OR BY OR BEFORE
ANY OTHER GOVERNMENTAL AUTHORITY, OR LABOR CONTROVERSY AFFECTING GUARANTOR OR
ANY OF ITS PROPERTIES, BUSINESSES, ASSETS OR REVENUES, WHICH WOULD REASONABLY BE
EXPECTED TO (I) MATERIALLY AND ADVERSELY AFFECT THE ABILITY OF GUARANTOR TO
CARRY OUT THE TRANSACTIONS CONTEMPLATED BY THIS GUARANTY, (II) MATERIALLY AND
ADVERSELY AFFECT THE VALUE OF ITS PROPERTY, (III) MATERIALLY IMPAIR THE USE AND
OPERATION OF ITS PROPERTY OR (IV) IMPAIR GUARANTOR'S ABILITY TO PAY ITS
OBLIGATIONS IN A TIMELY MANNER.
SECTION 3.8
SURVIVAL.
ALL REPRESENTATIONS AND WARRANTIES MADE BY
GUARANTOR HEREIN SHALL SURVIVE THE EXECUTION HEREOF AND SHALL BE DEEMED TO HAVE
BEEN RELIED UPON BY LENDER NOTWITHSTANDING ANY INVESTIGATION HERETOFORE OR
HEREAFTER MADE BY LENDER.
SECTION 3.9
FINANCIAL COVENANTS.
(A) AT ALL TIMES DURING
THE TERM OF THE LOAN, GUARANTOR SHALL SATISFY THE NET WORTH REQUIREMENT, TO BE
TESTED ON A QUARTERLY BASIS PURSUANT TO THE QUARTERLY AND ANNUAL FINANCIAL
STATEMENTS OF GUARANTOR PROVIDED TO LENDER PURSUANT TO CLAUSES (B) AND (C)
BELOW.
THE "NET WORTH REQUIREMENT" MEANS A NET WORTH (DEFINED HEREIN) OF AT
LEAST $200,000,000.00.
FOR PURPOSES OF THIS SECTION 3.9, "NET WORTH" SHALL MEAN
(I) THE TRAILING 12 MONTHS OF NET OPERATING INCOME (AS DETERMINED IN ACCORDANCE
WITH GAAP, BUT EXCLUDING GUARANTOR'S GENERAL AND ADMINISTRATIVE EXPENSES AND THE
RECEIVABLES OR PAYABLES RESULTING FROM THE STRAIGHT-LINING OF RENTS) FOR EACH
REAL PROPERTY OWNED OR LEASED BY GUARANTOR CAPITALIZED AT A 6% CAPITALIZATION
RATE, PLUS (II) GUARANTOR'S CASH AND CASH EQUIVALENTS AND RESTRICTED CASH AS OF
THE DATE NET WORTH IS BEING DETERMINED, LESS (III) (X) ANY OUTSTANDING DEBT
SECURED BY A FEE OR LEASEHOLD INTEREST IN CONNECTION WITH EACH SUCH PROPERTY AND
(Y) THE CORPORATE DEBT OF GUARANTOR AS OF THE DATE NET WORTH IS BEING
DETERMINED.
(B)
NOT LATER THAN FORTY‐FIVE (45) DAYS FOLLOWING THE END OF EACH
FISCAL QUARTER (COMMENCING WITH THE FIRST QUARTER OF 2012), GUARANTOR SHALL
DELIVER TO LENDER UNAUDITED FINANCIAL STATEMENTS WITH RESPECT TO THE GUARANTOR,
INTERNALLY PREPARED ON AN ACCRUAL BASIS INCLUDING A BALANCE SHEET, STATEMENT OF
OPERATIONS AS OF THE END OF SUCH QUARTER AND FOR THE CORRESPONDING QUARTER OF
THE PREVIOUS YEAR AND CONTINGENT LIABILITY SCHEDULE.
GUARANTOR MAY COMPLY WITH
THE REQUIREMENTS OF THIS SECTION 3.9(B) BY (I) DELIVERING TO LENDER A COPY OF
THE FORM 10-Q OR FORM 10-K REPORT, AS APPLICABLE, OF THE GUARANTOR FOR THE
RELEVANT QUARTER AS AND WHEN THE SAME IS FILED OR PROVIDING NOTICE TO LENDER
THAT THE SAME HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION OR (II)
IF BORROWER DELIVERS THE INFORMATION REQUIRED BY THIS SECTION 3.9(B) PURSUANT TO
SECTION 10.2.4 OF THE LOAN AGREEMENT.
(C)
NOT LATER THAN ONE HUNDRED TWENTY (120) DAYS AFTER THE END OF
EACH FISCAL YEAR, COMMENCING WITH THE FISCAL YEAR ENDING ON DECEMBER 31, 2011,
GUARANTOR SHALL DELIVER TO LENDER FINANCIAL STATEMENTS WITH RESPECT TO GUARANTOR
AUDITED BY AN INDEPENDENT ACCOUNTANT IN ACCORDANCE WITH GAAP AND INCLUDING A
BALANCE SHEET AS OF THE END OF SUCH YEAR, STATEMENTS OF OPERATIONS AND CASH
FLOWS FOR THE