Exhibit 10.2
LOAN AND SECURITY AGREEMENT
Dated as of June 20, 2001
by and between
PENN STATION LEASING, LLC,
a Delaware limited liability company
having an office at
00 Xxxxxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000
("BORROWER")
and
A/P I DEPOSIT CORPORATION,
a Delaware corporation,
having an office at
0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000
("LENDER")
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TABLE OF CONTENTS
1. DEFINITIONS............................................................2
2. TERMS OF LOAN.........................................................17
2.1. Loan and Note...................................................17
2.2. Interest and Principal..........................................17
2.3. No Deferral.....................................................17
2.4. Repayment on Maturity Date......................................17
2.5. Borrower's Note.................................................18
2.6. Application of Payments.........................................18
2.6.1. Order of Application.....................................18
2.6.2. Exceptions...............................................18
2.7. Reversal of Payments............................................19
2.8. Prepayment......................................................19
2.9. No Revolver.....................................................19
2.10. Manner and Timing of Payments...................................19
2.11. Late Charge.....................................................20
2.12. Taxes...........................................................20
2.12.1. No Deductions for General Taxes.........................20
2.12.2. Transaction Taxes.......................................20
2.12.3. Right to Contest........................................20
2.12.4. Indemnification.........................................20
2.12.5. Survival................................................21
2.13. Mortgage Defeasance.............................................21
2.13.1. Scheduled Defeasance Payments...........................21
2.13.2. Defeasance..............................................21
2.13.3. Defeasance Collateral...................................21
2.13.4. Conditions..............................................22
2.14. Reserve Account.................................................22
2.14.1. Reserve Account.........................................22
2.14.2. Substitution............................................23
3. CONDITIONS TO LOAN....................................................23
3.1. Note............................................................23
3.2. Formation, Organization, Etc....................................23
3.3. Opinion of Counsel..............................................24
3.4. Security Documents..............................................24
3.5. Title Insurance.................................................24
3.6. Environmental Assessment Reports................................24
3.7. Insurance.......................................................24
3.8. Financial Information...........................................24
3.9. No Violations...................................................24
3.10. Licensing.......................................................24
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3.11. Leases..........................................................24
3.12. Collection Account..............................................24
3.13. Other Documents and Deliveries..................................24
4. Security For Obligations..............................................24
4.1. Grant of Security Interest......................................24
4.2. Further Documentation...........................................25
4.3. Security Agreement; UCC Remedies................................25
4.4. Security for Obligations........................................25
4.4.1. Mortgage.................................................25
4.4.2. Collateral and Security Documents........................25
4.5. Security Interest in Accounts...................................25
5. Borrower's Representations and Warranties.............................25
5.1. Due Organization................................................25
5.2. Authorization and Enforceability................................26
5.3. No Material Litigation..........................................26
5.4. Compliance with Law.............................................26
5.5. No Conflict.....................................................26
5.6. Ownership.......................................................26
5.7. Place of Business...............................................27
5.8. Financial Statements............................................27
5.9. Accurate and Complete...........................................27
5.10. Not Usurious....................................................27
5.11. No Fraud........................................................27
5.12. ERISA...........................................................27
5.13. Security Interest...............................................27
5.14. Solvency........................................................28
5.15. Single Purpose Entity...........................................28
5.16. No Contracts....................................................28
5.17. Physical Condition..............................................28
5.18. No Condemnation or Other Events.................................28
5.19. No Flood Hazards................................................28
5.20. Access..........................................................28
5.21. Utility Services................................................29
5.22. Investment Company Act..........................................29
5.23. Margin Regulations..............................................29
5.24. Leases..........................................................29
5.25. No Leasing Commissions..........................................29
5.26. Taxes; Elections................................................29
5.27. Brokers.........................................................30
5.28. Employment, Labor and Management Agreements.....................30
5.29. Opinion of Counsel..............................................30
5.30. Contracts.......................................................30
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6. Borrower's Covenants..................................................30
6.1. Protection of Collateral........................................30
6.2. Compliance......................................................30
6.3. Books and Records...............................................30
6.4. Access..........................................................31
6.5. Insurance.......................................................31
6.5.1. Required Insurance Coverage..............................31
6.5.2. Lender as Additional Insured.............................32
6.5.3. Policy Requirements......................................32
6.5.4. Mandatory Policy Provisions..............................32
6.5.5. No Separate Insurance....................................33
6.5.6. Lender's Right to Procure Insurance......................33
6.6. Casualty........................................................33
6.6.1. Losses and Adjustment....................................33
6.6.2. Application of Proceeds Below Immaterial Loss
Threshold..............................................34
6.6.3. Application of Proceeds at or Above Immaterial Loss
Threshold..............................................34
6.6.4. Disbursement Mechanisms; Restoration.....................35
6.6.5. Disbursement Documentation...............................35
6.7. Condemnation....................................................36
6.7.1. Notice of Proceedings....................................36
6.7.2. Disbursement of Proceeds.................................36
6.7.3. Partial Taking...........................................36
6.7.4. Sale Before Receipt of Proceeds..........................37
6.8. Audit and Inspection............................................37
6.9. No Relocation...................................................37
6.10. Financial Statements............................................37
6.11. Notification of Lender..........................................37
6.11.1. Default or Event of Default.............................37
6.11.2. Litigation..............................................38
6.11.3. Loan-Related Litigation.................................38
6.11.4. Transfers...............................................38
6.12. Conduct of Business.............................................38
6.13. Restrictive Covenants...........................................38
6.13.1. Transfer................................................38
6.13.2. Organizational Documents................................39
6.13.3. Dissolution.............................................39
6.13.4. Other Indebtedness......................................39
6.13.5. New Leases..............................................39
6.13.6. Major Leases............................................39
6.13.7. Rents...................................................39
6.13.8. Certain Restrictions....................................39
6.13.9. Security Instruments....................................39
6.13.10. Permitted Transfers....................................40
6.14. No Impairment of Security Required..............................40
6.15. Environmental Documents.........................................40
6.16. Defense of Lien.................................................40
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6.17. Further Assurances..............................................41
6.17.1. Correction of Errors....................................41
6.17.2. Notice of Inaccuracies..................................41
6.17.3. Further Documentation...................................41
6.18. SPE Covenants...................................................41
6.19. Mergers, Etc....................................................41
6.20. Taxes...........................................................41
6.21. SEC Filings.....................................................41
6.21.1. Lender Consent..........................................41
6.21.2. Copies of Filings.......................................42
6.22. Employee Plans..................................................42
6.23. Effect of Payment and Performance...............................42
6.24. Use.............................................................42
6.25. Contracts.......................................................42
6.26. No Obligation of Lender; Borrower Remains Liable................42
6.27. Offering of Interests...........................................43
6.28. Collection Account..............................................43
7. Events of Default and Remedies........................................43
7.1. Definition......................................................43
7.1.1. Nonpayment...............................................43
7.1.2. Nonpayment of Money other than Debt Service
(Principal and Interest)...............................43
7.1.3. Representations and Warranties...........................43
7.1.4. Nonmonetary Default......................................43
7.1.5. Financial Matters........................................43
7.1.6. Invalidity...............................................44
7.1.7. Other Loan Documents.....................................44
7.1.8. Transfer.................................................44
7.1.9. Breach of SPE Covenants..................................44
7.1.10. Prime Lease.............................................44
7.1.11. Facility Sublease.......................................44
7.2. Acceleration....................................................44
7.3. Additional Remedies.............................................45
7.3.1. Set-Off..................................................45
7.3.2. Default Interest Rate....................................45
7.3.3. UCC Remedies.............................................45
7.3.4. Real Property Foreclosure................................46
7.3.5. Possession of Mortgaged Property.........................46
7.3.6. Delivery of Mortgaged Property...........................47
7.3.7. Lockbox..................................................47
7.3.8. Miscellaneous............................................48
7.4. No Oral Waivers.................................................48
7.5. Waiver of Automatic Stay........................................48
7.6. Direct Payment of Rent..........................................49
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8. Nonrecourse...........................................................49
8.1. Generally.......................................................49
8.2. Lender's Security...............................................49
9. Miscellaneous.........................................................50
9.1. Trustee.........................................................50
9.2. Term of Agreement...............................................51
9.3. Effectiveness of Representations and Warranties.................51
9.4. Expenses and Attorneys' Fees....................................51
9.4.1. Closing Costs............................................51
9.4.2. Post Closing Costs.......................................51
9.5. Agents, Etc.....................................................52
9.6. No Lender Obligations...........................................52
9.7. Parties.........................................................52
9.8. Notices.........................................................53
9.8.1. Lender...................................................53
9.8.2. Borrower.................................................53
9.9. Entire Agreement; Amendments....................................53
9.10. Governing Law...................................................54
9.11. Indemnification.................................................54
9.11.1. Brokerage...............................................54
9.11.2. Generally...............................................54
9.12. Jury Trial Waiver, Jurisdiction.................................55
9.12.1. Jury Trial..............................................55
9.12.2. New York Jurisdiction...................................55
9.13. Conflicts.......................................................55
9.14. Date of Performance.............................................56
9.15. No Waiver; Remedies.............................................56
9.16. Severability....................................................56
9.17. Injunctive Relief...............................................56
9.18. Relationship of Parties.........................................56
9.18.1. Lender's Role...........................................56
9.18.2. No Partnership..........................................57
9.19. Regulatory Requirements.........................................57
9.20. Interpretation..................................................57
9.21. Consent.........................................................58
9.22. Counterparts....................................................58
9.23. Waiver of Counterclaims.........................................58
9.24. Offsets, Counterclaims, and Defenses............................58
9.25. Estoppel Certificates...........................................58
9.26. Usury Savings...................................................58
9.27. Sale or Assignment by Lender....................................59
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ATTACHMENTS
Index of Defined Terms
Exhibit A - Prime Lease
EXHIBIT B - Rent Roll
EXHIBIT C - Amortization
EXHIBIT D - Form of Irrevocable Direction Letter
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LOAN AND SECURITY AGREEMENT
This LOAN AND SECURITY AGREEMENT (together with all Exhibits hereto,
as the same may be amended, modified and restated from time to time, this
"AGREEMENT"), dated as of June 20, 2001 (the "CLOSING DATE"), is entered into by
and between PENN STATION LEASING, LLC, a Delaware limited liability company,
having an office at 00 Xxxxxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000
(together with its successors and assigns, "BORROWER") and A/P I DEPOSIT
CORPORATION, a Delaware corporation, having an office at 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (together with its successors and assigns,
"LENDER").
W I T N E S S E T H
WHEREAS, Borrower is the tenant under the lease described on EXHIBIT
"A" attached hereto and made a part hereof (the "PRIME LEASE") demising to
Borrower the Leased Premises (hereinafter defined), which Leased Premises is a
portion of the railroad station commonly known as Pennsylvania Station; and
WHEREAS, Borrower desires to obtain from Lender, and Lender desires
to advance to Borrower, on the Closing Date, all in accordance with and upon
compliance with the terms and conditions of this Agreement, a secured loan (the
"LOAN") in the aggregate amount of Three Hundred Million and 00/100 Dollars
($300,000,000) (the "LOAN AMOUNT"); and
WHEREAS, Lender would not be willing to make, and would not be
obligated to make, the Loan to Borrower unless Borrower granted to Lender the
security interests and other rights provided for under this Agreement and the
other Security Documents (hereinafter defined); and
WHEREAS, to induce Lender to make the Loan, Borrower desires to
enter into this Agreement and the other Security Documents; and
WHEREAS, on the Closing Date, Borrower is delivering to Lender the
following additional documentation:
1. PROMISSORY NOTE. A Promissory Note, dated as of the Closing
Date and executed and delivered by Borrower (as the same may be modified,
amended, consolidated or extended, the "NOTE"), evidencing and representing
Borrower's obligation to repay the Loan;
2. MORTGAGE. Leasehold Mortgage, Assignment of Leases and Rents
and Security Agreement, dated as of the Closing Date and executed and delivered
by Borrower to encumber the Mortgaged Property (hereinafter defined) to secure
payment of (a) the entire principal amount of the Note and (b) any and all other
sums payable pursuant to the Note and the Mortgage and any other indebtedness
arising under the Loan Documents (as the same may be modified, amended,
consolidated, restated, refinanced or extended, the "MORTGAGE"); and
3. ASSIGNMENT OF LEASES. An Assignment of Leases and Rents, dated
the Closing Date and executed and delivered by Borrower and relating to the
Leased Premises (as the same may be modified, amended, restated, or extended,
the "ASSIGNMENT OF LEASES").
NOW, THEREFORE, in consideration of the foregoing Recitals and to
induce Lender to make the Loan, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Lender and
Borrower agree as follows:
1. DEFINITIONS.
The following capitalized terms shall have the meanings set forth
below. In addition, certain other capitalized terms are defined elsewhere in
this Agreement (whether before or after the first usage of such term), as more
fully described in the "Index of Defined Terms" following the signature page.
"ACCELERATED MATURITY DATE" means the date as of which Borrower is
required to pay or repay the Obligations in full pursuant to the Loan Documents,
because an Event of Default has occurred and the Obligations have become
immediately due and payable automatically, or Lender has elected by notice to
Borrower to exercise its rights under the Loan Documents to require the
immediate payment or repayment in full of the Obligations.
"ACCOUNTING PRINCIPLES" wherever the character or amount of any item
of income or expense or of any asset or liability, contingent or otherwise, is
required to be determined, or where any consolidation or other accounting
computation is required to be made for purposes of this Agreement, means
generally accepted accounting principles as in effect in the United States on
the Closing Date and as amended from time to time.
"ACCOUNTS" means all "accounts," as such term is defined in UCC ss.
9-106, now or hereafter owned by, or pledged to, Borrower, whether or not any
such account has been earned by performance, including all accounts, accounts
receivable and contract rights.
"AFFILIATE" of any specified Person means a Person that:
(i) directly, or indirectly through one or more intermediaries,
Controls, is Controlled by or is under common Control with such specified
Person;
(ii) is a partner, member, beneficiary of a trust or other owner of
any stock or other evidence of beneficial ownership in such specified Person or
an Affiliate of such specified Person within the meaning of clause (i) above; or
(iii) is related by blood as a second cousin or closer relative (or
spouse thereof) to such specified Person or an Affiliate of such specified
Person within the meaning of clause (i) or clause (ii) above.
"AGREEMENT" is defined in the preamble (opening paragraph) hereof.
"ASSIGNMENT OF LEASES" has the meaning ascribed thereto in the 5th
Recital hereof.
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"BANKRUPTCY CODE" means Title 11 of the United States Code, as the
same may be amended or modified from time to time, or any successor statute or
law.
"BORROWER'S REPRESENTATIVE" means an officer of Borrower, or if
Borrower is a partnership or limited liability company, then one of its general
partners or members or managers or an officer thereof, involved in or
responsible for Borrower's asset management, which officer is duly authorized to
take action and execute certificates on behalf of Borrower as evidenced by the
appearance of such officer's name and signature on a list of officers furnished
to Lender by Borrower (or by written agreement with Lender), as such list may be
amended or supplemented from time to time by notice to Lender. Borrower's
Representative is initially Xxxx X. Xxxxx.
"BUSINESS DAY" means any day other than a Saturday, Sunday or day on
which commercial banks in New York are authorized or permitted to be closed.
"CASUALTY" means any damage or destruction affecting the Leased
Premises, or any part of the Leased Premises, whether from fire or other cause.
"CERTIFICATES" means those certain lease-backed commercial mortgage
pass-through certificates being issued in connection with the making of the Loan
by Lender.
"CLEAN-UP" means the removal, remediation and/or elimination of, or
other response to, the presence or Release of any Hazardous Substance at, in,
under or otherwise affecting the Leased Premises that is necessary to comply
with Environmental Laws and satisfactory to all applicable governmental
agencies.
"CLOSING DATE" is defined in the preamble (opening paragraph) of
this Agreement.
"COLLATERAL" means all of Borrower's right, title and interest in,
to and under, and any and all benefits accruing to Borrower from, the following:
(i) all Leases and rents and other income arising therefrom;
(ii) all Accounts, chattel paper, Equipment, General Intangibles,
Goods, Instruments and Inventory;
(iii) any other property of any character described in any UCC- 1
financing statement executed by Borrower as debtor in favor of Lender as secured
party;
(iv) the Contracts; and
(v) all Proceeds of the foregoing Collateral.
"CONCOURSE AREA A" shall mean a volume of space located on "Level A"
from the floor of "Level A" up to certain heights therein, as indicated on
"Exhibit A" to the Prime Lease (such volume of space constituting a portion of
Block 781, Lots 1 and 2, and of the subsurface of West 33rd Street), as more
particularly described in the Prime Lease.
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"CONCOURSE AREA B" shall mean a volume of space located on "Level B"
from the floor of "Level B" up to certain heights therein, as indicated on
"Exhibit B" to the Prime Lease (such volume of space constituting a portion of
Block 781, Lots 1 and 2), as more particularly described in the Prime Lease.
"CONDEMNATION PROCEEDS" means, in the event of a Taking with respect
to the Leased Premises, the proceeds in respect of such Taking less any
reasonable third party out-of-pocket expenses incurred in connection with the
Taking or in collecting such proceeds thereof.
"CONTAMINATION" means the presence or Release of any Hazardous
Substance at, in, under or otherwise affecting the Leased Premises that (a)
violates any Environmental Law, or (b) is in concentrations that would require
Clean-Up under any Environmental Law.
"CONTRACT INTEREST RATE" means a fixed rate of interest equal to
nine and one quarter percent (9.25%) per annum as the same may be increased
pursuant to the provisions of SECTION 2.2 hereof.
"CONTRACTS" means all of Borrower's right, title and interest,
whether now owned or hereafter acquired, in, to and under all Major Contracts to
which Borrower is a party executed in connection with the acquisition,
construction, operation and management of the Leased Premises (including
agreements for the sale, lease or exchange of goods or other property, and/or
the performance of services), or any portion thereof, and all material licenses,
permits, variances and certificates used in connection with the operation of the
Leased Premises (including business licenses, state health department licenses,
licenses to conduct business, certificates of need and all such other permits,
licenses and rights, obtained from any Governmental Authority or private Person
concerning ownership, operation, use or occupancy of the Leased Premises).
"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 equity interests, by contract or otherwise.
"CORRESPONDENT BANK" means, as of the date hereof, __________, and
thereafter such other correspondent bank as Borrower may designate from time to
time, provided that such bank is a federal or state chartered depository
institution or trust company whose commercial paper, short term debt obligations
or other short term deposits (or, in the case of a depository institution or
trust company that is the principal subsidiary of a holding company, the
commercial paper, short term debt obligations or other short term deposits of
such holding company) are rated by the Rating Agencies not less than BBB - (or
the equivalent). If Borrower changes the designation upon notice to Lender of
the Correspondent Bank, then the parties shall reasonably cooperate with each
other to transition all bank accounts from the outgoing Correspondent Bank to
the incoming Correspondent Bank, and to continue Lender's security interests in
such bank accounts. Borrower acknowledges and agrees that so long as Lender is
the Correspondent Bank Borrower may not designate another correspondent bank.
"CREDIT FACILITY" shall mean a clean, irrevocable, unconditional,
transferable letter of credit, which has not been encumbered or pledged in any
manner other than in favor of Lender, payable on sight draft only, entitling
Lender to draw thereon in New York, New York,
4
issued by a domestic bank the long-term unsecured debt rating of which at the
time such letter of credit is delivered and throughout the term of such letter
of credit is not less than "BBB-" (or the equivalent). If any Credit Facility is
not renewed or replaced with another Credit Facility prior to the date that is
thirty (30) days prior to its expiration, Lender shall be entitled to draw upon
the balance of the Credit Facility and deposit the amount so drawn in the
Reserve Account to be applied as provided in SECTION 2.14.2.
"DEFAULT" means any condition or event that with the giving of
notice or the lapse of time or both would become an Event of Default.
"DEFAULT RATE" means a per annum rate of interest equal to the
Contract Interest Rate plus 5% per annum, but the Default Rate shall never
exceed the Usury Limit.
"DEPOSITORY ACKNOWLEDGEMENT" means an acknowledgement from the
Deposit Bank to the Lender acknowledging the Lender's security interest in the
Collection Account, which acknowledgment shall be in form reasonably acceptable
to Lender.
"DISCOUNTED VALUE" means the amount obtained by discounting all
remaining scheduled semi-annual payments with respect to the principal amount of
the Loan being prepaid, from their respective scheduled due dates to the date of
prepayment, in accordance with accepted financial practice and at a discount
factor (applied semi-annually) equal to the Reinvestment Yield.
"ENVIRONMENTAL ASSESSMENT REPORT" means an environmental engineering
report (Phase I) the content of which is reasonably acceptable to Lender,
conducted by a qualified environmental consultant and in a manner both of which
are satisfactory to Lender. Such Environmental Assessment Report shall in
Lender's reasonable judgment constitute an appropriate inquiry concerning the
existence of Hazardous Substances on the Leased Premises, and the past or
present use or Release of any Hazardous Substances at or from the Leased
Premises. Such report shall by its terms or by separate letter allow reliance
thereon by Lender, and successor(s) or assign(s) of Lender.
"ENVIRONMENTAL INDEMNITY AGREEMENT" means that certain Environmental
Indemnity Agreement, dated as of the date hereof, by and between Landlord, as
indemnitor, and Lender, as indemnitee.
"ENVIRONMENTAL LAWS" means all federal, state and local laws,
statutes, ordinances and regulations, now or hereafter in effect, and in each
case as amended or supplemented from time to time, and any judicial or
administrative interpretation thereof, including any applicable judicial or
administrative order, consent decree or judgment, relative to the Leased
Premises, relating to the regulation and protection of human health, safety,
the environment and natural resources (including ambient air, surface water,
groundwater, wetlands, land surface or subsurface strata, wildlife, aquatic
species and vegetation). Environmental Laws include the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended
(42 U.S.C. Section 9601 ET SEQ.) ("CERCLA"); the Hazardous Material
Transportation Act, as amended (49 U.S.C. Section 1801 ET SEQ.); the Federal
Insecticide, Fungicide, and Rodenticide Act, as amended (7 U.S.C. Section 136
ET SEQ.); the Resource Conservation and Recovery Act, as amended (42
5
U.S.C. Section 6901 ET SEQ.) ("RCRA"); the Toxic Substance Control Act, as
amended (15 U.S.C. Section 2601 ET seq.); the Clean Air Act, as amended (42
U.S.C. Section 7401 ET SEQ.); the Federal Water Pollution Control Act, as
amended (33 U.S.C. Section 1251 ET SEQ.); and any and all regulations
promulgated thereunder, and all analogous state and local counterparts or
equivalents and any statutes requiring governmental notification or approval
of any transfer of ownership.
"EQUIPMENT" shall mean, collectively, all fixtures and personal
property, now or hereafter owned by Borrower or in which Borrower has or shall
acquire an interest, now or hereafter located on, attached to or contained in
and used or usable in connection with the Leased Premises, and shall also mean
and include all machinery, apparatus, heating, lighting, plumbing, ventilating,
air cooling and air conditioning equipment; elevators, escalators and hoists;
washroom, toilet and lavatory equipment; communication systems and public
address equipment; fire prevention and extinguishing equipment; electronic data
processing equipment, telecommunications equipment and all proceeds thereof and
as well as all additions to, substitutions for, replacements of or accessions to
any of the items recited as aforesaid and all attachments, components, parts
(including spare parts) and accessories, whether installed thereon or affixed
thereto, and wherever located, now or hereafter owned by Borrower and used or
intended to be used in connection with, or with the operation of, the Leased
Premises, all regardless of whether the same are located on the Leased Premises
or are located elsewhere (including in warehouses or other storage facilities or
in the possession of or on the premises of a bailee, vendor or manufacturer) for
purposes of manufacture, storage, fabrication or transportation and all
extensions and replacements to, and proceeds of, any of the foregoing, but
exclusive of those items which are property of tenants of the Leased Premises or
owned by a third party contractor or any other third party.
"EQUITY INTERESTS" means the Member's interest in Borrower.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
"EXTERNALLY CAUSED PREPAYMENT" means any prepayment of the Loan
resulting from the application of Insurance Proceeds or Condemnation Proceeds in
accordance with the provisions hereof or any prepayment of the Loan pursuant to
SECTION 9.26 hereof.
"FACILITY SUBLEASE" means the Facility Sublease, dated as of the
date hereof, by and between the National Railroad Passenger Corporation, as
subtenant, and Borrower, as sublandlord.
"FRA" means the Federal Railroad Administration of the United
States Department of Transportation.
"GENERAL INTANGIBLES" means all "general intangibles," as such
term is defined in UCC Section 9-106, now or hereafter owned by, or pledged
to, Borrower, including all franchises, patents, know-how, inventories,
trademarks, service marks, trademark or service xxxx licenses, customer
lists, other intellectual property and licenses, copyrights, judgments,
choses in action, computer programs and all general intangibles that
represent the right to receive money.
6
"GOODS" means all "goods," as defined in Section 9-105 of the
UCC, now or hereafter owned by, or pledged to, Borrower including all things
that are movable at the time the security interest attaches or that are
fixtures as provided in 9-313 of the UCC, but does not include money,
documents, Instruments, Accounts, chattel paper, General Intangibles, or
minerals or the like before extraction.
"GOVERNMENTAL AUTHORITY" means any federal, state, regional, local
or other political subdivision thereof with jurisdiction and any Person with
jurisdiction exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government. Governmental Authority
includes the United States of America; the State of New York; and any political
subdivision of any of the foregoing.
"GUARANTY" means that certain Agreement and Guaranty, dated as of
the date hereof, from Landlord, as guarantor, to and for the benefit of Lender
and its permitted assigns thereunder.
"HAZARDOUS SUBSTANCES" means any hazardous or toxic waste, hazardous
or toxic substance or material, pollutant, contaminant, chemical substances or
materials and all other dangerous substances or materials defined, listed or
described as such in, or governed by, any Environmental Law (including
urea-formaldehyde, polychlorinated biphenyls in excess of legally permitted
amounts, friable asbestos or asbestos-containing materials, nuclear or
radioactive material or waste, radon, explosives, corrosives, known carcinogens,
petroleum or crude oil or any fraction thereof, natural gas, liquefied natural
gas, synthetic gas, biologically hazardous agents, pesticides and herbicides),
and any other waste, substance, material, pollutant or contaminant, that is
currently or may in the future be defined, listed or described as such under any
Environmental Law or that could subject an owner or operator of property to any
Regulatory Actions or Third Party Claims.
"IMMATERIAL LOSS THRESHOLD" means $75,000,000.
"INDEBTEDNESS" means, with respect to any Person, all obligations
for borrowed money and/or the deferred purchase price of property, individually
or in the aggregate, contingent or otherwise, of such Person, or to which such
Person is subject, or that in accordance with Accounting Principles should be
reflected in the Person's balance sheet as liabilities, including: (i) all
liabilities secured by the Mortgage, pledge or lien on the Person's property;
(ii) all obligations created or arising under any conditional sale or other
title retention agreement or arrangement; (iii) all guaranties, endorsements
(other than endorsements made in connection with items deposited for collection
in the ordinary course of business) and all other direct or indirect contingent
obligations for borrowed money or to maintain the solvency of another Person;
(iv) all capitalized lease obligations; and (v) routine trade credit.
"INDEMNIFIED PARTY" means Lender, together with all officers,
agents, directors, representatives, loan correspondents, attorneys, advisers,
engineers, consultants, and participants of Lender and any other person engaged
by or otherwise working on behalf of Lender.
"INDEPENDENT DIRECTOR" means, with respect to any Person, any
individual who is not at the time of initial appointment nor has been at any
time during the preceding five (5) years
7
and shall not be at any time while serving: (a) a stockholder, director (other
than as an independent director), officer, employee, partner or member of such
Person or any Affiliate of such Person; (b) a customer, supplier or other person
who purchases any goods or services from or derives any revenues from its
activities with such Person or any Affiliate of such Person; (c) a person or
other entity controlling or under common control with any such stockholder,
member, partner, customer, supplier or other person; (d) an attorney or counsel
to such Person or any of its Affiliates or (e) a member of the immediate family
of any such stockholder, director, officer, employee, member, partner, customer,
supplier or other person.
"INSOLVENCY LAWS" means all applicable present or future state and
federal laws governing bankruptcy, reorganization, insolvency of debtors, relief
of debtors or the rights of creditors generally, including the Bankruptcy Code
and laws relating to fraudulent conveyances and fraudulent transfers.
"INSTRUMENTS" means all "instruments," as defined in UCC Section
9-105.
"INSURANCE PROCEEDS" means, in the event of a Casualty, the proceeds
received under any insurance policy.
"INTEREST RATE" means from time to time the rate of interest then
payable with respect to the Loan, either the Contract Interest Rate or the
Default Rate, as applicable.
"INVENTORY" means all "inventory," as defined in UCC Section
9-109(4), of every type and description and all documents of title covering
such inventory now or hereafter owned by, or pledged to, Borrower, including
all goods, merchandise and other personal property held for sale, lease or
exchange, or that are furnished or are to be furnished under contracts of
sale, whether or not held on consignment, or that constitute raw materials,
work-in-process, returned goods or materials used or consumed or to be used
or consumed in Borrower's business, or in the processing, shipping and
transporting of the same, and all finished goods.
"LATE CHARGE" means a charge equal to Four Percent (4%) of any
amount that is both (a) due and owing to Lender under any Loan Document, and (b)
not received by Lender on or before the date when such amount became due.
"LANDLORD" means the National Railroad Passenger Corporation,
d/b/a Amtrak.
"LEASED PREMISES" means, collectively, Mortgagor's right, title and
interest under the Prime Lease in and to Concourse Area A and Concourse Area B
as provided therein.
"LEASES" means all subleases, underlettings, concession agreements,
licenses and other occupancy agreements entered into by Borrower, that now or
hereafter may affect the Leased Premises or any portions thereof and any and all
guarantees, modification, renewals and extensions thereof and all rights to
damages and other rights and remedies against tenants under the Leases.
"LEASING GUIDELINES" means, in connection with a future Lease, the
following restrictions and limitations except as waived in writing by Lender in
its sole discretion:
8
o MINOR LEASES. If such Lease is a Minor Lease, then such Lease
complies with the following leasing criteria:
--------------------------------------------------------------------------------
Rental At least 80% of fair market value, which may be evidenced by
a letter from a nationally recognized leasing broker, a copy
of which Borrower shall deliver to Lender upon request by
Lender
--------------------------------------------------------------------------------
Escalations Operating costs over a commercially reasonable base
--------------------------------------------------------------------------------
Form of lease Substantially consistent with existing leases
--------------------------------------------------------------------------------
AND
o MAJOR LEASES. If such Lease is a Major Lease, then Lender has
approved such Major Lease and the Major Tenant, in Lender's
reasonable discretion.
"LENDER'S ENGINEER" means such engineering or architectural firm
from time to time selected by Lender to perform the services of "Lender's
Engineer" as set forth in this Agreement.
"LOAN" shall have the meaning set forth in the recitals to this
Agreement.
"LOAN AMOUNT" shall have the meaning set forth in the recitals to
this Agreement.
"LOAN DOCUMENTS" means this Agreement, the Note, the Security
Documents, and all other documents, instruments and agreements that secure,
evidence, or guaranty this Agreement, the Loan, as such documents, instruments,
and agreements may be modified, amended, extended, restated or refinanced from
time to time, and all other documents, instruments, certificates and affidavits
that may now or hereafter be given as further security for or as evidence of the
Loan.
"MAJOR CASUALTY" means a Casualty where the Restoration Cost exceeds
$75,000,000.
"MAJOR CONTRACT" means a Contract where the amounts to be paid
thereunder exceed $500,000 per annum, unless such Major Contract may be
terminated on thirty days notice without penalty in which event such Major
Contract shall not be deemed to be a Major Contract.
"MAJOR LEASE" means any lease (including any office lease or any
retail lease) demising more than 50,000 rentable square feet in the Leased
Premises.
"MAKE-WHOLE PREMIUM" means an amount equal to the excess, if any, of
(x) the Discounted Value of the remaining scheduled semi-annual payments that
would have been payable after the date of prepayment had no prepayment occurred
with respect to the principal amount of the Loan being prepaid over (y) the
principal amount being prepaid, PROVIDED that the Make-Whole Premium may in no
event be less than zero. Such Make-Whole Premium amount
9
shall be calculated by Lender and the accuracy of the calculation shall be final
absent manifest error.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on the use
or operations of the Leased Premises or the condition (financial or otherwise)
of Borrower, in all cases, as compared with all such items as of the Closing
Date.
"MATERIAL LITIGATION" means any action, suit, proceeding,
litigation, arbitration, or other proceeding, including any of the foregoing
pending before any governmental agency, that would, if determined adversely to
Borrower, have a Material Adverse Effect.
"MATURITY DATE" means the earlier to occur of: (a) the Scheduled
Maturity Date, or (b) the Accelerated Maturity Date.
"MEMBER" means Borrower's members or partners, as the case may be,
together with their permitted successors and assigns.
"MINOR LEASE" means any Lease that is not a Major Lease.
"MORTGAGE" has the meaning ascribed thereto in the 5th Recital
hereof.
"MORTGAGED PROPERTY" means all the "Mortgaged Property" as defined
in the Mortgage, together with any other improvements, personal property and
other collateral constituting security for the Loan pursuant to, and as more
fully described in, the Mortgage at any time.
"NEW LEASE" means a Lease that has been unconditionally executed and
delivered by and between Borrower and a New Tenant and either (a) is acceptable
to and approved by Lender in its sole discretion or (b) complies with the
Leasing Guidelines.
"NEW TENANT" means a new tenant under a New Lease affecting the
Leased Premises, which tenant did not (and whose Affiliate did not) previously
occupy the Leased Premises or any portion thereof.
"NORTHEAST CORRIDOR BUSINESS AND ASSETS" means the strategic
business unit of Landlord that operates intercity and commuter trains serving
large urban centers and high-density areas from Virginia to eastern Canada in
large part on Landlord-owned trackage and provides electric power propulsion,
signaling, dispatching and right-of-way maintenance services for all users of
such trackage in such area, including other commuter transit services such as
the Southeastern Pennsylvania Transportation Authority and New Jersey Transit
Corporation, which business unit is commonly known as the "Northeast Corridor,"
and the assets thereof.
"NOTE" has the meaning ascribed thereto in the 5th Recital hereof.
"OBLIGATIONS" means all covenants, agreements, obligations and
liabilities of Borrower to Lender, now existing or hereafter incurred under,
arising out of or in connection with any Loan Document, including Borrower's
obligation to repay the Loan as well as Borrower's obligation to reimburse any
Protective Advances.
10
"ORGANIZATIONAL AGREEMENT" means Borrower's operating agreement or
other organizational agreement, identified as follows, as amended from time to
time consistent with this Agreement:
o Limited Liability Company Agreement of Borrower, dated as of the
date hereof.
"PAYMENT DATE" means: (a) the fourteenth day of December and June
commencing with December 14, 2001; and (b) the Maturity Date. If a date that
would otherwise be a Payment Date is not a Business Day, then such Payment Date
shall be the immediately preceding Business Day. Notwithstanding any of the
foregoing, Lender may, from time to time, upon reasonable notice, change the
semi-annual Payment Date, in which case the parties shall make appropriate
adjusting payments.
"PERMITTED ENCUMBRANCES" means (a) liens for real estate and
personal property taxes and vault charges and all other taxes, levies and other
similar charges levied by a Governmental Authority on the Leased Premises not
yet due and payable or to the extent that nonpayment thereof is expressly
permitted by this Agreement; (b) future liens for property taxes and assessments
not then delinquent; (c) liens, restrictions, encumbrances and other exceptions
listed in the title insurance policy issued in connection with the Leased
Premises insuring Lender in this transaction and accepted by Lender and set
forth in the Title Policy and approved by Lender; (d) the Security Documents;
(e) in the case of liens arising after the Closing Date, statutory liens of
carriers, warehousemen, mechanics, materialmen and other similar liens arising
by operation of law, that are incurred in the ordinary course of business
subject to the other provisions hereof and discharged by the Borrower by
payment, bonding or otherwise within 45 days after the filing thereof or that
are being contested in good faith; (f) liens arising from reasonable and
customary purchase money financing of personal property and equipment leasing to
the extent the same are created in the ordinary course of business; (g) all
easement, rights-of-way, restrictions and other similar charges or non-monetary
encumbrances against real property that do not materially and adversely affect
(i) the ability of the Borrower to pay any of its obligations to any person as
and when due, (ii) the marketability of title to the Leased Premises, or (iii)
the use or operation of the Leased Premises; (h) rights of existing and future
tenants, as tenants only, pursuant to the leases of the Leased Premises; and (i)
any other liens or other matters approved by Lender or Lender's counsel in
writing or permitted pursuant to the terms of this Agreement (e.g. rights of the
Long Island Railroad Company and New Jersey Transit Corporation).
"PERMITTED INDEBTEDNESS" means (a) the Obligations; and (b)
Borrower's incurrence of routine trade payables in connection with the Leased
Premises provided all of such routine trade payables (i) are not secured and do
not result in any lien being placed on the Leased Premises, (ii) are incurred in
the ordinary course of business of Borrower, (iii) are not more than 60 days
past due and (iv) do not exceed $150,000 at any one time.
"PERMITTED INVESTMENTS" means any one or more of the following
obligations or securities acquired at a purchase price of not greater than par:
11
(a) obligations of, or obligations fully guaranteed as to payment
of principal and interest by, the United States of America or any agency or
instrumentality thereof provided such obligations are backed by the full faith
and credit of the United States of America;
(b) obligations of the following United States of America government
sponsored agencies: Federal Home Loan Mortgage Corp. (debt obligations), the
Farm Credit System (consolidated systemwide bonds and notes), the Federal Home
Loan Banks (consolidated debt obligations), the Federal National Mortgage
Association (debt obligations), the Student Loan Marketing Association (debt
obligations), the Financing Corp. (debt obligations), and the Resolution Funding
Corp. (debt obligations);
(c) federal funds, unsecured certificates of deposit, time deposits,
bankers' acceptances and repurchase agreements with maturities of not more than
365 days of any bank, the short-term obligations of which are rated at least
"A-1" (or its equivalent) by one of the Rating Agencies;
(d) certificates of deposit, demand or time deposits, federal
funds or banker's acceptances issued by any depository institution or trust
company incorporated under the laws of the United States of America or of any
state thereof and subject to supervision and examination by federal and/or state
banking authorities, which investments are fully insured by the Federal Deposit
Insurance Corp.;
(e) debt obligations with maturities of not more than 365 days and
a long-term debt rating of at least "A-" (or its equivalent) by one of the
Rating Agencies;
(f) commercial paper (including both non-interest-bearing discount
obligations and interest-bearing obligations payable on demand or on a specified
date not more than one year after the date of issuance thereof) with maturities
of not more than 270 days and that is rated at least "A-1" (or its equivalent)
by one of the Rating Agencies; and
(g) institutional money market mutual funds (the "FUND"), so long
as the Fund's primary objective is to maintain net asset value of $1.00 and the
asset mix consists of only securities set forth herein or their equivalent.
"PERSON" means any individual, corporation, partnership, joint
venture, limited liability company, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof or any other person.
"PLAN" means an employee benefit plan, as defined in Section 3(3) of
ERISA, that Borrower maintains, contributes to, or has an obligation to
contribute to on behalf of participants employed by Borrower (excluding any
so-called 401(k) plan).
"PRIME LEASE" means the Prime Lease, dated as of the date hereof, by
and between the National Railroad Passenger Corporation, as landlord, and
Borrower, as tenant.
"PRINCIPAL AMOUNT" means the aggregate principal amount of the Loan
outstanding from time to time.
12
"PROCEEDS" means all "proceeds," as defined in UCC Section
9-306(1), including all proceeds of mortgage insurance, hazard insurance and
title insurance policies relating to the Leased Premises, cash, Accounts,
notes, drafts, acceptances, chattel paper, checks, deposit accounts, rights
of payment of any and every kind, and other forms of obligations and
receivables that may at any time constitute all or part or are included as
proceeds of the Collateral.
"PROJECTED RESTORATION DATE" means the date by which Lender's
Engineer has determined it is reasonable to believe that Restoration will be
completed. Lender's Engineer shall assume a reasonable force majeure period (at
least three (3) months for a Major Casualty).
"PROTECTIVE ADVANCE" means any amount advanced by Lender as Lender
shall deem appropriate in Lender's sole and absolute discretion to cure or
attempt to cure any default by Borrower under any Loan Document.
"RATING AGENCIES" means Standard & Poor's Rating Services and
Xxxxx'x Investor Service, Inc.
"RATING AGENCY CONFIRMATION" means a confirmation from the Rating
Agencies that (i) with respect to a Defeasance, delivery of the Defeasance
Collateral and furnishing of a Mortgaged Property Release or (ii) with respect
to any transfer under SECTION 6.13 except as provided therein, such event will
not result in the withdrawal or downgrade of the rating then assigned to the
Certificates by the Rating Agencies.
"REGULATORY ACTIONS" means any claim, demand, action or proceeding
brought or instituted by any Governmental Authority or agency in connection with
any Environmental Law, including civil, criminal and administrative proceedings.
"REINVESTMENT YIELD" means, with respect to the principal amount of
the Loan being prepaid, 0.50% over the yield to maturity implied by (a) the
yields reported, as of 10:00 A.M. (New York City time) on the second Business
Day preceding the date of prepayment, on the display designated as "Page PX1" on
the Bloomberg Financial Markets Commodities News Screen (or such other display
as may replace it) for actively traded U.S. Treasury securities having a
maturity equal to the Remaining Average Life of the principal amount being
prepaid, or (b) if such yields are not reported as of such time or the yields
reported as of such time are not ascertainable, the Treasury Constant Maturity
Series Yields reported, for the latest day for which such yields have been so
reported as of the second Business Day preceding the date of prepayment, in
Federal Reserve Statistical Release H.15 (519) (or any comparable successor
publication) for actively traded U.S. Treasury securities having a constant
maturity equal to the Remaining Average Life of the principal amount being
prepaid as of date of prepayment. Such implied yield will be determined, if
necessary, by (i) converting U.S. Treasury xxxx quotations to bond-equivalent
yields in accordance with accepted financial practice and (ii) interpolating
linearly between (1) the actively traded U.S. Treasury security with the
maturity closest to and greater than the Remaining Average Life and (2) the
actively traded U.S. Treasury security with the maturity closest to and less
than the Remaining Average Life.
13
"RELEASE" means the intentional or unintentional spilling, leaking,
dumping, pouring, pumping, emptying, seeping, disposing, discharging (including
the abandonment or discharging of barrels, containers or other receptacles,
whether open or closed, containing any Hazardous Substances), emitting,
depositing, injecting, leaching, escaping, or any other release or threatened
release, however defined, of any material Hazardous Substance.
"REMAINING AVERAGE LIFE" means, the number of years (calculated to
the nearest one-twelfth year) obtained by dividing (a) the principal amount of
the Loan being prepaid, into (b) the product obtained by multiplying (i) the
principal component of each remaining scheduled semi-annual payment with respect
to the principal being prepaid by (ii) the number of years (calculated to the
nearest one-half year) that will elapse between the date of prepayment and the
scheduled due date of such remaining semi-annual payment.
"RENT ROLL" means the rent roll for the Leased Premises (including a
schedule showing all free rent and rent abatements), as of the Closing Date, a
copy of which is attached hereto as EXHIBIT "B" and made a part hereof.
"REQUIRED RESTORATION FUND BALANCE" means, from time to time, 100%
of the Restoration Cost.
"RESERVE ACCOUNT" means an account established with Correspondent
Bank, at Borrower's sole cost and expense, designated the Reserve Account, which
Reserve Account is being funded on the Closing Date with the amount set forth in
the closing statement for the Loan. The only party authorized to make
withdrawals from such account shall be Lender (or its designees).
Notwithstanding the foregoing, unless and until the occurrence and continuance
of an Event of Default, interest earned on the Reserve Account shall be
disbursed to Borrower monthly.
"RESTORATION" means the restoration, rebuilding, and reconstruction
of the Leased Premises to substantially their condition as it existed before the
Casualty, free and clear of all liens or claims for lien, except Permitted
Encumbrances.
"RESTORATION COST" means the estimated cost of Restoration, as
determined by Lender's Engineer from time to time, free and clear of all liens
or claims for lien, except Permitted Encumbrances.
"RESTORATION FUND" means the sum of the following amounts held by
Lender: (a) Insurance Proceeds (to be paid in a lump sum or to be disbursed over
time in a manner satisfactory to Lender); (b) cash; and (c) the value of any
other security delivered by or on behalf of Borrower and satisfactory to Lender
in its sole and absolute discretion.
"SCHEDULED MATURITY DATE" means June 14, 2017.
"SECURITY DOCUMENTS" means each document or instrument now or
hereafter securing the Loan or any portion thereof, including the Mortgage; the
Assignment of Leases; UCC-1 financing statements; and this Agreement to the
extent that this Agreement constitutes a security agreement for purposes of the
UCC.
14
"SINGLE-PURPOSE ENTITY" means a limited liability company or other
Person approved by Lender that was formed or organized solely for the purpose of
holding, directly, the ownership (or the leasehold) interest in the Leased
Premises; does not engage directly or indirectly in any business other than that
arising out of entering into this Agreement and the other Loan Documents and the
ownership, management, leasing, construction, operation and maintenance of the
Leased Premises or business ancillary thereto; does not have any assets other
than those related to its interest in the Leased Premises; does not issue,
create or assume any Indebtedness other than Permitted Indebtedness; has its own
separate books, records and accounts, in each case separate and apart from the
books, records and accounts of any other Person; does not commingle its assets
with the assets of any other Person; does not guarantee any obligations of any
Person, except as expressly permitted or required under this Agreement; and
complies with all the SPE Covenants.
"SNDA" means the Subordination and Non-Disturbance Agreement, dated
the date hereof, by and between the National Railroad Passenger Corporation, as
subtenant, and Lender, as lender, relating to the Facility Sublease.
"SPE COVENANTS" as to any Person shall mean that:
LEGALLY SEPARATE. Such Person shall remain a legally separate
entity, independent of any other entity. Without limiting the generality of the
foregoing, such Person shall take such actions as shall be reasonably required
in order that:
SHARED EXPENSES. Such Person shall not incur any material indirect
or overhead expenses for items shared between such Person and any other entity,
other than shared items of expenses such as incidental office space, legal,
auditing and other professional services, all of which shall be allocated to the
extent practical on the basis of actual use or the value of services rendered,
and otherwise on a basis reasonably related to the actual use or the value of
services rendered, it being understood that Borrower shall pay all expenses
owing by Borrower relating to the preparation, negotiation, execution and
delivery of the Loan Documents (and any amendments, modifications or supplements
thereto), including legal, commitment, agency and other fees;
ACCOUNTING AND MANAGEMENT OF LIABILITIES. Such Person shall account
for and manage its liabilities separately from those of every other entity,
including payment of all payroll and administrative expenses and taxes (other
than taxes that are determined or required to be determined on a consolidated or
combined basis) from its own assets;
RECORDS. Such Person shall maintain records, books of account and
stationery separate from those of any other entity;
ASSETS. Such Person's assets shall be maintained in a manner that
facilitates their identification and segregation from those of any other entity;
TRANSACTION TERMS. Any transaction between such Person and any other
entity shall be the type of transaction that would be entered into by a prudent
Person in the position of such Person and shall be on terms that are at least as
favorable as may be obtained from a Person that is not an Affiliate;
15
DEBTS. Such Person shall not be, nor shall it hold itself out to be,
responsible for the debts of any other Person;
COLLATERAL. Such Person shall not provide any of its assets as
collateral for the benefit of any other entity; nor shall such Person allow any
lien to be taken on any of its assets for the benefit of any other Person;
USE OF FUNDS. Such Person shall use its funds solely for its own
partnership or limited liability company purposes, as the case may be, and use
only its own funds (including contributed capital and loan proceeds) for such
purposes, and maintain its own separate bank accounts and employment
relationships;
DEALINGS WITH AFFILIATES. Such Person shall deal with its Affiliates
solely on an arm's length basis, and provide services to and obtain services
from (and transact any other business with) any such Affiliates based only on
written agreements in its own name; and
CERTAIN PROCEEDINGS. Under its organizational documents, such Person
shall at all times have at lease one (1) Independent Director and shall be
incapable of commencing any proceeding under any Insolvency Law so long as the
Loan has not been paid in full without the consent of all directors, including
the Independent Director.
"STATE" means the State of New York.
"TAKING" means a taking or voluntary conveyance during the term
hereof of all or part of the Leased Premises, or any interest therein or right
accruing thereto or use thereof, as the result of, or in settlement of, any
condemnation or other eminent domain proceeding by any Governmental Authority
affecting the Leased Premises or any portion thereof whether or not the same
shall have actually been commenced.
"THIRD PARTY CLAIMS" means any claims, actions, demands or
proceedings (other than Regulatory Actions) based on negligence, trespass,
strict liability, nuisance, toxic tort or detriment to health or welfare or any
other cause of action due to Contamination, and whether or not seeking costs,
damages, penalties, expenses or other remedies, brought by any person other than
a Governmental Authority or agency.
"TITLE COMPANY" shall mean Fidelity Title Insurance Company and
Xxxxxxx Title Insurance Company.
"TITLE POLICY" means a policy of title insurance for the Mortgage,
issued by Title Company, insuring the Mortgage as a first mortgage subject only
to the Permitted Encumbrances, with such affirmative insurance, endorsements and
reinsurance arrangements as Lender shall require.
"TRUSTEE" means Xxxxx Fargo Bank Northwest, N.A., or such
replacement or successor as Lender, or Borrower in accordance with the
provisions of SECTION 9.1, shall designate from time to time.
16
"UCC" means the Uniform Commercial Code in effect from time to time
in New York, or, as appropriate, the state in which the Collateral or Borrower's
principal office is located, or where Borrower was formed.
"USURY LIMIT" means an annual rate of interest equal to the maximum
rate (if any) permitted under applicable law at the time taking into account the
nature and size of the Loan and the status of Borrower and Lender. If no such
maximum rate exists at a particular time, then references to Usury Limit shall
be disregarded.
2. TERMS OF LOAN.
2.1. LOAN AND NOTE. Subject to the terms and conditions of the Loan
Documents, Lender agrees to advance the Loan to Borrower. On or about the
Closing Date, at Borrower's request Lender is advancing to Title Company, on
account of the Loan, for Borrower's benefit, the entire Loan Amount minus the
sum of (i) the actual out of pocket third-party expenses incurred by Lender in
connection with the underwriting, origination, and funding of the Loan, and (ii)
the fees and expenses of Lender's counsel. Borrower acknowledges receipt of the
entire Loan Amount.
2.2. INTEREST AND PRINCIPAL. On each Payment Date, Borrower shall
make payments of interest and principal in the amount(s) required pursuant to
EXHIBIT "C" annexed hereto and made a part hereof. The parties acknowledge and
agree that in the event that a Demand Registration (as such term is defined in
the Registration Rights Agreement entered into as of the date hereof (the
"REGISTRATION AGREEMENT")) is not filed on or prior to the Required Filing Date
(as defined in the Registration Agreement) and/or such Demand Registration is
not effective within two hundred seventy (270) days after the Required Filing
Date, then, in either of such events, the then current Contract Interest Rate
shall be increased by 25 basis points (.25%). From and after the date the
Contract Interest Rate is increased, Borrower shall, from and after such date,
pay interest and principal based on such increased interest rate. Accordingly,
EXHIBIT "C" annexed hereto shall be modified to reflect such increase(s), it
being understood and agreed that the rate of amortization shall remain constant.
Interest shall accrue through the close of business on the preceding day on the
outstanding balance of the Loan at a rate per annum equal to the Contract
Interest Rate in effect from time to time, computed on the basis of a "360-day
year" consisting of 12 months of 30 days each month. Such phrase, as used
throughout this Agreement, means that in computing interest for the subject
period, the interest rate shall be multiplied by a fraction, the denominator of
which is 360 and the numerator of which is 180. Interest shall commence when and
only when Lender has disbursed the Loan proceeds to Title Company for the
closing, but any such disbursement shall not be deemed to constitute Lender's
acknowledgment that all closing conditions have been satisfied.
2.3. NO DEFERRAL. On each Payment Date, Borrower shall pay all
interest then accrued on account of the Loan and Borrower shall have no right to
defer or accrue payment of any interest.
2.4. REPAYMENT ON MATURITY DATE. Borrower shall repay in full the
entire outstanding principal balance of the Loan, together with all accrued but
unpaid interest thereon as calculated through and including the Maturity Date,
and all other Obligations and other sums
17
that may be payable under or with respect to the Loan or the Loan Documents, on
the Maturity Date, which obligation shall be secured by the Security Documents.
Lender shall not be required to notify Borrower of the Maturity Date.
2.5. BORROWER'S NOTE. Borrower's obligation to pay the principal of
and interest on the Loan and all other amounts due under the Loan Documents
shall be evidenced by the Note, duly executed and delivered by Borrower on the
Closing Date. The Note shall be payable as to principal, interest and all other
amounts due under the Loan Documents, as specified in this Agreement, with a
final maturity on the Maturity Date. Lender is hereby authorized to endorse on
the schedule attached to the Note (or on a continuation of such schedule
attached to the Note and made a part thereof) an appropriate notation evidencing
the date and amount of each payment of principal, interest or other amounts due
under the Loan Documents, in respect thereof. Such schedule shall, absent
manifest error, constitute prima facie evidence of the accuracy of the
information contained therein. Lender shall have the right to have the Note
subdivided, by exchange for promissory notes of lesser denominations or
otherwise, upon written request to Borrower and, in such event, Borrower shall
promptly execute additional or replacement Notes. At no time shall the aggregate
original principal amount of the Note (including additional or replacement Notes
in substitution therefor) exceed the Loan Amount.
2.6. APPLICATION OF PAYMENTS.
2.6.1. ORDER OF APPLICATION. Any payments made by Borrower
with respect to the Loan shall be applied in the following order of priority
(unless specified otherwise by Lender), subject to the Payment Priority
Exceptions:
2.6.1.1. CERTAIN CHARGES. To pay (i) first, all
outstanding Late Charges; and (ii) second, all outstanding costs and expenses
incurred by Lender (other than Late Charges) and unreimbursed Protective
Advances, together with interest thereon at the Default Rate.
2.6.1.2. INTEREST. To pay accrued but unpaid interest
on the principal balance of the Loan.
2.6.1.3. REMAINING PRINCIPAL. To repay the principal
amount of the Loan together with any prepayment premium contemplated by this
Agreement.
2.6.1.4. OTHER. To pay any other sums then due and
payable to Lender.
2.6.2. EXCEPTIONS. Notwithstanding anything to the contrary in
the Loan Documents, Borrower and Lender agree as follows with respect to the
priority of application of any payments made at any time with respect to the
Loan (the "PAYMENT PRIORITY EXCEPTIONS"):
2.6.2.1. EVENT OF DEFAULT. If any Event of Default has
occurred and is continuing, then Lender may apply any payments in such order and
to such items as Lender shall deem appropriate in Lender's sole and absolute
discretion.
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2.6.2.2. FAILURE TO SPECIFY. If Lender fails to
specify how any payment has been applied, then Lender may specify such
application thereafter at any time by written notice to Borrower.
2.6.2.3. SPECIFICATION BY BORROWER. Borrower shall
have no right, power or authority to specify how payments shall be applied.
2.6.2.4. LIMITATION OF LIABILITY. Lender's liability
for any failure to apply payments in the order required by this Agreement shall
be limited to an obligation to reapply payments in the order required.
2.7. REVERSAL OF PAYMENTS. To the extent that Borrower makes any
payment to Lender or Lender receives any payment or proceeds of any Collateral
for Borrower's benefit, which payment or proceeds or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required to be repaid to a trustee, receiver or any other party under any
Insolvency Law, then to the extent of such payment or proceeds received, the
Obligations or part thereof intended to be satisfied shall be revived and
continued in full force and effect, as if Lender had not received such payment
or proceeds.
2.8. PREPAYMENT. The Loan is closed to prepayment in whole or in
part, during the period commencing on the date hereof and ending immediately
prior to June 14, 2006. Thereafter, Borrower may prepay the Loan in whole, or in
part, but only: (a) where expressly required by the Loan Documents or (b) if:
(1) such prepayment occurs on a Payment Date, (2) Borrower has given Lender at
least 10 Business Days prior written notice of such prepayment, and (3) such
prepayment is in an amount equal to or greater than $50,000,000. Every payment
of principal of the Loan before the Scheduled Maturity Date, other than on
account of the required amortization hereunder or an Externally Caused
Prepayment, shall be deemed to constitute a prepayment of the Loan.
Simultaneously with any such prepayment of the Loan, Borrower shall pay Lender a
Make-Whole Premium calculated upon the amount of Borrower's prepayment. In
addition, if at the time of such prepayment the Loan is closed to prepayment,
Borrower shall pay, in addition to all other amounts outstanding under the Loan
Documents, a prepayment premium equal to three percent (3%) of the outstanding
balance of the Loan. Borrower's obligation to pay such Make-Whole Premium shall
constitute an Obligation and shall be secured by all the Security Documents.
2.9. NO REVOLVER. To the extent that Borrower has paid or repaid any
portion of the Loan, Borrower shall not be entitled to reborrow such sum.
2.10. MANNER AND TIMING OF PAYMENTS. Borrower shall make each
payment required by this Agreement (including repayment of the Loan in full on
the Maturity Date) not later than 12:00 p.m. (New York City time) on the day
when due in lawful money of the United States of America in immediately
available funds actually received by Lender. For any payment of interest or
principal on the Loan as to which Lender actually receives good funds after
12:00 p.m., interest at the Interest Rate shall continue to accrue on such
amount so paid through the next Business Day. Any payment made by Borrower by
wire transfer or other immediately available funds and actually received by
Lender before 12:00 p.m. (New York City time) on a Business Day shall be deemed
to have been received and cleared by Lender on the date of
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receipt. If a payment is received by Lender after 12:00 p.m. (New York City
time) on a Business Day, then such payment shall be deemed to have been received
and cleared by Lender on the next Business Day.
2.11. LATE CHARGE. If Borrower fails to pay any payment due under
this Agreement on the date such payment is due and payable, then Borrower shall
pay Lender a Late Charge with respect to such payment.
2.12. TAXES.
2.12.1. NO DEDUCTIONS FOR GENERAL TAXES. Any and all payments
by Borrower hereunder or under the Note or otherwise with respect to the Loan
shall be made free and clear of and without deduction for any and all present or
future taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto (excluding taxes imposed on or measured by the
net income of Lender, which taxes shall be the sole responsibility of Lender)
(all such non-excluded taxes, levies, imposts, deductions, charges, withholdings
and liabilities being hereinafter referred to as "GENERAL TAXES"). If Borrower
shall be required by law to deduct any General Taxes from or in respect of any
sum payable hereunder or under the Note, (i) the sum payable shall be increased
as may be necessary so that after making all required deductions (including
deductions applicable to additional sums payable by Borrower to Lender on
account of General Taxes) Lender receives an amount equal to the sum it would
have received had no such deductions been made, (ii) Borrower shall make such
deductions, and (iii) Borrower shall pay the full amount deducted to the
relevant taxing or other authority in accordance with applicable law. Borrower
shall be entitled to any refunds, credits, or other reimbursements issued by any
taxing or other authority and actually received by Lender and resulting from any
amounts so paid by Borrower.
2.12.2. TRANSACTION TAXES. In addition, Borrower agrees to pay
any present or future stamp or documentary taxes or any other sales, transfer,
excise, mortgage recording or property taxes, charges or similar levies that
arise from any payment made hereunder or under the Note or from the execution,
delivery, registration or recordation (if any) of, or otherwise with respect to,
this Agreement, the Note or any other Loan Documents (hereinafter referred to as
"TRANSACTION TAXES").
2.12.3. RIGHT TO CONTEST. Borrower shall have the right to
contest any General Taxes and/or Transaction Taxes (collectively, "TAXES")
provided that nonpayment of such Taxes shall not, in Lender's reasonable
judgment, materially adversely affect Lender's liens on the Leased Premises
(including the enforceability or priority thereof).
2.12.4. INDEMNIFICATION. Borrower shall indemnify Lender for
the full amount of Taxes (including any Taxes imposed by any jurisdiction on
account of any amounts payable by Borrower pursuant to Borrower's obligations
under this Agreement with respect to Taxes) paid or payable by Lender and any
liability (including penalties, interest, and expenses) arising therefrom or
with respect thereto. This indemnification shall be paid within ten (10) days
from the date Lender provides Borrower with written demand for payment.
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2.12.5. SURVIVAL. Without prejudice to the survival of any
other agreement of Borrower hereunder, the agreements and obligations of
Borrower relating to payment of Taxes shall survive the payment in full of all
Obligations.
2.13. MORTGAGE DEFEASANCE.
2.13.1. SCHEDULED DEFEASANCE PAYMENTS. Provided no Event of
Default exists, and subject to the satisfaction of the terms and conditions of
this Section, Borrower may elect, at any time during the term hereof to obtain a
release (the "MORTGAGED PROPERTY RELEASE") of the Mortgaged Property from the
lien of the Mortgage (and any UCC financing statement) by delivering to Lender
(a "DEFEASANCE"), as security for the payment of all interest and principal due
and to become due pursuant to the Note through the Maturity Date, plus the
principal balance of the Note scheduled to be outstanding on the Maturity Date
and any and all Trustee fees required under SECTION 9.1, Defeasance Collateral
(as defined herein) sufficient, through the scheduled payment of interest and
principal in accordance with its terms (without consideration of any
reinvestment of interest therefrom), to provide for payments prior, but as close
as possible, to all successive payment dates after the Defeasance Date (as
defined herein) through and including the Maturity Date, and in amounts equal to
or greater than the scheduled payment of interest and principal due under the
Note, including the principal balance of this Note scheduled to be outstanding
on the Maturity Date ("SCHEDULED DEFEASANCE PAYMENTS").
2.13.2. DEFEASANCE. As a condition precedent to a Defeasance,
and prior to the delivery of any Mortgaged Property Release, Borrower shall have
complied with all of the following:
(1) Borrower shall provide not less than ten (10) days prior written
notice to Lender specifying a Payment Date upon which it intends to effect a
Defeasance hereunder (the "DEFEASANCE DATE").
(2) All accrued and unpaid interest on the principal balance of the
Note to and including the Defeasance Date and all other sums due under this
Note, and the Mortgage shall be paid in full prior to the Defeasance Date.
(3) Borrower shall have delivered to Lender a certificate reasonably
satisfactory to Lender given by Borrower's independent certified public
accountant (which accountant shall be satisfactory to Lender) certifying that
the Defeasance Collateral shall generate amounts semi-annually equal to or
greater than the Scheduled Defeasance Payments.
(4) Borrower shall execute and deliver to Lender, a pledge and
security agreement reasonably satisfactory to Lender creating a first priority
lien on the Defeasance Collateral (a "DEFEASANCE SECURITY AGREEMENT").
(5) Borrower shall deliver a Rating Agency Confirmation.
2.13.3. DEFEASANCE COLLATERAL. The term "DEFEASANCE
COLLATERAL" as used herein shall mean a portfolio of Government Securities (as
defined in SECTION 2(a)(16) of the Investment Company Act of 1940), each of
which shall be duly endorsed by the holder thereof as directed by Lender or
accompanied by a written instrument of transfer in form and substance
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reasonably satisfactory to Lender (including, without limitation, such
instruments as may be required by the depository institution holding such
securities or by the issuer thereof, as the case may be, to effectuate
book-entry transfers and pledges through book-entry facilities of such
institution) in order to perfect upon the delivery of the Defeasance Collateral
the first priority security interest therein in favor of the Lender in
conformity with all applicable state and federal laws governing the granting of
such security interests. Borrower shall authorize and direct that the payments
received from such obligations shall be made directly to Lender or Lender's
designee and applies to satisfy the obligations of the Borrower or, if
applicable, the Defeasance Obligor, under the Note.
2.13.4. CONDITIONS. Upon Borrower's compliance with all of the
conditions of Defeasance and a release set forth in this SECTION 2.14, Lender
shall release the Mortgaged Property from the lien of the Mortgage (and any UCC
financing statement). All costs and expenses of Lender incurred in connection
with the Defeasance and Mortgaged Property Release, including, without
limitation, Lender's counsel's reasonable fees and expenses and recording fees
and charges and Rating Agencies fees and expenses, shall be paid by Borrower
simultaneously with the delivery of the release documentation.
2.14. RESERVE ACCOUNT
2.14.1. RESERVE ACCOUNT. Lender shall direct Correspondent
Bank to hold the Reserve Account in an account which shall be named "Penn
Station Leasing, LLC, for the benefit of A/P I Deposit Corporation" and shall be
under the sole dominion and control of Lender, subject only to Lender's
obligation to cause Correspondent Bank to comply with Borrower's investment
instructions, on the terms and conditions and as more fully set forth herein,
with respect to the amounts held in the Reserve Account. Borrower shall have no
right to withdraw or direct the release of any funds from the Reserve Account.
If an Event of Default occurs and is continuing, Lender shall apply funds in the
Reserve Account to make any payment that Borrower failed to make under any of
the Loan Documents and, upon such application, the Event of Default which gave
rise to Lender's application of funds in the Reserve Account shall be deemed
cured. In the event that Lender shall apply any portion of the Reserve Account
as provided herein, Borrower may, but shall not be obligated to, replenish the
Reserve Account from time to time, in which event Lender shall have the
obligation to continue to apply funds in the Reserve Account to make any payment
that Borrower has failed to make as provided herein. If Borrower has paid and
performed all Obligations, then Lender shall release the Reserve Account to
Borrower. Any interest earned on the Reserve Account shall be applied: (a)
first, at Borrower's election, to be deposited into the Reserve Account to
replenish the same to the extent, if any, funds were applied from the Reserve
Account in accordance with the provisions hereof; (b) second, provided that no
Event of Default exists and is continuing, to be automatically disbursed monthly
to Borrower; and (c) if an Event of Default exists and is continuing, then to be
paid to Lender to be applied to the Obligations; any such interest earnings
shall be reported as income of Borrower. Lender shall have no liability for any
loss of funds in the Reserve Account. Anything to the contrary contained herein
notwithstanding, Borrower shall have the right to reasonably direct
Correspondent Bank regarding the manner in which the Reserve Account shall be
invested, provided however that: (i) such investments shall be made solely in
Permitted Investments; (ii) neither Lender nor Correspondent Bank shall have any
responsibility for the creditworthiness, yield, return, potential loss of
principal, or any other
22
investment characteristics of any Permitted Investments selected by Borrower;
(iii) Borrower shall pay all costs, expenses, and commissions associated with
investment of the Reserve Account in Permitted Investments; (iv) Lender may
limit the total amount of individual Permitted Investments to no more than a
total of four at any one time; and (v) Lender may limit the frequency of
investment instructions to no more than one per calendar month and may require
at least five (5) Business Days prior notice of such instructions. At any time
when Borrower has not provided investment instructions pursuant to this Section,
Lender shall direct Correspondent Bank to invest the Reserve Account in
Permitted Investments reasonably selected by Lender. Lender shall notify
Borrower of the account number of the Reserve Account and the bank where the
Reserve Account is held, and any change in the foregoing. Lender shall have no
liability for any loss of funds invested at Lender's direction if such funds are
invested in Permitted Investments.
2.14.2. SUBSTITUTION. Notwithstanding anything to the contrary
contained in SECTION 2.14.1, in lieu of all (or any part) of the deposits to the
Reserve Account required hereunder, Borrower may deliver to Lender a Credit
Facility in an amount equal to the amount then held in the Reserve Account (or
the difference between the amount required to be deposited in the Reserve
Account and the amount so deposited therein), in form and substance reasonably
acceptable to Lender. Lender shall draw upon the Credit Facility in the same
manner and with the same effect as if the amounts so drawn therefrom were
sourced from the Reserve Account. In the event that the long-term unsecured debt
rating of the issuer of the Credit Facility is no longer rated at least "BBB-"
(or the equivalent), Lender shall provide written notice of such downgrade to
Borrower. Borrower may, but shall not be obligated to, replace such Credit
Facility (the "DOWNGRADED CREDIT FACILITY") with a new Credit Facility that
fully complies with the definition of such term in the amount of the balance of
the Downgraded Credit Facility. If Borrower fails to replace the Downgraded
Credit Facility with a new Credit Facility pursuant to the preceding sentence
within ten (10) days after receipt of written notice from Lender of such
downgrade, Lender shall be entitled to draw upon the entire balance of the
Downgraded Credit Facility and deposit the amounts so drawn in the Reserve
Account to be applied as provided in SECTION 2.14.1.
3. CONDITIONS TO LOAN.
As conditions to Lender's making the Loan and disbursing the Loan
proceeds, Borrower shall execute, deliver and/or provide to Lender the
following, all of which shall be in form and substance satisfactory to Lender in
Lender's sole and absolute discretion:
3.1. NOTE. The Note.
3.2. FORMATION, ORGANIZATION, ETC. Borrower's: (a) documents
evidencing organization, authority and the issuance of all necessary internal
consents and approvals for the Loan and the Loan Documents; (b) certificates of
good standing and qualification to do business issued by the jurisdiction of
organization and the state where the Leased Premises is located; and (c)
amendments, if any, to the Organizational Agreement as necessary to require
Borrower to comply with the SPE Covenants.
23
3.3. OPINION OF COUNSEL. An opinion of counsel for: (a) matters of
State law; (b) enforceability of Loan Documents; and (c) substantive
consolidation as required by Lender's counsel.
3.4. SECURITY DOCUMENTS. The Mortgage and all other Security
Documents as required by Lender for the Mortgaged Property and the Collateral.
3.5. TITLE INSURANCE. The Title Policy.
3.6. ENVIRONMENTAL ASSESSMENT REPORTS. Environmental Assessment
Reports for the Leased Premises.
3.7. INSURANCE. Certificates of hazard insurance and liability
insurance as required by SECTION 6.5 hereof.
3.8. FINANCIAL INFORMATION. Such financial information as Lender
shall require.
3.9. NO VIOLATIONS. Lender shall have determined that the making of
the Loan shall not cause Lender to be in violation of applicable law and
regulations.
3.10. LICENSING. Evidence satisfactory to Lender that all requisite
certificates of occupancy, and other material licenses, certificates, approvals
or consents required by any regulatory authority having jurisdiction over the
Leased Premises have been issued and maintained and that there is no litigation,
action, citation, injunctive proceeding, or like matter pending or threatened
with respect to the validity of such matters if adversely decided would have a
Material Adverse Effect.
3.11. LEASES. A schedule of leases and current certified Rent Roll.
3.12. COLLECTION ACCOUNT. Evidence satisfactory to Lender of the
establishment with a financial institution acceptable to Lender (a "DEPOSIT
BANK") of a collection account (the "COLLECTION ACCOUNT"), which shall be an
account with a separate and unique identification number and entitled "Penn
Station Leasing, LLC, with a security interest therein granted to A/P I Deposit
Corporation as the Lender pursuant to a Loan and Security Agreement, dated as of
June 20, 2001, between Penn Station Leasing, LLC and A/P I Deposit Corporation,
as Lender." Borrower shall cause the Deposit Bank to deliver to Lender a fully
executed Depository Acknowledgment.
3.13. OTHER DOCUMENTS AND DELIVERIES. Such other documents,
deliveries, certificates and other items as Lender shall reasonably require for
the Leased Premises and the Loan and similar to those that lenders require in
loan transactions similar to the transactions contemplated by this Agreement.
4. SECURITY FOR OBLIGATIONS.
4.1. GRANT OF SECURITY INTEREST. As security for the prompt and
complete payment and performance when due of the Obligations, Borrower hereby
presently and
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unconditionally conveys, assigns, mortgages, pledges, hypothecates, transfers
and delivers to Lender, and grants to Lender a continuing security interest in,
all Collateral.
4.2. FURTHER DOCUMENTATION. Borrower shall execute and deliver all
documents and instruments necessary or appropriate to evidence and perfect
Lender's security interest in the Collateral, including additional Security
Documents as required and any and all financing statements and other documents
and instruments as may be reasonably required by Lender and similar to those
that lenders require in loan transactions similar to the transactions
contemplated by this Agreement.
4.3. SECURITY AGREEMENT; UCC REMEDIES. This Agreement shall
constitute a security agreement under the UCC. Lender shall have, with respect
to the Collateral, all of the rights, remedies, powers and privileges of a
secured party under UCC Article 9, and all rights, remedies, powers and
privileges set forth in the Loan Documents.
4.4. SECURITY FOR OBLIGATIONS. Borrower's obligation to (re)pay the
Obligations shall be secured by, among other things:
4.4.1. MORTGAGE. The Mortgage; and
4.4.2. COLLATERAL AND SECURITY DOCUMENTS. All other Collateral
and all other Security Documents.
4.5. SECURITY INTEREST IN ACCOUNTS. As additional security for
Borrower's payment of the Obligations and performance of all other covenants and
conditions required on the part of Borrower to be observed or performed
hereunder and under the other Loan Documents, Borrower hereby pledges to and
grants to Lender a continuing security interest in the Accounts. Without
limiting any other rights or remedies of Lender under the Security Documents or
applicable law, if an Event of Default occurs and is continuing then Lender may
retain the Accounts and apply them against the Obligations in whatever order
Lender sees fit, other than with respect to the Reserve Account, for which
separate provision is made pursuant to SECTION 2.14 hereof.
5. BORROWER'S REPRESENTATIONS AND WARRANTIES.
As an inducement to Lender to enter into this Agreement and to make
the Loan, Borrower represents and warrants to Lender as follows, each of which
representations and warranties shall be deemed to be made, both as of the
Closing Date and at all times thereafter until the outstanding balance of the
Loan (including principal, interest, and other charges) is paid in full, both as
to Borrower and the Leased Premises.
5.1. DUE ORGANIZATION. Borrower is a Single-Purpose Entity duly
organized, validly existing and in good standing under the laws of a State of
the United States and (i) is authorized to do business in all jurisdictions in
which qualification is necessary, (ii) has all requisite power and authority to
own its property and conduct its business as conducted and as contemplated
hereunder and to enter into and perform its obligations under this Agreement and
all other documents and instruments contemplated hereby, and (iii) holds all
material licenses,
25
certificates and permits from all governmental authorities necessary for the
conduct of business as contemplated hereby.
5.2. AUTHORIZATION AND ENFORCEABILITY. The execution and delivery of
the Loan Documents, and the performance of all obligations hereunder and
thereunder, (i) have been duly authorized by all necessary company action of
Borrower, and (ii) do not and shall not require any consent or approval of,
notice to or any action by, any Person or, if required, such consents or
approvals have been obtained. The Loan Documents constitute legal, valid and
binding obligations of Borrower, enforceable against Borrower in accordance with
their terms, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
5.3. NO MATERIAL LITIGATION. No Material Litigation is pending, or
to the knowledge of Borrower, presently threatened, at law or in equity, or
before or by any Person, including any Governmental Authority.
5.4. COMPLIANCE WITH LAW. Neither Borrower nor the Leased Premises
is in violation of or in default under any applicable laws or regulations that
would result in a Material Adverse Effect. Borrower is not in violation or
default under any material order, writ, injunction, demand or decree of any
court or any other Governmental Authority. Borrower is not in violation or
default under any indenture, agreement or other instrument to which it is a
party or by which its properties are bound that would result in a Material
Adverse Effect. All licenses, permits, and certificates of occupancy necessary
for the operation of the Leased Premises as currently operated and for the legal
occupancy of the Leased Premises have been obtained and are in full force and
effect and have not been revoked or the failure to obtain such permits would not
result in a Material Adverse Effect. Borrower has received no notice of any
intended or threatened revocation of any of the items described in the preceding
sentence that would result in a Material Adverse Effect.
5.5. NO CONFLICT. The Borrower's execution and delivery of the Loan
Documents, and performance of its obligations hereunder and thereunder do not
and shall not: (i) violate or result in a breach by Borrower of, or constitute a
default under, or conflict with, or cause any acceleration of, any obligation
under any indenture, deed of trust, document, agreement or instrument to which
Borrower is a party or by which it or its property may be bound; (ii) violate
(A) the charter document or Organizational Agreement of Borrower or (B) any
provision of applicable law, regulation or order, including the provisions of
any federal or state tax or securities laws and any applicable rule, regulation,
order, writ, injunction or decree of any court or Governmental Authority; or
(iii) result in the creation or imposition of any lien or encumbrance of any
nature whatsoever upon any property or assets of Borrower, other than those
created pursuant to the Security Documents.
5.6. OWNERSHIP. Borrower is the sole owner and holder of the
tenant's interest in the Prime Lease and the leasehold estate created thereby,
subject only to Permitted Encumbrances. Borrower has full power and authority to
grant a security interest in the Mortgaged Property without the consent of any
other Person. There are no security interests, liens or encumbrances on the
Collateral, other than Permitted Encumbrances.
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5.7. PLACE OF BUSINESS. Borrower's principal place of business is
located at 00 Xxxxxxxxxxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000. Borrower keeps
its books and records at such address.
5.8. FINANCIAL STATEMENTS. All financial statements that Borrower
has submitted to Lender or submits to Lender after the Closing Date were or
shall be (as applicable) true and correct in all material respects and as of the
respective dates of such financial statements, fairly present the respective
financial conditions and results of operations of Borrower as of the dates
indicated and the results of operations and changes in financial position, if
any, for the periods therein specified, and are correct and complete. All such
financial statements were or shall be, as applicable, prepared in accordance
with Accounting Principles. All PRO FORMA financial statements submitted by
Borrower to Lender that purport to show future financial results were, or shall
be, as applicable, a fair and reasonable forecast (but shall not be deemed a
guaranty) of the results of future operations based upon facts known or
reasonably predicted based upon known facts by the preparer thereof, as of the
respective dates of such PRO FORMA statements.
5.9. ACCURATE AND COMPLETE. This Agreement and all financial
statements, schedules, reports, information, applications, data, opinions,
certificates, confirmations, applications, affidavits, agreements and other
materials submitted to Lender in connection with or in furtherance of the Loan,
this Agreement, other Loan Documents, or other documents so submitted by or on
behalf of Borrower, to Borrowers' best knowledge, fully and fairly stated the
matters with which they purported to deal and neither knowingly misstated any
material fact nor, separately or in the aggregate, omitted or failed to state
any material fact necessary to make the statements made therein not misleading.
5.10. NOT USURIOUS. The indebtedness evidenced by the Loan,
including interest, fees and charges provided for herein, is a business loan;
the Loan is an exempted transaction under the Truth in Lending Act, 15 U.S.C.
Section 1601 ET SEQ.; and the Loan does not, and when disbursed shall not,
violate the provisions of any consumer credit laws or usury laws of any
Governmental Authority.
5.11. NO FRAUD. No fraud by Borrower or any Affiliate of Borrower
has occurred in the negotiation of this Agreement or other documents related to
the consummation of the transactions contemplated by this Agreement.
5.12. ERISA. There are no Plans with respect to Borrower nor is
Borrower subject to any claim or lien by reason of any Plan.
5.13. SECURITY INTEREST. The Security Documents constitute and
create a valid and continuing lien on and security interest in the Collateral in
favor of Lender, prior to all other liens and rights of others, except Permitted
Encumbrances, and is enforceable as such as against creditors of and purchasers
from Borrower and as against any owner of the real property where any of the
Equipment is located, any purchaser of such real property and any present or
future creditor obtaining a lien on such real property, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights generally and by
general principles of equity (regardless of whether such
27
enforceability is considered in any proceeding in equity or at law). All action
necessary or desirable to protect and perfect such security interest in each
item of the Collateral has been duly taken.
5.14. SOLVENCY. Borrower is, and after consummation of the
transactions contemplated by this Agreement and the other Loan Documents, shall
be, solvent. For the purpose of this paragraph "solvent" means (i) the fair
value of the property of Borrower is greater than the total amount of
liabilities, including contingent liabilities, of Borrower, (ii) the amount that
will be required to pay the probable liabilities of Borrower on its debts as
they become absolute and matured shall not be greater than the fair value of the
assets of Borrower at such time, (iii) Borrower is able to realize upon its
assets and pay its debts and other liabilities, contingent obligations and other
commitments as they mature in the normal course of business, (iv) Borrower does
not intend to, and does not believe that it shall, incur debts or liabilities
beyond its ability to pay as such debts and liabilities mature, and (v) Borrower
is not engaged in a business or a transaction, and is not about to engage in a
business or a transaction, for which Borrower's property would constitute
unreasonably small capital after giving due consideration to prevailing
practices in the industry in which Borrower is engaged. In computing the amount
of any contingent liability at any time, it is intended that such liability
shall be computed at the amount that, in light of all the facts and
circumstances existing at such time, represents the amount that might reasonably
be expected to become an actual or matured liability. Borrower has a positive
net worth and is solvent.
5.15. SINGLE PURPOSE ENTITY. Borrower is not engaged in any joint
venture, business or partnership whatsoever other than the ownership and
operation of the Leased Premises. Borrower is and shall be at all times be a
Single Purpose Entity.
5.16. NO CONTRACTS. Borrower does not own or hold, and is not
obligated under or a party to, any purchase option, right of first refusal to
purchase or any other contractual right to purchase, acquire, sell, assign or
dispose of the Leased Premises or any portion thereof except the Prime Lease.
5.17. PHYSICAL CONDITION. All components of the Leased Premises and
the heating, ventilation, air conditioning, plumbing, electrical, mechanical,
sewer, waste water, storm water, systems and facilities included therein or
serving the foregoing in any way, are in working order and repair except where
the failure thereof would not result in a Material Adverse Effect.
5.18. NO CONDEMNATION OR OTHER EVENTS. Borrower has not received
notice, nor does Borrower have any knowledge, of any pending, threatened or
contemplated condemnation proceeding affecting a material portion of the Leased
Premises or of any sale or other disposition of the Leased Premises in lieu of
condemnation.
5.19. NO FLOOD HAZARDS. No portion of the Leased Premises is located
in a special flood hazard area as designated by any Governmental Authority.
5.20. ACCESS. Except as may be identified as a specific exception in
the Title Policy, the Leased Premises has access to and from a public street and
roadway that is adequate for its intended use.
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5.21. UTILITY SERVICES. All utility services (e.g., water, electric,
telecommunication, gas, sewer, etc.) are available and operational in sufficient
size and capacity for the operation of the Leased Premises for its intended use
except in the case where the lack thereof would not result in a Material Adverse
Effect.
5.22. INVESTMENT COMPANY ACT. Borrower is not required to register
as an "investment company" under the Investment Company Act of 1940, as amended.
The making of the Loan by Lender, the application of the proceeds and repayment
thereof by Borrower and the consummation of the transactions contemplated by
this Agreement and the other Loan Documents shall not violate any applicable
provision of such Act or any applicable rule, regulation or order issued by the
Securities and Exchange Commission thereunder that is binding on Borrower.
5.23. MARGIN REGULATIONS. Borrower does not own any "margin
security," as that term is defined in Regulations U of the Board of Governors of
the Federal Reserve System (the "FEDERAL RESERVE BOARD"), and the proceeds of
the Loan shall be used only for the purposes contemplated hereunder. The Loan
shall not be used, directly or indirectly, for the purpose of purchasing or
carrying any margin security, for the purpose of reducing or retiring any
indebtedness that was originally incurred to purchase or carry any margin
security or for any other purpose that might cause any of the loans under this
Agreement to be considered a "purpose credit" within the meaning of Regulations
T, U or X of the Federal Reserve Board. Borrower shall not take or permit any
agent acting on its behalf to take any action that might cause this Agreement or
any document or instrument delivered pursuant hereto to violate any regulation
of the Federal Reserve Board.
5.24. LEASES. The Rent Roll is true, correct and complete in all
material respects and lists all Leases affecting the Leased Premises or any
portion thereof, and (except to the extent waived by Lender) accurately sets
forth the following information for each Lease: (i) the name of the tenant; (ii)
monthly rental (or the method of computation thereof) and the date through which
rent has been paid and any security deposit; and (iii) term, including any
renewal or extension options. No Person has any possessory interest in the
Leased Premises or right to occupy the same except under, and pursuant to, the
provisions of the Leases (and subleases thereunder). Each Lease listed in the
Rent Roll is a valid lease in accordance with its terms and there are no
material defaults thereunder by either party thereto. No rent or other income
from such Leases has been pledged, assigned or otherwise transferred or
encumbered, except pursuant to the Assignment of Leases.
5.25. NO LEASING COMMISSIONS. Borrower owes no leasing commissions
in connection with any Leases in effect (or that have previously been executed
and delivered but are not yet in effect) as of the Closing Date.
5.26. TAXES; ELECTIONS. All federal, state and local tax returns,
reports and statements required to be filed by Borrower, if any, have been filed
with the appropriate Governmental Authorities in all jurisdictions in which such
returns, reports and statements are required to be filed, and all taxes and
other impositions, if any, have been timely paid prior to the date on which any
fine, penalty, interest, late charge or loss may be added thereto for
non-payment thereof.
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5.27. BROKERS. Except for Credit Lyonnais Securities (USA), Inc.
(whose fees and commissions shall be the sole responsibility of Borrower),
Borrower has not dealt with any broker or mortgage banker or finder in
connection with the Loan.
5.28. EMPLOYMENT, LABOR AND MANAGEMENT AGREEMENTS. No employment,
consulting or management agreements cover Borrower's management or the
management of the Leased Premises. No collective bargaining agreements or other
labor agreements cover any employees of Borrower.
5.29. OPINION OF COUNSEL. The opinion(s) of Borrower's counsel being
delivered to Lender on the Closing Date in connection with the Loan is/are being
delivered by Borrower's counsel to Lender at Borrower's request and Lender is
entitled to rely thereon and to be an addressee of such opinion(s).
5.30. CONTRACTS. Borrower has not sold, assigned, transferred,
mortgaged or pledged any of Borrower's rights and interests in or under the
Major Contracts to any person other than Lender and has not executed any other
document or instrument that might prevent or limit Lender from operating under
or realizing the benefits of the terms, conditions and provisions of this
Agreement.
6. BORROWER'S COVENANTS.
Borrower covenants and agrees with Lender (such covenants and
agreements to remain in full force and effect until all Obligations have been
paid and performed in full) as follows:
6.1. PROTECTION OF COLLATERAL. Borrower shall appear in and defend
any action or proceeding that may affect its title to or Lender's interest in
the Leased Premises.
6.2. COMPLIANCE. Borrower shall perform all its obligations under
all Loan Documents, when and as such performance is required under the Loan
Documents, and shall pay and perform all obligations under the Loan. If Borrower
fails to perform its obligations under the preceding sentence, then without
limiting Lender's other remedies, Lender shall have the right, but not the
obligation, after 30 days' notice to Borrower and Borrower's continued failure
to perform such obligation(s) during such period (provided that no such notice
shall be required with respect to any obligation which, if unpaid, may in
Lender's reasonable determination have a Material Adverse Effect), to make a
Protective Advance to cure or attempt to cure such default. Borrower shall
within five (5) Business Days after demand repay such Protective Advance (which
obligation shall constitute an Obligation for purposes of this Agreement),
together with interest thereon at the Default Rate from the date of payment to
and including the date of repayment. Failure to make such payment within such
period after notice shall constitute an Event of Default.
6.3. BOOKS AND RECORDS. Borrower shall maintain at its principal
place of business full, true and accurate books and records concerning its
business, including the Leased Premises.
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6.4. ACCESS. Lender and any of its officers, employees and/or agents
shall have the right to inspect the Leased Premises as frequently as Lender
determines to be reasonably appropriate, (i) at any time without notice if (y)
an Event of Default exists, or (z) there is an emergency currently existing at
the Leased Premises, to be inspected in Lender's reasonable judgment, and (ii)
during normal business hours upon reasonable notice and subject to the rights of
tenants.
6.5. INSURANCE.
6.5.1. REQUIRED INSURANCE COVERAGE. Borrower shall maintain or
cause to be maintained the following insurance policies and coverage on the
Leased Premises:
6.5.1.1. PROPERTY INSURANCE. Property insurance
against all loss customarily included under so called "All Risk" policies
including flood, earthquake, vandalism, and malicious mischief, boiler and
machinery, and such other insurable hazards as, under good insurance practices,
from time to time are insured against for other property and buildings similar
to the Leased Premises in nature, use, location, height, and type of
construction. Such insurance policy shall also insure against the additional
expense of demolition and increased cost of construction because of the
enforcement of laws regulating reconstruction at the time of rebuilding
following a loss. The amount of such "All Risk" insurance shall be not less than
the greater of (a) one hundred percent (100%) of the replacement cost value of
the Leased Premises, calculated as if the Leased Premises could be fully
restored at its present location and (b) the Principal Amount. Each such
insurance policy shall contain an agreed amount (the "COINSURANCE WAIVER") and
replacement cost value endorsement and shall cover all tenant improvements and
betterments that Borrower is required to insure in accordance with the Prime
Lease. If the insurance required under this paragraph is not obtained by blanket
insurance policies, the insurance policy shall be endorsed to also provide
guaranteed building replacement cost. Lender shall be named "Loss Payee" on a
standard mortgagee endorsement and be provided not less than 30 days advance
notice of change in coverage, cancellation or non-renewal.
6.5.1.2. FLOOD INSURANCE. If any portion of the Leased
Premises is located within an area designated as "flood prone" or a "special
flood hazard area" (as defined under the regulations adopted under the National
Flood Insurance Act of 1968 and the Flood Disaster Protection Act of 1973),
flood insurance shall be provided, in an amount not less than what other
commercial lenders require of other owners of other property and buildings
similar to the Leased Premises be insured for but not in excess of the maximum
limit of coverage available under the Federal Flood Insurance plan with respect
to the Leased Premises and otherwise only to the extent economically reasonable.
6.5.1.3. BOILER AND MACHINERY INSURANCE. Comprehensive
boiler and machinery insurance covering all mechanical and electrical equipment
against physical damage, improvements loss and covering, without limitation, all
tenant improvements and betterments which Borrower is required to insure
pursuant to the Prime Lease on a replacement cost basis.
6.5.1.4. BUILDER'S RISK INSURANCE. During any period
of repair or restoration the cost of which shall be in excess of $5,000,000, if
not covered by the property
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insurance otherwise maintained by Borrower, builder's "Risk" insurance in an
amount equal to but not less than the full insurable value of the work then
being performed.
6.5.1.5. GENERAL PUBLIC LIABILITY INSURANCE. General
public liability insurance, including commercial general liability insurance;
owned (if any), hired and non-owned auto liability; and umbrella liability
coverage for personal injury, bodily injury, death, accident and property
damage, providing in combination no less than $100,000,000 per occurrence or in
the aggregate, on an annual basis. The policies described in this paragraph
shall cover elevators, escalators, independent contractors, contractual
liability (covering, to the maximum extent permitted by law, Borrower's
obligation to indemnify Lender as required under this Agreement), and products
and completed operations liability coverage.
6.5.2. LENDER AS ADDITIONAL INSURED. All public liability
insurance shall name Lender as "Additional Insured" either on a specific
endorsement or under a blanket endorsement satisfactory to Lender.
6.5.3. POLICY REQUIREMENTS. All policies of insurance required
by this Agreement (i) shall be issued by an insurer that has a claims paying
ability rating of not less than A:X or better by AM Best, (ii) shall name Lender
(and Trustee, if applicable, for the benefit of Lender), as additional insureds
as their interests may appear and contain a standard noncontributory mortgagee
clause naming Lender or Trustee on behalf of Lender as the party to which all
payments made by such insurance company shall be paid, (iii) shall be maintained
throughout the term of the Loan without cost to Lender, (iv) shall contain such
provisions as Lender deems reasonably necessary or desirable to protect its
interest (including endorsements providing that neither Borrower, Lender nor any
other party shall be a co-insurer under said policies and that Lender shall
receive at least thirty (30) days prior written notice of any modification,
reduction or cancellation), (v) shall contain a waiver of subrogation against
Lender and (vi) shall be reasonably satisfactory in form and substance to Lender
and reasonably approved by Lender as to amounts, form, risk coverage,
deductibles, loss payees and insureds. Notwithstanding the above, the policies
of insurance required by this Agreement may be written by so-called "captive"
insurance company(ies) of the Landlord under the Prime Lease, provided that the
risk is reinsured with insurers that have a claims paying ability rating of not
less than A:X by A.M. Best. Borrower shall pay or cause to be paid the premiums
for such policies as the same become due and payable. Copies of said policies,
certified as true and correct by Borrower, or insurance certificates thereof,
shall be delivered to Lender prior to the expiration of the current policies.
Not later than fifteen (15) Business Days prior to the expiration date of each
of the policies, Borrower will deliver to Lender satisfactory evidence of the
renewal of each policy. Any insurance coverage required by this Agreement may be
effected under a blanket policy or policies covering the Leased Premises and
other property and assets not constituting a part of the Leased Premises.
6.5.4. MANDATORY POLICY PROVISIONS. Each insurance policy
shall contain a provision whereby the insurer: (i) agrees that such policy shall
not be canceled or terminated, the coverage, deductible, and limits of such
policy shall not be modified, other provisions of such policy shall not be
modified if such policy, after giving effect to such modification, would not
satisfy the requirements of this Agreement, and such policy shall not be
canceled or fail to be renewed, without in each case, at least 30 days' prior
written notice to Lender, (ii) waives any
32
right to claim any premiums and commissions against Lender, provided that the
policy need not waive the requirement that the premium be paid in order for a
claim to be paid to the insured and (iii) provides that Lender is permitted to
make payments to effect the continuation of such policy upon notice of
cancellation due to non-payment of premiums, PROVIDED, HOWEVER, that all
expenses incurred by Lender in connection with such action shall be paid by
Borrower. In the event any insurance policy (except for general public and other
liability insurance) shall contain breach of warranty provisions, such policy
shall provide that with respect to the interest of Lender, such insurance policy
shall not be invalidated by and shall insure Lender regardless of (A) any act,
failure to act or negligence of or violation of warranties, declarations or
conditions contained in such policy by any named insured, (B) the occupancy or
use of the Leased Premises for purposes more hazardous than permitted by the
terms thereof, or (C) any foreclosure or other action or proceeding taken by
Lender pursuant to any provision of this Agreement or any other Loan Document.
6.5.5. NO SEPARATE INSURANCE. Borrower shall not carry
separate insurance, concurrent in kind or form or contributing in the event of
loss, with any insurance required under this Agreement; PROVIDED, HOWEVER, that
notwithstanding the foregoing, Borrower may carry insurance not required under
this Agreement if any such insurance affecting the Leased Premises shall be for
the mutual benefit of Borrower and Lender, as their respective interests may
appear, and shall be subject to all other requirements of this Agreement.
6.5.6. LENDER'S RIGHT TO PROCURE INSURANCE. Notwithstanding
anything to the contrary contained herein, if at any time Lender is not in
receipt of written evidence that all insurance required hereunder is maintained
in full force and effect, Lender shall have the right (but not the obligation),
upon notice to Borrower, to take such action after five (5) days after the
mailing of such notice as Lender deems necessary to protect Lender's interest in
the Leased Premises, including the obtaining of such insurance coverage as
Lender shall deem appropriate, and all expenses incurred by Lender in connection
with such action shall constitute Protective Advances.
6.6. CASUALTY.
6.6.1. LOSSES AND ADJUSTMENT. If a Major Casualty shall occur,
then Borrower shall give prompt notice thereof to Lender. In the case of a
Casualty covered by any insurance policy required by this Agreement, Lender
shall allow Borrower to agree with the insurance company or companies on the
amount to be paid upon the loss; PROVIDED, that Borrower may adjust losses
aggregating not in excess of the Immaterial Loss Threshold without Lender's
consent provided such adjustment is carried out in a commercially reasonable and
timely manner; PROVIDED, FURTHER, that if at the time of the settlement of such
claim any Event of Default has occurred and is continuing, then Lender shall be
entitled to settle and adjust such claim without the consent of Borrower. In any
such case where Insurance Proceeds are in excess of the Immaterial Loss
Threshold, Lender shall and is hereby authorized to collect and issue a receipt
for any such Insurance Proceeds subject to and to the extent provided for in
this Agreement. The reasonable expenses incurred by Lender in the adjustment and
collection of Insurance Proceeds shall be secured by the Mortgage and shall be
reimbursed by Borrower to Lender upon demand therefor.
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6.6.2. APPLICATION OF PROCEEDS BELOW IMMATERIAL LOSS
THRESHOLD. If the Restoration Cost is less than the Immaterial Loss Threshold,
then provided that no Event of Default shall have occurred and be continuing,
the Insurance Proceeds shall be paid to Borrower. Borrower shall hold such
Insurance Proceeds in trust to be applied first to the Restoration Cost. Upon
completion of Restoration and payment of the Restoration Cost, Borrower may
retain any remaining Insurance Proceeds.
6.6.3. APPLICATION OF PROCEEDS AT OR ABOVE IMMATERIAL LOSS
THRESHOLD. If the Restoration Cost equals or exceeds the Immaterial Loss
Threshold, then the Insurance Proceeds shall be applied to Restoration, but only
if the conditions set forth below are satisfied or waived by Lender. If such
conditions are not satisfied or waived by Lender, then Lender may apply all
Insurance Proceeds to repay the Obligations. The conditions for the use of the
Insurance Proceeds for Restoration shall consist of the following, the
satisfaction of which shall be determined by Lender in consultation with
Lender's Engineer, and all of which must remain satisfied at all times until
completion of Restoration:
o EXPENSES. The Restoration Fund shall first be applied to pay for
Lender's reasonable costs and expenses, including the reasonable
fees of Lender's Engineer.
o RESTORATION FUND. The balance of the Restoration Fund shall equal or
exceed the Required Restoration Fund Balance. (To the extent that
the Restoration Fund at any time exceeds the Required Restoration
Fund Balance, Borrower shall be entitled to withdraw such excess so
long as no Event of Default shall have occurred and be continuing.)
o FACILITY SUBLEASE. The Facility Sublease shall remain in full force
and effect during and after the completion of the Restoration
without abatement of rent.
o DEFAULT. No Event of Default has occurred and is continuing.
o COMPLETION. The Projected Restoration Date shall be no later than 18
months after the adjustment of the insurance claim for the Casualty
(Borrower shall diligently prosecute such adjustment to the extent
this Agreement permits Borrower to do so).
o MATURITY. The Projected Restoration Date shall be no later than 3
months before the Scheduled Maturity Date. (For this purpose, the
parties may in their sole and absolute discretion agree to an
extension of the Scheduled Maturity Date. This condition shall be
applied taking into account any such agreed extension.)
o CAPABLE OF RESTORATION. The Leased Premises may legally be restored
to enable the Leased Premises to be used and occupied in
substantially the same manner as existed immediately before the
Casualty.
o CONTRACTING ARRANGEMENTS. In the case of a Major Casualty only,
Borrower shall have engaged as construction manager or general
contractor a nationally recognized construction company with
substantial experience in the State.
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6.6.4. DISBURSEMENT MECHANISMS; RESTORATION. The Restoration
Fund (to the extent it consists of cash) shall be held in a segregated account
by Lender and (so long as no uncured Event of Default shall exist and be
continuing) be applied to the cost of Restoration, in the manner set forth
below. Interest on the account shall constitute income of Borrower and be
deposited in the Restoration Fund, subject to Borrower's right to withdraw
excess funds from the Restoration Fund from time to time in accordance with this
Agreement. Borrower covenants to restore, repair, replace or rebuild the Leased
Premises to be at least comparable to the (x) use to which it was devoted, (y)
economic suitability and efficiency (operations and maintenance), and (z) other
material characteristics, as existed immediately before the Casualty, all to be
effected in accordance with all applicable law, ordinances, and codes, and plans
and specifications approved in advance by Lender, such approval not to be
unreasonably withheld or delayed. Borrower shall accomplish such Restoration
with diligence and continuity, subject to force majeure. Borrower shall pay all
costs (and shall deposit the total thereof with Lender in advance as necessary
to cause the Restoration Fund to comply with this Agreement at all times) of
such Restoration in excess of the Insurance Proceeds made available under this
Agreement. The Restoration Fund shall constitute additional Collateral. Borrower
hereby grants Lender a security interest in the Restoration Fund and agrees to
execute such documentation as Lender shall require to evidence such security
interest. If an Event of Default occurs during Restoration, then at any time
when such Event of Default has not been cured Lender may at its option apply the
Restoration Fund to the Obligations. After such application of the Restoration
Fund, even if Borrower cures the Event of Default Borrower shall have no right
to require Lender to reverse such application of the Restoration Fund, provided
that, after such application, the Event of Default shall be deemed waived.
6.6.5. DISBURSEMENT DOCUMENTATION. If Borrower is entitled to
reimbursement out of the Restoration Fund, the Restoration Fund (and any
Insurance Proceeds released from time to time by the insurance carrier) shall be
disbursed from time to time (at least once a month), provided that the
conditions to Restoration continue to be satisfied at all times, upon Lender or
Lender's Engineer being furnished with (A) evidence reasonably satisfactory to
it of the then-current Restoration Cost, (B) any amount then required to be
deposited into the Restoration Fund to comply with the conditions of this
Agreement, and (C) such architect's certificates, waivers of lien, contractor's
sworn statements, title insurance endorsements, bonds and other evidences of
cost, payment and performance of the foregoing Restoration as Lender or Lender's
Engineer may reasonably require and approve. Lender may, in any event, require
that all plans and specifications, if any, for such restoration, repair,
replacement and rebuilding be submitted to and approved by Lender or Lender's
Engineer prior to commencement of work, such approval not to be unreasonably
withheld or delayed. Lender may retain Lender's Engineer to inspect any
Restoration work and review Borrower's request for payments and Borrower shall,
within fifteen (15) days after demand by Lender, reimburse Lender for the
reasonable fees and disbursements of Lender's Engineer. No payment made prior to
the final completion of Restoration shall exceed ninety percent (90%) of the
value of the work performed from time to time (except for Restoration work on a
trade by trade basis in which event, payment may be made in full upon the
completion of such work by each trade); funds other than Insurance Proceeds
shall be disbursed prior to disbursement of such proceeds; and, at all times,
the undisbursed balance of the Restoration Fund shall equal or exceed the
Required Restoration Fund Balance. Any surplus that may remain out of the
Restoration Fund after completion and payment of Restoration in compliance with
this Agreement shall be paid to Borrower provided
35
that (a) no Event of Default has occurred and is continuing and (b) after such
application Borrower shall remain in full compliance with the Loan Documents.
Otherwise, such balance shall be paid to Lender to be applied against the Loan.
In no case shall any such application reduce or postpone any payments otherwise
required pursuant to this Agreement, other than the final payment on the Note.
6.7. CONDEMNATION.
6.7.1. NOTICE OF PROCEEDINGS. Borrower shall promptly give
Lender written notice of the actual or threatened commencement of any proceeding
for a Taking (regardless of magnitude) and shall deliver to Lender copies of any
and all papers served in connection with such proceedings. Lender is hereby
irrevocably appointed as Borrower's attorney-in-fact, coupled with an interest,
with exclusive power to collect, receive and retain any Condemnation Proceeds
for said Taking. With respect to any compromise or settlement in connection with
such proceeding, Lender will jointly with Borrower compromise and reach
settlement unless at the time of such Taking any Event of Default has occurred
and is continuing, in which event Lender may compromise and reach settlement
without the consent of, but upon consultation with, Borrower. Notwithstanding
the foregoing provisions of this paragraph, provided no Event of Default then
exists, Borrower is authorized to negotiate, compromise and settle in a
commercially reasonable manner, without participation by Lender, Condemnation
Proceeds of up to the Immaterial Loss Threshold in connection with any Taking.
Notwithstanding any Taking, Borrower shall continue to pay the Obligations at
the time and in the manner provided for in this Agreement and the other Loan
Documents and the Obligations shall not be reduced except in accordance
therewith.
6.7.2. DISBURSEMENT OF PROCEEDS. Subject to the other terms
and provisions of this Agreement, in the event of a Taking that renders the
Leased Premises physically or economically unsuitable in the reasonable judgment
of Lender for the use to which it was devoted before the Taking, Borrower shall
cause the Condemnation Proceeds to be paid directly to Lender, and Lender may
elect in its sole discretion to apply any such Condemnation Proceeds to the
Restoration Cost or to the reduction or discharge of the Obligations, whether or
not then due and payable. Any balance remaining after such application shall be
paid to Borrower.
6.7.3. PARTIAL TAKING. With respect to a Taking in part, which
means any Taking that does not render the Leased Premises physically or
economically unsuitable in the reasonable judgment of Lender for the use to
which it was devoted before the Taking, Borrower shall cause the Condemnation
Proceeds to be deposited with Lender, to be applied to the cost of repairing,
replacing, restoring or rebuilding the Leased Premises in the same manner as
Insurance Proceeds are applied in accordance with the other provisions of this
ARTICLE 6. Notwithstanding the foregoing, if the estimated cost of repairing,
replacing, restoring, and/or rebuilding the Leased Premises is less than the
Immaterial Loss Threshold, then provided that no Event of Default shall have
occurred and be continuing, the Condemnation Proceeds shall be paid to Borrower.
Borrower shall hold such Condemnation Proceeds in trust to be applied first to
the costs of such repairs, replacements, restoration and/or rebuilding. Upon
completion thereof and payment therefor, Borrower may retain any remaining
Condemnation Proceeds.
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6.7.4. SALE BEFORE RECEIPT OF PROCEEDS. If the Leased Premises
is sold, through foreclosure or otherwise, before Lender receives any such
Condemnation Proceeds to which it is entitled hereunder, Lender shall have the
right, whether or not a deficiency judgment on the Note shall have been sought,
recovered or denied, to have reserved in any foreclosure decree a right to
receive said award or payment, or a portion thereof sufficient to pay the
Obligations.
6.8. AUDIT AND INSPECTION. Borrower shall permit Lender or its
authorized representatives, or, after the occurrence and continuance of an Event
of Default, an independent certified public accountant of Lender's choosing,
during normal business hours, to audit, inspect and copy such books and records
and files of account of Borrower as pertain to the Collateral and the Leased
Premises, and to discuss the business, operations, and financial and other
conditions of Borrower, and the Leased Premises, with officers or employees of
Borrower or Borrower's Representative, PROVIDED, that, so long as no uncured
Event of Default shall exist and be continuing, Lender shall provide reasonable
notice to Borrower of each such audit or inspection. (For purposes of this
Agreement, any audit of Borrower's finances, as conducted by Lender, its
authorized representative or an independent certified public accountant of its
choosing, shall constitute an "AUDIT" and may not, prior to an Event of Default,
be performed more often than once during any calendar year, but this shall not
limit the frequency of any inspections by Lender.) Borrower shall pay Lender's
reasonable third party out of pocket expenses in connection with Audits of
Borrower conducted at reasonable intervals. Nothing in this Section limits
Lender's rights under any other provision of this Agreement or any other Loan
Document.
6.9. NO RELOCATION. Borrower shall not change the location of its
principal place of business or its books and records relating to the Collateral
without giving Lender at least 30 days' prior written notice of any such change
of address and shall, before implementing the change, deliver to Lender such new
UCC-1 financing statements as Lender shall have reasonably required.
6.10. FINANCIAL STATEMENTS. Borrower shall furnish or cause to be
furnished to Lender within the lesser of (i) 120 days after the end of each
fiscal year of Borrower, or (ii) 21 days after receipt by Borrower of such
information in final form, a copy of the financial statements, consisting of
balance sheets, income statements and cash flow statements as of the end of such
fiscal year and financial statements of Member(s) for such fiscal year, all in
detail similar to that which was furnished to Lender in connection with the
funding of the Loan by Lender and prepared in accordance with Accounting
Principles and audited by a "Big Five" or other independent certified public
accountant approved by Lender, which approval shall not be unreasonably
withheld; and all fully and fairly stating the matters with which they purport
to deal and without omitting or failing to state any material fact necessary to
make the statements made therein not misleading.
6.11. NOTIFICATION OF LENDER. Borrower shall promptly after Borrower
has obtained knowledge thereof notify Lender in writing of any:
6.11.1. DEFAULT OR EVENT OF DEFAULT. Default or Event of
Default;
37
6.11.2. LITIGATION. Commencement of Material Litigation and,
upon Lender's request from time to time, the status thereof;
6.11.3. LOAN-RELATED LITIGATION. Claim, demand or legal
proceeding, whether threatened or filed, against Borrower that arises from or
relates to the Loan;
6.11.4. TRANSFERS. Transfer of any Equity Interest in
Borrower;
6.12. CONDUCT OF BUSINESS. Borrower shall: (i) do or cause to be
done all things necessary to preserve, maintain, renew and keep in force and
effect its existence as a limited liability company and all of its material
rights, licenses, permits and franchises; (ii) conduct its business in an
orderly and regular manner; (iii) comply with all applicable laws and
governmental regulations if noncompliance would have a Material Adverse Effect
and with the terms of any indenture, contract or other instrument to which it
may be a party or under which it or its properties may be bound if noncompliance
would have a Material Adverse Effect, except where contested in good faith and
by appropriate proceedings diligently pursued; (iv) continue to conduct its
business substantially as now conducted or as otherwise permitted under this
Agreement; and (v) preserve all the remainder of its property, in use or useful
in the conduct of its business and keep the same in good repair, working order
and condition (taking into consideration ordinary wear and tear) and from time
to time make, or cause to be made, all appropriate repairs, renewals and
replacements, betterments and improvements thereto consistent with past
practices, so that the business carried on in connection therewith may be
properly and advantageously conducted at all times.
6.13. RESTRICTIVE COVENANTS. Except as expressly provided herein,
Borrower shall not directly or indirectly, do or permit to be done any of the
following (such prohibitions, collectively, the "RESTRICTIVE COVENANTS"):
6.13.1. TRANSFER. Do or permit to be done any of the following
(collectively, the "TRANSFER PROHIBITION"):
6.13.1.1. SALE OR ASSIGNMENT. Sell, convey, assign (by
operation of law or otherwise), transfer, lease (other than for occupancy in
compliance with the Loan Documents or with Lender's prior written consent),
abandon or otherwise dispose of, directly or indirectly, by operation of law or
otherwise, any element of the Prime Lease and the Facility Sublease or the
material items or elements of the Mortgaged Property or any right or interest
therein (except as required by law or in connection with a Permitted
Encumbrance), unless (i) Borrower shall have delivered a Rating Agency
Confirmation in connection therewith, (ii) such items or elements are replaced
with an item or element of same or similar usefulness, (iii) such item or
element is no longer useful by reason of other cost or labor saving devices
acquired by Borrower, or (iv) Borrower at the time of such sale, assignment,
transfer, lease, abandonment or other disposition is entitled to and does obtain
the release of such Mortgaged Property from Lender's liens under the Security
Documents;
6.13.1.2. FURTHER ENCUMBRANCE. Further encumber,
create, assume, suffer to exist, alienate, hypothecate or grant a security
interest in or xxxxx x xxxx, charge or any other interest whatsoever in or with
respect to the Mortgaged Property (whether superior
38
or inferior to the liens of the Security Documents) in favor of any Person
except for or in connection with Permitted Encumbrances;
6.13.1.3. CHANGES IN MEMBERSHIP STRUCTURE. Change its
limited liability company structure;
6.13.1.4. EQUITY TRANSFERS. Unless Borrower shall have
delivered a Rating Agency Confirmation in connection therewith, make, permit or
allow any Person (whether or not within Borrower's control) to make any sale,
assignment, transfer, conveyance, pledge or encumbrance of any stock,
partnership interest, membership interest, or other equity interest in Borrower
(or of any direct or indirect member of Borrower, or of any other entity that
directly or indirectly, through any number of tiers of ownership, owns any
equity interest in Borrower), or the sale or creation of any additional
membership interest;
6.13.2. ORGANIZATIONAL DOCUMENTS. Modify or amend its
organizational documents in any respect;
6.13.3. DISSOLUTION. Dissolve, liquidate or discontinue its
business or merge or consolidate with any other Person;
6.13.4. OTHER INDEBTEDNESS. Incur any Indebtedness other than
Permitted Indebtedness;
6.13.5. NEW LEASES. Enter into any New Lease except in full
compliance with the Loan Documents;
6.13.6. MAJOR LEASES. Amend, modify, waive, cancel, terminate
or accept the surrender of any Major Lease;
6.13.7. RENTS. Discount any rents or collect any rents for a
period of more than one month in advance under or in connection with a Major
Lease;
6.13.8. CERTAIN RESTRICTIONS. Enter into any agreement,
undertaking or document of any kind that limits, restricts, or prohibits
Borrower from entering into any amendment or modification of any Loan Document
or that requires a third party's consent or approval as to any such amendment or
modification except with respect to the FRA and under the SNDA; or
6.13.9. SECURITY INSTRUMENTS. Execute, as debtor, any
conditional xxxx of sale, chattel mortgage or other security instrument covering
any furniture, furnishings, fixtures and equipment, intended to be incorporated
in the Leased Premises or the appurtenances thereto, or covering articles of
personal property placed in the Mortgaged Property or purchase any of such
furniture, furnishings, fixtures and equipment so that ownership of the same
will not vest unconditionally in Borrower, free from encumbrances on delivery to
the Leased Premises. The preceding prohibition shall not be deemed to apply to:
(a) equipment leases entered into in the ordinary course of business consistent
with real estate industry practices for similar buildings; (b) replacement
equipment leases on comparable terms; or (c) liens or encumbrances in favor of
the FRA.
39
6.13.10. PERMITTED TRANSFERS.
The preceding Restrictive Covenants shall not prohibit or be or be
deemed to apply to, nor require the delivery of a Rating Agency Confirmation
(except with respect to clause (iii) below, for which a Rating Agency
Confirmation shall be required) or the consent of Lender with respect to, and,
accordingly, Transfer Prohibition shall not include or apply to, as applicable,
the following:
(i) The direct or indirect sale, conveyance, transfer,
assignment (by operation of law or otherwise) or other disposition,
directly or indirectly, by operation of law or otherwise, of all or
substantially all of the business and assets of the Member(s) of the
Borrower;
(ii) The direct or indirect sale, conveyance, transfer,
assignment (by operation of law or otherwise) or other disposition,
directly or indirectly, by operation of law or otherwise, of all or
substantially all of the interests in Borrower by reason of the sale,
merger, consolidation, or amalgamation of the Member(s) of Borrower,
including, without limitation, redemption of the stock of the Member(s) of
Borrower, or other similar transaction with respect to the Member(s) of
Borrower; or
(iii) A successor in interest to Borrower pursuant to or in
connection with, directly or indirectly, the direct or indirect sale,
conveyance, transfer, assignment (by operation of law or otherwise) or
other disposition, directly or indirectly, by operation of law or
otherwise, of the Northeast Corridor Business and Assets, provided that as
a result of such transfer the ownership interest in Borrower shall be the
same, direct or indirect, as the ownership interest of the owner of the
Northeast Corridor Business and Assets.
6.14. NO IMPAIRMENT OF SECURITY REQUIRED. If Lender elects to
accelerate the Obligations on account of a violation of any Transfer
Prohibition, then Lender shall have no obligation to allege or demonstrate any
impairment of its security and may pursue any legal or equitable remedies for
default in such payment of the Obligations upon Lender's acceleration thereof
without making any such allegation or showing.
6.15. ENVIRONMENTAL DOCUMENTS. Borrower shall provide Lender with a
copy of each and every material environmental document relating to the Leased
Premises received after the Closing Date, promptly upon Borrower's receipt,
preparation or filing (as the case may be) of such environmental document.
6.16. DEFENSE OF LIEN. If the validity or priority of any lien of
Lender arising under the Security Documents, or of any rights, titles, security
interests or other interests created or evidenced hereby shall be challenged or
if any legal proceedings are instituted with respect thereto, Borrower shall
give prompt written notice thereof to Lender and, at Borrower's own cost and
expense, shall diligently endeavor to cure any defect that may be developed or
claimed, and shall take all necessary and proper steps for the defense of such
legal proceedings, and, if Borrower fails to do so, Lender (whether or not named
as a party) after 15 days' notice to Borrower, is hereby authorized and
empowered to take such additional steps as in its judgment
40
and discretion may be necessary or proper for the defense of any such legal
proceedings or the protection of the validity or priority of this Agreement and
the rights, titles, security interests and other interests created or evidenced
hereby, and all expenses so incurred of every kind and character shall be a
demand Obligation owing by Borrower and shall bear interest from the date of
expenditure until paid at the Default Rate.
6.17. FURTHER ASSURANCES. Borrower shall promptly:
6.17.1. CORRECTION OF ERRORS. Notify Lender of, and correct
promptly, any defect, error or omission that may be discovered in the contents
of this Agreement or in any other instrument executed in connection herewith or
in the execution or acknowledgment thereof;
6.17.2. NOTICE OF INACCURACIES. Notify Lender of any
inaccuracy or breach of any material representation or warranty made by Borrower
the effect of which would result in a Material Adverse Effect; and
6.17.3. FURTHER DOCUMENTATION. Execute, acknowledge, deliver
and record or file such documents or instruments (including further security
agreements, financing statements, continuation statements and notices to
depositories), in form and substance reasonably satisfactory to the parties
hereto and take such actions and do such further acts, as may be reasonably
necessary, desirable or proper to carry out more effectively the purposes of
this Agreement and to subject to the security interests hereof and of the other
Security Documents any property intended by the terms hereof or thereof to be
covered hereby and thereby, including any renewals, additions, substitutions,
replacements or appurtenances to the Collateral and/or the Leased Premises.
Borrower shall promptly pay all out-of-pocket costs of Lender connected with any
of the foregoing.
6.18. SPE COVENANTS. Borrower shall comply with all of the material
SPE Covenants and shall at all times continue to be a Single-Purpose Entity.
6.19. MERGERS, ETC. Borrower shall not directly or indirectly, by
operation of law or otherwise, merge with, consolidate with, acquire all or
substantially all of the assets or capital stock of, or otherwise combine with,
any Person, except as permitted pursuant to the provisions of SECTION 6.13.
6.20. TAXES. Borrower shall file all federal, state, and local tax
returns, reports, and statements required to be filed by Borrower, if any, with
the appropriate Governmental Authorities in all jurisdictions in which such
returns, reports and statements are required to be filed and shall pay all taxes
and other impositions, if any, prior to the date on which any fine, penalty,
interest, late charge or loss may be added thereto for nonpayment thereof.
6.21. SEC FILINGS.
6.21.1. LENDER CONSENT. Except with respect to that certain
Registration Rights Agreement, dated as of the date hereof, by and between
Lender and Trustee, Borrower shall obtain Lender's consent to any reference to
Lender, the Loan or any other transactions between Borrower or Lender (other
than with respect to the identity of Lender and/or the terms of the Loan,
whether by abstracting the terms thereof or a listing of the specific terms)
that may
41
be contained in any registration statement filed by Borrower under the
Securities Act of 1933, as amended, or any report (including any prospectus)
filed by Borrower under the Securities Exchange Act of 1934, as amended and any
other disclosure document in connection with any public or private offering of
securities by Borrower and any amendments thereof, prior to its distribution and
prior to the effectiveness of any offering contemplated thereby. Lender's
approval rights as aforesaid shall be for Lender's own purposes only and Lender
shall have no liability with respect to such materials and shall not be
obligated to advise Borrower of any matters regarding such materials that may
come to Lender's attention.
6.21.2. COPIES OF FILINGS. Borrower shall furnish to Lender:
(i) promptly after the filing thereof with the Securities and Exchange
Commission, a copy of each report, notice or other filing, if any, by Borrower;
and (ii) a copy of each written communication received by Borrower from or
delivered by Borrower to (A) the Securities and Exchange Commission or (B) any
holder of publicly held equity or subordinated debt of Borrower or any Affiliate
of Borrower, in each case promptly after each such receipt or delivery.
6.22. EMPLOYEE PLANS. Borrower shall not adopt any Plan, or
otherwise be a party to (or subject to any claim or lien by reason of) any Plan,
without the prior written consent of Lender.
6.23. EFFECT OF PAYMENT AND PERFORMANCE. Upon Borrower's full
payment and performance of the Obligations, Lender shall satisfy the Loan
Documents and release all the Security Documents and release (or return, as
applicable) to Borrower or as Borrower shall reasonably instruct any remaining
amounts then being held in the Reserve Account or the Collection Account (or a
Credit Facility), at no cost to Borrower, except that Borrower shall, at the
time of such satisfaction and as a condition thereto, reimburse Lender's
reasonable attorneys' fees (or a reasonable estimate of such attorneys' fees as
provided by Lender's counsel) in connection therewith.
6.24. USE. Borrower shall use and operate the Leased Premises only
as a retail and ancillary office complex.
6.25. CONTRACTS. Borrower shall perform and observe, in a timely
manner, all material covenants, conditions, obligations and agreements of
Borrower under the Major Contracts and shall suffer or permit no delinquency on
its part to exist under any Major Contract.
Without the prior written consent of Lender, Borrower shall not
cancel, terminate, amend, supplement or modify any Major Contract unless
replaced with a Contract of same or similar usefulness.
Borrower shall exercise all commercially reasonable efforts to
enforce or secure the performance of each and every material obligation,
covenant, condition and agreement to be performed by the manager, licensor,
grantor or other contracting party under the Major Contracts.
6.26. NO OBLIGATION OF LENDER; BORROWER REMAINS LIABLE. Nothing
contained herein shall operate or be construed to obligate Lender to perform any
of the terms, covenants or conditions in any Contract or otherwise to impose any
obligation upon Lender with respect to the
42
Contracts. The exercise by Lender of any of the rights and remedies hereunder
shall not release Borrower from any of its duties or obligations under the
Contracts.
6.27. OFFERING OF INTERESTS. Borrower and its Affiliates shall
comply with all applicable requirements of Governmental Authorities in offering,
selling, and marketing membership interests in Borrower or any constituent
entity of Borrower, including all tax, investment, and securities laws of all
Governmental Authorities.
6.28. COLLECTION ACCOUNT. Borrower shall maintain the Collection
Account established pursuant to SECTION 3.12 hereof.
7. EVENTS OF DEFAULT AND REMEDIES.
7.1. DEFINITION. The occurrence of each or any of the following
events shall constitute an event of default ("EVENT OF DEFAULT") hereunder
(whatever the reason for such event and whether it is voluntary or involuntary,
or within or beyond the control of Borrower, or is effected by operation of law
or pursuant to any judgment or order of any court or any order, rule or
regulation of any Person):
7.1.1. NONPAYMENT. If Borrower fails to pay any payment of
debt service (principal and interest) as required under the Loan Documents;
7.1.2. NONPAYMENT OF MONEY OTHER THAN DEBT SERVICE (PRINCIPAL
AND INTEREST). If Borrower fails to pay any amount other than on account of
regular payments of debt service (interest and principal) from time to time
owing under any of the Loan Documents within 30 days after written notice to
Borrower that the same is due;
7.1.3. REPRESENTATIONS AND WARRANTIES. If any material
representation or warranty made in this Agreement or any other Loan Document
shall have been false or misleading in any material respect when made unless
such inaccuracy is curable and is actually cured within 30 days of receipt of
notice to Borrower or Borrower shall have commenced curative action within 30
days of receipt of such notice;
7.1.4. NONMONETARY DEFAULT. If Borrower or any obligor under
any of the Loan Documents defaults in the performance of, or otherwise breaches,
any agreement, obligation or covenant in the Loan Documents (other than an
obligation to pay or deposit money) and such breach or default continues for 30
days after written notice to Borrower specifying such default or breach, or such
longer period (but in no event longer than 180 days after receipt of Lender's
notice of such default) as shall be reasonably required to cure such breach or
default, so long as Borrower shall have commenced curative action within 30 days
of receipt of such notice and shall thereafter diligently and continuously
proceed to cure such breach or default, and shall actually cure such breach or
Default within 180 days after receipt of Lender's notice of default;
7.1.5. FINANCIAL MATTERS. The occurrence of any of the
following (an "INSOLVENCY EVENT OF DEFAULT"):
7.1.5.1. VOLUNTARY PROCEEDINGS. If Borrower commences
insolvency or bankruptcy proceedings, or admits in writing its inability to pay
its debts as they
43
mature, or makes an assignment for the benefit of its creditors, or applies for
or consents to the appointment of a trustee, custodian or receiver for any
portion of its properties;
7.1.5.2. APPOINTMENT OF TRUSTEE. If a trustee,
custodian or receiver is appointed (other than upon the application or with the
consent of Lender) for Borrower or any portion of its properties, and such
appointment is not dismissed within 120 days;
7.1.5.3. INVOLUNTARY PROCEEDINGS. If any bankruptcy,
reorganization, arrangement, insolvency, readjustment, liquidation, dissolution
or other proceeding for relief under any Insolvency Laws and either (a) Borrower
acquiesces in such proceedings or (b) such proceedings continue without being
dismissed for 120 days after the institution thereof;
7.1.6. INVALIDITY. If Borrower asserts in writing that any
material provision of any Loan Document has ceased (other than by reason of
payment and performance thereof in full) to be a valid and binding obligation of
Borrower, or any material provision thereof is declared to be null and void by a
competent court;
7.1.7. OTHER LOAN DOCUMENTS. The occurrence of any Event of
Default or other default, beyond applicable notice and grace period (if any),
under any other Loan Document;
7.1.8. TRANSFER. Any violation of any Transfer Prohibition or
any other attempted transfer, assignment, or further mortgaging or encumbrance
by Borrower, whether direct or indirect, of its rights, privileges or duties
with respect to the Leased Premises (including any of the rents, issues or
profits therefrom) or under the Loan Documents, or if there shall be any change
in the direct or indirect ownership of Borrower, in each case except as
expressly permitted by the Loan Documents or in any Leases made in compliance
with this Agreement;
7.1.9. BREACH OF SPE COVENANTS. Any breach of any of any of
the material SPE Covenants;
7.1.10. PRIME LEASE. If (a) Borrower shall fail to observe or
perform any material term, covenant, condition or agreement in the Prime Lease
beyond any cure period contained therein, (b) the Prime Lease is cancelled or
terminated for any reason or (c) if the Prime Lease is amended or modified
without the prior consent of Lender; or
7.1.11. FACILITY SUBLEASE. If (a) any "Event of Default" (as
defined in the Facility Sublease) occurs under the Facility Sublease, (b) the
Facility Sublease is cancelled or terminated for any reason or (c) the Facility
Sublease is amended or modified without the prior consent of Lender.
7.2. ACCELERATION. Upon the occurrence of any Event of Default, upon
written notice to Borrower, Lender may declare (A) the entire outstanding
principal balance of the Loan, (B) all accrued and unpaid interest on the Loan
and (C) all other Obligations to be immediately due and payable, whereupon such
amounts shall become forthwith due and payable, without presentment, demand,
protest, or other notice of any kind, all of which are hereby expressly
44
waived, anything contained herein or in the Note to the contrary
notwithstanding. Notwithstanding the foregoing, upon the occurrence of any
Insolvency Event of Default, the Loan shall become automatically and immediately
due and payable, both as to principal and all interest and other amounts due
thereunder, Borrower hereby waiving presentment, demand, protest, or notice
(except as expressly required by the definition of "Event of Default") of any
kind.
7.3. ADDITIONAL REMEDIES. In addition to Lender's rights to require
immediate repayment of the Loan, upon the occurrence of an Event of Default,
Lender also may, by written notice to Borrower, exercise any and all rights,
powers or remedies in any combination whatsoever, available hereunder or under
any Loan Document or otherwise at law or in equity, including:
7.3.1. SET-OFF. The right to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held by or for the account of Lender to any indebtedness at any time owing to
Lender to the credit or for the account of Borrower against any and all of the
Obligations of Borrower, irrespective of whether Lender shall have made any
demand under this Agreement, the Note or any other Loan Documents. Lender agrees
to notify Borrower promptly (if legally permitted) after any such set-off and
application made by Lender, provided that the failure to give such notice shall
not affect the validity of such set-off and application or entitle Borrower to
any other rights or remedies.
7.3.2. DEFAULT INTEREST RATE. From and after the occurrence of
any Event of Default, and continuing (both before and after judgment) until the
earlier of (i) the event which gave rise to the Event of Default has been cured
or waived or (ii) all Obligations have been paid in full, all Obligations shall
bear interest at the Default Rate.
7.3.3. UCC REMEDIES. The right to exercise all rights and
remedies of a secured party under the UCC. Without limiting the generality of
the foregoing, Borrower expressly agrees that in any such event Lender, without
demand of performance or other demand, advertisement or notice of any kind
(except the notice specified below of time and place of public or private sale)
to or upon Borrower or any other Person (all and each of which demands,
advertisements and/or notices are hereby expressly waived), may forthwith
collect, receive, appropriate and realize upon the Collateral, or any part
thereof, and/or may forthwith sell, lease, assign, grant options to purchase, or
sell or otherwise dispose of and deliver the Collateral (or contract to do so),
or any part thereof, in one or more parcels at public or private sale or sales,
at any exchange broker's board or at any of Lender's offices or elsewhere at
such prices as it may deem best, for cash or on credit or for future delivery
without assumption of any credit risk. Lender shall have the right upon any such
public sale or sales, and, to the extent permitted by law, upon any such private
sale or sales, to purchase the whole or any part of the Collateral so sold, free
of any right or equity of redemption in Borrower, which right or equity is
hereby expressly waived and released. Borrower recognizes that Lender may be
unable to effect a public sale of certain of the Mortgaged Property by reason of
the provisions contained in the Securities Act of 1933, as amended, and
applicable state securities laws, and therefore may be compelled to resort to
one or more private sales to a restricted group of purchasers. Borrower
acknowledges that such private sales may result in prices and other terms less
favorable to the seller than if such sales were public, and agrees that any such
private sale shall be deemed to
45
have been made in a commercially reasonable manner. Borrower further agrees, at
Lender's request, to assemble the Mortgaged Property, make it available to
Lender at places that Lender shall select that shall be reasonably convenient to
Lender and Borrower, whether at Borrower's Leased Premises or elsewhere. The net
proceeds of any such collection, recovery, receipt, appropriation, realization
or sale, after deducting all reasonable costs and expenses of every kind
incurred therein or incidental to the care, safekeeping or otherwise of any or
all of the Mortgaged Property or in any way relating to the rights of Lender
hereunder, including reasonable attorneys' fees and legal expenses, shall be
applied by Lender to the payment in whole or in part of the Obligations, in such
order as Lender may elect, and only after the payment by Lender of any other
amount required by any provision of law, including UCC ss. 9-504(l)(c), need
Lender account for the surplus, if any, to Borrower. To the extent permitted by
applicable law, Borrower waives all claims, damages, and demands against Lender
arising out of the repossession, retention or sale of the Mortgaged Property.
Borrower agrees that Lender need not give more than five Business Days' notice
(which notification shall be deemed given when mailed, postage prepaid,
addressed to Borrower at its address in the opening paragraph of this Agreement)
of the time and place of any public sale or of the time after which a private
sale may take place and that such notice is reasonable notification of such
matters.
7.3.4. REAL PROPERTY FORECLOSURE. To the extent permitted by
law, the right to foreclose or exercise any power of sale, and to sell, in
accordance with the applicable laws of the jurisdiction in which the Leased
Premises is located, any portion thereof consisting of real property at public
auction, upon such terms and conditions, in such parcels, at such times and
places, and after such previous public advertisement as Lender shall deem
advantageous and proper and as required by all applicable laws, and to convey
any item of the Mortgaged Property, upon compliance with the terms of the sale
thereof, to and at the cost of the purchaser or purchasers thereof (who shall
not be required to see to the application of the purchase money paid by such
purchaser or purchasers) and to hold and apply the proceeds of sale of any item
of such Mortgaged Property, which proceeds are to be applied in accordance with
the provisions of any applicable law, but in the absence thereof, as follows:
first, to pay all costs, charges and expenses incurred by Lender in connection
with the sale of such item of Mortgaged Property, including the cost, if any, of
obtaining possession of such item or of conducting any sale of such item of
Mortgaged Property, including reasonable counsel fees to the attorneys
representing Lender; second, to discharge all taxes, levies and assessments,
with costs and interest relating thereto if they have priority over the lien of
the security interest granted in the Security Documents or this Agreement;
third, to pay the Obligations secured by the Security Documents, with interest
and other charges accrued thereon; and fourth, to pay the remainder, if any, of
the proceeds to the party legally entitled thereto or its assigns; PROVIDED,
HOWEVER, that Borrower's right to receive such remainder shall not be limited by
any inheritance, devise, conveyance, assignment or lien of or upon Borrower's
equity, without actual notice thereof prior to distribution.
7.3.5. POSSESSION OF MORTGAGED PROPERTY. The right to take
possession of the Mortgaged Property or any part thereof, at any time, without
notice and without regard to the adequacy or inadequacy of the Mortgaged
Property as security for the debt secured hereby or the solvency of Borrower or
any other party or parties liable for the payment of such debt, and to perform
any acts, including the rental, management and operation of any part or all of
the Leased Premises that Lender deems necessary or advisable in order to
conserve the Mortgaged Property,
46
and to collect and receive all rents, issues and profits relating to the Leased
Premises, including those past due as well as those accruing thereafter. Lender
shall be entitled as a matter of right, without regard to the value of the
Mortgaged Property as security for the amount due or the solvency of Borrower or
any other party or parties liable for the payment of such amount, without any
notice to Borrower or to any other party or parties (the right to any such other
notice being hereby expressly waived) (unless otherwise required by law), to the
appointment of a receiver with full and complete power and authority to enter
upon the Leased Premises relating to any item of Mortgaged Property to employ
security guards to protect any improvements from depredation, damage or injury
and to preserve and protect the personal property therein, to continue any and
all outstanding contracts, or, at Lender's sole option, to enter into a new
contract or contracts for the construction and completion of any improvements
thereon, to use the architects' and engineers' plans, drawings and
specifications therefor, and to pay or discharge all debts, obligations and
liabilities incurred thereby and all mechanics' or other liens affecting the
Mortgaged Property. Lender or any receiver appointed in accordance herewith also
may take possession of, and for these purposes use, any and all personal
property included in the Mortgaged Property and owned and used by Borrower in
the operation, construction, marketing, sale, rental or leasing thereof or any
part thereof. The expenses (including Lender's and receiver's fees, reasonable
counsel fees and out of pocket costs and agent's compensation) incurred pursuant
to the powers herein contained shall be secured by the Security Documents. After
payment of all such costs and expenses, Lender or receiver shall apply all rents
and other proceeds collected by Lender or receiver to reduce the Obligations
secured hereby in such order as Lender determines. The right to enter and take
possession of the Mortgaged Property, to manage, operate and deal with the same,
to collect the rents, issues and profits thereof, whether by a receiver or
otherwise, shall be in addition to, and not in limitation of, any other right or
remedy hereunder or afforded by law, and may be exercised concurrently with any
such other right or remedy or independently hereof. Lender and any receiver (as
the case may be) shall be liable to account only for rents and profits, and
other proceeds actually received, respectively, by Lender and such receiver.
7.3.6. DELIVERY OF MORTGAGED PROPERTY. Upon the occurrence of
an Event of Default, Borrower shall immediately deliver to Lender all Mortgaged
Property, if any, in the possession or control of Borrower.
7.3.7. LOCKBOX. Not later than two (2) Business Days after
receipt of written notice from the Lender that an Event of Default has occurred
and is continuing and Lease revenues are required to be directly deposited into
the Collection Account, Borrower shall deliver to each tenant under a Lease an
irrevocable direction letter in the form attached as EXHIBIT "D" to this
Agreement requiring the tenant to pay all rents and money received under Leases
and Proceeds thereof owed to Borrower directly to the Collection Account.
Borrower shall provide to Lender proof of such delivery. In addition, while any
such Event of Default is continuing, Borrower shall deliver an irrevocable
direction letter in such form to each tenant under a new Lease entered into
after the date of receipt of such notice and prior to the commencement of such
Lease. If, while any such Event of Default is continuing, a tenant under a Lease
forwards such rents, money or Proceeds to Borrower rather than directly to the
Collection Account, Borrower shall (i) deliver an additional irrevocable
direction letter to the tenant and make other commercially reasonable efforts to
cause the tenant to forward such rents, money or Proceeds directly to the
Collection Account and (ii) immediately deposit in the Collection Account such
47
rents, money or Proceeds. Borrower shall not have any right to withdraw any
funds from the Collection Account, which shall be under the sole dominion and
control of the Lender. Notwithstanding the foregoing, Lender shall direct
Deposit Bank to invest the Collection Account in Permitted Investments
reasonably selected by Lender. Any interest earned on such funds shall be
deposited in the Collection Account to be applied to pay any of Borrower's
obligations hereunder.
7.3.8. MISCELLANEOUS. Upon the occurrence of an Event of
Default, Lender may immediately, and without expiration of any grace period
beyond that required to create an Event of Default, enforce payment of all
Obligations of Borrower and exercise any and all remedies granted to it
hereunder and under any other Loan Document. If, at any time after the principal
of the Note shall have become due and payable as a result of any declaration of
acceleration and before any judgment or decree for the payment of the monies so
due, or any part thereof, shall have been entered, all Obligations then owed to
Lender shall have been duly paid, and every other Default and Event of Default
shall have been made good, waived or cured, then and in every such case Lender
may, by written notice to Borrower (at Lender's sole and absolute option, with
Lender being under no obligation whatsoever), rescind and annul such declaration
and its consequences; PROVIDED, HOWEVER, that no such rescission or annulment
shall extend to or affect any subsequent Default or Event of Default or impair
any right consequent thereon.
7.4. NO ORAL WAIVERS. Borrower recognizes that, in general,
borrowers that experience difficulties in honoring their loan obligations, in an
effort to inhibit or impede lenders from exercising the rights and remedies
available to lenders pursuant to mortgages, notes, or other instruments
evidencing or affecting loan transactions, frequently present in court the
argument, without merit, that some loan officer or administrator of the lender
made an oral modification or made some statement that could be interpreted as an
extension or modification or amendment of one or more debt instruments and that
the borrower relied to its detriment upon such "oral modification of the loan
document." For that reason, and in order to protect Lender from such allegations
in connection with the transaction contemplated by this Agreement, Borrower
acknowledges that this Agreement and any other Loan Document can be extended,
modified or amended only in writing executed by Lender and Borrower and that
none of the rights or benefits of Lender can be waived permanently except in a
written document executed by Lender. Borrower further acknowledges that no
officer or administrator of Lender has the power or the authority from Lender to
make an oral extension or modification or amendment of any such instrument or
agreement on behalf of Lender. Borrower expressly covenants not to rely on any
such oral extension or modification.
7.5. WAIVER OF AUTOMATIC STAY. IF BORROWER SHALL (I) FILE A PETITION
WITH ANY COURT OF COMPETENT JURISDICTION OR BE THE SUBJECT OF ANY PETITION UNDER
THE BANKRUPTCY CODE, (II) BE THE SUBJECT OF ANY ORDER FOR RELIEF ISSUED UNDER
THE BANKRUPTCY CODE, (III) FILE OR BE THE SUBJECT OF ANY PETITION SEEKING ANY
REORGANIZATION, ARRANGEMENT, COMPOSITION, READJUSTMENT, LIQUIDATION,
DISSOLUTION, OR SIMILAR RELIEF UNDER ANY INSOLVENCY LAW, (IV) HAVE SOUGHT OR
CONSENTED TO OR ACQUIESCED IN THE APPOINTMENT OF ANY TRUSTEE, RECEIVER,
CONSERVATOR, OR LIQUIDATOR FOR ALL OR SUBSTANTIALLY ALL OF ITS ASSETS, OR (V) BE
THE SUBJECT OF ANY ORDER, JUDGMENT, OR DECREE
48
ENTERED BY ANY COURT OF COMPETENT JURISDICTION APPROVING A PETITION FILED
AGAINST BORROWER FOR ANY REORGANIZATION, ARRANGEMENT, COMPOSITION, READJUSTMENT,
LIQUIDATION, DISSOLUTION, OR SIMILAR RELIEF UNDER ANY INSOLVENCY LAW, THEN,
LENDER SHALL THEREUPON BE ENTITLED TO OBTAIN, AND BORROWER TO THE FULLEST EXTENT
PERMITTED BY LAW, IRREVOCABLY AND UNCONDITIONALLY CONSENTS TO GRANT LENDER,
IMMEDIATE RELIEF FROM ANY AUTOMATIC STAY IMPOSED BY SECTION 362 OF THE
BANKRUPTCY CODE, OR OTHERWISE, ON OR AGAINST THE EXERCISE OF THE RIGHTS AND
REMEDIES WHICH WOULD OTHERWISE BE AVAILABLE TO LENDER AS PROVIDED IN THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENTS AND AS OTHERWISE PROVIDED BY LAW. TO THE
EXTENT PERMITTED BY LAW, BORROWER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES
ANY RIGHT TO OBJECT TO SUCH RELIEF.
7.6. DIRECT PAYMENT OF RENT. Without limiting any other right or
remedy of Lender under the Loan Documents, if any Event of Default shall have
occurred and be continuing, then Lender may give notice to any or all tenants
directing them to pay their rent to Lender, or as Lender shall direct, and not
to Borrower. If Lender gives any such notice to any tenant(s), then Borrower
shall not give any notice inconsistent with Lender's notice, or otherwise
interfere with Lender's collection of all rental income from the Leased
Premises.
8. NONRECOURSE.
8.1. GENERALLY. Subject to the qualifications below, Lender shall
not enforce the liability and obligation of Borrower to perform and observe the
obligations contained in the Note, this Agreement, the Mortgage or the other
Loan Documents by any action or proceeding wherein a money judgment shall be
sought against Borrower, unless, except as expressly reserved to Lender in
clause (g) of SECTION 8.2, the judgment in any such action or proceeding shall
be enforceable against Borrower only to the extent of Borrower's interest in the
Mortgaged Property (including the rents, issues and profits relating thereto),
the Collateral, and any other collateral given to Lender, and Lender, by
accepting the Note, this Agreement, the Mortgage and the other Loan Documents,
agrees that it shall not xxx for, seek or demand any deficiency judgment against
Borrower or its direct or indirect partners or members in any such action or
proceeding under or by reason of or in connection with the Note, this Agreement,
the Mortgage or the other Loan Documents except, to the extent permitted by
applicable law, for any deficiency judgment that shall be enforced solely
against or collected solely from the Mortgaged Property (including the rents,
issues and profits relating thereto), the Collateral, or any other collateral
given to Lender.
8.2. LENDER'S SECURITY. Notwithstanding anything to the contrary
contained in SECTION 8.1, nothing contained in this Agreement shall be deemed to
(a) constitute a waiver, release or impairment of any obligation evidenced or
secured by any of the Loan Documents; (b) impair the right of Lender to name
Borrower as a party defendant in any action or suit for foreclosure and sale
under the Mortgage; (c) affect the validity or enforceability of the
Environmental Indemnity Agreement or the Guaranty or any of the rights and
remedies of
49
Lender thereunder; (d) impair the right of Lender to obtain the appointment of a
receiver; (e) impair the enforcement of the Assignment of Leases; (f) constitute
a prohibition against Lender to seek a deficiency judgment against Borrower in
order to fully realize the security granted by the Mortgage or to commence any
other appropriate action or proceeding in order for Lender to exercise its
remedies against the Mortgaged Property; or (g) constitute a waiver of the right
of Lender to enforce the liability and obligation of Borrower (but not its
limited partners), by money judgment or otherwise, to the extent of any loss,
damage, cost, expense, liability, claim or other obligation incurred by Lender
(including attorneys' fees and costs reasonably incurred), but excluding
consequential damages, arising out of or in connection with (but only to the
extent of) the following:
(i) fraud, gross negligence or willful misconduct by
Borrower in connection with the Loan;
(ii) the misappropriation by Borrower of any Proceeds, rents,
issues or profits relating to the Leased Premises or other revenues from
the Leased Premises, except to the extent such funds are applied to the
payment of operating expenses of the Leased Premises or to pay amounts due
under the Loan Documents; and
(iii) the amount of any security deposits collected with
respect to the Leased Premises which are not delivered to Lender upon a
foreclosure of the Mortgaged Property or action in lieu thereof, except to
the extent any such security deposits were applied in accordance with the
terms and conditions of any of the Leases or pursuant to applicable law
prior to the occurrence of the Event of Default that gave rise to such
foreclosure or action in lieu thereof.
Notwithstanding anything to the contrary in this Agreement or any of the Loan
Documents, Lender shall not be deemed to have waived any right which Lender may
have under SECTION 506(a), 506(b), 1111(b) or any other provision of the
Bankruptcy Code to file a claim for the full amount of the Indebtedness secured
by the Mortgage or to require that all collateral shall continue to secure all
of the Indebtedness owing to Lender in accordance with the Loan Documents.
9. MISCELLANEOUS.
9.1. TRUSTEE. Lender shall have the right without the consent of
Borrower to enter into a servicing agreement with the Trustee, pursuant to which
the Trustee shall be appointed to service and administer the Loan, in accordance
with the terms hereof. Notwithstanding the foregoing, so long as an Event of
Default shall not have occurred and be continuing, Borrower may, from time to
time, request Lender to consider the appointment of a successor Trustee for
cause or without cause. Trustee may receive, hold, disburse, and otherwise
administer any funds otherwise contemplated by the Loan Documents to be
received, held, disbursed and otherwise administered by Lender. Lender shall
promptly notify Borrower if Lender shall elect to so appoint the Trustee, and
thereafter all notices and other communications from Borrower to Lender shall be
delivered to the Trustee with a copy concurrently delivered to Lender, and any
notice, direction or other communication from the Trustee to Borrower shall
50
have the same force and effect as a notice, direction or communication from
Lender. Borrower shall be solely responsible for the fees of the Trustee.
9.2. TERM OF AGREEMENT. This Agreement shall continue in full force
and effect, and the security interests granted hereby and the duties, covenants
and liabilities of Borrower hereunder and all the terms, conditions and
provisions hereof relating thereto shall continue to be fully operative until
the Note has been paid in full and all Obligations of Borrower and, at Lender's
option, all duties and responsibilities to Lender arising from the Loan
Documents have been paid or satisfied in full. Wherever the Loan Documents refer
to the "term" of the Loan or of the Loan Documents, such reference shall be
deemed to refer to the period from the Closing Date until this Agreement has
terminated pursuant to the preceding sentence.
9.3. EFFECTIVENESS OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made by Borrower in the Loan Documents, and in
any certificate or other instrument delivered by Borrower or on its behalf
pursuant to this Agreement or any other Loan Document, shall survive, and
continue in effect following, the execution and delivery of this Agreement and
the Note, the expiration or other termination of this Agreement and the
surrender of possession of the Collateral to Lender or as Lender may direct,
irrespective of any investigation made by Lender or on its behalf.
9.4. EXPENSES AND ATTORNEYS' FEES.
9.4.1. CLOSING COSTS. Regardless of whether the transactions
contemplated by this Agreement are consummated or completed, Borrower shall pay
all reasonable, out-of-pocket third party closing expenses and expenses incurred
in carrying out its obligations under this Agreement and any Loan Document,
including the fees and disbursements of its counsel, all costs of title
insurance, all costs to prepare and record documents and instruments required by
this Agreement, all Transaction Taxes relating to the Loan or the Loan
Documents, and all reasonable fees of engineers and other consultants engaged by
Lender.
9.4.2. POST CLOSING COSTS. If, at any time or times,
regardless of the existence of an Event of Default, Lender shall employ counsel,
engineers, or other advisors for advice or other representation or shall incur
reasonable legal or other costs and expenses in connection with:
9.4.2.1. MODIFICATIONS. Any amendment, modification,
or waiver, or consent with respect to, any of the Loan Documents, or the
processing of any request to approve any matter that requires Lender's approval.
9.4.2.2. DISPUTES. Any litigation, contest, dispute,
suit, proceeding or action (whether instituted by Lender, Borrower or any other
Person) in any way relating to the Leased Premises, Borrower, any Affiliate of
Borrower, any of the Loan Documents or any other agreements to be executed or
delivered in connection herewith;
9.4.2.3. ENFORCEMENT. Any attempt to enforce any
rights of Lender against Borrower or any other Person that may be obligated to
Lender by virtue of any of the Loan Documents;
51
9.4.2.4. ADVICE. The obtaining by Lender of any advice
in connection with the administration of the Loan or Lender's rights under the
Loan Documents,
9.4.2.5. COLLATERAL. Any attempt to verify, protect,
collect, sell, liquidate or otherwise dispose of the Leased Premises; or
9.4.2.6. REMEDIES AND COLLECTIONS. Any other exercise
of remedies, collection of amounts due under any of the Loan Documents, or
protection of the security for the obligations, or the enforcement of any
covenant or agreement by Borrower, under the Note or other Loan Documents,
then, and in each and any such event, the reasonable attorneys' and other
parties' fees arising from such services, including those of any trial court
proceedings, appellate proceedings, bankruptcy proceedings, arbitration
proceedings and mediation proceedings and all reasonable expenses, costs,
charges and other fees incurred by such counsel and others in any way or respect
arising in connection with or relating to any of the events or actions described
in this Section shall be payable, on demand, by Borrower to Lender and shall be
additional Obligations. Without limiting the generality of the foregoing, such
reasonable expenses, costs, charges and fees may include: paralegal fees, costs
and expenses; accountants' fees, costs and expenses; expert witness fees and
appraisers' fees; court costs and expenses; photocopying and duplicating
expenses; court reporter fees, costs and expenses; telephone charges; air
express charges; secretarial overtime charges; and expenses for travel, lodging
and food paid or incurred in connection with the performance of such legal
services. All such costs, charges, expenses and fees shall be payable on demand
and subject to Late Charges.
9.5. AGENTS, ETC. Lender may exercise any or all of Lender's rights
or remedies under the Loan Documents through any agent, representative,
designee, nominee, subsidiary, or servicer as designated by Lender from time to
time.
9.6. NO LENDER OBLIGATIONS. Notwithstanding anything to the contrary
in any Loan Document, Borrower shall remain liable to observe and perform all
the conditions and obligations to be observed and performed by it with respect
to all Collateral, all in accordance with and pursuant to the terms and
provisions of the Collateral. Lender shall have no obligation or liability by
reason of or arising out of this Agreement or the assignment by Borrower to
Lender of the Loan and the Leased Premises pursuant to the Loan Documents.
Lender shall not be required or obligated in any manner to perform or fulfill
any of the obligations of Borrower under or pursuant to the Loan Documents, to
make any payment, to make any inquiry as to the nature or the sufficiency of any
payment received by it or the sufficiency of any performance by Borrower, or to
present or file any claim or to take any action to collect or enforce any
performance or the payment of any amounts that may have been assigned to
Borrower or to which Borrower may be entitled at any time or times.
9.7. PARTIES. Whenever in this Agreement any of the parties hereto
is referred to, such reference shall be deemed to include each of such parties
individually as well as in the aggregate and to include the successors and
assigns of each such party, and all representations, covenants, provisions and
agreements made by or on behalf of Borrower in this Agreement shall inure to the
benefit of the successors and assigns of Lender; PROVIDED, HOWEVER, that without
the
52
written consent of Lender, Borrower shall neither assign nor delegate any of its
rights, privileges or duties arising under this Agreement, other than as set
forth herein, and any such attempted or purported assignment or delegation
without such prior written consent shall be null and void AB INITIO.
9.8. NOTICES. Unless otherwise provided for herein, all notices and
other communications required or permitted hereunder shall be in writing and
shall be deemed to have been duly given (a) when delivered, if sent by
registered or certified mail (return receipt requested), (b) when delivered, if
delivered personally, or (c) on the following Business Day, if sent by overnight
mail or overnight courier (for which purpose, "overnight" means delivery on the
next Business Day), in each case to the parties at the following addresses (or
at such other addresses as shall be specified by like notice, but Borrower shall
at all times and in all cases have the same address and the same designated
notice recipient(s), all of which may be changed simultaneously by appropriate
notice):
9.8.1. LENDER. If to Lender, at:
See Preamble (Opening Paragraph) of this Agreement
with a copy to:
Xxxxx Fargo Bank Northwest, N.A.
00 Xxxxx Xxxx Xxxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Corporate Trust Services
9.8.2. BORROWER. If to Borrower, at:
See Preamble (Opening Paragraph) of this Agreement
with a copy to:
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxx, Esq.
The giving of any notice required hereunder may be waived in writing by the
party entitled to receive such notice. Failure or delay in delivering copies of
any notice, demand, request, consent, approval, declaration or other
communication within any corporation or firm to the persons designated to
receive copies thereof shall in no way adversely affect the effectiveness of
such notice, demand, request, consent, approval, declaration or other
communication.
9.9. ENTIRE AGREEMENT; AMENDMENTS. This Agreement, including all
Loan Documents, and all Exhibits and Schedules to the foregoing, and other
agreements referred to herein and therein, constitute the entire agreement
between and among the parties hereto relating to the subject matter hereof,
incorporate or rescind all prior agreements and understandings between and among
the parties hereto relating to the subject matter hereof, cannot be changed or
53
terminated orally, and shall be deemed effective as of the date executed and
delivered both by Lender and by Borrower. No amendment or waiver of any
provision of this Agreement, the Note or any related document shall be effective
unless the same shall be in writing and signed by the party against whom such
amendment or waiver is to be enforced, and then such waiver and consent shall be
effective only in the specific instance and for the specific purpose for which
given.
9.10. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY THE
INTERNAL LAWS (AND NOT THE LAWS RELATING TO CONFLICT OF LAWS) OF THE STATE OF
NEW YORK, EXCEPT TO THE EXTENT THAT THE SAME MAY BE SUPERSEDED BY FEDERAL LAW;
PROVIDED HOWEVER, THAT WITH RESPECT TO THE PROVISIONS HEREIN THAT RELATE TO THE
PERFECTION, PRIORITY OR ENFORCEMENT OF LIENS ON THE LEASED PREMISES, THIS
AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE JURISDICTION IN WHICH THE LEASED
PREMISES IS LOCATED.
9.11. INDEMNIFICATION.
9.11.1. BROKERAGE. Borrower agrees to indemnify, defend and
save harmless each Indemnified Party, from and against any and all loss,
liability, expense or damage of any kind or nature and from any suits, claims,
or demands, including legal fees and expenses on account of brokerage
commissions or finder's fees claimed by any broker or other party in connection
with the transactions contemplated hereby arising by reason of Borrower's
actions.
9.11.2. GENERALLY. To the fullest extent permitted by law,
Borrower agrees to indemnify, protect, hold harmless and defend Lender from and
against any and all losses, liabilities, suits, actions, obligations, fines,
damages, judgments, penalties, claims, causes of action, charges, costs and
expenses (including reasonable attorneys' fees, disbursements and court costs
prior to trial, at trial and on appeal) which may be imposed on, incurred or
paid by, or asserted against Lender by reason or on account of, or in connection
with, (i) any willful misconduct of Borrower or any Event of Default hereunder,
(ii) the construction or alteration of the Leased Premises, (iii) any negligence
of Borrower or any tenant of the Leased Premises or any part thereof, or any of
their respective agents, contractors, subcontractors, servants, directors,
officers, employees, licensees or invitees, or (iv) any accident, injury, death
or damage to any person or property occurring in, on or about the Leased
Premises or any street, drive, sidewalk, curb or passageway adjacent thereto.
Any amount payable to Lender under this Section shall be due and payable upon
demand therefor and receipt by Borrower of a statement from Lender setting forth
in reasonable detail the amount claimed and the basis therefor. Borrower's
obligations under this Section shall not be affected by the absence or
unavailability of insurance covering the same or by the failure or refusal of
any insurance carrier to perform any obligation on its part under any such
policy of insurance. If any claim, action or proceeding is made or brought
against Lender, its officers, agents or employees by reason of any of the
matters set forth in this Section, and provided Borrower is given prompt written
notice thereof, Borrower shall defend the Lender by counsel reasonably
acceptable to the Lender, and "attorneys' fees" shall include both reasonable
attorneys' fees and paralegals' fees and expenses. In the event the Borrower
shall fail to protect and defend the Lender, its officers, agents or employees
as required pursuant to this Section, then the Lender may undertake to protect
and defend itself, its officers,
54
agents or employees and the Borrower shall pay to the Lender, upon demand, all
costs and expenses incurred by the Lender in connection therewith, including
without limitation, all such attorneys' fees and disbursements. The obligations
on the part of Borrower contained in this Section shall survive the payment in
full of the Loan. The foregoing provisions of this Section to the contrary
notwithstanding, Borrower shall not be liable for any loss or damage if and to
the extent caused by or resulting from the gross negligence, willful misconduct
or intentional breach by Lender.
9.12. JURY TRIAL WAIVER, JURISDICTION.
9.12.1. JURY TRIAL. BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES (TO THE EXTENT PERMITTED BY APPLICABLE LAW) TRIAL BY JURY
IN ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE THAT MAY ARISE OUT OF THIS
AGREEMENT, THE COLLATERAL OR ANY MATTER RELATED THERETO OR BY REASON OF ANY
OTHER CAUSE OR DISPUTE OF ANY KIND OR NATURE BETWEEN BORROWER AND LENDER.
9.12.2. NEW YORK JURISDICTION. Borrower and Lender hereby
agree that any state or federal court sitting in the County of New York, State
of New York shall have nonexclusive jurisdiction to hear and determine any
claims or disputes between Borrower and Lender pertaining directly or indirectly
to this Agreement or to any matter arising therefrom. Borrower expressly submits
and consents in advance to such jurisdiction in any action or proceeding
commenced in such courts, hereby waiving personal service of the summons and
complaint, or other process or papers issued therein, and agreeing that service
of such summons and complaint, or other process or papers, may be made by
registered or certified mail addressed to Borrower at the address of Borrower
set forth in this Agreement, with simultaneous copies by the same means to those
persons entitled to receive copies of notices under this Agreement. Should
Borrower fail to appear or answer any summons, complaint, process or papers so
served within 30 days after the mailing thereof, it shall be deemed in default
and an order or judgment may be entered against it as demanded or prayed for in
such summons, complaint, process or papers. The choice of forum set forth in
this paragraph shall not be deemed to preclude the enforcement of any judgment
obtained in such forum or the taking of any action under this Agreement to
enforce the same in any appropriate jurisdiction. To the extent that Borrower or
any Member thereof has or hereafter may acquire any immunity from jurisdiction
of any court or from any legal process (whether through service or notice,
attachment prior to judgment, attachment in aid of execution, execution or
otherwise), with respect to Borrower's or any Member's property, Borrower and
each Member thereof hereby unconditionally and irrevocably waives such immunity
in respect of its obligations under this Agreement, the Note and/or the Loan
Documents. The foregoing consent, in advance, to the jurisdiction of the above
mentioned courts is a material inducement for Lender to make the Loan. Each
Member of Borrower, by executing the Note and this Agreement, unconditionally
and irrevocably consents to and ratifies the terms of this paragraph.
9.13. CONFLICTS. In the event of any conflict between the provisions
of this Agreement and those of any of the other Loan Documents, other than the
Note, or any other
55
agreement relating to the Loan, the provisions of this Agreement shall govern,
except as otherwise indicated herein.
9.14. DATE OF PERFORMANCE. If the date for the performance of any
term, provision or condition (monetary or otherwise) under this Agreement or the
other Loan Documents shall happen to fall on a day that is not a Business Day,
then the date for the performance of such term, provision or condition shall be
extended to the next succeeding Business Day immediately thereafter occurring,
with interest on the Principal Amount at the Interest Rate provided in this
Agreement to such next succeeding Business Day if such term, provision or
condition shall result in the extension of any monetary payment due to Lender.
Notwithstanding the foregoing, this paragraph does not modify the definition of
Payment Date.
9.15. NO WAIVER; REMEDIES. No failure on the part of Lender to
exercise, and no delay by Lender in exercising, any right under this Agreement,
the Note or any other Loan Document shall operate as a waiver thereof, nor shall
any single or partial exercise of any right under this Agreement or any related
document preclude any other or further exercise thereof or the exercise of any
other right. The remedies provided in this Agreement, the Note and the Loan
Documents are cumulative and not exclusive of any remedies provided by law.
9.16. SEVERABILITY. Whenever possible, each provision of this
Agreement and the Loan Documents shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Agreement
or the Loan Documents shall be prohibited by or invalid under applicable law,
such provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement and the Loan Documents, and the parties
shall endeavor to agree upon a replacement provision having an economic effect
substantially equivalent to that of the provision that was ineffective or
invalid.
9.17. INJUNCTIVE RELIEF. Borrower recognizes that, in the event
Borrower fails to perform, observe or discharge any of its obligations or
liabilities under this Agreement, any remedy at law may prove to be inadequate
relief to Lender; therefore, Borrower agrees that Lender, if Lender so requests,
shall be entitled to temporary and permanent injunctive relief in any such case
without the necessity of proving actual damages.
9.18. RELATIONSHIP OF PARTIES.
9.18.1. LENDER'S ROLE. This Agreement provides for the making
of a loan by Lender, in its capacity as a lender, to Borrower, in its capacity
as a borrower, and for the payment of interest and repayment of principal by
Borrower to Lender. The relationship between Lender and Borrower is limited to
that of creditor/secured party and debtor/borrower. The provisions herein for
delivery of financial statements are intended solely for the benefit of Lender
to protect its interests as creditor in assuring payments of interest and
repayment of principal, and nothing contained in this Agreement shall be
construed as permitting or obligating Lender to act as a financial or business
advisor or consultant to Borrower, as permitting or obligating Lender to control
Borrower or to conduct Borrower's operations, as creating any fiduciary
obligation on the part of Lender to Borrower or as creating any joint venture,
partnership, agency, or other relationship between the parties hereto other than
as explicitly and
56
specifically stated in this Agreement. Borrower acknowledges that it has had the
opportunity to obtain the advice of experienced counsel of its own choosing in
connection with the negotiation and execution of this Agreement and to obtain
the advice of such counsel with respect to all matters contained herein,
including the provisions in this Agreement relating to waiver of trial by jury
and choice of forum. Borrower further acknowledges that it is experienced with
respect to financial and credit matters and has made its own independent
decision to apply to Lender for credit and to execute and deliver this
Agreement.
9.18.2. NO PARTNERSHIP. In no event shall Lender be considered
a partner or joint venturer with Borrower by virtue of making the Loan, entering
into this Agreement, accepting the Note, or any of the other Loan Documents or
accepting payments thereunder or exercising any rights thereunder. Nothing
contained in this Agreement or any other Loan Document is intended, nor shall it
be construed, to render either Borrower or Lender liable or responsible for the
debts or obligations of the other. Lender's rights of approval, prior consent,
comment or review set forth in this Agreement or any other Loan Documents are
provided solely for the purpose of protecting Lender's security interest in its
lien upon the Collateral and to assure Lender that it shall receive accurate and
fair payment of all principal and interest payable to it. All conditions to the
obligations of Lender set forth in this Agreement and all Loan Documents and all
rights of Lender set forth herein are imposed solely and exclusively for the
benefit of Lender and its assigns and no other person shall have standing to
require satisfaction of such conditions in accordance with their terms or be
entitled to assume that Lender shall enforce any of its rights hereunder. Any or
all of such conditions and rights may be freely waived in whole or in part by
Lender at any time if in its sole discretion Lender considers it advisable to do
so. Without limitation of the foregoing, Lender is not and shall not be
considered such a partner or joint venturer on account of Lender becoming a
mortgagee in possession or exercising any other remedial rights under this
Agreement or any Loan Document or available at law or in equity.
9.19. REGULATORY REQUIREMENTS. Borrower shall, from time to time,
deliver such documents, information, certificates, consents, forms and other
items, in form and substance reasonably satisfactory to Borrower, as shall be
reasonably necessary from time to time to enable Lender to comply with any and
all regulatory requirements of any Governmental Authority to which Lender is
subject.
9.20. INTERPRETATION. This Agreement shall not be interpreted "for"
or "against" either party, both parties recognizing that this Agreement has been
reviewed and negotiated by sophisticated business persons represented by
competent counsel. All section headings have been inserted for convenience of
reference only and shall not affect any construction or interpretation of this
Agreement. All exhibits attached to this Agreement are incorporated by reference
in, and made a part of, this Agreement. Wherever this Agreement refers to any
document, such reference shall refer to such document together with all
amendments, modifications, extensions, renewals, restatements, refinancings,
replacements, and substitutions thereof, except (at Lender's option) any of the
foregoing that are not expressly permitted by the Loan Documents or otherwise do
not comply with the Loan Documents. Terms defined in the plural or the singular
may be used in the singular or the plural and shall have the same meaning in
either case, all in accordance with normal principles of English grammar. Words
such as "include," "including," and "such as" shall
57
be interpreted in each case as if followed by the words "without limitation,"
except where the context clearly requires otherwise.
9.21. CONSENT. If Borrower shall seek the approval by or consent of
Lender under any Loan Document and Lender shall fail or refuse to give such
consent or approval, Borrower shall not be entitled to any damages for any
withholding or delay of such approval or consent by Lender, it being intended
that Borrower's sole remedy shall be to bring an action for an injunction or
specific performance which remedy for injunction or specific performance shall
be available only in those cases where Lender has expressly agreed in any Loan
Document not to unreasonably withhold or delay its consent or approval.
9.22. 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.
9.23. WAIVER OF COUNTERCLAIMS. Borrower hereby waives the right to
assert any counterclaim in any action or proceeding brought against it by
Lender.
9.24. OFFSETS, COUNTERCLAIMS, AND DEFENSES. Any assignee of Lender's
interest in and to this Agreement, the Note, the Mortgage and the other Loan
Documents shall take the same free and clear of all offsets, counterclaims or
defenses that are unrelated to this Agreement, the Note, the Mortgage and the
other Loan Documents that Borrower may otherwise have against any assignor or
this Agreement, the Note, the Mortgage and the other Loan Documents, and no such
unrelated counterclaim or defense shall be interposed or asserted by Borrower in
any action or proceeding brought by any such assignee upon this Agreement, the
Note, the Mortgage and other Loan Documents and any such right to interpose or
assert any such unrelated offset, counterclaim or defense in any such action or
proceeding is hereby expressly waived by Borrower.
9.25. ESTOPPEL CERTIFICATES. Borrower and Lender shall at any time
and from time to time upon not less than 10 days' prior written notice by Lender
or Borrower, as applicable, execute, acknowledge and deliver to the party
specified in such notice, a statement, in writing, certifying that this
Agreement is unmodified and in full force and effect (or if there have been
modifications, that the same, as modified, is in full force and effect and
stating the modifications hereto); stating whether or not, to the knowledge of
such party, any Default or Event of Default has occurred and is then continuing,
and, if so, specifying each such Default or Event of Default; and setting forth
such other information and confirmations as the requesting party shall
reasonably require.
9.26. USURY SAVINGS. Notwithstanding anything in this Agreement or
in any other Loan Document to the contrary, no provision of this Agreement or of
any Loan Document shall require the payment, or permit the collection, of
interest or fees to the extent that receipt of such interest or fees would be
contrary to the provisions of any applicable law limiting the maximum rate of
interest or fees that may be charged or collected by Lender or cause Lender to
collect interest in excess of the Usury Limit. To the extent that Borrower shall
have made interest payments, and Lender shall have inadvertently accepted
interest payments in excess of
58
the amount permitted by law, the amount of the excess shall be applied by Lender
as an optional prepayment of principal of the Loan. It is the express intent of
the parties hereto that Borrower not pay and Lender not receive, directly or
indirectly, interest in excess of the Usury Limit. All sums paid, or agreed to
be paid, by Borrower for the use, forbearance, detention, taking, charging,
receiving or reserving of the Obligations evidenced hereby shall, to the maximum
extent permitted by applicable law, be amortized, prorated, allocated and spread
throughout the full term of the Loan until payment in full so that the rate or
amount of interest on account of such Obligations does not exceed the Usury
Limit from time to time in effect and applicable to such Obligations for so long
as such Obligations is outstanding.
9.27. SALE OR ASSIGNMENT BY LENDER. At any time, Lender (a) may
sell, assign or transfer all or a portion of its rights and obligations under
this Agreement, and (b) participate or syndicate all or any portion of the Loan
with other lending institutions. In addition, Lender's rights under this
Agreement shall be assignable to any Federal Reserve Bank (including as
collateral security under Regulation A and any operating circular issued by such
Federal Reserve Bank, and the Loan and the Loan Documents shall be fully
transferable as provided in such Regulation and such circulars) and as otherwise
necessary or appropriate in order to comply with the banking or other
regulations of any Governmental Authority. Borrower shall reasonably cooperate
with Lender, at Lender's expense, and sign any and all reasonably required
documents, in form and substance reasonably satisfactory to Borrower (but in no
event shall such documents increase the Obligations or decrease Lender's
obligations) (including modifications to the Loan Documents), in connection with
any potential sale, assignment, transfer, participation or syndication of all or
a portion of Lender's rights and obligations under this Agreement, provided that
no such documents shall increase the Obligations or reduce Borrower's rights or
otherwise adversely affect it.
59
IN WITNESS WHEREOF, Borrower and Lender have entered into this
Agreement as of the Closing Date.
BORROWER:
PENN STATION LEASING, LLC,
a Delaware limited liability company
By:
---------------------------------
Name: Xxxx X. Xxxxx
Title: Officer
LENDER:
------
A/P I DEPOSIT CORPORATION,
a Delaware corporation
By:
---------------------------------
Name:
Title:
INDEX OF DEFINED TERMS
Accelerated Maturity Date ......................................... 2
Accounting Principles ............................................. 2
Accounts .......................................................... 2
Affiliate ......................................................... 2
Agreement ......................................................... 1, 2
Assignment of Leases .............................................. 2
Audit ............................................................. 37
Bankruptcy Code ................................................... 3
Borrower .......................................................... 1
Borrower's Representative ......................................... 3
Business Day ...................................................... 3
Casualty .......................................................... 3
CERCLA ............................................................ 5
Certificates ...................................................... 3
Clean-up .......................................................... 3
Closing Date ...................................................... 1, 3
Coinsurance Waiver ................................................ 31
Collateral ........................................................ 3
Collection Account ................................................ 00
Xxxxxxxxx Xxxx A .................................................. 0
Xxxxxxxxx Xxxx X .................................................. 4
Condemnation Proceeds ............................................. 4
Contamination ..................................................... 4
Contract Interest Rate ............................................ 4
Contracts ......................................................... 4
Control ........................................................... 4
Correspondent Bank ................................................ 4
Credit Facility ................................................... 4
Default ........................................................... 5
Default Rate ...................................................... 5
Defeasance ........................................................ 21
Defeasance Collateral ............................................. 21
Defeasance Date ................................................... 21
Defeasance Security Agreement ..................................... 21
Deposit Bank ...................................................... 24
Depository Acknowledgment ......................................... 5
Discounted Value .................................................. 5
Downgraded Credit Facility ........................................ 23
Environmental Assessment Report ................................... 5
Environmental Indemnity Agreement ................................. 5
Environmental Laws ................................................ 5
Equipment ......................................................... 6
Equity Interests .................................................. 6
ERISA ............................................................. 6
Event of Default .................................................. 43
Externally Caused Prepayment ...................................... 6
Federal Reserve Board ............................................. 29
FRA ............................................................... 6
Fund .............................................................. 12
General Intangibles ............................................... 6
General Taxes ..................................................... 20
Goods ............................................................. 7
Governmental Authority ............................................ 7
Guaranty .......................................................... 7
Hazardous Substances .............................................. 7
Immaterial Loss Threshold ......................................... 7
include ........................................................... 57
including ......................................................... 57
Indebtedness ...................................................... 7
Indemnified Party ................................................. 7
Insolvency Event of Default ....................................... 43
Insolvency Laws ................................................... 8
Instruments ....................................................... 8
Insurance Proceeds ................................................ 8
Interest Rate ..................................................... 8
Inventory ......................................................... 8
Landlord .......................................................... 8
Late Charge ....................................................... 8
Leased Premises ................................................... 8
Leases ............................................................ 8
Leasing Guidelines ................................................ 8
Lender ............................................................ 1
Lender's Engineer ................................................. 9
Loan .............................................................. 1, 9
Loan Amount ....................................................... 1, 9
Loan Documents .................................................... 9
Major Casualty .................................................... 9
Major Contract .................................................... 9
Major Lease ....................................................... 6, 9, 12
Make-Whole Premium ................................................ 9
Material Adverse Effect ........................................... 10
Material Litigation ............................................... 10
Maturity Date ..................................................... 10
Member ............................................................ 10
Minor Lease ....................................................... 10
Mortgage .......................................................... 1, 10
Mortgaged Property ................................................ 10
Mortgaged Property Release ........................................ 21
New Lease ......................................................... 10
New Tenant ........................................................ 10
Northeast Corridor Business and Assets ............................ 10
Note .............................................................. 1, 10
Obligations ....................................................... 10
Organizational Agreement .......................................... 11
Payment Date ...................................................... 11
Payment Priority Exceptions ....................................... 18
Permitted Encumbrances ............................................ 11
Permitted Indebtedness ............................................ 11
Permitted Investments ............................................. 11
Person ............................................................ 12
Plan .............................................................. 12
Principal Amount .................................................. 12
Proceeds .......................................................... 13
Projected Restoration Date ........................................ 13
Protective Advance ................................................ 13
Rating Agencies ................................................... 13
Rating Agency Confirmation ........................................ 13
RCRA .............................................................. 6
Regulatory Actions ................................................ 13
Reinvestment Yield ................................................ 13
Release ........................................................... 14
Remaining Average Life ............................................ 14
Rent Roll ......................................................... 14
Required Restoration Fund Balance ................................. 14
Reserve Account ................................................... 14
Restoration ....................................................... 14
Restoration Cost .................................................. 14
Restoration Fund .................................................. 14
Restrictive Covenants ............................................. 38
Scheduled Defeasance Payments ..................................... 21
Scheduled Maturity Date ........................................... 14
Security Documents ................................................ 14
Single-Purpose Entity ............................................. 15
SNDA .............................................................. 15
SPE Covenants ..................................................... 15
State ............................................................. 16
such as ........................................................... 57
Taking ............................................................ 16
Taxes ............................................................. 20
Third Party Claims ................................................ 16
Title Company ..................................................... 16
Title Policy ...................................................... 16
Transaction Taxes ................................................. 20
Transfer Prohibition .............................................. 38
Trustee ........................................................... 16
UCC ............................................................... 17
Usury Limit ....................................................... 17
ii
EXHIBIT A
DESCRIPTION OF PRIME LEASE
That certain Prime Lease, dated as of the date hereof, by and between National
Railroad Passenger Corporation, as landlord, and Penn Station Leasing, LLC, as
tenant.
EXHIBIT B
RENT ROLL
(See Next Page)
EXHIBIT C
REQUIRED AMORTIZATION PAYMENTS
(See Next Page)
EXHIBIT D
FORM OF IRREVOCABLE DIRECTION LETTER
(See Next Page)
IRREVOCABLE DIRECTION LETTER
Penn Station Leasing, LLC
c/o National Railroad Passenger Corporation
00 Xxxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
_______ ___, 200_
CERTIFIED MAIL
RETURN RECEIPT REQUESTED
[Tenant name]
-------------------------
-------------------------
-------------------------
Re: PAYMENT OF RENT DIRECTLY INTO COLLECTION ACCOUNT
------------------------------------------------
Dear Tenant:
Please be advised that on and after the date hereof, all rental
payments under your lease for a portion of the premises located at Pennsylvania
Station, New York, New York, shall be made by mail, postage pre-paid, addressed
in one of the following manners:
US MAIL INSTRUCTIONS:
----------------------
----------------------
----------------------
----------------------
OVERNIGHT MAIL INSTRUCTIONS:
----------------------
----------------------
----------------------
----------------------
OR WIRING INSTRUCTIONS:
----------------------
----------------------
----------------------
----------------------
This notice may not be revoked, modified or cancelled in any way,
and any purported revocation, modification or cancellation shall be null, void
and of no force or effect, unless accompanied by written confirmation and
approval signed by A/P I Deposit Corporation ("LENDER"), as lender, or its
successors or assigns under that certain Loan and Security Agreement, dated as
of June __, 2001, by and between the undersigned and Lender.
Very truly yours,
PENN STATION LEASING, LLC, a Delaware
limited liability company
By:
----------------------------------
Name:
Title:
RECEIPT ACKNOWLEDGED AND TERMS
AGREED TO BY:
[Name of Tenant]
By: ______________________________
Name: ________________________
Title: _______________________
ii
