARATE SUIT, ACTION OR PROCEEDING. NOTHING CONTAINED IN THE IMMEDIATELY PRECEDING
SENTENCE SHALL PREVENT OR PROHIBIT BORROWER FROM INSTITUTING OR MAINTAINING A SEPARATE ACTION
AGAINST ADMINISTRATIVE AGENT OR LENDERS WITH RESPECT TO ANY ASSERTED CLAIM.
Section 8.13. Expenses; Indemnification. The Loan shall be made without cost to
Lender. Borrower covenants and agrees to pay all costs, expenses and charges (including, without
limitation, all fees and charges of engineers, appraisers and Lenders’ Counsel) incurred by
Administrative Agent or any Lender in connection with (i) the preparation for and consummation of
the transactions contemplated hereby or for the performance hereof and of the other Loan Documents,
and for any services which may be required in addition to those normally and reasonably
contemplated hereby and (ii) the
37
enforcement hereof or of any or all of the other Loan Documents; provided,
however, that Borrower shall not be responsible for (1) the fees and expenses of legal
counsel for Lenders other than BofA incurred in connection with said counsel’s review of this
Agreement and the other Loan Documents prior to execution and (2) costs, expenses and charges
incurred by Administrative Agent and Lenders in connection with the administration or syndication
of the Loan. If Borrower fails to pay promptly any costs, charges or expense required to be paid
by it as aforesaid, and Administrative Agent or any Lender pays such costs, charges or expenses,
Borrower shall reimburse Administrative Agent or such Lender, as appropriate, on demand for the
amounts so paid, together with interest thereon at the Default Rate. Borrower further agrees to
indemnify Administrative Agent and each Lender and their respective directors, officers, employees
and agents from, and hold each of them harmless against, (x) any and all losses arising out of or
by reason of any investigation or litigation or other proceedings (including any threatened
investigation or litigation or other proceedings) relating to any actual or proposed use by
Borrower of the proceeds of the Loan, including, without limitation, the fees and disbursements of
counsel incurred in connection with any such investigation, litigation or other proceedings and (y)
any and all claims, actions, suits, proceedings, costs, expenses, losses, damages and liabilities
of any kind, including in tort, penalties and interest, arising out or by reason of any matter
relating, directly or indirectly, to the Mortgage or the ownership, condition, development,
construction, sale, rental or financing of the Property or Improvements or any part thereof (but
excluding any such losses, liabilities, claims, damages or expenses incurred solely by reason of
the gross negligence or willful misconduct of the party to be indemnified). The obligations of
Borrower under this Section and under Sections 3.01, 3.03 and 6.08 shall survive the repayment of
all amounts due under or in connection with any of the Loan Documents and the termination of the
Loan.
Section 8.14. Gross-Up For Taxes. All payments made by Borrower under the Note and
other Loan Documents shall be made free and clear of, and without deduction or withholding for or
on account of, any present or future stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by
any Governmental Authority, excluding income taxes and franchise or other taxes (imposed in lieu of
income taxes) imposed on Lender as a result of a present or former connection between Lender and
the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or
taxing authority thereof or therein (other than any such connection arising solely from Lender’s
having executed, delivered or performed its obligations or received a payment under, or enforced,
this Agreement or the Note). If any such non-excluded taxes, levies, imposts, duties, charges,
fees, deductions or withholdings (“Non-Excluded Taxes”) is required to be withheld from any amounts
payable to Lender under the Note or other Loan Documents, the amounts so payable to Lender shall be
increased to the extent necessary to yield to Lender (after payment of all Non-Excluded Taxes)
interest or any such other amounts payable with respect to the Loan at the rates or in the amounts
specified in the Note or other Loan Documents. Whenever any Non-Excluded Taxes are payable by
Borrower, as promptly as possible thereafter Borrower shall send to Lender a certified copy of an
original official receipt received by Borrower showing payment thereof. If Borrower fails to pay
any Non-Excluded Taxes when due to the appropriate taxing
38
authority or fails to remit to Lender the required receipts or other required documentary
evidence, Borrower shall indemnify Lender for any incremental taxes, interest or penalties that may
become payable by Lender as a result of any such failure. The agreements in this Section shall
survive the termination of this Agreement and the payment of the Note and all other amounts payable
in respect of the Loan.
Section 8.15. Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same instrument, and any
party hereto may execute this Agreement by signing any such counterpart.
Section 8.16. Governing Law; Jurisdiction. This Agreement and the rights and
obligations of the parties hereunder shall in all respects be governed by, and construed and
enforced in accordance with, the Laws of the State of New York (without giving effect to New York’s
principles of conflicts of law). Borrower, Administrative Agent and each Lender hereby irrevocably
submit to the non-exclusive jurisdiction of any New York State or Federal court sitting in The City
of New York (or any county in New York State where any portion of the Property is located) over any
suit, action or proceeding arising out of or relating to this Agreement, and Borrower 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 sitting in The City of New York (or such other county in New York State) may be made by
certified or registered mail, return receipt requested, directed to Borrower at the address
indicated on the cover page hereof, and service so made shall be complete five (5) days after the
same shall have been so mailed.
Section 8.17. Integration. The Loan Documents constitute the entire agreement among
Administrative Agent, Borrower and Lenders relating to the transactions contemplated thereby
(except with respect to agreements among Lenders or with Administrative Agent relating solely to
compensation, consideration and the syndication of the Loan) and supersede any prior oral or
written statements or agreements with respect to such transactions.
Section 8.18. Releases. Provided no Default or Event of Default exists, Borrower
shall have the right to obtain the release of any of the Properties from the Mortgage encumbering
the same, at Borrower’s expense, so long as (i) Borrower pays to Administrative Agent for the
account of Lenders an amount equal to the lesser of (x) the greater of (A) the Release Price for
the Property that is the subject of such release and (B) the amount necessary to reduce the Loan to
an amount which satisfies the DSC Test on the basis of Net Operating Income from the parcels not
being released or (y) the then outstanding principal amount of the Loan, which amount shall be
applied to the reduction of outstanding principal under the Loan, (ii) Administrative Agent
receives such reasonable documentation as Administrative Agent shall request confirming that the
amount of any Additional Interest secured by the Mortgage encumbering the Property which is being
released shall be secured by the credit of Guarantor, and (iii) Administrative Agent receives such
other documents, opinions and assurances as Administrative Agent may reasonably request. Upon any
such release of a Property, such Property shall no longer constitute a “Property” hereunder.
39
Section 8.19. Exculpation. Neither Borrower nor any Guarantor shall be personally
liable for payment of the principal of the Note or interest thereon, and in the event of any
failure by Borrower to pay any portion of such principal or interest, Lenders will look, with
respect to the then outstanding balance of such principal and interest, solely to the Mortgaged
Property and such other collateral as has been, or hereafter shall be, given to secure payment of
the Note. The foregoing limitation on liability shall not impair or otherwise affect the validity
or enforceability of (a) the debt evidenced by the Note or the Loan Agreement or of any other
obligations evidenced by the Note, the Loan Agreement, the Mortgage or any of the Loan Documents or
(b) Lenders’ liens, security interests, rights and remedies (including, without limitation, the
remedies of foreclosure and/or sale) with respect to the Mortgaged Property or any other property,
security, collateral and/or assets (including the proceeds thereof) encumbered, pledged or assigned
by the Mortgages or any other security for the Loan. In addition, the foregoing limitation on
liability shall not limit anyone’s obligations or be applicable with respect to: (i) liability
under any guaranty(ies) or indemnity(ies) delivered or afforded to Lenders; (ii) any fraud or
material misrepresentation; (iii) taxes of any kind (whether characterized as transfer, gains or
other taxes) payable in connection with the foreclosure sale of the Mortgaged Property,
irrespective of who pays such taxes; (iv) application of any proceeds of the Loan to any purpose
other than as provided in the Loan Documents; (v) the application of any insurance or condemnation
proceeds or other funds or payments other than strictly in accordance with the Loan Documents; (vi)
the misapplication of any security deposits; (vii) rents, sales proceeds, or other sums received
after default under the Loan Documents which are not applied to expenses of operating the Mortgaged
Property or paid to Lenders or a duly appointed receiver of the Mortgaged Property; (viii) any
failure to deliver to Lenders, after demand therefor, any agreements relating to the operation,
management, leasing, use, occupancy or construction of the Mortgaged Property; (ix) any intentional
physical waste in respect of the Mortgaged Property; (x) any failure to pay or discharge any real
estate tax, other tax, assessment, fine, penalty or lien against the Mortgaged Property to the
extent revenue from leases of the Mortgaged Property was available to pay same; (xi) liability as
landlord under any lease(s) relating to the Mortgaged Property which liability accrued prior to
Lenders’ succeeding to such interest of Borrower, which Lenders are or become obligated for by
virtue of Lenders succeeding to the interests of Borrower, provided, however, that
such liability shall only apply with respect to any liability of Borrower under such leases which
Lenders assumes pursuant to subordination, non-disturbance and attornment agreements required
pursuant to the terms of such leases; (xii) liability under any agreement relating to the operation
or maintenance of the Mortgaged Property which liability accrued prior to Lenders’ succeeding to
such interest of Borrower which Lenders are or become obligated for by virtue of Lenders succeeding
to the interests of Borrower, provided, however, that such liability shall only apply with respect
to agreements which are not terminable by their terms upon thirty (30) days’ written notice; (xiii)
liability to pay for the premiums on and keep in full force and effect insurance in respect of the
Mortgaged Property in accordance with the Loan Documents to the extent revenue from leases of the
Mortgaged Property was available to pay same; or (xiv) liability for Hazardous Substances that may
exist upon or be discharged from the Mortgaged Property. Borrower and any Guarantor shall in any
event be and shall remain personally liable for each of the matters to which
40
reference is made in the preceding sentence and Lenders may seek, obtain and enforce one or
more money judgments in any appropriate proceeding(s) with respect thereto. The limitation on
personal liability contained in this paragraph shall become automatically null and void and shall
be of no further force or effect, and Borrower and each Guarantor shall be and remain personally
liable for payment of the principal of the Note and interest thereon, in accordance with the terms
and provisions of this Loan Agreement, in the event that Borrower, or anyone acting on behalf of
Borrower, shall (A) file a petition or answer seeking any relief of any kind under the bankruptcy
laws of the United States (or if an Insolvency Event shall otherwise occur), (B) assert in writing
or in any legal proceedings of any kind that any provisions of any of the Loan Documents are in
whole or in part unenforceable, invalid or not legally binding, or (C) fail fully to cooperate with
Lenders or a receiver in Lenders’ or such receiver’s efforts to collect Rents directly from tenants
after a default under the Loan Documents.
Section 8.20. Intentionally Omitted.
[Remainder of page intentionally left blank]
41
IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the day and
year first above written, the execution hereof by Borrower constituting a certification by the
party or parties executing on its behalf that the representations and warranties made in Article IV
are true and correct as of the date hereof and that each of them duly holds and is incumbent in the
position indicated under his or her name.
| BANK OF AMERICA, N.A. | ||||||||
| By | ||||||||
| Denise M. Smyth | ||||||||
| Senior Vice President | ||||||||
| Address for notices and Applicable Lending Office: | ||||||||
| Bank of America, N.A. | ||||||||
| 1185 Avenue of the Americas, 16th Floor | ||||||||
| New York, New York 10036 | ||||||||
| Attention: Ms. Denise M. Smyth | ||||||||
| RD BRANCH ASSOCIATES, L.P., a New York limited partnership | ||||||||
| By: | Acadia Property Holdings, LLC, its general partner |
|||||||
| By: | Acadia Realty Limited Partnership, its sole member |
|||||||
| By: | Acadia Realty Trust, its general partner |
|||||||
| By | ||||||||
| Robert Masters Senior Vice President |
||||||||
| Address for notices for all Borrowers: | ||||||||
| c/o Acadia Realty Trust | ||||||||
| 1311 Mamaroneck Avenue, Suite 260 | ||||||||
| White Plains, New York 10605 | ||||||||
| Attention: Mr. Robert Masters | ||||||||
EXHIBIT A
Assignment and Assumption Agreement
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of , 200___, among [NAME OF ASSIGNING
BANK] (“Assignor”) and [NAME OF ASSIGNEE] (“Assignee”).
Preliminary Statement
1. This Assignment and Assumption Agreement (this “Agreement”) relates to the Loan Agreement
(as the same may be amended from time to time, the “Loan Agreement”) dated December 19, 2006 among
(“Borrower”), the lender(s) party thereto (each a “Lender” and,
collectively, “Lenders”) and , as administrative agent (“Administrative
Agent”). All capitalized terms not otherwise defined herein shall have the respective meanings set
forth in the Loan Agreement.
2. Subject to the terms and conditions set forth in the Loan Agreement, Assignor has made an
Individual Loan Commitment to Borrower in an aggregate principal amount of $
(“Assignor’s Loan Commitment”).
3. The aggregate outstanding principal amount under Assignor’s Loan Commitment at the
commencement of business on the date hereof is $ .
4. Assignor desires to assign to Assignee all of the rights of Assignor under the Loan
Agreement in respect of a portion of Assignor’s Loan Commitment and the loan made pursuant thereto,
such portion being in an amount equal to $ (the “Assigned Loan and Commitment”), of
which $ is currently outstanding and $ is still to be disbursed to Borrower
pursuant to the Loan Agreement; and Assignee desires to accept assignment of such rights and assume
the corresponding obligations from Assignor on such terms.
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements contained herein,
the parties hereto agree as follows:
SECTION 1. Assignment. Assignor hereby assigns and sells to Assignee all of the
rights of Assignor under the Loan Agreement in and to the Assigned Loan and Commitment, and
Assignee hereby accepts such assignment from Assignor and assumes all of the obligations of
Assignor under the Loan Agreement with respect to the Assigned Loan and Commitment, including,
without limitation, Assignor’s obligations with respect to the undisbursed portion, if any,
thereof. Upon the execution and delivery hereof by Assignor, Assignee, Administrative Agent and
the payment of the amount specified in Section 2 hereof required to be paid on the date hereof, (1)
Assignee shall, as of the commencement of business on the date hereof, succeed to the rights and
obligations of a Lender under the Loan Agreement with an Individual Loan Commitment in an amount
equal to the Assigned Loan and Commitment, and (2) the Individual Loan Commitment of Assignor
shall, as of the commencement of business on the date hereof, be reduced correspondingly and
Assignor released from its obligations under the Loan Agreement to the extent such obligations have
been assumed by Assignee. Assignor represents and warrants that it (x) owns the Assigned Loan and
Commitment free and clear of all liens and other encumbrances and (y) is legally authorized to
enter into and perform this Agreement. Except as provided in the immediately preceding sentence,
the assignment provided for herein shall be without representation or warranty by, or recourse to,
Assignor.
SECTION 2. Payments. As consideration for the assignment and sale contemplated in
Section 1 hereof, Assignee shall pay to Assignor on the date hereof, in immediately available
funds, an amount equal to the outstanding principal amount under the Assigned Loan and Commitment
recited in paragraph 4 of the Preliminary Statement above. Each of Assignor and Assignee hereby
agrees that if it receives any amount under the Loan Agreement which is for the account of the
other party hereto, it shall receive the same for the account of such other party to the extent of
such other party’s interest therein and shall promptly pay the same to such other party.
SECTION 3. Consent; Execution and Delivery of Note. This Agreement is conditioned
upon the consent of Administrative Agent. The execution of this Agreement and Administrative Agent
is evidence of this consent; [Consents not required for certain assignments to entities related to
a Lender.] Pursuant to Section 8.07 of the Loan Agreement, Borrower has agreed to execute and
deliver Notes payable to the respective orders of Assignee and Assignor to evidence the assignment
and assumption provided for herein. Assignee has designated as its Applicable Lending Office, and
as its address for notices, the office identified as such below.
SECTION 4. Non-Reliance on Assignor. Assignor makes no representation or warranty in
connection with, and shall have no responsibility with respect to, the solvency, financial
condition, or statements of Borrower or any other party to any Loan Document, or the validity and
enforceability of the obligations of Borrower or any other party to a Loan Document in respect of
the Loan Agreement or any other Loan Document. Assignee acknowledges that it has, independently
and without reliance on Assignor, and based on such documents and information as it has deemed
appropriate, made its own analysis of the collateral for the Loan, credit analysis of Borrower and
Guarantor and decision to enter into this Agreement and will continue to be responsible for making
its own independent appraisal of the collateral for the Loan and of the business, affairs and
financial condition of Borrower and the other parties to the Loan Documents.
SECTION 5. Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the Laws of the State of New York (without giving effect to New York’s
principles of conflicts of law).
2
SECTION 6. Counterparts. This Agreement may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the signatures thereto and hereto
were upon the same instrument.
SECTION 7. Certain Representations and Agreements by Assignee. Assignee represents
that it is legally authorized to enter into and perform this Agreement. In addition, Assignee
hereby represents that it is entitled to receive any payments to be made to it under the Loan
Agreement or hereunder without the withholding of any tax and agrees to furnish the evidence of
such exemption as specified therein and otherwise to comply with the provisions of Section 7.13 of
the Loan Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and delivered by
their duly authorized officers as of the date first above written.
| [NAME OF ASSIGNOR] | ||||||||
| By | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| [NAME OF ASSIGNEE] | ||||||||
| By | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| Assignee’s Applicable Lending Office and Address for Notices: | ||||||||
| [Assignee] | ||||||||
| [Address] | ||||||||
| Attention: ___________________________________________ | ||||||||
| Telephone: (___) ______________________________________ | ||||||||
| [NAME OF ADMINISTRATIVE AGENT] | ||||||||
| By | ||||||||
| Name: | ||||||||
| Title: | ||||||||
3
| [NAME OF BORROWER] | ||||||||
| By | ||||||||
| Name: | ||||||||
| Title: | ||||||||
4
EXHIBIT B
Notice-of-Assignment of Lease
(On Letterhead of Borrower)
(On Letterhead of Borrower)
, 200_
[Name and Address of Tenant]
| Re: | Lease Dated: | |||
| Lender: | ||||
| Address of Lender: | ||||
| Mortgage Dated: |
Dear Sir/Madam:
The undersigned has assigned by a mortgage or deed of trust (the “Mortgage”) dated as shown
above to the Lender identified above (hereinafter “Lender”) all its estate, right, title and
interest in, to and under the Lease between you and the undersigned dated as set forth above, as
said Lease may have been heretofore modified or amended (the “Lease”), together with all right,
title and interest of the undersigned as lessor thereunder, including, without limitation, the
right upon the occurrence of an Event of Default (as defined in the Mortgage) to collect and
receive all earnings, revenues, rents, issues, profits and income of the property subject to the
Mortgage.
[Certain provisions of the Mortgage, the text of which are attached hereto, restrict
some of the undersigned’s rights under the Lease. However, s][S]aid assignment does not impair or
diminish any of our obligations to you under the provisions of the Lease, nor are any such
obligations imposed upon Lender, its successors or assigns.
Pursuant to said assignment you are hereby notified that in the event of a demand on you by
Lender or its successors and assigns for the payment to it of the rents due under the Lease, you
may, and are hereby authorized and directed to, pay said rent to Lender and we hereby agree that
the receipt by you of such a demand shall be conclusive evidence of Lender’s right to the receipt
thereof and that the payment of the rents by you to Lender pursuant to such demand shall constitute
performance in full of your obligation under the Lease for the payment of rent to the undersigned.
| NOTE: | To be sent in accordance with notice requirements of the Lease. | |
| * | To be used if property located in New York |
Kindly indicate your receipt of this letter and your agreement to the effect set forth below
by signing the enclosed copy thereof and mailing it to Lender at its address identified above to
the attention of its Real Estate Finance Office.
| [BORROWER] |
||||
| By | ||||
| Name: | ||||
| Title: | ||||
The undersigned acknowledges receipt of the original of this letter and agrees for the benefit
of Lender that it shall notify Lender of any default on the part of the landlord under the Lease
which would entitle the undersigned to cancel the Lease or to abate the rent payable thereunder,
and further agrees that, notwithstanding any provision of the Lease, no notice of cancellation
thereof, nor of any abatement, shall be effective unless Lender has received the notice aforesaid
and has failed within 30 days of the date thereof to cure, or if the default cannot be cured within
30 days has failed to commence and to diligently prosecute the cure, of landlord’s default which
gave rise to the right to cancel or abate.
| [NAME OF TENANT] |
||||
| By | ||||
| , | ||||
| its authorized officer | ||||
2
EXHIBIT C
Required Contents of Borrower’s Counsel Opinion
(1) If Borrower, the mortgagor or grantor under the Mortgage (if different from Borrower),
Guarantor or any general partner or member of any of them is a corporation, partnership, venture,
limited liability company or trust, each such entity is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its formation, is qualified to do business
(or such opinion shall specifically state that such qualification is not required) and is
in good standing in the jurisdiction in which the Property is located, and has full power and
authority to consummate the transactions contemplated by the Loan Documents and to execute, deliver
and perform all Loan Documents to which it is a party.
(2) There are no actions, suits or proceedings pending or threatened against or affecting
Borrower, Guarantor, the Mortgaged Property, the validity or enforceability of the Mortgage or the
priority of the lien thereof at law, in equity or before or by any Governmental Authorities except
actions, suits or proceedings which have been disclosed to Lender in writing and which are fully
covered by insurance or would, if adversely determined, not substantially impair the ability of
Borrower or Guarantor to pay when due any amounts which may become payable under the Note or
Guaranty or to otherwise pay and perform their respective obligations in connection with the Loan;
neither Borrower nor Guarantor is in default with respect to any order, writ, injunction, decree or
demand of any court or Governmental Authorities.
(3) The consummation of the transactions contemplated by and the performance of the Loan
Documents have not resulted and will not result in any breach of, or constitute a default under,
any mortgage, deed of trust, lease, bank loan or credit agreement, corporate charter, by-laws,
partnership agreement or other instrument to which Borrower or Guarantor is a party or by which
either of them may be bound or affected.
(4) There exist no violations of any laws, statutes, ordinances, rules, orders, regulations or
requirements of any Governmental Authorities with respect to the Improvements and that the use
thereof complies with all applicable zoning and other laws, etc. and with all restrictions,
covenants, leases and easements affecting the Mortgaged Property.
(5) The Property is not part of a larger tract of land owned by Borrower, its affiliates or
Guarantor, or otherwise considered as part of one zoning or tax lot, or, if they are, that any
authorization or variance required for the subdivision of such larger tract which a sale of the
Property would entail has been obtained from all appropriate Governmental Authorities so that the
Property and Improvements constitute one zoning or tax lot (including parking and utility
facilities and street access, if relevant) capable of being conveyed as such.
Required Contents of Borrower’s Local Counsel Opinion (and, if required by Lender,
of a local counsel selected by Lender or its counsel)
(1) The Loan Documents have each been duly authorized, executed and delivered by the parties
thereto (other than Lender) and, under the laws of the jurisdiction in which the Property is
located (were such laws to apply), are valid and binding instruments enforceable against such
parties in accordance with their respective terms, subject, however, to the qualifications that (a)
some of the rights and remedies set forth in the Note and Mortgage may be limited by bankruptcy,
insolvency, reorganization and other laws of general application to the enforcement of creditors’
rights and (b) certain remedies and waivers contained in the Mortgage may be limited by applicable
laws of said jurisdiction, none of which qualifications will materially interfere with the
practical realization of the benefits and security provided by said documents except for the
economic consequences of any procedural delay which may result therefrom.
(2) Considering the significant relationship that the State of New York has to the Loan, the
courts of the jurisdiction in which the Property is located will, in all likelihood, honor any
designations by the parties of New York as the governing law contained in the Loan Documents.
(3) The Mortgage will create the lien it purports to create on the property covered by the
Mortgage and will effectively assign the leases purported to be assigned thereby if the Mortgage
and any necessary UCC-1 financing statements are recorded or filed, as the case may be, and
specifying local law requirements as to (1) the manner in which, and offices where, such recording
and filing must be made and (2) the re-recording of the Mortgage and refiling of the financing
statements, all in order to establish, preserve and protect such lien and assignment and Lender’s
interest in the property covered by the Mortgage.
(4) In the event of a foreclosure or other method of enforcement of the remedies provided for
in the Mortgage, any leases of the Mortgaged Property will, at the option of the holder of the
Mortgage, remain in full force and effect between the lessees thereunder and such holder or any
purchaser of the Mortgaged Property pursuant to such remedial action. The opinion shall state
whether the foregoing results as a matter of law or by reason of compliance with Section 1.14(c)
of the Mortgage.
(5) All rights of redemption in respect of the Mortgage will be extinguished upon the
consummation of a sale of the Mortgaged Property pursuant to any remedial provisions provided for
in the Mortgage, [or if the foregoing is not the case, the opinion shall specify the period of time
which must expire following such consummation in order for said rights of redemption to be
extinguished under local law, and shall state whether the applicable result obtains as a matter of
law or pursuant to any waiver provided for in the Mortgage].
(6) There are no changes or additions to the Mortgage and other Loan Documents which are
required by local law, and none which are customary in local
2
practice and which would not unsubstantially enhance the rights and benefits of Lender
thereunder.
(7) To such other effects as Lender or its counsel may reasonably require.
3
EXHIBIT D
Note
$
|
New York, New York | |
| ,200___ |
For value received, RD BRANCH ASSOCIATES, L.P., a New York limited partnership (“Maker”)
hereby covenants and promises to pay to the order of [NAME OF LENDER] or its successors or assigns
(collectively, “Lender”), at the principal office of BANK OF AMERICA, N.A. located at 1185 Avenue
of the Americas, New York, New York 10036 (“Administrative Agent”) for the account of the
Applicable Lending Office of Lender, the principal sum of Dollars
($ ),in lawful money of the United States and in immediately available funds, in
accordance with the terms set forth in the Loan Agreement. Maker also covenants and promises to
pay interest on the unpaid principal balance hereof, for the period such balance is outstanding, in
like money, at said office for the account of said Applicable Lending Office, at the time and at a
rate per annum as provided in the Loan Agreement (as defined below). Any amount or principal
hereof which is not paid when due, whether at stated maturity, by acceleration, or otherwise, shall
bear interest from the date when due until said principal amount is paid in full, payable on
demand, at the Default Rate.
This Note is [one of] the [Existing] [New] Note[s] referred to in the Loan Agreement dated as
of the date hereof (as the same may be amended or supplemented from time to time, the “Loan
Agreement”) among Maker, as Borrower, the lenders named therein (including Lender), as Lenders, and
Administrative Agent, as Administrative Agent for Lenders. All of the terms, conditions and
provisions of the Loan Agreement are hereby incorporated by reference. All capitalized terms used
herein and not defined herein shall have the meanings given to them in the Loan Agreement.
This Note is secured by the Mortgage which contains, among other things, provisions for the
prepayment of and acceleration of this Note upon the happening of certain stated events. Reference
to the Mortgage is hereby made for a description of the “Mortgaged Property” encumbered thereby and
the rights of Maker and Lenders (including Lender) with respect to such Mortgaged Property.
Maker agrees that it shall be bound by any agreement extending the time or modifying the terms
of payment set forth above and in the Loan Agreement, made by or on behalf of Lenders and the owner
or owners of the Mortgaged Property, whether with or without notice to Maker, and Maker shall
continue liable to pay the amount due hereunder in accordance with the terms set forth herein and
in the Loan Agreement, but with interest at a rate no greater than the rate of interest provided
therein, according to the terms of any such agreement of extension or modification.
Should the indebtedness represented by this Note or any part thereof be collected at law or in
equity, or in bankruptcy, receivership or any other court proceeding (whether at the trial or
appellate level), or should this Note be placed in the hands of attorneys for collection upon
default, Maker agrees to pay, in addition to the principal, interest and other sums due and payable
hereon, all costs of collecting or attempting to collect this Note, including reasonable attorneys’
fees and expenses.
All parties to this Note, whether principal, surety, guarantor or endorser, hereby waive
presentment for payment, demand, protest, notice of protest and notice of dishonor.
This Note shall be governed by the Laws of the State of New York (without giving effect to New
York’s principles of conflicts of law), provided that, as to the maximum lawful rate of interest
which may be charged or collected, if the Laws applicable to Lender permit it to charge or collect
a higher rate than the Laws of the State of New York, then such Law applicable to Lender shall
apply to Lender under this Note.
Anything herein to the contrary notwithstanding, the obligations of Maker under this Note
shall be subject to the limitation that payments of interest shall not be required to the extent
that receipt of any such payment by Lender would be contrary to provisions of Law applicable to
Lender limiting the maximum rate of interest that may be charged or collected by Lender.
IN WITNESS WHEREOF, Maker has executed and delivered this Note as of the date first above
written.
| RD BRANCH ASSOCIATES, L.P., a New York limited partnership | ||||||
| By: | Acadia Property Holdings, LLC, its general partner | |||||
| By: | Acadia Realty Limited Partnership, its sole member | |||||
| By: | Acadia Realty Trust, its general partner | |||||
| By | ||||||
| Senior Vice President | ||||||
2
EXHIBIT E-1
FINANCIAL COVENANT COMPLIANCE CERTIFICATE
This Certificate is furnished pursuant to Section 6.11(3) of that certain Loan Agreement
(“Loan Agreement”) by and among RD BRANCH ASSOCIATES, L.P. (“Borrower”) and BANK OF AMERICA, N.A.
(“Lender”), Section 6.11(3) of which Loan Agreement was agreed to and acknowledged by ACADIA REALTY
LIMITED PARTNERSHIP (“Guarantor”). Capitalized terms used in this Certificate and Schedule 1
attached hereto, unless otherwise defined herein or in said Schedule 1, have the meanings given to
them in the Loan Agreement.
The undersigned, the of Guarantor, hereby certifies to Lender that
Schedule 1 attached hereto sets forth the financial data and computations relating to Guarantor’s
compliance with the Liquidity Requirement, which data and computations, to the best knowledge and
belief of the undersigned, are true, complete and correct.
The undersigned certifies that he/she is authorized to execute and deliver this Certificate on
behalf of Guarantor.
WITNESS my hand this ___day of , ___.
| Name: | ||||
3
EXHIBIT E-2
FINANCIAL COVENANT COMPLIANCE CERTIFICATE
This Certificate is furnished pursuant to Section 6.11(3) of that certain Loan Agreement
(“Loan Agreement”) by and among RD BRANCH ASSOCIATES, L.P. (“Borrower”) and BANK OF AMERICA, N.A.
(“Lender”), Section 6.11(3) of which Loan Agreement was agreed to and acknowledged by ACADIA REALTY
LIMITED PARTNERSHIP (“Guarantor”). Capitalized terms used in this Certificate and Schedule 1
attached hereto, unless otherwise defined herein or in said Schedule 1, have the meanings given to
them in the Loan Agreement.
The undersigned, the _______________ of Guarantor, hereby certifies to Lender that
Schedule 1 attached hereto sets forth the audited financial data and computations relating to
Guarantor’s compliance with the Net Worth Requirement and the Liquidity Requirement, which data and
computations, to the best knowledge and belief of the undersigned, are true, complete and correct.
The undersigned certifies that he/she is authorized to execute and deliver this Certificate on
behalf of Guarantor.
WITNESS my hand this ___day of __________________, ______.
| Name: | ||||
2
EXHIBIT F
AUTHORIZATION LETTER
_______________, 200_
[Name and address of Administrative Agent]
| Re: | Loan Agreement dated as of _______________, 200___(the “Loan Agreement”; capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in the Loan Agreement) among us, as Borrower, the Lenders named therein, and you, as Administrative Agent for said Lenders |
Dear Sir/Madam:
In connection with the captioned Loan Agreement, we hereby designate any of the following
persons to give to you instructions, including notices required pursuant to the Loan Agreement,
orally, by telephone or teleprocess, or in writing:
Michael Nelsen
Robert Masters
Richard Hartmann
Jon Grisham
Robert Masters
Richard Hartmann
Jon Grisham
Instructions may be honored on the oral, telephonic, teleprocess or written instructions of
anyone purporting to be any one of the above designated persons even if the instructions are for
the benefit of the person delivering them. We will furnish you with written confirmation of each
such instruction signed by any person designated above (including any telecopy which appears to
bear the signature of any person designated above) on the same day that the instruction is provided
to you, but your responsibility with respect to any instruction shall not be affected by your
failure to receive such confirmation or by its contents.
You and Lenders shall be fully protected in, and shall incur no liability to us for, acting
upon any instructions which you in good faith believe to have been given by any person designated
above, and in no event shall you or Lenders be liable for special, consequential or punitive
damages. In addition, we agree to hold you and Lenders and your and their respective agents
harmless from any and all liability, loss and expense arising directly or indirectly out of
instructions that we provide to you in connection with
the Loan Agreement except for liability, loss or expense occasioned by your gross negligence
or willful misconduct.
Upon notice to us, you may, at your option, refuse to execute any instruction, or part
thereof, without incurring any responsibility for any loss, liability or expense arising out of
such refusal if you in good faith believe that the person delivering the instruction is not one of
the persons designated above or if the instruction is not accompanied by an authentication method
that we have agreed to in writing.
We will promptly notify you in writing of any change in the persons designated above and,
until you have actually received such written notice and have had a reasonable opportunity to act
upon it, you are authorized to act upon instructions, even though the person delivering them may no
longer be authorized.
| Very truly yours, [BORROWER] |
||||
| By | ||||
| Name: | ||||
| Title: | ||||
2
TABLE OF CONTENTS
| Page | ||||||
ARTICLE I |
DEFINITIONS AND RULES OF CONSTRUCTION | 1 | ||||
Section 1.01. |
Definitions | 1 | ||||
Section 1.02. |
Rules of Construction | 8 | ||||
ARTICLE II |
THE LOAN | 9 | ||||
Section 2.01. |
Generally | 9 | ||||
Section 2.02. |
Nature of Lenders’ Obligations | 9 | ||||
Section 2.03. |
Purpose | 9 | ||||
Section 2.04. |
Advances | 9 | ||||
Section 2.05. |
Intentionally Omitted | 9 | ||||
Section 2.06. |
Notes | 9 | ||||
Section 2.07. |
Payments and Distributions | 10 | ||||
Section 2.08. |
Interest | 10 | ||||
Section 2.09. |
Limitation on Number of Interest Periods | 11 | ||||
Section 2.10. |
Conversions of Interest Rate | 11 | ||||
Section 2.11. |
Inapplicability of LIBO Based Rate | 11 | ||||
Section 2.12. |
Late Payment Premium | 12 | ||||
Section 2.13. |
Voluntary Prepayments | 12 | ||||
Section 2.14. |
Annual Commitment Reduction/Required Amortization | 12 | ||||
Section 2.15. |
Extension of Maturity | 12 | ||||
ARTICLE III |
YIELD MAINTENANCE ETC | 13 | ||||
Section 3.01. |
Additional Costs and Other Effects of Regulatory Changes; Taxes | 13 | ||||
Section 3.02. |
Limitations on Availability of LIBO Based Rate | 14 | ||||
Section 3.03. |
Certain Compensation | 14 | ||||
Section 3.04. |
“Lender” to Include Participants | 15 | ||||
ARTICLE IV |
CONDITIONS PRECEDENT | 15 | ||||
Section 4.01. |
Conditions Precedent to Loan | 15 | ||||
Section 4.02. |
Intentionally Omitted | 19 | ||||
ARTICLE V |
REPRESENTATIONS AND WARRANTIES | 19 | ||||
Section 5.01. |
Due Formation, Power and Authority | 19 | ||||
Section 5.02. |
Legally Enforceable Agreements | 20 | ||||
Section 5.03. |
Financial Statements | 20 | ||||
Section 5.04. |
Compliance With Laws; Payment of Taxes | 20 | ||||
Section 5.05. |
Litigation | 20 | ||||
Section 5.06. |
No Conflicts or Defaults | 20 | ||||
Section 5.07. |
Solvency | 20 | ||||
Section 5.08. |
Governmental Regulation | 21 | ||||
Section 5.09. |
Insurance | 21 | ||||
i
| Page | ||||||
Section 5.10. |
ERISA | 21 | ||||
Section 5.11. |
Other Documents | 21 | ||||
Section 5.12. |
No Defaults | 21 | ||||
Section 5.13. |
Accuracy of Information; Full Disclosure | 21 | ||||
Section 5.14. |
Separate Tax and Zoning Lot | 22 | ||||
Section 5.15. |
The Improvements | 22 | ||||
Section 5.16. |
Utility Services | 22 | ||||
Section 5.17. |
Creation of Liens | 22 | ||||
Section 5.18. |
Roads | 22 | ||||
Section 5.19. |
Requisition as Reaffirmation | 22 | ||||
Section 5.20. |
Patriot Act | 22 | ||||
ARTICLE VI |
COVENANTS OF BORROWER | 23 | ||||
Section 6.01. |
Compliance with Laws; Payment of Taxes | 23 | ||||
Section 6.02. |
Leases and Premises Documents | 23 | ||||
Section 6.03. |
Continuing Accuracy of Representations and Warranties | 24 | ||||
Section 6.04. |
Covenants, Restrictions and Easements | 24 | ||||
Section 6.05. |
Guarantor Financial Covenants | 24 | ||||
Section 6.06. |
Financial Covenants | 24 | ||||
Section 6.07. |
Payment of Costs | 25 | ||||
Section 6.08. |
Brokers | 25 | ||||
Section 6.09. |
Correction of Defects | 25 | ||||
Section 6.10. |
Intentionally Omitted | 25 | ||||
Section 6.11. |
Reporting and Miscellaneous Document Requirements | 25 | ||||
ARTICLE VII |
ADMINISTRATIVE AGENT; RELATIONS AMONG LENDERS | 27 | ||||
Section 7.01. |
Appointment, Powers and Immunities of Administrative Agent | 27 | ||||
Section 7.02. |
Reliance by Administrative Agent | 28 | ||||
Section 7.03. |
Defaults | 28 | ||||
Section 7.04. |
Rights of Administrative Agent as Lender | 29 | ||||
Section 7.05. |
Sharing of Costs by Lenders; Indemnification of Administrative Agent | 29 | ||||
Section 7.06. |
Non-Reliance on Administrative Agent and Other Lenders | 30 | ||||
Section 7.07. |
Failure of Administrative Agent to Act | 30 | ||||
Section 7.08. |
Resignation or Removal of Administrative Agent | 30 | ||||
Section 7.09. |
Amendments Concerning Agency Function | 31 | ||||
Section 7.10. |
Liability of Administrative Agent | 31 | ||||
Section 7.11. |
Transfer of Agency Function | 31 | ||||
Section 7.12. |
Non-Receipt of Funds by Administrative Agent; Adjustments | 31 | ||||
Section 7.13. |
Withholding Taxes | 32 | ||||
Section 7.14. |
Sharing of Payments among Lenders | 32 | ||||
Section 7.15. |
Possession of Documents | 32 | ||||
ii
| Page | ||||||
ARTICLE VIII |
GENERAL CONDITIONS AND PROVISIONS | 33 | ||||
Section 8.01. |
Disbursement Not Waiver | 33 | ||||
Section 8.02. |
No Third-Party Beneficiaries | 33 | ||||
Section 8.03. |
Documentation Etc. Satisfactory | 33 | ||||
Section 8.04. |
Lender’s Determination Conclusive | 33 | ||||
Section 8.05. |
Notices | 33 | ||||
Section 8.06. |
Amendments and Waivers | 33 | ||||
Section 8.07. |
Assignment; Participation | 34 | ||||
Section 8.08. |
Setoff | 36 | ||||
Section 8.09. |
Successors and Assigns | 36 | ||||
Section 8.10. |
Severability | 36 | ||||
Section 8.11. |
Non-Waiver; Remedies Cumulative | 37 | ||||
Section 8.12. |
Certain Waivers | 37 | ||||
Section 8.13. |
Expenses; Indemnification | 37 | ||||
Section 8.14. |
Gross-Up For Taxes | 38 | ||||
Section 8.15. |
Counterparts | 39 | ||||
Section 8.16. |
Governing Law; Jurisdiction | 39 | ||||
Section 8.17. |
Integration | 39 | ||||
Section 8.18. |
Releases | 39 | ||||
Section 8.19. |
Exculpation | 40 | ||||
Section 8.20. |
Intentionally Omitted | 41 | ||||
EXHIBITS
A
|
Assignment and Assumption Agreement | |
B
|
Lease Assignment Letter | |
C
|
Contents of Opinion Letters | |
D
|
Note | |
E-1
|
Quarterly Financial Covenant Compliance Certificate | |
E-2
|
Annual Financial Covenant Compliance Certificate | |
F
|
Authorization Letter |
iii
Exhibit 21
LIST OF AFFILIATES OF
ACADIA REALTY TRUST
ACADIA REALTY TRUST
Acadia Realty Trust
Acadia Realty Limited Partnership
Acadia Realty Limited Partnership
ACRS, Inc.
Acadia Bartow Avenue, LLC
Acadia Mad River Property LLC
Acadia Merrillville Realty, L.P.
Acadia Town Line, LLC
Blackman Fifty L.P.
Heathcote Associates, L.P.
Mark Plaza Fifty L.P.
Mark Twelve Associates, L.P.
Pacesetter/Ramapo Associates
RD Abington Associates Limited Partnership
RD Absecon Associates, L.P.
RD Bloomfield Associates Limited Partnership
RD Branch Associates L.P.
RD Columbia Associates, L.P.
RD Elmwood Associates, L.P.
RD Hobson Associates, L.P.
RD Methuen Associates Limited Partnership
RD Smithtown, LLC
RD Village Associates Limited Partnership
RD Whitegate Associates, L.P.
RD Woonsocket Associates Limited Partnership
Acadia Mad River Property LLC
Acadia Merrillville Realty, L.P.
Acadia Town Line, LLC
Blackman Fifty L.P.
Heathcote Associates, L.P.
Mark Plaza Fifty L.P.
Mark Twelve Associates, L.P.
Pacesetter/Ramapo Associates
RD Abington Associates Limited Partnership
RD Absecon Associates, L.P.
RD Bloomfield Associates Limited Partnership
RD Branch Associates L.P.
RD Columbia Associates, L.P.
RD Elmwood Associates, L.P.
RD Hobson Associates, L.P.
RD Methuen Associates Limited Partnership
RD Smithtown, LLC
RD Village Associates Limited Partnership
RD Whitegate Associates, L.P.
RD Woonsocket Associates Limited Partnership
Acadia 239 Greenwich Avenue, LLC
Acadia Heathcote, LLC
Acadia Merrillville Realty, Inc.
Acadia Pacesetter LLC
Acadia Property Holdings, LLC
Blackman Fifty Realty Corp.
Mark Plaza Fifty Realty Corp.
New Castle Fifty Realty Corp.
RD Absecon, Inc.
Acadia Heathcote, LLC
Acadia Merrillville Realty, Inc.
Acadia Pacesetter LLC
Acadia Property Holdings, LLC
Blackman Fifty Realty Corp.
Mark Plaza Fifty Realty Corp.
New Castle Fifty Realty Corp.
RD Absecon, Inc.
239 Greenwich Associates Limited Partnership
Crossroads II
Crossroads Joint Venture
Port Bay Associates, LLC
Crossroads II
Crossroads Joint Venture
Port Bay Associates, LLC
Acadia Realty Acquisition I, LLC
Acadia Strategic Opportunity Fund, LP
Acadia Strategic Opportunity Fund, LP
Acadia Amherst, LLC
Acadia Granville, LLC
Acadia Sheffield Crossing, LLC
Acadia Granville, LLC
Acadia Sheffield Crossing, LLC
Acadia Brandywine Condominium, LLC
Acadia Brandywine Subsidiary, LLC
Acadia Brandywine Town Center, LLC
Acadia Market Square, LLC
Acadia Brandywine Subsidiary, LLC
Acadia Brandywine Town Center, LLC
Acadia Market Square, LLC
Acadia K-H, LLC
AmCap Acadia 8th Addition, LLC
AmCap Acadia 9th Addition, LLC
AmCap Acadia Agent, LLC
AmCap Acadia Atlanta LP
AmCap Acadia Batesville, LLC
AmCap Acadia Benton, LLC
AmCap Acadia Carthage LP
AmCap Acadia Cary, LLC
AmCap Acadia Cincinnati, LLC
AmCap Acadia Conroe LP
AmCap Acadia Great Bend, LLC
AmCap Acadia Hanrahan, LLC
AmCap Acadia Indianapolis, LLC
AmCap Acadia Irving LP
AmCap Acadia K-H Holding, LLC
AmCap Acadia K-H, LLC
AmCap Acadia Little Rock, LLC
AmCap Acadia Longview, LLC
AmCap Acadia Mustang, LLC
AmCap Acadia Pratt, LLC
AmCap Acadia Roanoke, LLC
AmCap Acadia Roswell, LLC
AmCap Acadia 8th Addition, LLC
AmCap Acadia 9th Addition, LLC
AmCap Acadia Agent, LLC
AmCap Acadia Atlanta LP
AmCap Acadia Batesville, LLC
AmCap Acadia Benton, LLC
AmCap Acadia Carthage LP
AmCap Acadia Cary, LLC
AmCap Acadia Cincinnati, LLC
AmCap Acadia Conroe LP
AmCap Acadia Great Bend, LLC
AmCap Acadia Hanrahan, LLC
AmCap Acadia Indianapolis, LLC
AmCap Acadia Irving LP
AmCap Acadia K-H Holding, LLC
AmCap Acadia K-H, LLC
AmCap Acadia Little Rock, LLC
AmCap Acadia Longview, LLC
AmCap Acadia Mustang, LLC
AmCap Acadia Pratt, LLC
AmCap Acadia Roanoke, LLC
AmCap Acadia Roswell, LLC
AmCap Acadia Ruidoso, LLC
AmCap Acadia San Ramon, LLC
AmCap Acadia Shreveport, LLC
AmCap Acadia Springerville, LLC
AmCap Acadia Tucson, LLC
AmCap Acadia Tulsa, LLC
AmCap Acadia San Ramon, LLC
AmCap Acadia Shreveport, LLC
AmCap Acadia Springerville, LLC
AmCap Acadia Tucson, LLC
AmCap Acadia Tulsa, LLC
Acadia Tarrytown, LLC
Acadia-Noddle Tarrytown Development Co., LLC
Acadia-Noddle Tarrytown Development Co., LLC
Acadia D.R. Management, Inc.
Acadia Hendon Hitchcock Plaza, LLC
Acadia Hendon Hitchcock Plaza, LLC
Acadia Haygood, LLC
Acadia Sterling Heights, LLC
Acadia Sterling Heights, LLC
Acadia Realty Acquisition II, LLC
Acadia Strategic Opportunity Fund II, LLC
Acadia Strategic Opportunity Fund II, LLC
Acadia Crossroads, LLC
Crossroads Joint Venture, LLC
Crossroads II, LLC
Crossroads Joint Venture, LLC
Crossroads II, LLC
Acadia New Loudon, LLC
Acadia Mervyn I, LLC
Acadia Mervyn II, LLC
Acadia Mervyn Investors I, LLC
Acadia Mervyn Investors II, LLC
Acadia Mervyn Promote Member I, LLC
Acadia Mervyn Promote Member II, LLC
Acadia Mervyn II, LLC
Acadia Mervyn Investors I, LLC
Acadia Mervyn Investors II, LLC
Acadia Mervyn Promote Member I, LLC
Acadia Mervyn Promote Member II, LLC
Acadia-PA East Fordham Acquisitions, LLC
P/A-Acadia Pelham Manor, LLC
Acadia-P/A Holding Company, LLC
P/A-Acadia Pelham Manor, LLC
Acadia-P/A Holding Company, LLC
Acadia Crescent Plaza LLC
Acadia-P/A Canarsie, LLC
Acadia-P/A Sherman Avenue, LLC
Acadia Rockville, LLC
Acadia Berlin LLC
Acadia Boonton LLC
ABR Amboy Road LLC
APA 216st Street LLC
Acadia-P/A 161st Street LLC
Acadia-P/A Liberty LLC
Acadia Oakbrook LLC
Acadia Clark-Diversey LLC
Acadia Naamans Road LLC
Acadia Elmwood Park LLC
Acadia Chestnut LLC
Acadia-P/A GWB LLC
George Washington Bridge Bus Station Development Venture LLC
George Washington Bridge Bus Station Development Venture LLC
Acadia Shore Road LLC
Secor Pelham LLC
Acadia Albertsons Investors LLC
Acadia Shopko Investors LLC
Acadia Cub Foods Investors LLC
Acadia Walnut Hill LLC
Albee Development LLC
Acadia Medford Crossings LLC
Acadia Marsh Investors LLC
Acadia 2914 Third Avenue LLC
Acadia-P/A/T Albee LLC
Acadia-P/A Albee LLC
Albee Office Development LLC
Acadia-P/A Albee LLC
Albee Office Development LLC
Acadia Atlantic Avenue LLC
Consent of Independent Registered Public Accounting Firm
We hereby consent to the incorporation by reference in the Registration Statements (Form S-8 Nos.
33-95966 and 333-87993) pertaining to the 1999 Share Incentive Plan of Acadia Realty Trust; in the
Registration Statement (Form S-3 No. 33-31630) of Acadia Realty Trust; in the Registration
Statement (Form S-3 No. 333-139950) of Acadia Realty Trust in the Registration Statement (Form S-3 No. 333-114785) of Acadia Realty Trust; in the Registration Statement
(Form S-3 No. 333-126712) of Acadia Realty Trust; and in the Registration Statement (Form
S-8 No. 333-106758) pertaining to the 2003 Employee Share Incentive Plan of Acadia Realty Trust of
our reports dated March 1, 2007, related to the consolidated financial statements and schedule
and the effectiveness of internal control over financial reporting of Acadia Realty Trust included
in this Annual Report on Form 10-K for the year ended December 31, 2006.
| /s/ BDO Seidman, LLP | ||||
New York, New York
March 1, 2007
March 1, 2007
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statements (Form S-8 Nos. 33-95966
and 333-87993) pertaining to the 1999 Share Incentive Plan of Acadia Realty Trust; in the
Registration Statement (Form S-3 No. 33-31630) of Acadia Realty Trust; in the Registration
Statement (Form S-3 No. 333-139950) of Acadia Realty Trust; in the Registration Statement (Form S-3
No. 333-114785) of Acadia Realty Trust; in the Registration Statement (Form S-3 No. 333-126712) of
Acadia Realty Trust; and in the Registration Statement (Form S-8 No. 333-106758) pertaining to the
2003 Employee Share Incentive Plan of Acadia Realty Trust, of our report dated November 30, 2006
with respect to the consolidated statements of income, shareholders’ equity, and cash flows of
Acadia Realty Trust and subsidiaries for the year ended December 31, 2004 included in this Annual
Report (Form 10-K) for the year ended December 31, 2006.
/s/ Ernst & Young LLP
New York, New York
March 1, 2007
March 1, 2007
EXHIBIT 31.1
CERTIFICATION
OF PRINCIPAL EXECUTIVE OFFICER PURSUANT TO RULE 13a — 14(a) (SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002)
I, Kenneth F. Bernstein, certify that:
| 1. | I have reviewed this annual report on Form 10-K of Acadia Realty Trust; |
| 2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
| 3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
| 4. | The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
| (a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; | ||
| (b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; | ||
| (c) | Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and | ||
| (d) | Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and |
| 5. | The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions): |
| (a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and | ||
| (b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. |
| /s/ Kenneth F. Bernstein
|
||||
| President and Chief Executive Officer | ||||
| March 1, 2007 |
EXHIBIT 31.2
CERTIFICATION
OF PRINCIPAL FINANCIAL OFFICER PURSUANT TO RULE 13a — 14(a) (SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002)
I, Michael Nelsen, certify that:
| 1. | I have reviewed this annual report on Form 10-K of Acadia Realty Trust; |
| 2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
| 3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
| 4. | The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
| (a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; | ||
| (b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; | ||
| (c) | Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and | ||
| (d) | Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and |
| 5. | The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions): |
| (a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and | ||
| (b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting. |
| /s/ Michael Nelsen
|
||||
| Senior Vice President and | ||||
| Chief Financial Officer | ||||
| March 1, 2007 |
EXHIBIT 32.1
CERTIFICATION
OF PRINCIPAL EXECUTIVE OFFICER PURSUANT TO 18 U.S.C. SECTION 1350 (SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002)
In connection with the Annual Report of Acadia Realty Trust (the “Company”) on Form 10-K for the
year ended December 31, 2006, as filed with the Securities and Exchange Commission on the date
hereof (the “Report”), I, Kenneth F. Bernstein, President and Chief Executive Officer of the
Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002, that:
| (1) | The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and |
| (2) | The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. |
A signed original of this written statement required by Section 906 has been provided to the
Company and will be retained by the Company and furnished to the Securities and Exchange Commission
or its staff upon request.
| /s/ Kenneth F. Bernstein
|
||||
| President and Chief Executive Officer | ||||
| March 1, 2007 |
EXHIBIT 32.2
CERTIFICATION
OF PRINCIPAL FINANCIAL OFFICER PURSUANT TO 18 U.S.C. SECTION
1350 (SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002)
In connection with the Annual Report of Acadia Realty Trust (the “Company”) on Form 10-K for the
year ended December 31, 2006, as filed with the Securities and Exchange Commission on the date
hereof (the “Report”), I, Michael Nelsen, Sr. Vice President and Chief Financial Officer of the
Company, certify, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002, that:
| (1) | The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and |
| (2) | The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. |
A signed original of this written statement required by Section 906 has been provided to the
Company and will be retained by the Company and furnished to the Securities and Exchange Commission
or its staff upon request.
| /s/ Michael Nelsen
|
||||
| Senior Vice President and | ||||
| Chief Financial Officer | ||||
| March 1, 2007 |