exhibit101






                     AMENDED AND RESTATED LOAN AGREEMENT    among    BRT APARTMENTS CORP.,  as Borrower    and    VNB NEW YORK, LLC,  as Lender            Dated:  November 18, 2021      





 






  i    TABLE OF CONTENTS  ARTICLE I DEFINITIONS AND ACCOUNTING TERMS .............................................1  SECTION 1.01 Certain Defined Terms ...........................................................1  SECTION 1.02 Computation of Time Periods ..............................................14  SECTION 1.03 Accounting Terms ................................................................14  SECTION 1.04 Construction .........................................................................14  ARTICLE II AMOUNT AND TERMS OF THE REVOLVING CREDIT LOANS .......14  SECTION 2.01 Revolving Credit Loans .......................................................14  SECTION 2.02 Revolving Credit Note .........................................................14  SECTION 2.03 Interest ..................................................................................15  SECTION 2.04 Computation of Interest and Fees .........................................15  SECTION 2.05 Reimbursement of Expenses ................................................15  SECTION 2.06 Revolving Credit Loan Requests ..........................................15  SECTION 2.07 Maturity; Maximum Revolving Credit Obligations;  Prepayments .........................................................................15  SECTION 2.08 Payments ..............................................................................16  SECTION 2.09 Mandatory Payments and Deposits ......................................17  SECTION 2.10 Use of Proceeds ....................................................................18  SECTION 2.11 Unused Facility Fee ..............................................................18  SECTION 2.12 Authorization to Debit Borrower’s Account ........................18  SECTION 2.13 Late Charges, Default Interest ..............................................18  SECTION 2.14 Interest Adjustments .............................................................19  SECTION 2.15 Participations, Etc. ................................................................19  SECTION 2.16 Cap Rate Adjustments. .........................................................19  SECTION 2.17 Additional Loan Commitments. ...........................................20  ARTICLE III CONDITIONS OF LENDING ...................................................................21  SECTION 3.01 Conditions Precedent to the Making of the Initial Revolving  Credit Loan ...........................................................................21  SECTION 3.02 Conditions Precedent to All Revolving Credit Loans ..........23  ARTICLE IV REPRESENTATIONS AND WARRANTIES ..........................................24  SECTION 4.01 Representations and Warranties ...........................................24  ARTICLE V COVENANTS OF BORROWER ................................................................28  SECTION 5.01 Affirmative Covenants .........................................................28  





 






ii  SECTION 5.02 Negative Covenants ..............................................................36  SECTION 5.03 Financial Requirements ........................................................40  SECTION 5.04 Accounts. ..............................................................................40  ARTICLE VI EVENTS OF DEFAULT ............................................................................41  SECTION 6.01 Events of Default ..................................................................41  SECTION 6.02 Remedies on Default ............................................................43  SECTION 6.03 Remedies Cumulative ..........................................................44  ARTICLE VII MISCELLANEOUS ..................................................................................44  SECTION 7.01 Amendments, Etc .................................................................44  SECTION 7.02 Notices, Etc ..........................................................................44  SECTION 7.03 No Waiver, Remedies ..........................................................45  SECTION 7.04 Costs, Expenses and Taxes ...................................................45  SECTION 7.05 Right of Set-off .....................................................................45  SECTION 7.06 Binding Effect ......................................................................46  SECTION 7.07 Further Assurances ...............................................................46  SECTION 7.08 Section Headings, Severability, Entire Agreement ..............46  SECTION 7.09 Governing Law .....................................................................46  SECTION 7.10 Waiver of Jury Trial .............................................................46  SECTION 7.11 Execution in Counterparts ....................................................47    SCHEDULE 4.01(a) - Subsidiaries  SCHEDULE 4.01(f) - Material Events  SCHEDULE 4.01(q) - Casualties   SCHEDULE 4.01(r) - Lien Priority  SCHEDULE 4.01(s) - Credit Agreements, etc.  SCHEDULE 5.02(a) - Liens  SCHEDULE 5.02(b) – Debt  SCHEDULE 5.02(g) – Certain Permitted Transactions with Affiliates  SCHEDULE 5.02(i) – Guaranties    EXHIBIT A – Revolving Credit Note  EXHIBIT A-1 – Quarterly 100% Properties Information Report  EXHIBIT A-2 – Quarterly 100% Property Income Statement Reports  EXHIBIT A-2 (i) – 100% Properties with Four Complete Consecutive Quarters  EXHIBIT A-2 (ii) – 100% Properties with Three Complete Consecutive Quarters  EXHIBIT A-2 (iii) – 100% Properties with Two Complete Consecutive Quarters  EXHIBIT A-2 (iv) – 100% Properties with One Complete Consecutive Quarter  





 






iii  EXHIBIT B – Form of Borrowing Notice  EXHIBIT D – Portfolio of Real Estate Investments  EXHIBIT E – Forms of Certificate of No Default and Computation of Covenant Compliance  EXHIBIT F – Form of Borrowing Base Certificate  EXHIBIT G – Designated Deposit Proceeds Report  EXHIBIT H – Quarterly 100% Mortgage Information Report   EXHIBIT I – Monthly U.S. Treasuries Purchase(s) and Redemption(s) Report  EXHIBIT J – Form of Guaranty  EXHIBIT K – Form of Pledge Agreement  EXHIBIT L – Form of Negative Pledge Agreement    EXHIBIT M - Enhanced Collateral Property Ownership Verification Report  EXHIBIT N - Enhanced Collateral Properties Compliance Certificate  EXHIBIT O – Form of Secretary’s Certificate  





 






    THIS AMENDED AND RESTATED LOAN AGREEMENT made as of  November 18, 2021 by and among BRT APARTMENTS CORP., a Maryland corporation, having  its principal executive offices at 60 Cutter Mill Road, Suite 303, Great Neck, New York 11021  (“Borrower”) and VNB NEW YORK, LLC, a New York limited liability company having an  office at 1 Penn Plaza, Suite 4625, New York, New York 10119 (“Lender”).  ARTICLE I    DEFINITIONS AND ACCOUNTING TERMS  SECTION 1.01 Certain Defined Terms.  As used in this Agreement, the following  terms shall have the following meanings (such meanings to be equally applicable to both the  singular and plural forms of the terms defined):  “100% Unencumbered Property” or “100% Unencumbered Properties” means a  100% Property which is an Unencumbered Property or multiple 100% Properties which are each  an Unencumbered Property.  “100% Property” means real property improved by residential multi-family building or  buildings in which Borrower directly or indirectly through one or more Wholly Owned  Subsidiaries owns a 100% fee interest, and which is located in any of the forty-eight (48)  contiguous states of the United States.   “100% Property Refinancing” means a Property Refinancing with respect to a 100%  Property.  “Accordion Amount” has the meaning set forth in Section 2.17 of this Agreement.  “Affiliate” shall mean, as to any Person: (i) a Person which directly or indirectly controls,  or is controlled by, or is under common control with, such Person; (ii) a Person which directly or  indirectly beneficially owns or holds ten percent (10%) or more of any class of voting stock of, or  ten percent (10%) or more of the equity interest in, such Person, excluding institutional investors  that file under section 13(g) of the Securities and Exchange Act of 1934, as amended; or (iii) a  Person ten percent (10%) or more of the voting stock of which, or ten percent (10%) or more of  the equity interest of which, is directly or indirectly beneficially owned or held by such Person.   The term “control” means the possession, directly or indirectly, of the power to direct, or cause  the direction of, the management and policies of a Person, whether through the ownership of voting  securities, by contract, or otherwise.   “Agreement” shall mean this Amended and Restated Loan Agreement, as amended,  supplemented or modified from time to time.  “Aggregate Borrowing Base Calculation Result” shall mean as of any Borrowing Base  Determination Date, an amount equal to the sum of each Borrowing Base Calculation Result,  provided however, that each such calculation for a 100% Property that is not a Positive 100%  Property shall be disregarded and not included.  





 






2  “Annualization Multiplier” shall mean, (i) four (4) with respect to a Measurement Period  of one (1) Fiscal Quarter, (ii) two (2) with respect to a Measurement Period of two (2) Fiscal  Quarters, and (iii) the fraction of four (4) divided by three (3) with respect to a Measurement Period  of three (3) Fiscal Quarters.   “Annualized Net Operating Income” shall mean the Net Operating Income of a One to  Three Quarter Property computed for the greatest number of one (1), two (2) or three (3) complete  consecutive Fiscal Quarters during which such Property qualified as a One to Three Quarter  Property hereunder, as applicable (each, a “Measurement Period”) multiplied by the applicable  Annualization Multiplier to such Measurement Period in order to account for four (4) complete  Fiscal Quarters (x) less the annual real property taxes in effect as of the end of the Measurement  Period with respect to such One to Three Quarter Property as of the end of the applicable  Measurement Period (y) plus the annualized amount of real property taxes deducted from the gross  income in computing Net Operating Income during such Measurement Period.    “Anti-Corruption Laws” shall mean the United States Foreign Corrupt Practices Act of  1977, as amended.   “Anti-Terrorism Law” shall mean any U.S. State or Federal law relating to terrorism,  money laundering or any related seizure, forfeiture or confiscation of assets, including:  (a) Executive Order No. 13224 of September 23, 2001 - Blocking Property and Prohibiting  Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (the  Executive Order);  (b) the Uniting and Strengthening America by Providing Appropriate Tools  Required to Intercept and Obstruct Terrorism Act of 2001 (the USA PATRIOT Act), Public Law  107-56; and (c) the Money Laundering Control Act of 1986, Public Law 99-570.  “Applicable Margin” shall mean one-quarter percentage point (0.25%) with respect to the  Floating Rate.  “Board of Governors” shall mean the Board of Governors of the Federal Reserve System  of the United States of America.   “Borrowing Base Availability” shall mean as of any Borrowing Base Determination Date,  an amount equal to the lesser of (a) $35,000,000 less the outstanding principal amount of the Loan  and (b) the Aggregate Borrowing Base Calculation Result less the outstanding principal amount  of the Loan.    “Borrowing Base Certificate” shall have the meaning set forth in Section 5.01(b) of the  Agreement.  “Borrowing Base Determination Date” shall mean any of the following dates on which  the Borrowing Base Calculation Result is required to be measured by Lender: (i) the last day of  each Fiscal Quarter occurring during the Credit Period, (ii) the closing of the sale or other  disposition of each 100% Property, (iii) the closing of any 100% Property Refinancing, (iv) the  acquisition or other event which results in the Borrower owning a 100% Unencumbered Property,  for which it has had partial or full ownership for a minimum of one complete Fiscal Quarter, that  is intended by Borrower and Lender to become an Enhanced Collateral Property, and (v) upon  each borrowing request.  





 






3  “Borrowing Base Calculation Result” shall mean as of any Borrowing Base  Determination Date, the sum of (i) the amount calculated for each and every Four Quarter Property;  (ii) the amount calculated for each and every One to Three Quarter Property; (iii) the amount  calculated for each Four Quarter Enhanced Collateral Property; and (iv) the amount calculated for  each One to Three Quarter Enhanced Collateral Property, as determined in the succeeding  subsections (a) (b), (c) and (d), provided however that the sum of the amounts calculated in  subsections (a) and (b) in excess of $15,000,000 shall be disregarded in order to establish a  combined sublimit of $15,000,000 for such categories (“the Borrowing Base Sublimit”) which  result for each shall be a “Borrowing Base Calculation Result”:  (a) The Borrowing Base Calculation Result for each Four Quarter Property is  determined as follows:  For each Four Quarter Property: (i) Net Operating Income for the most recent four  (4) consecutive complete Fiscal Quarters, (ii) divided by the Cap Rate, (iii)  multiplied by 0.65 (for maximum 65% loan to value), (iv) less the then outstanding  principal balance(s) of all mortgage loan(s) that is/are outstanding for such Four  Quarter Property; and  (b) The Borrowing Base Calculation Result for each One to Three Quarter  Property is determined as follows:  For each One to Three Quarter Property: (i) Annualized Net Operating Income, (ii)  divided by the Cap Rate, (iii) multiplied by 0.65 (for maximum 65% loan to value),  (iv) less the then outstanding principal balance(s) of all mortgage loan(s) that is/are  outstanding for such One to Three Quarter Property.  (c) The Borrowing Base Calculation Result for each Four Quarter Enhanced  Collateral Property is determined as follows:  For each Four Quarter Enhanced Collateral Property: (i) Net Operating Income for  the most recent four (4) consecutive complete Fiscal Quarters, (ii) divided by the  Cap Rate, (iii) multiplied by 0.65 (for a maximum 65% loan to value).  (d) The Borrowing Base Calculation Result for each One to Three Quarter   Enhanced Collateral Property is determined as follows:  For each One to Three Quarter Enhanced Collateral Property: (i) Annualized Net  Operating Income, (ii) divided by the Cap Rate, (iii) multiplied by 0.65 (for a  maximum 65% loan to value).  “Borrowing Base Sublimit” shall have the meaning set forth in Section 1.01 of Definitions  and Accounting Terms for Borrowing Base Calculation Result.  “Borrowing Notice” shall have the meaning set forth in SECTION 2.06 hereof.  “Business Day” shall mean a day of the year on which banks are not required or authorized  to close in New York City.  





 






4  “Capital Lease” shall mean a lease which has been or should be, in accordance with  GAAP, capitalized on the books of the lessee.  “Cap Rate” shall mean 6.5% (0.65) as the same may be adjusted annually by Lender in  accordance with Section 2.16 hereof but in no event shall the Cap Rate be less than 6.5%.  “Collateral Accounts” shall mean all personal property, including all depository accounts  (including but not limited to the Designated Deposit Account) of Borrower maintained at Valley  National Bank, in which Lender has been granted a security interest pursuant to the Security  Agreement.    “Control” shall mean the possession, directly or indirectly, of the power to direct or cause  the direction of the management and policies of a Person, whether through the ownership of voting  securities, by contract or otherwise.  Neither of the following alone will be deemed sufficient to  constitute Control: (i) the ownership of the majority of the equitable or legal interests in a Person  or (ii) the right to vote on “major decisions” for such Person.  “Commitment” means Lender’s obligation to make Revolving Credit Loans to the  Borrower in an outstanding amount not to exceed THIRTY-FIVE MILLION AND 00/100 Dollars  ($35,000,000.00) pursuant to the terms and subject to the conditions of this Agreement.    “Compliance Certificate Delivery Date” shall have the meaning set forth in  Section 5.01(b)(xi) hereof.  “Credit Period” shall have the meaning set forth in Section 2.01 hereof.  “Debt” shall mean, as to any Person: (i) all indebtedness or liability of such Person for  borrowed money; (ii) all indebtedness of such Person for the deferred purchase price of property  or services (including trade obligations); (iii) all obligations of such Person as a lessee under  Capital Leases; (iv) all current liabilities of such Person in respect of unfunded vested benefits  under any Plan; (v) all obligations of such Person under letters of credit issued for the account of  such Person; (vi) all obligations of such Person arising under acceptance facilities; (vii) all  guaranties, endorsements (other than for collection or deposit in the ordinary course of business)  and other contingent obligations to purchase, to provide funds for payment, to supply funds to  invest in any other Person, or otherwise to assure a creditor against loss; (viii) all obligations  secured by any Lien on property owned by such Person whether or not the obligations have been  assumed; (ix) liabilities of such Person under interest rate protection and similar agreements; (x)  liabilities of such Person under any preferred stock or other preferred equity instrument which, at  the option of the holder or upon the occurrence of one or more events, is redeemable by such  holder, or which, at the option of such holder is convertible into Debt; (xi) indebtedness of any  partnership of which such Person is a general partner; and (xii) all other liabilities recorded as  such, or which should be recorded as such, on such Person’s financial statements in accordance  with GAAP.   “Debt Service” shall mean, (i) for subsection (a) herein, as of the end of any Fiscal Quarter,  the sum of the twelve (12) prior monthly payments of principal and interest for all mortgage loans  secured by Positive 100% Properties calculated in accordance with the immediately succeeding  subsection (a), to be determined and measured by the financial information required to be delivered  





 






5  to the Lender pursuant to Section 5.01(b) herein plus (ii) the amount specified for the Loan in  subsection (b) herein:   (a) with respect to each Positive 100% Property, the greater of (i) the combined  regularly scheduled principal and interest payments, consistent with that reported for each   Positive 100% Property as a component of Borrower’s 10K and 10Q financial reporting  (excluding the principal payment portion amount, if any, that is in excess of the regularly  scheduled principal payment, whether at maturity of a mortgage loan or in connection with a  prepayment made prior thereto) and as measured for each of the prior twelve (12) consecutive  months pursuant to any debt secured by a mortgage, deed of trust or other instrument (“Positive  100% Property Mortgage Debt”) for such Positive 100% Property (for clarity, if such Positive  100% Property is a One to Three Quarter Property, it would have the actual combined regular  principal and interest due and payable during the applicable Measurement Period annualized by  multiplying such combined amount by the applicable Annualization Multiplier to arrive at a  combined regular principal and interest calculation for a consecutive twelve (12) month period);  and (ii) the constant monthly combined regular principal and interest payment amount necessary  to fully amortize the then outstanding principal balance of such Positive 100% Property Mortgage  Debt over a 30 year basis at an interest rate equal to the then current five-year U.S. Treasury rate  plus two (2%) percent; plus  (b) the constant combined principal and interest monthly payment amount  which would be due on the Loan over a consecutive twelve (12) month period in order to fully  amortize the outstanding principal balance of the Loan over a 30 year period at an interest rate  equal to the then current five-year U.S. Treasury rate plus two (2%) percent.   “Default” shall mean any of the events specified in Section 6.01 hereof, whether or not  any requirement for notice or lapse of time or any other condition has been satisfied.  “Default Rate” means the lesser of (a) the then applicable interest rate plus four percent  (4.0%) per annum and (b) the Maximum Legal Rate.  “Deposit Account Control Agreement” shall mean that certain Deposit Account Control  Agreement, dated as of the date hereof, concerning all depository accounts of the Borrower  maintained at Valley National Bank, as the same may be amended or supplemented from time to  time.  “Designated Deposit Account” shall mean depository account number 42118360 in the  name of the Borrower maintained at Valley National Bank.  “Designated Deposit Proceeds” shall mean, collectively, all funds deposited in the  Designated Deposit Account, which funds shall include, without limitation, (a) Net Capital Event  Proceeds, (b) Excess Cash Flow, (c) Distributed Reserve Funds, (d) Net Public Stock Proceeds  and (e) Redeemed Treasuries.    “Distributed Reserve Funds” shall mean funds previously held back or reserved with  respect to a Property to the extent same are actually distributed, remitted or otherwise paid to (i)  the Borrower, (ii) a Wholly Owned Subsidiary and/or (iii) a Subsidiary Controlled by Borrower  which is also a direct or indirect parent of such Property fee owner (it being acknowledged that for  





 






6  any Subsidiary described in clause (iii), for each such distribution, remittance or payment thereto,  Distributed Reserve Funds shall only refer to the portion thereof to which Borrower or a Wholly  Owned Subsidiary is entitled pursuant to the organizational documents of such Subsidiary), on a  monthly, quarterly, semi-annual or annual basis  (for purposes other than to be held back or  reserved with respect to a Property).    “Dollars” and the sign “$” mean lawful money of the United States of America.    “Enhanced Collateral Property” or “Enhanced Collateral Properties” means a 100%  Unencumbered Property in which the Borrower directly or indirectly through one or more Wholly  Owned Subsidiaries has (i) owned a fee interest in such Property for not less than one complete  Fiscal Quarter, (ii) pledged to the Lender the entire Equity Interest in the fee title owner of such  Property pursuant to the Pledge Agreement; (iii) become a Guarantor under the terms hereof; (iv)  executed and delivered  a Negative Pledge Agreement under the terms hereof and (v) delivered to  Lender a mortgage search from a nationally recognized title insurance company licensed to do  business in the state in which the  Enhanced Collateral Property is located showing that the  Enhanced Collateral Property is an Unencumbered Property with such additional searches as  Lender may reasonably request.   “Enhanced Collateral Properties Value” means the combined total (expressed in $) of  the following calculations in (a) and (b) hereof:   (a) For each Four Quarter Enhanced Collateral Property: (i) Net Operating  Income for the most recent four (4) consecutive complete Fiscal Quarters, (ii) divided by the Cap  Rate.  (b) For each One to Three Quarter Enhanced Collateral Property: (i)  Annualized Net Operating Income (ii) divided by the Cap Rate.  “Encumbered Property” or “Encumbered Properties” shall mean a Property or  Properties encumbered by a security interest, mortgage or any other Lien upon or charge against  or interest in the Property to secure payment of a debt or performance of an obligation.  “Equity Interests” shall mean all securities, shares, units, options, warrants, interests,  participations, membership interests or other equivalents (regardless of how designated) of or in a  corporation, partnership, limited liability company, or similar entity, whether voting or nonvoting,  certificated or uncertificated, including general partner partnership interests, limited partner  partnership interests, common stock, preferred stock, or any other “equity security” (as such term  is defined in Rule 3a11-1 of the General Rules and Regulations promulgated by the Securities and  Exchange Commission under the Securities Exchange Act of 1934).  “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended  from time to time, the regulations promulgated thereunder and the published interpretations thereof  as in effect from time to time.  “ERISA Affiliate” shall mean any trade or business (whether or not incorporated) which  together with any other Person would be treated, with such Person, as a single employer under  Section 4001 of ERISA.  





 






7  “Event of Default” shall mean any of the events specified in Section 6.01 hereof, provided  that any requirement for notice or lapse of time or any other condition has been satisfied.  “Excess Cash Flow” shall mean the funds that are actually distributed, remitted or  otherwise paid from the funds of a Property fee owner to (i) the Borrower, (ii) a Wholly Owned  Subsidiary which is a direct or indirect parent of such Property fee owner, and/or (iii) a Subsidiary  Controlled by Borrower which is also a direct or indirect parent of such Property fee owner (it  being acknowledged that for any Subsidiary described in clause (iii), for each such distribution,  remittance or payment thereto, Excess Cash Flow shall only refer to the portion thereof to which  Borrower or a Wholly Owned Subsidiary is entitled pursuant to the organizational documents of  such Subsidiary), on a monthly, quarterly, semi-annual or annual basis after having deducted  therefrom in each such case, amounts set aside as holdbacks or reserves with respect to the Property  in question (which holdback or reserve amounts may be held by Borrower or a Wholly Owned  Subsidiary in depository accounts separate from the Designated Deposit Account without  constituting Excess Cash Flow hereunder) and/or other amounts due or payable in respect of any  Debts or liabilities of the Property or Property fee owner in question.    “Fiscal Quarter” shall mean the periods ending each March 31, June 30, September 30  and December 31.  “Fiscal Year” shall mean the period ending on each December 31st, effective for the fiscal  year to end December 31, 2019 and each December 31st thereafter (representing a change from  the prior September 30th fiscal year end date).  “Floating Rate” shall mean a rate of interest equal to either (i) the Prime Rate plus the  Applicable Margin, or (ii) if the Prime Rate is unavailable for any reason, the Lender Prime Rate,  as a replacement for the Prime Rate, with no Applicable Margin added. In no event shall the  applicable Floating Rate be less than three and one-half percent (3.5%) per annum.  “Four Quarter Enhanced Collateral Property” shall mean a Four Quarter Property that  satisfies the conditions for being an Enhanced Collateral Property as of the respective Borrowing  Base Determination Date.    “Four Quarter Property” shall mean a Property that satisfied the conditions for being a  100% Property for the four (4) most recently consecutive complete Fiscal Quarters, and which  must also have been a 100% Property as of each Borrowing Base Determination Date applicable  to such four (4) consecutive complete Fiscal Quarters.   “GAAP” shall mean Generally Accepted Accounting Principles.  “Generally Accepted Accounting Principles” shall mean those generally accepted  accounting principles and practices which are recognized as such by the American Institute of  Certified Public Accountants acting through the Financial Accounting Standards Board (“FASB”)  or through other appropriate boards or committees thereof and which are consistently applied for  all periods so as to properly reflect the financial condition, operations and cash flows of a Person,  except that any accounting principle or practice required to be changed by the FASB (or other  appropriate board or committee of the FASB) in order to continue as a generally accepted  accounting principle or practice may be so changed.  Any dispute or disagreement between  





 






8  Borrower and Lender relating to the determination of Generally Accepted Accounting Principles  shall, in the absence of manifest error, be conclusively resolved for all purposes hereof by the  written opinion with respect thereto, delivered to Lender, of the independent accountants selected  by Borrower and approved by Lender for the purpose of auditing the periodic financial statements  of Borrower.   “Guarantor” or “Guarantors” shall mean each of those Wholly Owned Subsidiaries and  any other Person which is required to guarantee the obligations of Borrower in accordance with  Section 3.01.  “Guaranty” or “Guaranties” shall mean a guaranty or guaranties required to be executed  and delivered by a Guarantor or Guarantors pursuant to Section 3.01 hereof in the form annexed  hereto as Exhibit J.  “Hazardous Materials” includes, without limit, any flammable explosives, radioactive  materials, hazardous materials, hazardous wastes, hazardous or toxic substances, or related  materials defined in the Comprehensive Environmental Response, Compensation, and Liability  Act of 1980, as amended (42 U.S.C. Sections 9601, et seq.), the Hazardous Materials  Transportation Act, as amended (49 U.S.C. Section 1801 et seq.), the Resource Conservation and  Recovery Act, as amended (42 U.S.C.  Sections 6901 et. seq.), and in the regulations adopted and  publications or interpretations promulgated pursuant thereto, or any other federal, state or local  environmental law, ordinance, rule or regulation.  “Interest Payment Date” shall mean the first Business Day of each month.  “Investment” shall mean any stock, evidence of Debt or other security of any Person, any  loan, advance, contribution of capital, extension of credit or commitment therefor, including  without limitation the guaranty of loans made to others (except for current trade and customer  accounts receivable for services rendered in the ordinary course of business and payable in  accordance with customary trade terms in the ordinary course of business and except for limited  guaranties executed in connection with non-recourse mortgage financing) and (i) any purchase of  any security of another Person or (ii) any business or undertaking of any Person or any commitment  or option to make any such purchase, or any other investment.   “Lender” shall mean VNB NEW YORK, LLC, a New York limited liability company.  “Lender Prime Rate” means the rate of interest stated by Valley National Bank to be its  prime rate, reference rate or base rate in effect from time to time; each change in said rate shall be  effective as of the date of such change.  The Lender Prime Rate shall apply and be a substitute for  the Prime Rate if the Prime Rate is unavailable for any reason.    “Lien” shall mean any mortgage, deed of trust, pledge, security interest, hypothecation,  assignment, deposit arrangement, encumbrance (other than utility easements, reciprocal easement  agreements, party-wall agreements and similar items in the ordinary course of business), lien  (statutory or other), or preference, priority, or other security agreement or preferential  arrangement, charge, or encumbrance of any kind or nature whatsoever, including, without  limitation, any conditional sale or other title retention agreement, any financing lease having  substantially the same economic effect as any of the foregoing, and the filing of any financing  





 






9  statement under the Uniform Commercial Code or comparable law of any jurisdiction to evidence  any of the foregoing.  “Loan” shall mean the aggregate principal amount of all unpaid Revolving Credit Loans,  which for clarity is equal to the total outstanding principal amount of all Revolving Credit Loans.  “Loan Documents” shall mean this Agreement, the Note and any other document executed  or delivered pursuant to this Agreement.   “Material Adverse Change” shall mean, as to Borrower, (i) a material adverse change in  the financial condition, business, operations, properties, prospects or results of operations of  Borrower and its Subsidiaries, taken as a whole, or (ii) any event or occurrence which would be  reasonably likely to have a material adverse effect on the ability of Borrower to perform its  obligations under the Loan Documents.  “Maturity Date” shall have the meaning assigned to such term in Section 2.07(a) hereof.  “Maximum Legal Rate” means the maximum non-usurious interest rate, if any, that at   any time or from time to time may be contracted for, taken, reserved, charged or received  on the Loan and as provided for in this Loan Agreement or in the other Loan Documents, under  the laws of the State of New York.  “Multiemployer Plan” shall mean a Plan described in Section 4001(a)(3) of ERISA which  covers employees of Borrower or any ERISA Affiliate.  “Negative Borrowing Base Availability” shall refer to a calculated Borrowing Base  Availability that results in a negative number.  “Negative Pledge Agreement” shall mean one or more of the negative pledge agreements  to be executed and delivered pursuant to Sections 3.01 and 5.01 hereof as the same may be  supplemented, modified, renewed, substituted or restated from time to time, in the form annexed  hereto as Exhibit L.  “Net Capital Event Proceeds” shall mean (a) net proceeds received by a 100% Property  fee owner from the disposition of a 100% Property or from a 100% Property Refinancing, and (b)  net proceeds received by a Property fee owner of a Property that is not a 100% Property from the  disposition of such Property or from a Property Refinancing with respect to such Property to the  extent such net proceeds described in clauses (a) or (b) are then distributed, remitted or otherwise  paid to (i) the Borrower, (ii) a Wholly Owned Subsidiary which is a direct or indirect parent of  such Property fee owner, and/or (iii) a Subsidiary Controlled by Borrower which is also a direct  or indirect parent of such Property fee owner (it being acknowledged that for any Subsidiary  described in clause (iii), for each such distribution, remittance or payment thereto, Net Capital  Event Proceeds shall only refer to the portion thereof to which Borrower or a Wholly Owned  Subsidiary is entitled pursuant to the organizational documents of such Subsidiary), and which for  both (a) and (b) in this paragraph constitute proceeds after having deducted therefrom in each such  case, (i) mortgage loan payoff(s), (ii) broker fees, (iii) third party costs and expenses (including,  without limitation, legal fees and closing costs), (iv) disposition and other fees which may be due  to a direct or indirect member, partner or shareholder in the Property fee owner that is not Borrower  





 






10  or a Wholly Owned Subsidiary, (v) amounts set aside as holdbacks or reserves with respect to the  Property in question (which holdback or reserve amounts may be held by Borrower or a Wholly  Owned Subsidiary in depository accounts separate from the Designated Deposit  Account without  constituting Net Capital Event Proceeds hereunder), (vi) amounts which the Property fee owner is  prohibited from distributing by reason of restrictions contained in any documents or instruments  evidencing or securing a mortgage financing relating to the Property in question or any regulatory  agreements entered into with the Secretary of Housing and Urban Development (or similar  arrangements) in connection therewith, and (vii) other amounts owed by the Property fee owner  on account of its Debts and other liabilities.   “Net Operating Income” shall mean, for all 100% Properties, for each applicable  covenant or period being tested, the rental and other income less all expenses of such 100%  Properties excluding (i) depreciation, amortization or other non-cash items and (ii) interest or any  other sums with respect to any indebtedness, secured by the 100% Properties in question, to be  determined by the financial information required to be delivered by the Borrower to the Lender  pursuant to Section 5.01(b).    “Net Public Stock Proceeds” shall mean cash and/or other personal property paid or  remitted to Borrower from public offerings and/or new issuance of public stock of Borrower, less  as applicable, (i) broker fees and (ii) third party costs and expenses (including, without limitation,  legal fees and closing costs).   “Note” shall mean the Revolving Credit Note.  “Obligations” as used throughout this instrument shall mean all indebtedness, obligations  and liabilities, direct or indirect, absolute or contingent, joint, several, or independent, secured or  unsecured, liquidated or unliquidated, contractual or tortious, of Borrower, due or to become due,  now existing or hereafter arising or incurred by Borrower, and now or hereafter payable to or held  by Lender, in each case in respect of the Loan, whether created directly or acquired by assignment,  participation or otherwise, and whether incurred as primary debtor, co-maker, surety, endorser,  guarantor or otherwise.    “One to Three Quarter Enhanced Collateral Property” shall mean a One to Three  Quarter Property that satisfies the conditions for being an Enhanced Collateral Property as of the  respective Borrowing Base Determination Date.  “One to Three Quarter Property” shall mean a Property owned by Borrower and/or a  Wholly Owned Subsidiary for the entirety of the most recent one (1), two (2) or three (3)  consecutive complete Fiscal Quarters (but not for the most recent four (4) consecutive complete  Fiscal Quarters), and which must also have been a 100% Property as of each Borrowing Base  Determination Date applicable to such one (1), two (2) or three (3) consecutive complete Fiscal  Quarters.    “PBGC” shall mean the Pension Benefit Guaranty Corporation or any entity succeeding  to any or all of its functions under ERISA.  “Permitted Investments” shall mean: (i) direct obligations of the United States of  America or any governmental agency thereof, or obligations guaranteed by the United States of  





 






11  America, provided that such obligations mature within one year from the date of acquisition  thereof; (ii) time certificates of deposit having a maturity of one year or less issued by any  commercial bank organized and existing under the laws of the United States or any state thereof  and having aggregate capital and surplus in excess of $1,000,000,000.00 other than such time  certificates of deposit with Lender; (iii) money market mutual funds having assets in excess of  $2,500,000,000; (iv) commercial paper rated not less than P-1 or A-1 or their equivalent by  Moody’s Investor Services, Inc. or Standard & Poor’s Corporation, respectively; (v) tax exempt  securities rated Prime 2 or better by Moody’s Investor Services, Inc. or A-1 or better by Standard  & Poor’s Corporation; (vi) the fee or leasehold interest in (or a mortgage/deed of trust  encumbering) retail, office, industrial, land, multi-family residential and other commercial real  estate located in the 48 contiguous United States; (vii) investments by Borrower in its subsidiaries,  (viii) investments in stock of real estate investment trusts listed on a nationally recognized stock  exchange in an aggregate amount not exceeding $10,000,000.00, (ix) [Intentionally Deleted] and  (x) time certificates of deposit issued by Lender.   “Person” shall mean an individual, partnership, limited liability company, corporation  (including a business trust), joint stock company, trust, unincorporated association, joint venture  or other entity, or a federal, state or local government, or a political subdivision thereof, or any  agency of such government or subdivision.  “Plan” shall mean any employee benefit plan established, maintained, or to which  contributions have been made by, Borrower or any ERISA Affiliate.  “Pledge Agreement” or “Pledge Agreements” shall mean one or more of the security  agreements to be executed and delivered pursuant to Section 3.01 hereof as the same may be  supplemented, modified, renewed, substituted or restated from time to time, in the form annexed  hereto as Exhibit K.  “Positive 100% Property” shall mean a 100% Property which (i) is either a Four Quarter  Property or a One to Three Quarter Property, and (ii) that has a Positive Borrowing Base  Calculation Result.   “Positive Borrowing Base Calculation Result” shall mean a Borrowing Base Calculation  Result that is a positive dollar amount.  “Prime Rate” means, as of the date of determination, the prime rate as set forth in the New  York City edition of The Wall Street Journal. Changes in the rate resulting from changes in the  Prime Rate shall take place immediately without notice or demand of any kind.      “Prohibited Transaction” shall mean any transaction set forth in Section 406 of ERISA  or Section 4975 of the Internal Revenue Code of 1986, as amended from time to time.  “Property” or “Properties” means real property improved (or intended to be improved)  by one or more residential multi-family buildings where Borrower and/or a Subsidiary owns,  directly or indirectly, a minimum of one percent (1%) of the ownership interests in the fee owner  of such real property. For clarity, the term Property or Properties shall also include all of the  Properties that are 100% Properties.  





 






12  “Property Refinancing” means a transaction in which there is a loan or loan modification  (excluding original mortgage financing utilized for the purchase of a Property) secured by a  mortgage, deed of trust or other instrument encumbering a Property. For clarity, a Property  Refinancing includes the refinancing of an existing mortgage loan on a Property and any additional  mortgage loan(s) on a Property.  “Real Estate Acquisition Information” shall mean information relating to any of the  Properties for which Borrower is to request a Revolving Credit Loan including but not limited to  Property name, location, purchase amount, Borrower or Subsidiary ownership percentage in the  contemplated owner thereof, expected Property mortgage amount and any such other information  as reasonably requested by Lender to the extent in the possession of Borrower or which is  reasonably obtainable by the Borrower.   “Redeemed Treasuries” shall have the meaning set forth in Section 5.04(c) herein.  “Regulation D” shall mean Regulation D of the Board of Governors, as the same may be  amended and in effect from time to time.  “Regulation T” shall mean Regulation T of the Board of Governors, as the same may be  amended and in effect from time to time.  “Regulation U” shall mean Regulation U of the Board of Governors, as the same may be  amended and in effect from time to time.  “Regulation X” shall mean Regulation X of the Board of Governors, as the same may be  amended and in effect from time to time.   “Reportable Event” shall mean any of the events set forth in Section 4043 of ERISA.  “Restricted Party” shall mean any Person: listed in the Annex to the Executive Order or  is otherwise subject to the provisions of the Executive Order; listed on the “Specially Designated  Nationals and Blocked Persons” list maintained by the Office of Foreign Assets Control  (“OFAC”) of the United States Department of the Treasury, as updated or amended from time to  time, or any similar list issued by OFAC; or (c) whose property has been blocked, or is subject to  seizure, forfeiture or confiscation, by any order relating to terrorism or money laundering issued  by the President, Attorney General, Secretary of State, Secretary of Defense, Secretary of the  Treasury or any other U.S. State or Federal governmental official or entity.  “Revolving Credit Loan” or “Revolving Credit Loans” shall be deemed a reference to  Lender’s Revolving Credit Loans as defined in Section 2.01 hereof.  “Revolving Credit Note” shall be deemed a reference to Lender’s Revolving Credit Note  as defined in Section 2.02 hereof, as the same may be supplemented, modified, renewed,  substituted or restated from time to time.  “Sanctioned Country” shall mean, at any time, a country or territory which is the subject  or target of any Sanctions.  





 






13  “Sanctioned Person” shall mean, at any time, (a) any Person that is named as a “specially  designated national and blocked person” on the most current list published by OFAC at its official  website or any replacement website or other replacement official publication of such list, (b) any  Person operating, organized or resident in a Sanctioned Country or (c) any Person controlled by  any such Person.  “Sanctions” shall mean comprehensive economic or financial sanctions or trade  embargoes imposed, administered or enforced from time to time by the U.S. government,  including those administered by OFAC or the U.S. Department of State.  “SEC” shall mean The United States Securities and Exchange Commission.  “Security Agreement” shall mean that certain agreement, dated as of the date hereof, by  Borrower granting to Lender a security interest in the Collateral Accounts, as the same may be  amended or supplemented from time to time.  “Special Cash Account” shall have the meaning set forth in Section 5.04(b) hereof.  “Subsidiary” shall mean, as to Borrower, any corporation, partnership, limited liability  company or joint venture whether now existing or hereafter organized or acquired as follows: (i)  in the case of a corporation, of which any percentage equal to or in excess of fifty percent (50%)  of the securities are at the time owned, directly or indirectly, by the Borrower, (ii) in the case of a  partnership, limited liability company or joint venture, any percentage equal to or in excess of fifty  percent (50%) of the partnership, membership or other ownership interests are at the time owned,  directly or indirectly, by the Borrower, or (iii) any Person that is otherwise under the Control of  the Borrower.    “Subsidiary Controlled by Borrower” shall mean a Subsidiary which is under the sole  Control of Borrower.  “Unused Facility Fee” shall have the meaning set forth in Section 2.11 hereof.  “Unencumbered Property” or “Unencumbered Properties” shall mean a Property or  Properties unencumbered by any security interest, mortgage or any other Lien upon or charge  against or interest in the Property to secure payment of a debt or performance of an obligation.  “Wholly Owned Subsidiary” shall mean, as to Borrower, any corporation, partnership or  limited liability company whether now existing or hereafter organized or acquired as follows: (i)  in the case of a corporation, of which one hundred percent (100%) of the securities are at the time  owned, directly or indirectly, by the Borrower, or (ii) in the case of a partnership or limited liability  company of which one hundred percent (100%) of the membership or other ownership interests  are at the time owned, directly or indirectly, by the Borrower.    “Working Capital Loans” shall have the meaning set forth in Section 2.01 hereof.  “Working Capital Sublimit” shall have the meaning set forth in Section 2.01 hereof.  





 






14  SECTION 1.02 Computation of Time Periods.  In this Agreement in the computation  of periods of time from a specified date to a later specified date, the word “from” means “from and  including” and the words “to” and “until” each means “to and including”.  SECTION 1.03 Accounting Terms.  Except as otherwise herein specifically provided,  each accounting term used herein shall have the meaning given to it under GAAP.  SECTION 1.04 Construction.  (a) All references in this Agreement to “Sections” or “sub-sections” shall be  deemed, unless otherwise noted, to be references to the Sections or sub-sections of this Agreement.  (b) All references in this Agreement to an “Exhibit” or “Exhibits” or to a  “Schedule” or “Schedules” shall be deemed, unless otherwise noted, to be references to the  Exhibits and Schedules annexed to this Agreement.  (c) All references to a Subsidiary shall be deemed, unless otherwise noted, to  be references to a Subsidiary of Borrower.  ARTICLE II    AMOUNT AND TERMS OF THE REVOLVING CREDIT LOANS  SECTION 2.01 Revolving Credit Loans.  Lender agrees, on and after the date of  this Agreement, on the terms and conditions of this Agreement and in reliance upon the  representations and warranties set forth in this Agreement, to lend to Borrower and prior to the  Maturity Date (the “Credit Period”) such amounts as Borrower may request from time to time  (individually, a “Revolving Credit Loan” or collectively, the “Revolving Credit Loans”), which  amounts may be borrowed, repaid and reborrowed, provided, however, that the aggregate amount  of such Revolving Credit Loans outstanding at any one time shall not exceed the Borrowing Base  Availability.  Notwithstanding the foregoing, Borrower shall not request, and Lender shall not  make any working capital or operating expense Revolving Credit Loans (“Working Capital  Loans”) to the extent such Working Capital Loans exceed $15,000,000 in the aggregate (the  “Working Capital Sublimit”); provided, in the event the Accordion Amount increases the  Commitment to an amount equal to or greater than $47,500,000, but less than $60,000,000, the  Working Capital Sublimit shall be $20,000,000 and, in the event the Accordion Amount increases  the Commitment to $60,000,000, the Working Capital Sublimit shall be $25,000,000.   SECTION 2.02 Revolving Credit Note.  The Revolving Credit Loans shall be  evidenced by a promissory note of Borrower in substantially the form of Exhibit A hereto (the  “Revolving Credit Note”) dated the date hereof and completed with appropriate insertions.  At  the time of the making of each Revolving Credit Loan and at the time of each payment of principal  thereon, the Lender is hereby authorized by Borrower to make a notation on the schedule annexed  to the Revolving Credit Note of the date and amount of the Revolving Credit Loan or payment, as  the case may be.  Failure to make a notation with respect to any Revolving Credit Loan shall not  limit or otherwise affect the obligation of Borrower hereunder or under the Revolving Credit Note  with respect to such Revolving Credit Loan, and any payment of principal on the Revolving Credit  Note by Borrower shall not be affected by the failure to make a notation thereof on said schedule.  





 






15  SECTION 2.03 Interest.  Except as provided herein, all Revolving Credit Loans  shall bear interest at the Floating Rate. The rate of interest on Floating Rate Loans shall increase  or decrease by an amount equal to any increase or decrease in the Prime Rate (or, if applicable, the  Lender Prime Rate) effective as of the opening of business on the day that any such change in the  Prime Rate occurs (or, if applicable, the Lender Prime Rate). Changes in the rate resulting from  changes in the Prime Rate (or, if applicable, the Lender Prime Rate) shall take place immediately  without notice or demand of any kind.  Notwithstanding anything herein to the contrary, in no  event shall the Floating Rate be less than three and one-half percent (3.5%) per annum.  SECTION 2.04 Computation of Interest and Fees.  Unless otherwise specifically  set forth in this Agreement, interest and all fees shall be computed on the actual number of days  elapsed over a year of 360 days.  SECTION 2.05 Reimbursement of Expenses.  If, at any time or times regardless  of whether or not an Event of Default then exists, Lender incurs reasonable out-of-pocket  accounting expenses, reasonable attorneys fees or any other reasonable out-of-pocket costs or  expenses in connection with (a) the negotiation and preparation of this Agreement or any of the  other Loan Documents, and any amendment, modification, replacement or termination of this  Agreement or any of the other Loan Documents that has been requested by Borrower; (b) the  administration of this Agreement or any of the other Loan Documents and the transactions  contemplated hereby and thereby; (c) any litigation, contest, dispute, suit, proceeding or action  (whether instituted by Lender, Borrower or any other Person) in any way relating to Borrower’s  obligations under this Agreement or any of the other Loan Documents or Borrower’s affairs  (except to the extent any such cost or expense arises from Lender’s gross negligence or willful  misconduct); or (d) any attempt to enforce any rights of Lender against Borrower or any other  Person which may be obligated to Lender by virtue of this Agreement or any of the other Loan  Documents, then all such costs and expenses shall be charged to Borrower.  All amounts  chargeable to Borrower under this Section shall be payable promptly after written demand by  Lender, which demand shall include a reasonably detailed invoice therefore, and shall bear interest  from the date that is 10 Business Days after such demand is made until paid in full at the Floating  Rate applicable to the Revolving Credit Loans from time to time.  SECTION 2.06 Revolving Credit Loan Requests.  A request for a Revolving  Credit Loan shall be made, or shall be deemed to be made, by Borrower in the following manner:  Borrower shall give Lender telephonic notice, to be promptly confirmed in writing on the form  attached hereto as Exhibit B, of each borrowing (a “Borrowing Notice”), together with a  Borrowing Base Certificate. Each Borrowing Notice shall be irrevocable and shall be effective  only if received by Lender no later than 12:00 noon New York City time, on the date which is at  least three (3) Business Days, prior to the date of such borrowing designated in the Borrowing  Notice.  Each such Borrowing Notice shall specify (a) the amount to be borrowed; (b) the date of  such borrowing (which shall be a Business Day); and (c) the purpose of the Loan.    SECTION 2.07 Maturity; Maximum Revolving Credit Obligations;  Prepayments.  (a) The Loan shall be due and payable, if not required to be paid earlier pursuant  to this Agreement, on November 18, 2024 (the “Maturity Date”).  





 






16  (b) At no time shall the aggregate principal amount of the Loan outstanding  exceed the Borrowing Base Availability and at no time shall the aggregate principal amount of all  Working Capital Loans exceed the Working Capital Sublimit.  In the event that for any reason, the  aggregate outstanding principal amount of the Loan exceeds such respective amounts, Borrower  shall within two (2) Business Days prepay the Loan in an amount sufficient to reduce the sum of  the aggregate outstanding principal amount of the Loan to an amount not greater than availability  under the respective Borrowing Base Availability or Working Capital Sublimit.  Any such  prepayment shall be made with interest accrued to the date of prepayment, unless interest will be  charged on the regular monthly payment date, at the sole discretion of the Lender.  (c) In the event, upon any required Borrowing Base Determination Date, there  is a Negative Borrowing Base Availability, Borrower shall within two (2) Business Days of  delivering the required Borrowing Base Certificate and required attachments thereto to the Lender,  pursuant to Section 5.01(b)(xii) of this Agreement, pay down the Loan in an amount equal to the  amount of the Negative Borrowing Base Availability such that the outstanding principal balance  of the Loan shall not exceed the Borrowing Base Availability.   (d) Upon one (1) Business Day’s prior written notice specifying the amount of  principal prepayment to be made, Borrower shall have the right to prepay the Loan at any time and  from time to time in whole or in part without premium or penalty; provided, however, that (x) any  such prepayment shall be in an amount not less than such amounts as provided in Section 2.07(e)  hereof; and (y) if required by the Lender, any such prepayment of a Loan shall be made with  interest accrued on the principal amount being prepaid to the date of prepayment.  (e) Except for borrowings which exhaust the full remaining amount of the  Commitment or prepayments which result in 100% prepayment of the Loan, each borrowing and  prepayment of the Loan shall be in a minimum amount of $50,000.00 and in increased integral  multiples of $10,000.00.   SECTION 2.08 Payments.  (a) All payments by Borrower hereunder or under the Revolving Credit Note  shall be made in Dollars in immediately available funds by wire transfer or intra-bank credit from  accounts of Borrower by 2:00 P.M. Eastern Standard Time on the date on which such payment  shall be due.  Interest on the Revolving Credit Note shall accrue from and including the date of  each Revolving Credit Loan, but interest shall not be charged on the date any interest payment is  made.  (b) Except as provided in the following sentence, accrued interest on each Loan  shall be payable in arrears on the Interest Payment Date until the maturity of such Loan or the  payment or prepayment thereof in full.  Interest at the Default Rate shall be payable from time to  time on demand of Lender, if applicable, in accordance with the terms hereof.  (c) All items of payment received by Lender by 2:00 P.M. Eastern time, on any  Business Day shall be deemed received on that Business Day.  All items of payment received after  2:00 P.M. Eastern Standard Time, on any Business Day shall be deemed received on the following  Business Day.  Until payment in full of all Obligations and termination of this Agreement,  





 






17  Borrower irrevocably waives (except as otherwise expressly provided for by Lender) the right to  direct the application of any and all payments and collections at any time or times hereafter  received by Lender from or on behalf of Borrower, and Borrower does hereby irrevocably agree  that Lender shall have the continuing exclusive right to apply and reapply any and all such  payments and collections received at any time or times hereafter by Lender or its agent against the  Obligations, in such manner as Lender may reasonably deem advisable, notwithstanding any entry  by Lender upon any of its books and records, subject to the terms of this Agreement.  SECTION 2.09 Mandatory Payments and Deposits.  (a) Deposits and Mandatory Prepayment of Net Capital Event Proceeds.   As soon as practical but in no event later than seven (7) Business Days after the receipt of Net  Capital Event Proceeds, Borrower shall, or shall cause its (i) Wholly Owned Subsidiary and/or  (ii) Subsidiary Controlled by Borrower (it being acknowledged that for any Subsidiary described  in clause (ii), Net Capital Event Proceeds shall only refer to the portion of the funds received by  such Subsidiary to which Borrower or a Wholly Owned Subsidiary is entitled pursuant to the  organizational documents of such Subsidiary), to deposit the Net Capital Event Proceeds received  by Borrower or such Wholly Owned Subsidiary or such Subsidiary Controlled by Borrower into  the Designated Deposit Account.  Upon the occurrence of a 100% Property Refinancing or the  disposition of a 100% Property, Borrower shall make a mandatory prepayment of the Loan in an  amount equal to the sum of (i) the amount of the Net Capital Event Proceeds from such event,  plus (ii) the amount of Distributed Reserve Funds received in connection with such event.    (b)  Mandatory Deposits of Net Public Stock Proceeds.  As soon as practical  but in no event later than seven (7) Business Days after the receipt of Net Public Stock Proceeds,  Borrower shall deposit the Net Public Stock Proceeds received by Borrower into the Designated  Deposit Account.   (c) Mandatory Deposits of Excess Cash Flow.  Borrower shall use  commercially reasonable efforts to cause Excess Cash Flow to be distributed, remitted or  otherwise paid by Property fee owners in accordance with the general and historical management  practices of their respective Properties, or as otherwise determined to be prudent or desirable by  such Property fee owners and the Person(s) Controlling such Property fee owners, for such  respective Property(ies).  As soon as practical but in no event later than seven (7) Business Days  after the receipt of Excess Cash Flow, Borrower shall, or shall cause its (i) Wholly Owned  Subsidiary and/or (ii) Subsidiary Controlled by Borrower (it being acknowledged that for any  Subsidiary described in clause (ii), Excess Cash Flow shall only refer to the portion of the funds  received by such Subsidiary to which Borrower or a Wholly Owned Subsidiary is entitled  pursuant to the organizational documents of such Subsidiary), to deposit the Excess Cash Flow  received by Borrower or such Wholly Owned Subsidiary or such Subsidiary Controlled by  Borrower into the Designated Deposit Account.  (d) Mandatory Deposits of Distributed Reserve Funds.  As soon as practical  but in no event later than seven (7) Business Days after the receipt of Distributed Reserve Funds,  Borrower shall, or shall cause its (i) Wholly Owned Subsidiary and/or (ii) Subsidiary Controlled  by Borrower (it being acknowledged that for any Subsidiary described in clause (ii), Distributed  Reserve Funds shall only refer to the portion of the funds received by such Subsidiary to which  





 






18  Borrower or a Wholly Owned Subsidiary is entitled pursuant to the organizational documents of  such Subsidiary), to deposit the Distributed Reserve Funds received by Borrower or such Wholly  Owned Subsidiary or such Subsidiary Controlled by Borrower into the Designated Deposit  Account.   SECTION 2.10 Use of Proceeds.  The proceeds of the Revolving Credit Loans shall be  used for (i) the acquisition of, investment in, and/or repayment of mortgage debt secured by a  Property; (ii) working capital (including dividend payments); and/or (iii) operating expenses. No  part of the proceeds of any Revolving Credit Loan may be used for any purpose that directly or  indirectly violates or is inconsistent with, the provisions of Regulations T, U or X.  Borrower shall  not use, and shall take reasonable steps to ensure that none of its Subsidiaries and its or their  respective directors, officers, employees and agents shall use, the proceeds of any Revolving  Credit Loans (i) in furtherance of an offer, payment, promise to pay, or authorization of the  payment or giving of money, or anything else of value, to any Person in violation of any Anti- Corruption Laws, or (ii) for the purpose of funding, financing or facilitating any activities, business  or transaction of or with any Sanctioned Person, or in any Sanctioned Country.  SECTION 2.11 Unused Facility Fee.  Borrower agrees to pay to Lender from the  date of this Agreement and for so long as the Commitment remains outstanding, on January 1,  2022 and on the first Business Day of each April 1st, July 1st, October 1st and January 1st thereafter,  an unused facility fee equal to one quarter of one percent (0.25%) per annum (computed on the  basis of the actual number of days elapsed during the three month period in question (or portion  thereof) preceding the payment date (each a “Quarterly Calculation Period”), on the basis of a  360 day annual year calculated on the dollar amount of the full amount of the Commitment during  such Quarterly Calculation Period  minus the average daily principal balance of the Loan  outstanding for such Quarterly Calculation Period (the “Unused Facility Fee”), such Unused  Facility Fee being payable quarterly for the three month period, or part thereof, preceding the  payment date. For the avoidance of doubt, that certain Unused Facility Fee due and payable  January 1, 2022 shall include such sums due and payable for the Unused Facility Fee under the  Prior Loan Agreement (hereinafter defined) accruing from October 1, 2021 through but not  including the date hereof.   SECTION 2.12 Authorization to Debit Borrower’s Account.  Lender is hereby  authorized to debit Borrower’s account number 42118360 maintained at Valley National Bank for  (i) all scheduled payments of principal and/or interest under the Revolving Credit Note, and (ii)  the Unused Facility Fee, deficiency fee and all other fees and amounts due hereunder; all such  debits to be made on the days such payments are due in accordance with the terms hereof.  SECTION 2.13 Late Charges, Default Interest.  (a) If the Borrower shall not make any payment of any principal installment or  of interest on the Loan or any other amount becoming due hereunder (in each case other than (x)  any prepayment (whether voluntary or mandatory) or (y) any payment at maturity, whether by  virtue of an acceleration, or otherwise) within fifteen (15) days of the due date of such payment,  then the Borrower shall pay a late payment charge equal to four (4%) percent of such late payment.  





 






19  (b) Upon the occurrence and during the continuation of an Event of Default,  Borrower shall pay interest on all amounts owing under the Revolving Credit Note and this  Agreement (after as well as before judgment) at the Default Rate, to be applied retroactive to the  date of the first occurrence of the Event of Default, computed on the basis of a 360 day year.  SECTION 2.14 Interest Adjustments.  If the provisions of this Agreement or the  Revolving Credit Note would at any time require payment by Borrower to the Lender of any  amount of interest in excess of the maximum amount then permitted by applicable law, the interest  payments shall be reduced to the extent necessary so that the Lender shall not receive interest in  excess of such maximum amount. To the extent that, pursuant to the foregoing sentence, the Lender  shall receive interest payments hereunder or under the Revolving Credit Note in an amount less  than the amount otherwise provided, such deficit (hereinafter called the “Interest Deficit”) will  cumulate and will be carried forward (without interest) until the date of determination by the  Lender; thereafter, interest otherwise payable to the Lender hereunder or under the Revolving  Credit Note for any subsequent period shall be increased by such maximum amount of the Interest  Deficit that may be so added without causing the Lender to receive interest in excess of the  maximum amount then permitted by applicable law.  SECTION 2.15 Participations, Etc..  Lender shall have the right (but not the obligation)  at any time, with or without notice to the Borrower, to sell, assign, transfer or negotiate all or any  part of the Note or the Commitment or grant participations therein to one or more banks (foreign  or domestic, including an affiliate of the Lender) having sufficient capital to honor the  Commitment, insurance companies or other regulated financial institutions, pension funds or  mutual funds so long as the same does not result in any increased costs to Borrower under Section  2.03 hereof.  Lender agrees to furnish written notice to Borrower of any such sale, assignment or  transfer of all or any part of the Note or Commitment concurrently with the occurrence thereof.   The Borrower agrees and consents to Lender providing financial and other information regarding  its and their business and operations to prospective purchasers or participants and further agree  that to the extent that Lender should sell, assign, transfer or negotiate all or any part of the Note or  the Commitment, Lender shall be forever released and discharged from its obligations under the  Note, the Commitment and this Agreement but only to the extent same is sold, assigned, transferred  or negotiated to any commercial bank, insurance company or other regulated financial institution,  pension fund or mutual fund organized and existing under the laws of the United States or any  state thereof and having a net worth in excess of $1,000,000,000.00, and only to the extent that  such party assumes in writing all of the Lender’s rights obligations under this Agreement and the  other Loan Documents with respect to the obligations so conveyed.  Nothing herein shall be read  or construed as prohibiting or otherwise limiting the ability or right of Lender to pledge the Note  to a Federal Reserve Bank.     SECTION 2.16 Cap Rate Adjustments.  Annually on each anniversary date of this  Agreement (“Adjustment Date”), and within sixty (60) days thereof, Lender shall analyze the Cap  Rate based on the most recently available reports by CoStarTM or REIS® (provided by Moody’s  Analytics) or other analytic reports obtained by and acceptable to Lender, for each 100% Property  and determine the non-weighted average thereof (as of each Adjustment Date, the “Average Cap  Rate”). Lender shall furnish copies of all such reports to Borrower promptly following request. In  the event that on the first Adjustment Date following the date of this Agreement the Average Cap  Rate exceeds 7.15%, the Cap Rate shall be increased to the lesser of (i) such Average Cap Rate or  





 






20  (ii)7.5%. Thereafter, on each subsequent Adjustment Date, in the event that the Average Cap Rate  as of such Adjustment Date has increased or decreased by at least 10% of the then applicable Cap  Rate (a 10% increase or decrease in the Average Cap Rate relative to the then effective Cap Rate  shall hereinafter be referred to as the “Adjustment Threshold”), the Cap Rate shall then be  adjusted and increased or decreased to a new Cap Rate which shall be equal to (subject to the limits  hereinafter set forth) the Average Cap Rate, provided however that the Cap Rate, as adjusted in  accordance with the foregoing provision, shall never increase or decrease on any Adjustment Date  by more than 100 basis points nor shall the Cap Rate ever become less than 6.5%. It is understood  and agreed that no adjustment shall be applied to the Cap Rate for any Adjustment Date if the  Average Cap Rate then calculated has not equaled or exceeded the then effective Cap Rate by an  amount equal to or greater than the Adjustment Threshold. Lender’s analysis and calculation of  the Average Cap Rate and any adjustment shall be deemed conclusive absent manifest error proven  by Borrower.   SECTION 2.17 Additional Loan Commitments.    (a) Borrower may, from time to time, but not more often than two (2) times  prior to the Maturity Date, request that Lender seek an increase to the Commitment by an amount  no greater than $25,000,000 (the “Accordion Amount”).  Borrower shall make such request by  giving notice to Lender no later than nine (9) months prior to the Maturity Date (the "Syndication  Expiration Date") which notice shall set forth the requested increased dollar amount, in the  minimum amount of $12,500,000 (the "Requested Increase") and such other details with respect  to such increased request as Lender shall reasonably request. If there is a Requested Increase, the  Requested Increase shall require one or more “Accordion Participant Financial Institutions” (as  defined below) to comprise 100% of the Requested Increase and to execute documentation  prepared by and satisfactory to the Lender (collectively, the “New Lenders”), for its/their portion  of the Requested Increase which together with the Commitment shall in no event exceed  $60,000,000 (the “Conditional Increased Commitment”).  Borrower shall not request any  Requested Increase for a period of one hundred twenty (120) days following the closing of a  Conditional Increased Commitment. The Lender will use reasonable efforts with the assistance  of and at the cost to the Borrower, to arrange one or more financial institutions, which financial  institutions must be organized under the laws of and in good standing in the United States of  America, have a minimum total asset size of no less than one billion dollars and otherwise be  acceptable to the Lender (“Accordion Participant Financial Institution” or “Accordion Participant  Financial Institutions”), to become co-lenders under this Agreement with Lender to become agent  for such co-lenders. The Borrower hereby acknowledges that Lender provides no assurance or  commitment to the Borrower that Accordion Participant Financial Institutions will issue  commitments for any portion of the Requested Increase it being understood and agreed that any  such commitment would by such Accordion Participant Financial Institution will require its/their  credit approvals and execution of documentation reasonably satisfactory to Lender. Lender shall  have no further obligation to seek commitments for a Requested Increase that is made following  the Syndication Expiration Date. For clarity, the terms and conditions in this paragraph are in  addition to the terms and conditions in section 2.15 of this Agreement.  (b) In connection with an Increased Commitment, Borrower shall execute  supplemental promissory notes (the "Supplemental Notes") to each of the New Lenders in  proportion to each such New Lender’s ratable portion of the Increased Commitment, as well as  





 






21  such other modifications to this Agreement as Lender shall reasonably request, including but not  limited to customary agency provisions.  Borrower agrees to pay all costs and expenses including  reasonable attorney’s fees of Lender and New Lenders in connection therewith provided however,  that the economic terms of the Increased Commitment (i.e., interest rate, term, borrowing base  formula) as set forth herein shall not be materially changed.  ARTICLE III    CONDITIONS OF LENDING  SECTION 3.01 Conditions Precedent to the Making of the Initial Revolving  Credit Loan.  The obligation of Lender to make the initial Revolving Credit Loan contemplated  by this Agreement is subject to the following conditions precedent, all of which shall be performed  or satisfied in a manner in form and substance reasonably satisfactory to Lender and its counsel,  and Lender acknowledges that the following conditions precedent have been performed or  satisfied:  (a) Lender shall have received a Revolving Credit Note, duly executed by  Borrower.  (b) Lender shall have received certified (as of the date of this Agreement)  copies of the resolutions of the board of directors of Borrower authorizing the Loan and authorizing  and approving this Agreement and the other Loan Documents and the execution, delivery and  performance thereof and certified copies of all documents evidencing other necessary corporate  action and governmental approvals, if any, with respect to this Agreement and such other Loan  Documents.  (c) Lender shall have received a certificate of the Secretary (attested to by  another officer) of Borrower certifying: (i) the names and true signatures of the officer or officers  of Borrower authorized to sign this Agreement, the Revolving Credit Note and the other Loan  Documents to be delivered hereunder on behalf of Borrower; and (ii) a copy of Borrower’s by- laws as complete and correct on the date of this Agreement.  (d) Lender shall have received a copy of the certificate of incorporation and all  amendments thereto of Borrower, certified by the Secretary and a certificate of existence and good  standing with respect to Borrower from the Secretary of State (or equivalent officer) of the state  of incorporation of Borrower and from the Secretary of State (or equivalent officer) of any state in  which Borrower is authorized to do business.  (e) Lender shall have received the opinion of as to certain matters referred to in  Article IV hereof and as to such other matters as the Lender or its counsel may reasonably request.  (f) The following statements shall be true and Lender shall have received a  certificate signed by the President, an Executive Vice President, a Senior Vice President, the  Treasurer or the Chief Financial Officer of Borrower dated the date hereof, stating that:  





 






22  (i) The representations and warranties contained in Article IV of this  Agreement and in the Loan Documents are true and correct in all material respects  on and as of such date;   (ii) No Default or Event of Default has occurred and is continuing, or  would result from the making of the initial Revolving Credit Loan;  (g) All schedules, documents, certificates and other information provided to the  Lender pursuant to or in connection with this Agreement shall be satisfactory to the Lender and its  counsel in all material respects;   (h) Borrower shall have established its primary banking and depository  relationship with Lender pursuant to Section 5.04 herein;  (i) Borrower shall have established the Designated Deposit Account  maintained at Valley National Bank;  (j) The Lender shall have received Borrower’s 10-K financial statement filed  with the SEC for the period fiscal year ended December 31, 2020 and Borrower’s then most recent  10-Q financial statement filed with the SEC;  (k) The Lender shall have received a (1) Quarterly Properties Information  Report pursuant to Section 5.01 (b) (vi), (2) Quarterly 100% Mortgage Information Report  pursuant to Section 5.01(b)(vii), (3) Quarterly 100% Property Income Statement Reports pursuant  to Section 5.01 (b) (viii), (4) a Borrowing Base Certificate pursuant to Section 5.01(b)(xii)  evidencing sufficient Borrowing Base Availability in relation to the accompanying borrowing  request by the Borrower, (5) all Enhanced Collateral Property Ownership Verification Reports  pursuant to Section 5.01(b)(ix) and (6) an Enhanced Collateral Properties Compliance Certificate  pursuant to Section 5.01(b)(x);  (l) Lender shall have received the Pledge Agreement from all Wholly Owned  Subsidiaries that own a direct Equity Interest in any entity that owns fee title to any 100%  Unencumbered Property intended by Borrower and accepted by Lender to become an Enhanced  Collateral Property, which Pledge Agreement shall give to Lender a first priority security interest  in such Equity Interests, and Lender shall have received, (i) all outstanding membership and/or  stock certificates, as applicable, for all such Wholly Owned Subsidiaries, representing 100% of all  Equity Interests in such entities that own fee title and (ii) equity interest and/or stock power forms,  each executed in blank, and (iii) the Negative Pledge Agreement prohibiting any such 100%  Unencumbered Property from becoming an Encumbered Property.                          (m)     Lender shall have received the Guaranty from all Wholly Owned Subsidiaries  that own an Equity Interest, directly or indirectly, in any entity that owns fee title to any 100%  Unencumbered Property intended by Borrower and accepted by Lender to become an Enhanced  Collateral Property.                              (n)       Lender shall have received a Negative Pledge Agreement from Borrower  and all Wholly Owned Subsidiaries that own, directly or indirectly, fee title to any 100%  Unencumbered Property intended by Borrower and accepted by Lender to become an Enhanced  





 






23  Collateral Property which Negative Pledge Agreement shall be in the form substantially as set  forth as Exhibit L and which shall prohibit, among other things, any such 100% Unencumbered  Property from becoming an Encumbered Property.        (o) Borrower shall be in compliance with all Financial Requirements in Section  5.03 of this Agreement.  (p) All legal matters incident to this Agreement and the Loan transactions  contemplated hereby shall be reasonably satisfactory to Lender’s counsel;   (q) Lender shall have received such other approvals, title reports, searches,  opinions or documents as Lender or its counsel may reasonably request, including any mortgage  search or similar search evidencing that the Enhanced Collateral Properties are free of any  Mortgage Debt;  (r) Lender shall have received payment of the reasonable legal fees and  expenses of Lender’s counsel; and  (s) Lender shall have received payment of a non-refundable modification- extension fee in the amount of Two Hundred Forty-Three Thousand Seven Hundred Fifty and  00/100 Dollars ($243,750), which Borrower acknowledges was earned by the Lender in  connection with the transactions contemplated hereby.   SECTION 3.02 Conditions Precedent to All Revolving Credit Loans.  The  obligation of the Lender to make each Revolving Credit Loan (including the initial Revolving  Credit Loan) shall include that Borrower continues to be in compliance with all conditions in  Section 3.01, subject to the further condition precedent that on the date of such Revolving Credit  Loan:  (a) The following statements shall be true and each request for a Revolving  Credit Loan shall be deemed a certification by Borrower that:  (i) The representations and warranties contained in Article IV of this  Agreement and in the other Loan Documents are true and correct in all material  respects on and as of such date as though made on and as of such date; and  (ii) No Default or Event of Default has occurred and is continuing or  would result from such Revolving Credit Loan.  (b) Lender shall have received a covenant compliance certificate prepared by  management of Borrower, indicating that, after giving effect to the requested Loan, Borrower shall  remain in compliance with all of the financial requirements set forth in Section 5.03 hereof.  (c) Lender shall have received (i) such other approvals, opinions or documents  as Lender may reasonably request, to the extent furnished in connection with the initial Revolving  Credit Loan hereunder and (ii) all documents, financial information and other information as  required pursuant to this Agreement, including but not limited to that required in Sections 2.06,  3.01 and 5.01 hereof.   





 






24  ARTICLE IV    REPRESENTATIONS AND WARRANTIES  SECTION 4.01 Representations and Warranties.  On the date hereof and on each  date that Borrower requests a Revolving Credit Loan, Borrower represents and warrants to Lender  as follows:   (a) Subsidiaries.  As of the date hereof, Schedule 4.01(a) annexed hereto and a  part hereof, sets forth the Subsidiaries of Borrower that own a 100% Property and whether or not  such 100% Property is a 100% Unencumbered Property.  All of the Equity Interests of any such  Subsidiaries owning an Unencumbered Property which are owned directly or indirectly by  Borrower are owned free and clear of any mortgage, pledge, lien or encumbrance, except for the  transfer and/or lien restrictions contained in the organizational and/or loan documents of such  Subsidiaries and/or their subsidiaries.  Except as set forth on Schedule 4.01(a), there are not any  outstanding warrants, options, contracts or commitments of any kind entitling any Person to  purchase or otherwise acquire any securities or other Equity Interests of any Wholly Owned  Subsidiary, nor are there outstanding any instruments which are convertible into or exchangeable  for any securities or other Equity Interests of any Wholly Owned Subsidiary.  The list of  Subsidiaries as of the given date is subject to supplementation and modification from time to time  as set forth in and as required by Section 5.01(l).    (b) Organization.  Borrower is a corporation duly organized, validly existing  and in good standing under the laws of the state of its incorporation, and Borrower has the power  to own its assets and to transact the business in which it is presently engaged.  Borrower is duly  qualified and is in good standing in all other jurisdictions where the failure to so qualify or be in  good standing would result in a Material Adverse Change in Borrower.  (c) Due Execution, etc.  The execution, delivery and performance by Borrower  of this Agreement and the other Loan Documents are within Borrower’s corporate power, has been  duly authorized by all necessary corporate action and does not and will not (i) require any consent  or approval of the stockholders of Borrower; (ii) contravene Borrower’s certificate of  incorporation or by-laws; (iii) violate any provision of or any law, rule, regulation, contractual  restriction, order, writ, judgment, injunction, or decree, determination or award binding on or  affecting Borrower; (iv) result in a breach of or constitute a default under any indenture or loan or  credit agreement, or any other agreement, lease or instrument to which Borrower is a party or by  which it or its properties may be bound or affected; or (v) result in, or require, the creation or  imposition of any Lien (other than the Lien of the Loan Documents) upon or with respect to any  of the properties now owned or hereafter acquired by Borrower.  (d) No Authorization, etc.  No authorization or approval or other action by, and  no notice to or filing with, any governmental authority or regulatory body is required for the due  execution, delivery and performance by Borrower of this Agreement or any other Loan Document  to which it is a party, except authorizations, approvals, actions, notices or filings which have been  obtained, taken or made (or to be made in connection with UCC financing statements executed in  connection herewith, if any), as the case may be.  





 






25  (e) Validity of Loan Documents.  The Loan Documents when delivered  hereunder will have been duly executed and delivered on behalf of Borrower and will be the legal,  valid and binding obligations of Borrower, enforceable against Borrower in accordance with their  respective terms, subject to applicable bankruptcy, insolvency and similar laws affecting rights of  creditors generally and general principals of equity (regardless of whether enforcement is sought  in a proceeding in equity or at law).  (f) Financial Statements.  The audited consolidated financial statements of  Borrower and its Subsidiaries for the fiscal year ended December 31, 2020, copies of each of which  have been furnished to Lender, and the consolidated results of operations of Borrower and its  Subsidiaries for the periods ended on such dates, all in accordance with GAAP, fairly present in  all material respects the consolidated financial condition of Borrower and its Subsidiaries as at  such dates.  Since such date there has been (i) except as set forth in Schedule 4.01(f) hereto, no  material increase in the liabilities of Borrower and its Subsidiaries and (ii) no Material Adverse  Change in Borrower.    (g) No Litigation.  There is no pending or threatened action, proceeding or  investigation against Borrower or any Subsidiary before any court, governmental agency or  arbitrator, which either in one case or in the aggregate, is reasonably likely to result in a Material  Adverse Change in Borrower.  (h) Tax Returns.  Borrower and each Subsidiary Controlled by Borrower has  filed all federal, state and local tax returns required to be filed (subject to extensions granted) and  has paid all taxes, assessments and governmental charges and levies thereon to be due, including  interest and penalties.    (i) Licenses, etc.  Borrower and each Subsidiary possesses all licenses, permits,  franchises, patents, copyrights, trademarks and trade names, or rights thereto, to conduct its  business substantially as now conducted and as presently proposed to be conducted where the  failure to possess such licenses, permits, franchises, patents, copyrights, trademarks and trade  names, or rights thereto would be reasonably likely to result in a Material Adverse Change in  Borrower, and neither Borrower nor any Subsidiary is in violation of any similar rights of others  where such violation would be reasonably likely to result in a Material Adverse Change in  Borrower.  (j) Anti-Corruption Laws and Sanctions.  Borrower represents and warrants  that Borrower has implemented and maintains in effect policies and procedures designed to ensure  compliance by Borrower and its respective directors, officers and employees and their agents that  are controlled by Borrower with Anti-Corruption Laws and applicable Sanctions, and Borrower  and its respective officers and employees and to the knowledge of Borrower its directors and  agents, are in compliance with Anti-Corruption Laws and applicable Sanctions in all material  respects.  None of (a) Borrower or, to the knowledge of Borrower, any Subsidiary or any of their  respective directors, officers, employees or agents that will act in any capacity in connection with  or benefit from the credit facility established hereby, is a Sanctioned Person.  No use of proceeds  or other transactions contemplated hereby will violate Anti-Corruption Laws or applicable  Sanctions.  





 






26  (k) Margin Credit.  Neither Borrower nor any Subsidiary is engaged in the  business of extending credit for the purpose of purchasing or carrying margin stock (within the  meaning of Regulations T, U or X), and no proceeds of any Loan will be used to purchase or carry  any margin stock or to extend credit to others for the purpose of purchasing or carrying any margin  stock or in any other way which will cause Borrower to violate the provisions of Regulations T, U  or X.  (l) Compliance with Law.  Borrower and each Subsidiary is in all material  respects in compliance with all federal and state laws and regulations in all jurisdictions where the  failure to comply with such laws or regulations would be reasonably likely to result in a Material  Adverse Change in Borrower.  (m) ERISA.  Except where the failure would not be reasonably likely to result  in a Material Adverse Change in Borrower, Borrower, each Subsidiary and each ERISA Affiliate  of Borrower or a Subsidiary are in compliance in all material respects with all applicable provisions  of ERISA.  Neither a Reportable Event nor a Prohibited Transaction has occurred and is continuing  with respect to any Plan of Borrower or a Subsidiary; no notice of intent to terminate a Plan of  Borrower or a Subsidiary has been filed nor has any Plan been terminated; no circumstances exist  which constitute grounds under Section 4042 of ERISA entitling the PBGC to institute proceedings  to terminate, or appoint a trustee to administrate, a Plan of Borrower or a Subsidiary, nor has the  PBGC instituted any such proceedings; neither Borrower, any Subsidiary  nor any ERISA Affiliate  of Borrower or any Subsidiary has completely or partially withdrawn under Sections 4201 or 4204  of ERISA from a Multiemployer Plan; Borrower, each Subsidiary and each ERISA Affiliate of  Borrower or any Subsidiary have met their minimum funding requirements under ERISA with  respect to all of their Plans and the present fair market value of all Plan assets exceeds the present  value of all vested benefits under each Plan, as determined on the most recent valuation date of the  Plan in accordance with the provisions of ERISA for calculating the potential liability of Borrower,  any Subsidiary or any ERISA Affiliate of Borrower or any Subsidiary to PBGC or the Plan under  Title IV of ERISA; and neither Borrower, any Subsidiary nor any ERISA Affiliate of Borrower,  or any Subsidiary has incurred any liability to the PBGC under ERISA.  (n) Hazardous Material.  Borrower and each Subsidiary is, in all material  respects, in compliance with all federal, state or local laws, ordinances, rules, regulations or  policies governing Hazardous Materials where the failure to comply with such laws, ordinances,  rules, regulations or policies would be reasonably likely to result in a Material Adverse Change in  Borrower; and neither Borrower nor any Subsidiary has used Hazardous Materials on, from, or  affecting any property now owned or occupied or hereafter owned or occupied by Borrower or any  Subsidiary in any manner which violates federal, state or local laws, ordinances, rules, regulations  or policies governing the use, storage, treatment, transportation, manufacture, refinement,  handling, production or disposal of Hazardous Materials where such violation would be reasonably  likely to result in a Material Adverse Change in Borrower; and to the best of Borrower’s  knowledge, no prior owner of any such property or any tenant, subtenant, prior tenant or prior  subtenant of any such property have used Hazardous Materials on, from or affecting such property  in any manner which violates federal, state or local laws, ordinances, rules, regulations, or policies  governing the use, storage, treatment, transportation, manufacture, refinement, handling,  production or disposal of Hazardous Materials except as set forth in Borrower’s files which have  





 






27  been made available to Lender or where such violation would not be reasonably likely to result in  a Material Adverse Change in Borrower.  (o) Use of Proceeds.  The proceeds of the Revolving Credit Loans shall be used  exclusively for the purposes set forth in Section 2.10 hereof.  (p) Title to Assets. Borrower or the applicable Wholly Owned Subsidiary has  good and marketable title to all of the 100% Properties.  The 100% Properties and assets of  Borrower are not subject to any mortgage, judgment or similar monetary Lien other than those  described in Schedule 5.02(a) hereof and the mortgages related to the Debt described on Section  5.02(b) hereof.  (q) Casualty.  Except as set forth on Schedule 4.01(q), neither the business nor  the properties of Borrower or any Subsidiary are affected by any fire, explosion, accident, strike,  hail, earthquake, embargo, act of God or of the public enemy, or other casualty (whether or not  covered by insurance), which would be reasonably likely to result in a Material Adverse Change  in Borrower.  (r) Lien Priority.  Except as disclosed on Schedule 4.01(r), the Lien(s) on the  Collateral Accounts created by the Security Agreement and those created by the Pledge Agreement  constitute valid first priority perfected security interests in favor of Lender.  (s) Credit Agreements.  Schedule 4.01(s) is a complete and correct list of all  Debt of Borrower (it being acknowledged for the avoidance of doubt that Schedule 4.01(s) does  not list any Debts of any subsidiary of Borrower).   (t) OFAC and Patriot Act.  Neither Borrower nor, to Borrower’s knowledge,  any of its Affiliates:  (i) is a Restricted Party, is an affiliate of a Restricted Party  or conducts any business with or receives any funds from a Restricted  Party;  (ii) has violated any Anti-Terrorism Law;  (iii) has been or is being investigated by any governmental  authority for violating any Anti-Terrorism Law or has received notice  of any such investigation or any other action under any Anti-Terrorism  Law in respect of it or any Affiliate or any of their respective assets; or  (iv) has been assessed any civil or criminal penalty or had  any funds or assets frozen, seized or forfeited under any Anti-Terrorism  Law; and  (v) has taken reasonable measures to ensure that the source  of its funds and property is derived from legal sources and is not subject  to seizure, forfeiture or confiscation under any Anti-Terrorism Law.  





 






28  ARTICLE V    COVENANTS OF BORROWER  SECTION 5.01 Affirmative Covenants.  So long as any amount shall remain  outstanding under the Revolving Credit Note or so long as the Commitment shall remain in effect,  Borrower will, and will cause each Subsidiary Controlled by Borrower to, unless Lender shall  otherwise consent in writing:    (a) Compliance with Laws, Etc.  Comply in all material respects with all  applicable laws, rules, regulations and orders, where the failure to so comply would be reasonably  likely to result in a Material Adverse Change in Borrower;  (b) Reporting Requirements.  Furnish to Lender:   (i) Annual Financial Statements.  As soon as available and  in any event not later than the earlier of (x) the date required to be filed  with the SEC, or (y) ninety (90) days after the end of each Fiscal Year,  a copy of the 10-K report of Borrower and its Subsidiaries for each  Fiscal Year, including audited consolidated financial statements with  balance sheets with related statements of income and retained earnings  and statements of cash flows, all in reasonable detail and setting forth  in comparative form the figures for the previous Fiscal Year, together  with an unqualified opinion, prepared by management of Borrower and  certified by independent certified public accountants selected by  Borrower and reasonably satisfactory to Lender, all such financial  statements to be prepared in accordance with GAAP, consistently  applied;  (ii) Quarterly Financial Statements.  As soon as available  and in any event  not later than the earlier of  (x) the date required to  be filed with the SEC, or (y) sixty (60) days after the end of each of  Borrower’s first three Fiscal Quarters, a copy of the 10-Q report of  Borrower and its Subsidiaries for each Fiscal Quarter, including  consolidated financial statements for such quarter and for year to date,  including a balance sheet with related statements of income and  retained earnings and a statement of cash flows, all in reasonable detail  and setting forth in comparative form the figures for the comparable  quarter and comparable year to date period for the previous fiscal year,  all such financial statements to be prepared by management of  Borrower in accordance with GAAP, consistently applied;  (iii) Management Letters.  Promptly upon receipt thereof by  Borrower or any Subsidiary Controlled by Borrower, copies of any  reports submitted to Borrower or any Subsidiary by independent  certified public accountants in connection with the examination of the  





 






29  financial statements of Borrower or any Subsidiary made by such  accountants;    (iv) Accountant’s Report.  Simultaneously with the delivery  of the annual financial statements referred to in Section 5.01(b)(i)  hereof, a certificate of the independent certified public accountants  who audited such statements to the effect that, in making the  examination necessary for the audit of such statements, they have  obtained no knowledge of any condition or event which constitutes a  Default or Event of Default, or if such accountants shall have obtained  knowledge of any such condition or event, they shall specify in such  certificate each such condition or event of which they have knowledge  and the nature and status thereof;    (v) Designated Deposit Proceeds Report.  Not later than  fifteen (15) days after the end of each month, and in form and substance  with Exhibit G, attached hereto: (A)  a report of all cash receipts and  cash deposits by Borrower  during such most recent prior full month,  including separate detail for each Property in which the Borrower or a  Subsidiary has ownership or an investment in a Property and/or  Properties and (B) a report of cash receipts and cash deposits by  Borrower from Net Public Stock Proceeds in a form reasonably  acceptable to Lender, which report shall indicate any and all  Designated Deposit Proceeds and be certified (including certification  that all Designated Deposit Proceeds which have been received by the  Borrower have been deposited into the Designated Deposit Account  maintained at Valley National Bank during such one month period  being certified thereto) by any two (2) of the following officers of  Borrower: President, an Executive Vice President, a Senior Vice  President, the Treasurer, and the Chief Financial Officer;    (vi) Quarterly Properties Information Report.  As soon as  available and in any event not later than forty (40) days after the end of  each Fiscal Quarter, a complete portfolio of Properties of Borrower and  its Subsidiaries substantially in the form as attached Exhibit A-1 and  separately identifying, to Lender’s reasonable satisfaction, each  Property name, address and Borrower’s direct or indirect ownership  percentage in the entity that owns the applicable Property, and  separately identifying in bold print each 100% Property and each  Enhanced Collateral Property;    (vii) Quarterly 100% Mortgage Information Report.  As soon  as available and in any event not later than forty (40) days after the end  of each Fiscal Quarter, a complete portfolio of Properties outstanding  mortgage report for each of the Properties of Borrower and its  Subsidiaries substantially in the form and substance attached hereto as  Exhibit H and separately identifying in bold print each 100% Property;  





 






30  (viii) Quarterly 100% Property Income Statement Reports.   Not later than forty (40) days after the end of each Fiscal Quarter, a  detailed income statement for each 100% Property substantially in the  forms attached as Exhibit A-2, which must include the greatest number  of most recent complete consecutive Fiscal Quarters income statement  information for complete consecutive Fiscal Quarters for each Fiscal  Quarter which such Property qualified as a 100% Property, to a  maximum of the four (4) most recent complete consecutive Fiscal  Quarters income statement information;   (ix) Enhanced Collateral Properties Ownership  Verification. Not later than fifteen (15) days after the end of each  calendar month, and in the form and substance attached hereto as  Exhibit M, a schedule of each Enhanced Collateral Property that details  the name and ownership interest of each direct and indirect owner of  any Equity Interest in such Enhanced Collateral Property (each a  “Enhanced Collateral Property Ownership Verification Report”);   (x) Enhanced Collateral Properties Compliance Certificate.  Not later than fifteen (15) days after the end of each calendar month,  and in the form and substance attached hereto as Exhibit N (the  “Enhanced Collateral Properties Compliance Certificate”), a  completed Enhanced Collateral Properties Compliance Certificate  demonstrating compliance with, among other things, the minimum  Enhanced Collateral Properties Value of the Enhanced Collateral  Properties and setting for the Net Operating Income of each Enhanced  Collateral Property;   (xi) Certificate of No Default.  (A) No later than forty (40)  days following the end of each Fiscal Quarter (with respect to each  Fiscal Quarter, a “Compliance Certificate Delivery Date”), a  certificate of the President, an Executive Vice President, a Senior Vice  President, the Treasurer or the Chief Financial Officer of Borrower, (1)  certifying that to the best of their knowledge after due inquiry no  Default or Event of Default has occurred and is continuing, or if a  Default or Event of Default has occurred and is continuing, a statement  as to the nature thereof and the action which is proposed to be taken  with respect thereto; and (2) with computations demonstrating  compliance with the covenants contained in Section 5.03 in form and  substance similar to Exhibit E; and (B) simultaneous with the delivery  of the financial statements referred to in Section 5.01(b)(i) hereof and  (ii), a certificate of the President, an Executive Vice President, a Senior  Vice President, the Treasurer or the Chief Financial Officer of  Borrower, either (1) certifying that there are no changes to the most  recent certificate delivered in accordance with clause (A) of this  Section 5.01(b)(xi) or (2) if any changes have occurred, a new  certificate (x) setting forth the changes to the most recent certificate  





 






31  delivered in accordance with clause (A) of this Section 5.01(b)(xi) and  (y) certifying that there are no other changes to such prior certificate  other than those specified in such new certificate;  (xii) Borrowing Base Certificate.  As soon as available, and  in any event not later than (i) forty (40) days following the end of each  Fiscal Quarter; (ii) within seven (7) Business Days after the occurrence  of a 100% Property Refinancing or the sale or disposition of a 100%  Property; and (iii) on the same day of any borrowing request made by  Borrower, a Borrowing Base Certificate and attachments in the form  attached as Exhibit F;    (xiii) Notice of Litigation.  Promptly after the commencement  thereof, notice of all actions, suits and proceedings before any court or  governmental department, commission, board, bureau, agency, or  instrumentality, domestic or foreign, whether or not covered by  insurance, affecting Borrower or any Subsidiary which, if determined  adversely to Borrower or such Subsidiary would be reasonably likely  to result in a Material Adverse Change in Borrower;  (xiv) Notice of Defaults and Events of Default.  As soon as  possible and in any event within five (5) days after the occurrence of  each Default or Event of Default, a written notice setting forth the  details of such Default or Event of Default and the action which is  proposed to be taken by Borrower with respect thereto;  (xv) ERISA Reports.  Promptly after the filing or receiving  thereof, copies of all reports, including annual reports, and notices  which Borrower or any Subsidiary files with or receives under ERISA  from the PBGC, the Internal Revenue Service or the U.S. Department  of Labor; and as soon as possible after Borrower knows or has reason  to know that any Reportable Event or Prohibited Transaction has  occurred with respect to any Plan of Borrower or any Subsidiary or that  the PBGC or Borrower or any Subsidiary has instituted or will institute  proceedings under Title IV of ERISA to terminate any Plan, Borrower  will deliver to Lender a certificate of the President, an Executive Vice  President, a Senior Vice President, the Treasurer or the Chief Financial  Officer of Borrower setting forth details as to such Reportable Event,  Prohibited Transaction or Plan termination and the action Borrower  proposes to take with respect thereto;  (xvi)  Proxy Statements, Etc.  Promptly after the sending or  filing thereof, copies of all proxy statements, financial statements and  reports which Borrower sends to its public stockholders, if any, and  copies of all regular, periodic, and special reports, all registration  statements which Borrower files with the SEC or any governmental  authority which may be substituted therefor, or with any national  





 






32  securities exchange and any press releases or other notices or  information publicly disseminated; it being acknowledged that the  publication and continued availability of any of the foregoing on  Borrower’s website shall be deemed to constitute delivery thereof to  Lender;  (xvii) U.S. Treasuries Information.  As soon as available and  no later than fifteen (15) days after the end of each month, a U.S.  Treasuries Purchase(s) and Redemption(s) Report in form and  substance attached hereto as Exhibit I;  (xviii) Mortgage Financing.  As soon as available and in no  event later than fifteen (15) days prior to the closing of any 100%  Property Refinancing where new or additional funds will be borrowed,  a certificate prepared by management of Borrower (i) advising Lender  of the proposed 100% Property Refinancing and anticipated closing  date, (ii) detailing the Property or Properties involved, (iii) setting forth  the source and material economic terms of such financing, and (iv)  providing a copy of the appraisal, if any, to Lender if in the possession  or control of Borrower. Borrower shall provide Lender with written  notification and details of any payoff of existing mortgage loan(s) on a  100% Property within five (5) business days of such occurrence;  (xix) Real Estate Acquisition Information.  As soon as  possible, but in no event less than forty-eight (48) hours prior to  submitting a Borrowing Notice attached as Exhibit B hereto in  connection with a Property acquisition, such Real Estate Acquisition  Information as reasonably requested by Lender;  (xx) Real Estate Dispositions.  As soon as possible, but in no  event later than fifteen (15) days prior to the closing of the sale or other  disposition of a 100% Property, a certificate prepared by management  of Borrower (i) advising Lender of the proposed disposition and  anticipated closing date, (ii) identifying the 100% Property or 100%  Properties involved and (iii) setting forth the material economic terms  of such disposition.   (xxi) Public Offering Notice.  As soon as practical, but in no  event later than five (5) Business Days following the end of each  calendar month during the Credit Period, notice of the receipt of any  Net Public Stock Proceeds by Borrower during the immediately  preceding monthly period; and  (xxii) General Information.  As soon as practical, but in no  event later than twenty-one (21) days upon request by Lender, such  other information respecting the condition or operations, financial or  





 






33  otherwise, of Borrower or any Subsidiary as Lender may from time to  time reasonably request.   (c) Taxes.  Pay and discharge all taxes, assessments and governmental charges  upon Borrower, any Subsidiary, its or their income and its or their properties prior to the dates on  which penalties are attached thereto, unless and only to the extent that (i) such taxes shall be  contested in good faith and by appropriate proceedings by Borrower or such Subsidiary, (ii) there  be adequate reserves therefor in accordance with GAAP entered on the books of Borrower or such  Subsidiary and (iii) no enforcement proceedings against Borrower or such Subsidiary have been  commenced.  (d) Existence.  Preserve and maintain the existence and good standing of  Borrower and each Subsidiary Controlled by Borrower in the jurisdiction of its formation and the  rights, privileges and franchises of Borrower and each such Subsidiary in each case where failure  to so preserve or maintain would be reasonably likely to result in a Material Adverse Change in  Borrower.  (e) Maintenance of Properties and Insurance.  Except where the failure to do so  would not be reasonably likely to result in a Material Adverse Change in Borrower, (i) keep the  respective material properties and assets (tangible or intangible) that are useful and necessary in  Borrower’s and each Subsidiary’s business, in good working order and condition, reasonable wear  and tear excepted; and (ii) maintain insurance with financially sound and reputable insurance  companies or associations in such amounts and covering such risks, including, without limitation,  replacement value coverage and liability insurance coverage, as are usually carried by companies  engaged in similar businesses and owning properties doing business in the same general areas in  which Borrower and each Subsidiary operates. Notwithstanding the foregoing, Positive 100%  Properties shall at all times maintain insurance pursuant to subsection (ii), herein. On each annual  anniversary of this Agreement, with respect to Enhanced Collateral Properties only, Borrower shall  provide to Lender documentary evidence, acceptable to Lender in its sole but reasonable discretion  that the required insurance pursuant to subsection (ii) is in place. Additionally, with respect to  Enhanced Collateral Properties only, within fifteen (15) days following (a) the previous expiration  date of any insurance policy required to be in place pursuant to this paragraph and/or (b) any  change in any insurance carrier and/or material change in any such insurance policy (including  any replacement insurance policy), Borrower shall provide to Lender documentary evidence,  acceptable to Lender in its sole but reasonable discretion that the required insurance pursuant to  subsection (ii) is in effect and will continue to be in effect.  (f) Books of Record and Account.  Keep adequate records and proper books of  record and account in which complete entries will be made in a manner to enable the preparation  of financial statements in accordance with GAAP, reflecting all financial transactions of Borrower  and each Subsidiary.  (g) Visitation.  At any reasonable time, and from time to time, permit Lender  or any agents or representatives thereof, to examine and make copies of and abstracts from the  books and records of, and, subject to the requirements of all applicable leases, visit the properties  of, Borrower and each Subsidiary and to discuss the affairs, finances and accounts of Borrower  and each Subsidiary with any of Borrower’s officers, directors or independent accountants.   





 






34  (h) Performance and Compliance with Other Agreements.  Perform and comply  with each of the provisions of each and every agreement the failure to perform or comply with  which would be reasonably likely result in a Material Adverse Change in Borrower;  (i) Continued Perfection of Liens and Security Interest.  At Lender’s request,  record or file or rerecord or refile any of the Loan Documents or a financing statement or any other  filing or recording or refiling or rerecording in each and every office where and when necessary  to preserve, perfect and continue the security interests of the Loan Documents;  (j) Pension Funding.  Comply with the following and cause each ERISA  Affiliate of Borrower and each Subsidiary to comply with the following:   (i) engage solely in transactions which would not subject  any of such entities to either a civil penalty assessed pursuant to Section  502(i) of ERISA or a tax imposed by Section 4975 of the Internal  Revenue Code in either case in an amount in excess of $25,000.00;  (ii) make full payment when due of all amounts which,  under the provisions of any Plan or ERISA, Borrower, each Subsidiary  or any ERISA Affiliate of any of same is required to pay as  contributions thereto;  (iii) all applicable provisions of the Internal Revenue Code  and the regulations promulgated thereunder, including but not limited  to Section 412 thereof, and all applicable rules, regulations and  interpretations of the Accounting Principles Board and the Financial  Accounting Standards Board;  (iv) not fail to make any payments in an aggregate amount  greater than $25,000.00 to any Multiemployer Plan that Borrower, any  Subsidiary or any ERISA Affiliate of Borrower may be required to  make under any agreement relating to such Multiemployer Plan, or any  law pertaining thereto; or  (v) not take any action regarding any Plan which could  result in the occurrence of a Prohibited Transaction.  (k) Licenses.  Maintain at all times all licenses or permits necessary to the  conduct of the business of Borrower and each Subsidiary or as may be required by any  governmental agency or instrumentality thereof, where the failure to maintain such licenses or  permits would be reasonably likely to result in a Material Adverse Change in Borrower;  (l) Subsidiaries. On the fifth (5th) calendar day of each month, furnish to  Lender a complete schedule of all existing Subsidiaries as of the first (1st) day of such month with  an asterisk next to any new Subsidiaries formed in the month prior and a double asterisk for each  of Borrower’s Subsidiaries which own 100% Property(ies);  





 






35  (m) Delivery of Guaranty. Cause all Wholly Owned Subsidiaries that own (now or  after the date hereof), directly or indirectly, fee title to any 100% Unencumbered Property intended  by Borrower and accepted by Lender to become an Enhanced Collateral Property, to guaranty all  obligations of Borrower to the Lender in order for Borrower to be in compliance with Section  5.03(c) of this Agreement and to cause to be delivered to Lender an executed Guaranty from such  Wholly Owned Subsidiaries;   (n) Delivery of Pledge Agreement. Cause all Equity Interests in all Wholly Owned  Subsidiaries that own (now or after the date hereof) fee title to any 100% Unencumbered Property  intended by Borrower and accepted by Lender to become an Enhanced Collateral Property, to be  pledged to Lender in accordance with a Pledge Agreement and in order for Borrower to be in  compliance with Section 5.03(c) of this Agreement, and to cause delivery to the Lender of the  documents required by Section 3.01(l) hereof;   (o) Delivery of Negative Pledge Agreement. Cause Borrower and all Wholly  Owned Subsidiaries that own (now or after the date hereof), directly or indirectly, fee title to any  100% Unencumbered Property intended by Borrower and accepted by Lender to become an  Enhanced Collateral Property, to execute and deliver to Lender Negative Pledge Agreements, which  Negative Pledge Agreements shall be in the form substantially set forth as Exhibit L and which  shall prohibit, among other things, any such 100% Unencumbered Property from becoming an  Encumbered Property,  in order for Borrower to be in compliance with Section 5.03(c) of this  Agreement and to cause delivery to the Lender the documents required by Section 3.01(n) hereof;                            (p) Anti-Corruption Laws and Sanctions.  Borrower and each Subsidiary Controlled  by Borrower shall each maintain in effect and enforce policies and procedures designed to ensure  compliance by Borrower and such Subsidiaries and their respective directors, officers and  employees and their agents with Anti-Corruption Laws and applicable Sanctions.                           (q) Maintenance of Real Estate Investment Trust Status.  Borrower shall maintain at  all times its existence as a real estate investment trust;                       (r) Maintenance of Listing on National Stock Exchange.  Borrower shall maintain at  all times its listing on the New York Stock Exchange or another nationally recognized stock  exchange;                        (s) Maintenance of Principal Banking Relationship.  The Borrower shall maintain  its primary operating account at Valley National Bank, which account is the Designated Deposit  Account; and                        (t) OFAC and Patriot Act.  (i) Immediately notify Lender if it obtains knowledge  that it or any of its Affiliates has become or has been listed as a Restricted Party or has been  charged with or has engaged in any violation of any Anti-Terrorism Law; (ii) not receive any  funds from a Restricted Party and, in any case, exclude any funds derived from any Restricted  Party or from any Person involved in the violation of any Anti-Terrorism Law from being used  to pay debt service or any other amounts owing under the Loan Documents; (iii) not transfer or  consent to the transfer of any legal or beneficial ownership interest of any kind in Borrower or  any Affiliate to a Restricted Party or any Person involved in the violation of any Anti-Terrorism  





 






36  Law; (iv) not acquire, directly or indirectly, ownership interest of any kind in any Restricted Party  or any Person involved in the violation of any Anti-Terrorism Law; (v) not form any partnership  or joint venture or conduct any business with any Restricted Party or any Person involved in the  violation of any Anti-Terrorism Law, and not to act, directly or indirectly, as the agent or  representative of any Restricted Party or any Person in the violation of any Anti-Terrorism Law;  and (vi) indemnify Lender for any costs incurred by any of them as a result of any violation of an  Anti-Terrorism Law by Borrower or any Affiliate of Borrower.                       (u) Until all Obligations under this Agreement are fully satisfied, Borrower shall  make or shall cause to be made all payments required under Section 2.09 herein in accordance  with the terms of such Section, and shall adhere to all terms and conditions of this Agreement.   (v) To the extent Borrower causes the delivery of any Negative Pledge Agreement,  Pledge Agreement or Guaranty to Lender, Lender shall also simultaneously receive from  Borrower (dated as of the date of such Negative Pledge Agreement, Pledge Agreement and/or  Guaranty) a fully-executed certificate of the Secretary of Borrower  in the form annexed hereto  as Exhibit O, certifying to Lender that such Negative Pledge Agreement, Pledge Agreement  and/or Guaranty and the execution, delivery and performance thereof has been duly authorized  and approved by the board of directors of Borrower.  SECTION 5.02 Negative Covenants.  So long as any amount shall remain  outstanding under the Revolving Credit Note, or so long as the Commitment shall remain in effect,  Borrower will, not without the written consent of Lender:  (a) Liens, Etc.  Create, incur, assume or suffer to exist, any Lien, upon or with  respect to the Borrower or any of its Subsidiaries, now owned or hereafter acquired, except:    (i) Liens in favor of Lender;  (ii) Liens for taxes or assessments or other government  charges or levies if not yet due and payable or if due and payable if  they are being contested in good faith by appropriate proceedings and  for which appropriate reserves are maintained in accordance with  GAAP;  (iii) Liens imposed by law, such as mechanics’,  materialmen’s, landlords’, warehousemen’s, and carriers’ Liens, and  other similar Liens, securing obligations incurred in the ordinary  course of business which are not past due or which are being contested  in good faith by appropriate proceedings and for which appropriate  reserves are maintained in accordance with GAAP, provided however,  that Borrower shall send notice to Lender of filing of any such Lien in  excess of $250,000 within fifteen (15) days after receiving notice  thereof together with Borrower’s statement indicating the action it  proposes to cause such Lien to be satisfied, dismissed and/or  discharged;  





 






37  (iv) Liens under workers’ compensation, unemployment  insurance, Social Security, or similar legislation;  (v) Liens, deposits, or pledges to secure the performance of  bids, tenders, contracts (other than contracts for the payment of  money), leases (permitted under the terms of this Agreement), public  or statutory obligations, surety, stay, appeal, indemnity, performance  or other similar bonds, or other similar obligations arising in the  ordinary course of business;  (vi) Liens described in Schedule 5.02(a) annexed hereto,  provided that no such Liens or the Debt secured thereby shall be  renewed, extended or refinanced (other than Liens from mortgages on  the Properties or pursuant to other Liens or Debt permitted hereunder);  (vii)  Judgment and other similar Liens arising in connection  with court proceedings (other than those described in Section 6.01(k)  hereof), provided that the execution or other enforcement of such  judgment or Lien is effectively stayed and the claims secured thereby  are being actively contested in good faith and by appropriate  proceedings;  (viii) Easements, rights-of-way, restrictions, and other  similar encumbrances with respect to real property which, either in one  case or in the aggregate, do not materially interfere with Borrower’s  use and enjoyment of the property or assets encumbered thereby in the  normal course of its business or materially impair the value of the  property subject thereto;   (ix) Liens on Properties (other than Enhanced Collateral  Properties) and/or other real estate assets of Borrower or any of its  Subsidiaries;   (x) Liens on equipment and/or other personal property of  Subsidiaries;  (xi) Liens not in excess of the aggregate dollar amount of  $500,000; or  (xii) Liens encumbering assets of Subsidiaries which would  not be reasonably likely to result in a Material Adverse Change in  Borrower.   (b) Debt.  Create, incur, assume, or suffer to exist, any Debt, except:   (i) Debt of Borrower under this Agreement or the Debt  described on Schedule 5.02(b) annexed hereto;   





 






38  (ii) Accounts payable to trade creditors for goods or  services and current operating liabilities (other than for borrowed  money) in each case incurred in the ordinary course of business and  paid within the specified time, unless contested in good faith and by  appropriate proceedings;   (iii) Debt secured by Liens permitted by Section 5.02(a)  hereof; or  (iv) Any other Debt which would not be reasonably likely to result in a Material  Adverse Change in Borrower (which shall in no way circumvent or limit the prohibition in  5.02(c) hereof).   (c) Other than in connection with any Debt permitted under Section 5.02(b) or  guaranties permitted under Section 5.02(i), enter into any loan and/or credit facilities with any  other lender or financial institution other than the Lender (for clarity, that certain currently existing  junior subordinated debenture due in 2036 in the current amount of $37,400,000 is excluded from  this prohibition and the prohibitions in Section 5.02(b) and Section 5.02(i), subject to the dollar  amount of this junior subordinated debenture not being increased);   (d) Merger.  Merge into, or consolidate with or into, or have merged into it, any  Person;  (e) Sale of Assets, Etc.  Sell, assign, transfer, lease or otherwise dispose of all  or substantially all of its assets;  (f) Investments, Etc.  Make any Investment other than Permitted Investments  (it being acknowledged for the avoidance of doubt that Borrower’s subsidiaries shall not be  restricted from making Investments by virtue of this Section 5.02(f));   (g) Transactions With Affiliates.  Except for the transactions listed on Schedule  5.02(g) hereto, or otherwise in the ordinary course of business and pursuant to the reasonable  requirements of Borrower’s or its Subsidiary’s business and upon fair and reasonable terms no less  favorable to Borrower or such Subsidiary than would be obtained in a comparable arm’s length  transaction with a Person not an Affiliate of Borrower, enter into any transaction, including,  without limitation, the purchase, sale, or exchange of property or the rendering of any service, with  any Affiliate of Borrower;    (h) Intentionally Omitted;  (i) Guarantees.  Guaranty, or in any other way become directly or contingently  obligated for any Debt of any other Person (including but not limited to any agreements relating  to working capital maintenance, take or pay contracts or similar arrangements) other than (i) the  endorsement of negotiable instruments for deposit in the ordinary course of business; or (ii)  guarantees existing on the date hereof and set forth in Schedule 5.02(i) annexed hereto; or (iii)  hazardous material indemnities; or (iv) customary guaranties and/or indemnities in connection  with mortgage loans and relating to non-recourse carve-out items such as bankruptcy filings,  breaches of transfer restrictions, fraud or intentional misrepresentation, misappropriation of funds,  





 






39  waste, abandonment of any property, misapplication of rents and other similar items; (v) Debt  owing to Lender under this Agreement; (vi) guaranties and/or indemnities associated with breaches  of representations and warranties in purchase and sale agreements; (vii) guaranties and/or  indemnities in favor of members or partners of a Subsidiary (or their affiliates) relating to items  described in clause (iv) above (whether due to actions or omissions of Borrower or its affiliates,  as a method of sharing responsibility for non-recourse carve-out obligations of such members or  partners (or their affiliates), or otherwise; (viii) Debt permitted under Section 5.02(b) hereof; or  (ix) any Guaranty required or permitted by the terms of this Agreement.    (j) Change of Business.  Materially alter the nature of its business;  (k) Fiscal Year.  Change the ending date of its fiscal year from December 31;  (l) Accounting Policies.  Change any accounting policies, except as permitted  by GAAP;  (m) Management.  Fail to retain at least five (5) of Jeffrey Gould, Mitchell  Gould, Matthew Gould, David Kalish, Isaac Kalish, Israel Rosenzweig, Steven Rosenzweig, Mark  Lundy and George Zweier in the management of Borrower;  (n) Ownership.  Transfer, sell or assign ownership interests in Borrower so that  the current management group of the Borrower together with its executive officers and each of  their respective (i) family members and (ii) Affiliated Persons, as of the date hereof, fail to maintain  at least an aggregate twenty percent (20%) ownership interest in the Borrower;    (o) Hazardous Material.  Cause or permit any property owned or occupied by  Borrower or a Subsidiary to be used to generate, manufacture, refine, transport, treat, store, handle,  dispose, transfer, produce or process Hazardous Materials, except in compliance with all  applicable federal, state and local laws or regulations or where such non-compliance would not be  reasonably likely to result in a Material Adverse Change in Borrower; nor cause or permit, as a  result of any intentional or unintentional act or omission on the part of Borrower, a Subsidiary or  any tenant or subtenant, a release of Hazardous Materials onto any property owned or occupied by  Borrower or a Subsidiary or onto any other property, except in compliance with all applicable  federal, state and local laws or regulations, except where such release would not be reasonably  likely to result in a Material Adverse Change in Borrower; fail to comply with all applicable  federal, state and local laws, ordinances, rules and regulations, whenever and by whomever  triggered, except where such failure would not be reasonably likely to result in a Material Adverse  Change in Borrower; nor fail to obtain and comply with, any and all approvals, registrations or  permits required thereunder, except where such failure would not be reasonably likely to result in  a Material Adverse Change in Borrower.  Borrower shall execute any documentation reasonably  required by Lender in connection with the representations, warranties and covenants contained in  this sub-section and Section 4.01(n) hereof; and   (p) Dividends, Etc.  Upon the occurrence and during the continuance of an  Event of Default, in the event any amount is then outstanding under the Revolving Credit Note,  Borrower shall not make distributions in excess of the sum necessary to permit Borrower to  maintain its status as a real estate investment trust.  





 






40  SECTION 5.03 Financial Requirements.  So long as any amount shall remain  outstanding under the Revolving Credit Note or so long as the Commitment shall remain in effect,  without the written consent of Lender:  (a) Debt Service Coverage Ratio.  Borrower will not permit the ratio of the sum  of (i) the Net Operating Income for the most recent four fiscal quarters for each Four Quarter  Property which is a Positive 100% Property and (ii) the Annualized Net Operating Income for each  One To Three Quarter Property which is a Positive 100% property, calculated on a combined  aggregated basis to Debt Service, to become less than 1.25 to 1.00, such ratio to be tested at each  Fiscal Quarter based on financial reports proved by Borrower under Section 5.01(b).  (b) Number of 100% Properties. Borrower shall own, directly or indirectly, not  less than five (5) 100% Properties, of which a minimum of four (4) must be Positive 100%  Properties, of which a minimum of three (3) must be a Four Quarter Property.   (c) Number and Value of Enhanced Collateral Properties.  Borrower shall own,  directly or indirectly, not less than two (2) Enhanced Collateral Properties having a minimum  aggregate Enhanced Collateral Properties Value of $50,000,000.   SECTION 5.04 Accounts.  (a) Borrower shall maintain all depository accounts with Valley National Bank;  provided, however, (i) amounts set aside as holdbacks or reserves with respect to a Property may  be held by Borrower in accounts maintained at other financial institutions without same resulting  in a breach or violation of this Section 5.04(a), (ii) Net Capital Event Proceeds, Excess Cash Flow,  Distributed Reserve Funds and Net Public Stock Proceeds may be held in accounts maintained at  other financial institutions pending the deposit thereof in the Designated Deposit Account in  accordance with the time frames set forth in Section 2.09 of this Agreement without same  resulting in a breach or violation of this Section 5.04(a), and (iii) other deposits in the combined  aggregate amount not to exceed $350,000 for the twelve (12) months immediately following the  date of this Agreement, and thereafter the combined aggregate amount not to exceed $250,000,  may be maintained at other financial institutions without same resulting in a breach or violation  of this Section 5.04(a).   (b) Borrower shall maintain account no. 41464141 with Valley National Bank  (the “Special Cash Account”), consisting of certain capital improvement reserves and/or other  holdback reserves for certain Properties.  The Special Cash Account shall not be deemed a  Collateral Account and is not subject to the Security Agreement or Deposit Account Control  Agreement.  (c) In the event Borrower purchases U.S. Treasuries (the “Treasuries”) in  conformity with its standard business practices, Borrower shall first pursue the purchase of the  Treasuries in the Borrower’s name through the Valley National Bank (in a manner consistent with  the customary procedures of the Valley National Bank Trust Department or other designated  Valley National Bank department). If for any reason Valley National Bank is unable to effectuate  Borrower’s request for the purchase of Treasuries in Borrower’s name, Borrower may then pursue  such requested purchase of Treasuries through a different financial institution). When the  





 






41  Borrower redeems the Treasuries, any and all proceeds/funds from Treasuries in Borrower’s name,  whether purchased or maintained at Valley National Bank, an Affiliate of Valley National Bank  or a third-party financial institution, shall be deposited into the Designated Deposit Account no  later than seven (7) days upon receipt (such proceeds referred to as the “Redeemed Treasuries”).    ARTICLE VI    EVENTS OF DEFAULT  SECTION 6.01 Events of Default.  If any of the following events (each, an “Event  of Default”) shall occur and be continuing:  (a) Borrower shall fail to pay any installment of principal of, or interest on, the  Revolving Credit Note when due, or Borrower shall fail to pay any fees or other amounts owed in  connection with this Agreement when due;   (b) Any representation or warranty made by Borrower in this Agreement or in  any other Loan Document or which is contained in any certificate, document, opinion, or financial  or other statement furnished at any time under or in connection with this Agreement or any other  Loan Document shall prove to have been incorrect in any material respect when made; or  (c) Borrower shall fail to perform any covenant contained in Section 5.01(b),  Section 5.01(c), Section 5.01(d), Section 5.01(q), Section 5.01(r) and Section 5.01(s) hereof on its  part to be performed or observed; provided however, Borrower shall have seven (7) days following  such failure to cure any default under Sections 5.01(b)(v), (vi), (vii), (viii), (ix), (x), (xi), (xii),  (xiii), (xiv), (xv), (xviii), (xx) or Section 5.01(d), and Borrower shall have thirty (30) days  following the initial receipt of notice by Borrower, a Wholly Owned Subsidiary or a Subsidiary  Controlled by Borrower of the failure to pay taxes due to cure any default under Section 5.01(c);    (d) Borrower  shall fail to perform any term, covenant or agreement contained  in Section 5.02(o) hereof; provided, however, that upon Borrower ’s failure to perform under  Section 5.02(o) hereof, Borrower shall be granted such longer period as shall be reasonably  necessary to cause compliance with said Section, provided that Borrower or a Subsidiary shall  deliver to Lender within ninety (90) days thereafter, a written proposal regarding the curative  process, certified by an environmental company acceptable to Lender, and such plan must be  approved by Lender’s environmental consultants;   (e) Borrower shall fail to perform any term, covenant or agreement contained  in Section 5.03 hereof except that   (1) with respect to Section 5.03(a) Borrower shall have thirty (30) days to  cure such failure from the earlier to occur of the date Borrower delivers any  required compliance report to Lender or the Compliance Certificate  Delivery Date (the “Cure Period”), provided, (i) that there be zero dollars  outstanding under the Revolving Credit Note,  no later than by 3PM U.S.  Eastern Time, on the commencement date of the Cure Period;  (ii) that there  shall be no advances under the Revolving Credit Note unless and until such  failure(s) are cured on or before the expiration of the Cure Period; and (iii)  





 






42  the Borrower meets all of the requirements of this Agreement including  those contained in Section 3.02 hereof;    (2) with respect to Section 5.03(b) Borrower shall have thirty (30) days to  cure such failure  from the occurrence date of the event causing such failure  (the “5.03(b) Cure Period”), provided, (i) that there be zero dollars  outstanding under the Revolving Credit Note, no later than by 3PM U.S.  Eastern Time, on the commencement date of the 5.03(b) Cure Period;  (ii)  that there shall be no advances under the Revolving Credit Note unless and  until such failure(s) are cured on or before the expiration of the 5.03(b) Cure  Period; and (iii) the Borrower meets all of the requirements of this  Agreement including those contained in Section 3.02 hereof.  The determination as to whether a cure has been effected hereunder shall be made  by Lender in its sole and commercially reasonable discretion based on new  compliance certificate(s) together with such supporting information and  documentation reasonably requested by Lender to be delivered to Lender on or  before each of the above respective Cure Period expiration dates in Sections  6.01(e)(1) and 6.01(e)(2) above.;  (f) the making or filing of any lien, levy, or execution on, or seizure, attachment  or garnishment of, any of the “Collateral” as such term is defined in the Security Agreement or  Pledge Agreement;  (g) the termination or purported termination of the Deposit Account Control  Agreement (or any other control agreement that has been entered into with respect to the Collateral  Account), without Lender’s written consent;  (h) Borrower  or any Wholly Owned Subsidiary shall fail to perform or observe  any other term, covenant or agreement contained in this Agreement or in any other Loan Document  (other than the Revolving Credit Note) on its part to be performed or observed following notice  and an opportunity to cure within the time frames otherwise set forth in this Agreement, or if a  cure timeframe is not indicated in this Agreement, an opportunity to cure within thirty (30) days  following notice thereof from Lender; provided that the foregoing clause shall not be deemed to  add a notice and cure period to breaches set forth in this Section 6.01 (other than this subsection  (h)) which do not have a specified notice and cure period;   (i) Borrower shall fail to pay any Debt or Debts of Borrower, in the singular or  aggregate principal amount of $500,000.00 or more (excluding Debt evidenced by the Revolving  Credit Note and excluding Debt of any subsidiary of Borrower), or any installment, interest or  premium thereon, when due (whether by scheduled maturity, required prepayment, acceleration,  demand or otherwise) and such failure shall continue after the applicable grace period, if any,  specified in the agreements or instruments relating to such Debt or Debts; or any other default  under any agreements or instruments relating to any such Debt or Debts, or any other event shall  occur and shall continue after the applicable grace period, if any, specified in such agreements or  instruments, if the effect of such default or event, in any of the foregoing instances is to accelerate  the maturity of such Debt or Debts; or any such Debt or Debts shall be declared to be due and  





 






43  payable, or required to be prepaid (other than by a regularly scheduled required prepayment), prior  to the stated maturity thereof and is not then so paid within thirty (30) Business Days of the date  same shall have been declared due and payable;   (j) Borrower shall generally not pay its Debts as such Debts become due, or  shall admit in writing its inability to pay its Debts generally, or shall make a general assignment  for the benefit of creditors; or any proceeding shall be instituted by or against Borrower seeking  to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization,  arrangement, adjustment, protection, relief, or composition of it or its Debts under any law relating  to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order  for relief or the appointment of a receiver, trustee, or other similar official for it or for any  substantial part of its property and if instituted against Borrower shall remain undismissed for a  period of 60 days; or Borrower shall take any action to authorize any of the actions set forth above  in this subsection (j);  (k) Any judgment or order or combination of judgments or orders for the  payment of money, in the amount of $500,000.00 or more, singularly or in the aggregate, which  sum shall not be subject to full, complete and effective insurance coverage, shall be rendered  against Borrower and either (i) enforcement proceedings shall have been commenced by any  creditor upon such judgment or order or (ii) there shall be any period of 30 consecutive days during  which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise,  shall not be in effect;  (l) Any of the following events occur or exist with respect to Borrower, any  Subsidiary or any ERISA Affiliate of Borrower : (i) any Prohibited Transaction involving any  Plan; (ii) any Reportable Event with respect to any Plan; (iii) the filing under Section 4041 of  ERISA of a notice of intent to terminate any Plan or the termination of any Plan; (iv) any event or  circumstance that might constitute grounds entitling the PBGC to institute proceedings under  Section 4042 of ERISA for the termination of, or for the appointment of a trustee to administer,  any Plan, or the institution of the PBGC of any such proceedings; (v) complete or partial  withdrawal under Section 4201 or 4204 of ERISA from a Multiemployer Plan or the reorganization  insolvency, or termination of any Multiemployer Plan; and in each case above, such event or  condition, together with all other events or conditions, if any, could in the opinion of Lender  subject Borrower, any Subsidiary or any such ERISA Affiliate to any tax, penalty, or other liability  to a Plan, a Multiemployer Plan, the PBGC, or otherwise (or any combination thereof) which is  either singularly or in the aggregate $50,000.00 or more; or  (m) This Agreement or any other Loan Document, at any time after its execution  and delivery and for any reason, ceases to be in full force and effect or shall be declared to be null  and void, or the validity or enforceability of any document or instrument delivered pursuant to this  Agreement shall be contested by Borrower or any other party to such document or instrument or  Borrower or any other party to such document or instrument shall deny that it has any or further  liability or obligation under any such document or instrument.    SECTION 6.02 Remedies on Default.  Upon the occurrence and continuance of an  Event of Default Lender may, upon five (5) Business Days notice to Borrower, (i) terminate the  Commitment, (ii) declare the Revolving Credit Note, all interest thereon and all other amounts  





 






44  payable under this Agreement to be due and payable, whereupon the Commitment shall be  terminated, the Revolving Credit Note, all such interest and all such amounts shall become and be  due and payable, without presentment, demand, protest or further notice of any kind, all of which  are hereby expressly waived by Borrower, (iii) proceed to enforce its rights whether by suit in  equity or by action at law, whether for specific performance of any covenant or agreement  contained in this Agreement or any other Loan Document, or in aid of the exercise of any power  granted in either this Agreement or any other Loan Document, or (iv) proceed to obtain judgment  or any other relief whatsoever appropriate to the enforcement of its rights, or proceed to enforce  any other legal or equitable right which Lender may have by reason of the occurrence of any Event  of Default hereunder or under any other Loan Document, provided, however, upon the occurrence  of an Event of Default referred to in Section 6.01(j) hereof, the Commitment shall be immediately  terminated, the Revolving Credit Note, all interest thereon and all other amounts payable under  this Agreement shall be immediately due and payable without presentment, demand, protest or  further notice of any kind, all of which are hereby expressly waived by Borrower.  Any amounts  collected pursuant to action taken under this Section 6.02 shall be applied to the payment of any  costs incurred by Lender in taking such action, including, but without limitation, reasonable  attorney fees and expenses, to payment of the accrued interest on the Revolving Credit Note, and  to payment of the unpaid principal of the Revolving Credit Note, in such order as is determined  by Lender.  SECTION 6.03 Remedies Cumulative.  No remedy conferred upon or reserved to  Lender hereunder or in any other Loan Document is intended to be exclusive of any other available  remedy, but each and every such remedy shall be cumulative and in addition to every other remedy  given under this Agreement or any other Loan Document or now or hereafter existing at law or in  equity.  No delay or omission to exercise any right or power accruing upon any Event of Default  shall impair any such right or power or shall be construed to be a waiver thereof, but any such right  and power may be exercised from time to time and as often as may be deemed expedient.  In order  to entitle Lender to exercise any remedy reserved to it in this Article VI, it shall not be necessary  to give any notice, other than such notice as may be herein expressly required in this Agreement  or in any other Loan Document.  ARTICLE VII    MISCELLANEOUS  SECTION 7.01 Amendments, Etc.  No amendment, modification, termination or  waiver of any provision of any Loan Document to which Borrower is a party, nor consent to any  departure by Borrower from any provision of any Loan Document to which it is a party, shall in  any event be effective unless the same shall be in writing and signed by Lender and Borrower, and  then such amendment, waiver or consent shall be effective only in the specific instance and for the  specific purpose for which given.  SECTION 7.02 Notices, Etc.  All notices and other communications provided for  in this Agreement shall be in writing (including telegraphic communication) and mailed, sent by  nationally recognized overnight mail delivery service, or delivered, if to Borrower at the address  of Borrower set forth at the beginning of this Agreement to the attention of David Kalish (with a  copy to Steven Rosenzweig, Esq.) and if to Lender, at the address of Lender as set forth at the  





 






45  beginning of this Agreement or, as to each party, at such other address as shall be designated by  such party in a written notice to the other parties complying as to delivery with the terms of this  Section 7.02.  All such notices and communications shall be effective as to Borrower (i) three (3)  Business Days after being mailed by registered or certified mail, postage prepaid, (ii) upon delivery  if by personal messenger or hand delivery service or (iii) the next Business Day after depositing  with an agent or reputable overnight carrier service.  All such notices and communications shall  be effective as to Lender when actually received by Lender.  SECTION 7.03 No Waiver, Remedies.  No failure on the part of Lender to  exercise, and no delay in exercising, any right, power or remedy under any Loan Document, shall  operate as a waiver thereof; nor shall any single or partial exercise of any right under any Loan  Document preclude any other or further exercise thereof or the exercise of any other right.  The  remedies provided in the Loan Documents are cumulative and not exclusive of any remedies  provided by law.  SECTION 7.04 Costs, Expenses and Taxes.  Borrower agrees to pay on demand  all out-of-pocket costs and expenses of Lender, including reasonable attorneys fees, in connection  with the preparation, execution, delivery and administration of this Agreement, the Revolving  Credit Note and any other Loan Documents, including without limitation, the reasonable fees and  expenses of counsel for Lender with respect thereto, and all costs and expenses, if any (including  reasonable counsel fees and expenses), in connection with the enforcement of this Agreement, the  Revolving Credit Note and any other Loan Documents.  Other than for the willful misconduct or  gross negligence of Lender, or the default of Lender hereunder, Borrower shall at all times protect,  indemnify, defend and save harmless Lender from and against any and all claims, actions, suits  and other legal proceedings, and liabilities, obligations, losses, damages, penalties, judgments,  costs, expenses or disbursements which Lender may, at any time, sustain or incur by reason of or  in consequence of or arising out of the execution and delivery of this Agreement and the other  Loan Documents and the consummation of the transactions contemplated hereby.  Borrower  acknowledges that it is the intention of the parties hereto that this Agreement shall be construed  and applied to protect and indemnify Lender against any and all risks involved in the execution  and delivery of this Agreement and the other Loan Documents and the consummation of the  transactions contemplated hereby, all of which risks are hereby assumed by Borrower, including,  without limitation, any and all risks of the acts or omissions, whether rightful or wrongful, of any  present or future de jure or de facto government or governmental authority, provided that Borrower  shall not be liable for any portion of such liabilities, obligations, losses, damages, penalties,  actions, judgments, suits, costs, expenses or disbursements resulting from Lender’s gross  negligence or willful misconduct.  The provisions of this Section 7.04 shall survive the payment  of the Revolving Credit Note and the termination of this Agreement.  SECTION 7.05 Right of Set-off.  Upon the occurrence and during the continuance  of any Event of Default, Lender is hereby authorized at any time and from time to time, to the  fullest extent permitted by law, to set off and apply any and all deposits at Valley National Bank   (general or special, time or demand, provisional or final) at any time held and other indebtedness  at any time owing by Lenders or any affiliate, parent or subsidiary of the Lender to or for the credit  or the account of Borrower against any and all of the obligations of Borrower now or hereafter  existing under this Agreement, the Revolving Credit Note and the other Loan Documents,  irrespective of whether or not Lender shall have made any demand under this Agreement, the  





 






46  Revolving Credit Note or such other Loan Documents and although such obligations may be  unmatured.  The rights of Lender under this Section 7.05 are in addition to all other rights and  remedies (including, without limitation, other rights of set-off) which Lender may have.  For  avoidance of doubt, Borrower has granted Lender and its parent, Valley National Bank, a right of  set-off and security interest in any accounts of Borrower held at Valley National Bank, all which  rights are subject to the terms of this Agreement and any other Loan Documents. Notwithstanding  anything to the contrary set forth herein, or in any other Loan Document, or in any other instrument  or agreement relating to the Special Cash Account, neither Lender, nor its parent, Valley National  Bank, nor any of their respective affiliates, parents or subsidiaries, shall have a Lien on, or right  of offset or set-off against, the Special Cash Account or any funds therein.  SECTION 7.06 Binding Effect.  This Agreement shall become effective when it  shall have been executed by Borrower and Lender and thereafter it shall be binding upon and inure  to the benefit of Borrower and Lender and their respective successors and assigns, except that  Borrower shall not have any right to assign its or their rights hereunder or any interest herein  without the prior written consent of Lender.  SECTION 7.07 Further Assurances.  Borrower agrees at any time and from time  to time at its expense, upon request of Lender or its counsel, to promptly execute, deliver, or obtain  or cause to be executed, delivered or obtained any and all further instruments and documents and  to take or cause to be taken all such other action Lender may reasonably deem appropriate in  obtaining the full benefits of, this Agreement or any other Loan Document.    SECTION 7.08 Section Headings, Severability, Entire Agreement.  Section and  subsection headings have been inserted herein for convenience only and shall not be construed as  part of this Agreement.  Every provision of this Agreement and each other Loan Document is  intended to be severable; if any term or provision of this Agreement, any other Loan Document,  or any other document delivered in connection herewith shall be invalid, illegal or unenforceable  for any reason whatsoever, the validity, legality and enforceability of the remaining provisions  hereof or thereof shall not in any way be affected or impaired thereby.  All exhibits and schedules  annexed to this Agreement shall be deemed to be part of this Agreement.  This Agreement, the  other Loan Documents and the exhibits and schedules annexed hereto and thereto embody the  entire agreement and understanding among Borrower and Lender with respect to the transactions  contemplated hereby and supersede all prior agreements and understandings relating to the subject  matter hereof. That certain Loan Agreement executed by Borrower and Lender dated April 18,  2019 (the “Prior Loan Agreement”), as amended or otherwise modified from time to time prior  to the date hereof, as well as all of the instruments and documents entered into in connection  therewith , are each hereby amended, restated, replaced and superseded in their entirety.  SECTION 7.09 Governing Law.  This Agreement, the Revolving Credit Note and  all other Loan Documents shall be governed by, and construed in accordance with, the laws of the  State of New York.  SECTION 7.10 Waiver of Jury Trial.    (a) Borrower and Lender waive all rights to trial by jury in any action or  proceeding involving, directly or indirectly any matter (whether sounding in tort, contract or  





 






47  otherwise) in any way, arising out of, relating to, or connected with this Agreement, any other  Loan Document or the transactions contemplated hereby.  (b) In an action commenced in the Commercial Division, New York State  Supreme Court, the parties hereby agree, subject to the requirements for a case to be heard in the  Commercial Division, to apply the Court’s accelerated adjudication procedures set forth in Rule 9  of the Rules of Practice for the Commercial Division, in connection with any dispute, claim or  controversy arising out of or relating to this Agreement, or the breach, termination, enforcement  or validity thereof.  SECTION 7.11 Execution in Counterparts.  This Agreement may be executed in  any number of counterparts and by different parties hereto in separate counterparts, each of which  when so executed shall be deemed to be an original and all of which taken together shall constitute  one and the same agreement.    





 






  Exhibit O    IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be  executed by their respective officers thereunto duly authorized, as of the date first above written.  Borrower: BRT APARTMENTS CORP.      By:     Print Name:                   Print Title:          Lender:                                                                                                                            VNB NEW YORK, LLC    By:     Name:  Andrew Baron  Title:    First Vice President                              





 






49  COUNTY OF _________,  STATE OF NEW YORK.      On the ______ day of November  in the year 2021 before me, the undersigned, a Notary Public in  and for said State, personally appeared ____________________________, personally known to me  or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed  to the within instrument and acknowledged to me that he executed the same in his capacity, and that  by signature on the instrument, the individual, or the person upon behalf of which the individual acted,  executed the instrument.    ______________________________  Notary Public        COUNTY OF _________,  STATE OF NEW YORK.      On the ______ day of November in the year 2021 before me, the undersigned, a Notary Public in and  for said State, personally appeared Andrew Baron, personally known to me or proved to me on the  basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument  and acknowledged to me that he executed the same in his capacity, and that by signature on the  instrument, the individual, or the person upon behalf of which the individual acted, executed the  instrument.    ______________________________  Notary Public