LOAN AGREEMENT
Dated as of June 1, 1998
By and Between
CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC
AND
WESMARK FIFTY, L.P.,
XXXX TWELVE ASSOCIATES, L.P.,
XXXX PLAZA FIFTY, L.P. AND
XXXXXXXX FIFTY, L.P.
LOCATION OF PROPERTIES:
Wesmark Plaza, Sumter, South Carolina
Union Plaza, Union, Pennsylvania
Xxxx Plaza, Edwardsville, Pennsylvania
Xxxxxxxx Plaza, Xxxxxx-Xxxxx, Pennsylvania
TABLE OF CONTENTS
Page
ARTICLE I PARTICULAR TERMS; DEFINITIONS 1
ARTICLE II THE LOAN 20
Section 2.1 Funding 20
2.1.1 Initial Funding 20
2.1.2 Capital Improvements Holdback 20
2.1.3 Ground Lease Holdback 21
2.1.4 Interest Reserve Holdback 22
Section 2.2 Loan Term 22
2.2.1 Maturity Date 22
2.2.2 First Extension Option 22
2.2.3 Intentionally Omitted 23
Section 2.3 Interest Rate 23
2.3.1 Initial Term 23
2.3.2 First Extension Term 23
2.3.3 Intentionally Omitted 23
2.3.4 Calculation of Interest 23
Section 2.4 Payments 23
2.4.1 Interest 23
2.4.2 Interest During First Extension Term 23
2.4.3 Intentionally Omitted 23
2.4.4 Repayment of Outstanding Principal Balance 23
2.4.5 General 24
Section 2.5 Funding Losses; Change in Law, Etc 24
Section 2.6 Prepayment 26
Section 2.7 Default Interest; Late Charge 27
Section 2.8 Excess Interest 27
Section 2.9 Loan Taxes 28
Section 2.10 Uses of Loan Proceeds 29
Section 2.11 Servicing 30
ARTICLE III CERTAIN REPRESENTATIONS AND WARRANTIES OF
BORROWER 30
Section 3.1 Borrower Organization, Enforceability, Etc 30
3.1.1 Borrower Status 30
3.1.2 General Partner 30
3.1.3 Limited Partners in Borrower 31
Section 3.2 Borrower Address 32
Section 3.3 Borrower's Organizational Documents 32
Section 3.4 General Partner's Organizational Documents 32
Section 3.5 Title 32
Section 3.6 Valid Liens 32
Section 3.7 Uses 32
Section 3.8 No Structural Defects 33
Section 3.9 Compliance with Zoning, Etc 33
Section 3.10 No Condemnation 33
Section 3.11 No Casualty 34
Section 3.12 Purchase Options 34
Section 3.13 No Encroachments 34
Section 3.14 Litigation 34
Section 3.15 No Conflict with Law or Agreements 34
Section 3.16 Personal Property 34
Section 3.17 Easements; Access; Utilities 35
Section 3.18 No Flood Hazard, Etc 35
Section 3.19 Premises Taxed as a Separate Tax Lot 35
Section 3.20 Leases 35
Section 3.21 Environmental 36
Section 3.22 Americans with Disabilities Act 38
Section 3.23 No Default 38
Section 3.24 No Offsets 38
Section 3.25 Financial Statements 38
Section 3.26 No Insolvency 38
Section 3.27 Fraudulent Conveyance 38
Section 3.28 Broker 39
Section 3.29 Fiscal Year 39
Section 3.30 No Other Financing 39
Section 3.31 ERISA 39
Section 3.32 FIRPTA 39
Section 3.33 PUHCA 39
Section 3.34 Insurance 39
Section 3.35 No Margin Stock 40
Section 3.36 Investment Company Act 40
Section 3.37 Taxes 40
Section 3.38 Full and Accurate Disclosure 40
Section 3.39 Contracts 40
Section 3.40 Other Obligations and Liabilities 41
Section 3.41 Documents 41
ARTICLE IV CERTAIN COVENANTS OF BORROWER 41
Section 4.1 Payment and Performance of Obligations 41
Section 4.2 Transfers 41
Section 4.3 Liens 42
Section 4.4 Indebtedness 42
Section 4.5 Compliance with Restrictive Covenants, Etc 43
Section 4.6 Leases 44
Section 4.7 Delivery of Notices 47
Section 4.8 ERISA 48
Section 4.9 Agreements with Affiliates 48
Section 4.10 After Acquired Property 49
Section 4.11 Books and Records 49
Section 4.12 Delivery of Estoppel Certificates 49
Section 4.13 Management, Etc 50
4.13.1 Management 50
4.13.2 Management Termination 50
Section 4.14 Financial Statements; Audit Rights 50
4.14.1 Statements to be Delivered 50
4.14.2 Time for Delivery 52
4.14.3 Officer's Certificate 52
Section 4.15 Maintenance of Non-Taxable Status 52
Section 4.16 Lender's Attorneys' Fees and Expenses 52
Section 4.17 Environmental 53
Section 4.18 Report Updates 55
Section 4.19 Lender Access to Premises 56
Section 4.20 Lease Termination Payments 56
Section 4.21 Delivery of Documents Regarding Ownership 56
Section 4.22 Use of Premises 56
Section 4.23 Insurance 56
Section 4.24 Intentionally Omitted 57
Section 4.25 Construction 57
Section 4.26 Intentionally Omitted 57
Section 4.27 Liquid Assets 57
ARTICLE V EVENTS OF DEFAULT 57
Section 5.1 Events of Default; Defaults 57
5.1.1 Non-Payment 57
5.1.2 Affirmative Covenants 57
5.1.3 Negative Covenants 58
5.1.4 Financial Statements 58
5.1.5 Representations 58
5.1.6 Other Loan Documents 58
5.1.7 Demolition or Alterations 58
5.1.8 Failure to Deliver Estoppel Certificate 58
5.1.9 Reserves; Deposits 58
5.1.10 Cessation of Borrower 59
5.1.11 Transfer 59
5.1.12 Liens 59
5.1.13 Involuntary Bankruptcy, Etc 59
5.1.14 Voluntary Bankruptcy, Etc 59
5.1.15 Judgments 59
5.1.16 Termination or Modification of Leases 60
5.1.17 Organizational Documents 60
5.1.18 Delivery of Financial Statements 60
5.1.19 ERISA 60
5.1.20 Termination of Management Agreement, etc. 60
5.1.21 Other Conditions for Acceleration 60
5.1.22 Material Adverse Change 60
5.1.23 Denial of Obligation 61
5.1.24 Misapplication of Receipts 61
5.1.25 Failure to Provide Further Assurances 61
Section 5.2 Rights upon Event of Default 61
Section 5.3 Waiver of Stay, Extension and Moratorium
Laws,Appraisal and Valuation, Redemption
and Marshaling 62
Section 5.4 Preferences 63
ARTICLE VI GENERAL PROVISIONS 63
Section 6.1 Rights Cumulative; Waivers 63
Section 6.2 Lender's Action for its Own Protection Only 64
Section 6.3 No Third Party Beneficiaries 65
Section 6.4 Payment of Expenses, Etc 65
6.4.1 Payment of Expenses 65
6.4.2 Advances Secured 66
Section 6.5 Indemnification 66
Section 6.6 Notices 68
Section 6.7 No Oral Modification 69
Section 6.8 Assignment by Lender 70
6.8.1 Assignment 70
6.8.2 Participations 70
6.8.3 Assignment and Acceptance 70
6.8.4 Other Business 70
6.8.5 Privity of Contract 70
6.8.6 Availability of Records 71
Section 6.9 Severability 71
Section 6.10 No Assignment by Borrower 71
Section 6.11 Governing Law 71
Section 6.12 Successors and/or Assigns 71
Section 6.13 Entire Contract 71
Section 6.14 Liability 72
Section 6.15 Counterparts; Headings 72
Section 6.16 Time of the Essence 72
Section 6.17 Consents 72
6.17.1 No Subsequent Consent 72
6.17.2 Withholding of Consent 72
Section 6.18 No Partnership 73
Section 6.19 Waiver of Jury Trial 73
Section 6.20 Limited Recourse 73
Section 6.21 Limitation on Liability 75
Section 6.22 Jurisdiction, Venue, Service of Process 75
Section 6.23 Appointment of Agent for Service of Process 76
Section 6.24 Rule of Construction 76
Section 6.25 Further Assurances 76
Section 6.26 Recitals 77
Section 6.27 Placement of Loan 77
6.27.1 Loan Pool 77
6.27.2 Rating Agency Requirements 78
6.27.3 Disclosure; Indemnification 79
6.27.4 Trustee 80
6.27.5 Information Access 81
6.27.6 Timing of Transfer or Placement 81
ARTICLE VII SPECIAL PROVISIONS 81
Section 7.1 Tax and Insurance Escrow 81
7.1.1 Tax and Insurance Deposits 81
7.1.2 Payment of Taxes and Insurance Premiums 82
7.1.3 Application upon Event of Default 82
7.1.4 Reliance 82
7.1.5 Borrower's Obligations 82
7.1.6 No Third Party Beneficiary 83
Section 7.2 Mortgage Subaccounts 83
7.2.1 Interest Reserve Subaccount 83
7.2.2 Intentionally Omitted 84
7.2.3 Environmental Remediation Subaccount 84
7.2.4 Deferred Maintenance Subaccount 84
7.2.4 Intentionally Omitted 84
Section 7.3 Requests for Disbursement from Mortgage
Subaccounts 84
7.3.1 Conditions Precedent to Disbursement 85
7.3.2 Lender Right to Complete 85
7.3.3 Inspection 86
7.3.4 Insufficient Account 86
7.3.5 Compliance With Laws 86
7.3.6 Insurance Requirements 86
7.3.7 Completion of Work 86
Section 7.4 Lock Box Events; Application of Receipts 87
7.4.1 Deposits into Clearing Account 87
7.4.2 Application of Receipts 87
7.4.3 Intentionally Omitted 88
7.5 Ground Lease Reserve 88
7.6 Capital Expenditure Reserve 88
ARTICLE VIII SINGLE PURPOSE ENTITY/SEPARATENESS 89
Section 8.1 Representations, Warranties and Covenants 89
ARTICLE IX REFINANCING THE LOAN; LOAN ASSUMPTION 92
Section 9.1 Intentionally Omitted 92
Section 9.2 Intentionally Omitted 92
Section 9.3 Right of First Refusal 92
Section 9.4 Assumption of Loan 93
Section 9.5 Conversion Option 95
SCHEDULES
Schedule A Description of Land
Schedule B Contracts
Schedule C Leases
Schedule D Litigation
Schedule E Contingent Liabilities
Schedule F Leasing Guidelines
Schedule G Environmental Remediation Items
Schedule H Deferred Maintenance Items
LOAN AGREEMENT
THIS LOAN AGREEMENT (as amended from time to time in
accordance with the terms hereof and in effect, this
"Agreement"), dated as of June 1, 1998, by and between CREDIT
SUISSE FIRST BOSTON MORTGAGE CAPITAL LLC, a Delaware limited
liability company having an address at 00 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, its successors and/or assigns ("Lender"),
and WESMARK FIFTY, L.P., a South Carolina limited partnership,
and XXXX TWELVE ASSOCIATES, L.P., XXXX PLAZA FIFTY, L.P., and
XXXXXXXX FIFTY, L.P., each a Pennsylvania limited partnership,
having an address at 000 Xxxxx Xxxxxx, Xxxxxxxx, XX 00000, Attn:
Xxxxxx Xxxx (collectively, the "Borrower").
W I T N E S S E T H:
WHEREAS, Wesmark Fifty, L.P. has a leasehold interest in
a certain tract of land known as Wesmark Plaza; Xxxx Twelve
Associates, L.P. is the owner of the fee estate in a certain
tract of land known as Union Plaza; Xxxx Plaza Fifty, L.P. has a
leasehold interest in a certain tract of land known as Xxxx
Plaza; and Xxxxxxxx Fifty, L.P. is the owner of the fee estate in
a certain tract of land known as Xxxxxxxx Plaza; each as more
particularly described in Schedule A annexed hereto
(collectively, the "Land"), and the building and other
improvements located thereon (collectively, the "Improvements");
WHEREAS, Borrower has requested Lender to lend to it the
principal sum of TWENTY MILLION SEVEN HUNDRED THOUSAND AND 00/100
DOLLARS ($20,700,000.00) (the "Loan") to be used to refinance the
Premises (as hereinafter defined), to pay certain closing costs
and to perform certain repairs and renovations to the Premises;
and
WHEREAS, Lender has advised Borrower that, subject to
the terms of this Agreement and the documents to be executed in
connection herewith, and based upon the representations,
warranties, covenants and undertakings of Borrower herein and
therein contained, Lender is willing to make the Loan to Borrower
on the terms and conditions set forth herein and therein.
NOW, THEREFORE, in consideration of the above premises
and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, Lender and Borrower
hereby agree as follows:
ARTICLE I
PARTICULAR TERMS; DEFINITIONS
For all purposes of this Agreement, the following terms
shall have the respective meanings hereinafter specified, such
definitions to be applicable equally to the singular and plural
forms of such terms:
"ACM" shall mean asbestos-containing materials.
"Affiliate" shall mean, with respect to a specified
Person, (i) a Person who, directly or indirectly through one or
more intermediaries, controls, is controlled by or is under
common control with, the specified Person, (ii) any Person who is
an officer, director, partner, manager, employee, or trustee of,
or serves in a similar capacity with respect to, the specified
Person or of which the specified Person is an officer, partner,
manager or trustee, or with respect to which the specified Person
serves in a similar capacity, (iii) any Person who, directly or
indirectly, has an Ownership Interest in the specified Person,
(iv) any Person in which the specified Person has an Ownership
Interest, (v) the spouse, issue, or parent of the specified
Person, and (vi) any Person which would constitute an Affiliate
of any such Person described in clauses (i) through (v) above.
"Affirmative Covenant" shall mean a promise or covenant
by any Person to perform, act, suffer, permit or consent to.
"Agreement" shall have the meaning ascribed to such term
in the introductory paragraph hereof.
"Aggregate Purchase Closing Costs" shall have the
meaning ascribed to such term in Section 4.28 hereof.
"Aggregate Purchase Price" shall have the meaning
ascribed to such term in Section 4.28 hereof.
"Annualized Net Operating Income" means the difference
between (i) the sum of all Receipts generated during the twelve
(12) full calendar months immediately preceding any Determination
Date (including any calendar month ending on a Determination
Date) less (ii) all Expenses paid during the twelve (12) full
calendar months immediately preceding such Determination Date
(including any calendar month ending on a Determination Date),
provided, however, that if any Determination Date shall occur
prior to the first anniversary of the Closing Date, then
Annualized Net Operating Income as of such Determination Date
shall mean the difference between (i) all Receipts generated from
the Closing Date to such Determination Date (the "Ownership
Period"), less (ii) all Expenses paid during the Ownership
Period, with the resultant remainder divided by the number of
days in such Ownership Period, and with the then resultant
quotient multiplied by 365.
"Approved Accountant" shall mean one of the so-called
"Big Six" accounting firms or such other independent certified
public accountant of nationally recognized standing selected by
the Person required to deliver the applicable Financial
Statements and other reports specified herein, which Approved
Accountant shall be approved by Lender.
"Approved Budget" shall have the meaning ascribed to
such term in Section 4.14.1(iv) hereof.
"Approved Contracts" shall mean the Contracts listed on
Schedule B annexed hereto.
"Approved Leases" shall mean the Leases set forth on
Schedule C annexed hereto and all Leases entered into after the
date of this Agreement in accordance with Section 4.6 hereof.
"Assignees" shall have the meaning ascribed to such term
in Section 6.8.1 hereof.
"Assignment of Leases and Rents" shall mean,
collectively, (i) that certain Assignment of Leases and Rents,
dated as of the date hereof, made by Wesmark Fifty, L.P. and Xxxx
Centers Limited Partnership, in favor of Lender; (ii) that
certain Assignment of Leases and Rents, dated as of the date
hereof, made by Xxxx Twelve Associates, L.P., in favor of Lender;
(iii) that certain Assignment of Leases and Rents, dated as of
the date hereof, made by Xxxx Plaza Fifty, L.P. and Xxxx Centers
Limited Partnership, in favor of Lender; and (iv) that certain
Assignment of Leases and Rents, dated as of the date hereof, made
by Xxxxxxxx Fifty, L.P., in favor of Lender; each relating to the
Loan, as the same may hereafter be amended or modified from time
to time.
"Bankruptcy Code" shall mean Title 11 of the United
States Code, 11 U.S.C. Subsection 101 et seq., as amended.
"Base Rate" shall mean the rate per annum equal to (i)
three and 12/100 percent (3.12%) in excess of the then applicable
Treasury Rate during the period prior to and including the
Scheduled Maturity Date (without giving effect to the First
Extension Term), (ii) four and 62/100 percent (4.62%) in excess
of the Treasury Rate during the First Extension Term.
"best knowledge" or "knowledge" shall mean, for the
purpose of this Agreement and the other Loan Documents, the
actual knowledge of the Person in question, after having made due
inquiry. If any entity with respect to which this term would be
applicable is a corporation, knowledge of such entity shall refer
to actual knowledge of its officers or directors, after having
made due inquiry. If any such entity is a partnership, knowledge
of such entity shall refer to actual knowledge of each of its
partners who participates in the management of such partnership
(directly or indirectly), after having made due inquiry. If any
such entity is a limited liability company, knowledge of such
entity shall refer to actual knowledge of its managing members,
after having made due inquiry. The knowledge of Borrower for
purposes of this definition shall also include the knowledge of
the Manager if it is an Affiliate of Borrower.
"Borrower" shall have the meaning ascribed to such term
in the introductory paragraph hereof.
"Broker" shall have the meaning ascribed to such term in
Section 3.28 hereof.
"Buyer" shall have the meaning ascribed to such term in
Section 9.4 hereof.
"Capital Adequacy Events" shall have the meaning
ascribed to such term in Section 2.5(d) hereof.
"Capital Improvements" shall have the meaning ascribed
to such term in Section 2.1.2 hereof.
"Capital Improvements Holdback" shall have the meaning
ascribed to such term in Section 2.1.2 hereof.
"Cash Collateral Account" shall have the meaning
ascribed to such term in the Cash Management Agreement.
"Cash Management Agreement" shall mean that certain Cash
Management Agreement, dated as of the date hereof, between
Borrower and Lender, as the same may be amended or modified from
time to time.
"CERCLA" shall mean the Comprehensive Environmental
Response, Compensation and Liability Act (42 U.S.C. Section 960,
et seq.), as the same may be amended from time to time.
"Certificates" means the securities issued in connection
with a Securitization of the Loan.
"Claim" shall have the meaning ascribed to such term in
Section 6.5(b) hereof.
"Clearing Account" shall have the meaning ascribed to
such term in the Cash Management Agreement.
"Closing Date" shall mean the time of execution and
delivery of this Agreement by Borrower to Lender.
"Closing Date DCR" shall mean 1.10:1.00.
"Closing Date Loan-to-Value Ratio" shall mean 0.75:1.00.
"Closing Statement" shall have the meaning ascribed to
such term in Section 2.10 hereof.
"Collateral" shall mean all collateral pledged to Lender
in respect of the Loan hereunder or under any of the other Loan
Documents.
"Collection Period" shall have the meaning ascribed to
such term in the Cash Management Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Completion Schedule" shall have the meaning ascribed to
such term in Section 2.1.2 hereof.
"Construction Documents" shall have the meaning ascribed
to such term in Section 2.1.2(i) hereof.
"Contract" shall mean (i) any management, brokerage or
leasing agreement or (ii) any cleaning, maintenance, service or
other contract or agreement of any kind (other than Leases) of a
material nature (materiality for these purposes to include
contracts in excess of $10,000 or which extend beyond one year
(unless cancelable on thirty (30) days or less notice)), in
either case relating to the ownership, leasing, management, use,
operation, maintenance, repair or restoration of the Premises,
whether written or oral.
"control" (and the correlative terms "controlled by" and
"controlling") shall mean, with respect to a specified Person,
the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of such Person,
whether through ownership of voting securities or partnership or
other ownership interests, by contract or otherwise; provided,
however, that, without limiting the generality of the foregoing,
(i) any Person (including family members of such Person) which
owns, directly or indirectly, securities representing twenty
percent (20%) or more of the value or ordinary voting power of a
corporation or twenty percent (20%) or more of the partnership or
other Ownership Interests (based upon value or vote) of any other
Person is deemed to control such corporation or other Person,
(ii) a general partner shall always be deemed to control any
partnership of which it is a general partner, and (iii) a manager
or member-manager of a limited liability company shall always be
deemed to control any limited liability company of which it is a
manager or member-manager, as the case may be.
"Conversion Option" shall have the meaning ascribed to
such term in Section 9.5 hereof.
"DCR" shall mean the ratio of (i) Annualized Net
Operating Income as of any Determination Date (less any proceeds
received by Borrower in respect of the Interest Rate Cap) to (ii)
the payments of interest and principal that would be due and
payable on the Outstanding Principal Balance as of such
Determination Date and for the following twelve (12) month
period, assuming a monthly constant payment of principal and
interest based on the LIBOR Interest Rate in effect as of the
date of such calculation and a principal amortization schedule of
twenty-five (25) years.
"Default" shall have the meaning ascribed to such term
in Section 5.1 hereof.
"Default Rate" shall have the meaning ascribed to such
term in Section 2.7 hereof. In no event shall the Default Rate
exceed the maximum interest rate permitted under applicable law.
"Deferred Maintenance Funds" shall have the meaning
ascribed to such term in Section 7.2.4 hereof.
"Deferred Maintenance Items" shall have the meaning
ascribed to such term in Section 7.2.4 hereof.
"Deferred Maintenance Subaccount" shall have the meaning
ascribed to such term in the Cash Management Agreement.
"Deposit Bank" shall have the meaning ascribed to such
term in the Cash Management Agreement.
"Designated Officer" shall mean (i) if Borrower is a
corporation, the chief financial officer of such corporation or
such other officer of such corporation as is fully familiar with
the financial affairs of Borrower and is approved by Lender, (ii)
if Borrower is a partnership, such officer of Borrower's managing
general partner as satisfies the first sentence of this
definition, or (iii) if Borrower is a limited liability company,
such officer of Borrower's managing member as satisfies the first
sentence of this definition.
"Designee" shall have the meaning ascribed to such term
in Section 6.23 hereof.
"Determination Date" shall mean each date as of which a
determination of DCR is required to be made pursuant to Sections
7.2.1(d), 7.4.3 or 9.4(viii) hereof.
"Disbursement Instructions" shall have the meaning
ascribed to such term in the Cash Management Agreement.
"Disbursement Period" shall mean a period of thirty (30)
calendar days.
"Disclosed Violations" shall have the meaning ascribed
to such term in Section 3.9 hereof.
"Disclosure Document" shall have the meaning ascribed to
such term in Section 6.27.3 hereof.
"Disqualified Person" shall have the meaning ascribed to
such term in Section 3.31 hereof.
"Dollar" or "$" shall mean lawful money of the United
States of America.
"Domestic Business Day" shall mean any day except a
Saturday, Sunday or other day on which commercial banks are
required or permitted by law to close in New York City.
"Easements" shall have the meaning ascribed to such term
in Section 2.7 hereof.
"Eligible Receivables" means accounts (as that term is
defined in the Uniform Commercial Code of the State of New York)
payable in Dollars, net of any credits, rebates, commissions, or
discounts payable in respect thereof, arising from bona fide
transactions in the ordinary course of Borrower's business or
otherwise permitted hereunder (other than for goods, services or
tenancies provided on consignment, on approval or otherwise
subject to repurchase, return, rebate or reimbursement) that (1)
have not remained unpaid for more than thirty (30) days after any
invoice date therefor or the date on which the transactions
giving rise thereto are completed; (2) are not subject to any
Liens, setoffs, counterclaims or disputes existing with respect
thereto or as to which any other facts exist or which would
impair or delay the collectibility of all or any portion thereof;
(3) are not accounts with respect to which the account debtor or
any officer or employee thereof is an officer, employee or agent
of, or is otherwise an Affiliate of, Borrower or any Affiliate of
Borrower, directly or indirectly; (4) are not accounts with
respect to which the account debtor is the United States or any
State or political subdivision thereof or any department, agency
or instrumentality of the United States, any State or political
subdivision thereof, unless there shall have occurred compliance
with the United States Assignment of Claims Act or with any
similar State or local law applicable thereto; (5) as to which
neither Borrower nor Lender is aware of any facts existing or
threatened which might have a material adverse effect with
respect to the account debtor; (6) are not owed by a single
account debtor or its Affiliates and represent more than twenty
percent (20%) of all otherwise Eligible Receivables (accounts
excluded from Eligible Receivables solely by reason of this
subsection (6) shall nevertheless be considered Eligible
Receivables to the extent of the portion of such accounts that
does not exceed twenty percent (20%) of all otherwise Eligible
Receivables); (7) are not owed by an account debtor who is, or
whose Affiliates are, past due upon other accounts owed to
Borrower or its Affiliates comprising more than fifty percent
(50%) of the accounts of such account debtor or its Affiliates
owed to Borrower or its Affiliates; and (8) are owed by account
debtors deemed creditworthy at all times by Lender (as determined
by Lender in its sole discretion). For purposes of (6) above,
account debtor in the case of credit card receivables shall refer
to the account obligor and not the credit card issuing entity.
"Engineering Consultant" shall mean EMG.
"Engineer's Report" shall mean the report dated May 20,
1998 prepared by the Engineering Consultant.
"Entities" shall have the meaning ascribed to such term
in Section 6.27.2(i) hereof.
"Environmental Consultant" shall mean EMG and Conestoga
Rovers & Associates, Ltd.
"Environmental Costs" shall mean "Indemnified Costs" as
such term is defined in the Environmental Indemnification
Agreement.
"Environmental Indemnification Agreement" shall mean
that certain Environmental Indemnification Agreement, dated as of
the date hereof, made by Borrower and Xxxx Centers Trust to
Lender, as the same may hereafter be amended or modified from
time to time.
"Environmental Laws" shall mean CERCLA; The Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq.;
The Hazardous Substances Transportation Act, 42 U.S.C. Section
9601, et seq.; The Emergency Planning & Community Right-to-Know
Act of
1986, 42 U.S.C. Subscript 11001, et seq.; The Toxic Substances
Control Act, 15 U.S.C. Section 2601 et seq.; The Clean Air Act,
42 U.S.C. Subscript 7401 et seq.; The Clean Water Act, 33 U.S.C.
Subscript 1251 et seq.; The Safe Drinking Water Act, 42 U.S.C.
Section 201 et seq.; as any of the foregoing may be amended from
time to time; and any other federal, state and local laws or
regulations, codes, statutes, orders, decrees, guidance
documents, judgments or injunctions, now or hereafter issued,
promulgated, approved or entered thereunder, relating to
pollution, contamination or protection of the environment,
including, without limitation, laws relating to emissions,
discharges, releases or threatened releases of pollutants,
contaminants, chemicals or industrial, toxic or hazardous
substances or wastes into the environment (including, without
limitation, ambient air, surface water, ground water, land
surface or subsurface strata, buildings or facilities) or
otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, chemicals or industrial, toxic or
hazardous substances or wastes.
"Environmental Matter" shall mean any matter arising out
of, relating to, or resulting from pollution, contamination or
protection of the environment (including natural resources), and
any matters relating to emission, discharge, release or
threatened release, of Hazardous Substances into the air (indoor
and outdoor), surface water, groundwater, soil, land surface or
subsurface, buildings or facilities or otherwise arising out of,
relating to, or resulting from the manufacture, processing,
distribution, use, treatment, storage, disposal, transport,
handling, release or threatened release of Hazardous Substances.
"Environmental Remediation Funds" shall have the meaning
ascribed to such term in Section 7.2.3 hereof.
"Environmental Remediation Items" shall have the meaning
ascribed to such term in Section 7.2.3 hereof.
"Environmental Remediation Subaccount" shall have the
meaning ascribed to such term in the Cash Management Agreement.
"Environmental Report" shall mean, collectively, (i) the
reports for Xxxx Plaza dated June, 1996, February 1998 and May
20, 1998; (ii) the report for Xxxxxxxx Plaza, dated February,
1998 (iii) the report for Union Plaza, dated September, 1996 and
May 20, 1998 and (iv) the report for Wesmark Plaza, dated
January, 1998, prepared by the Environmental Consultant.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended, and the regulations promulgated
thereunder from time to time.
"Eurodollar Business Day" shall mean any Domestic
Business Day on which commercial banks are open for international
business (including dealings in dollar deposits) in London,
England.
"Event of Default" shall have the meaning ascribed to
such term in Section 5.1 hereof.
"Excess Interest" shall have the meaning ascribed to
such term in Section 2.8 hereof.
"Exchange Act" shall mean the Securities and Exchange
Act of 1934, as amended.
"Excluded Revenue Items" shall have the meaning ascribed
to such term in the definition of "Receipts" set forth below.
"Expenses" shall mean all actual and customary operating
expenses and all other unanticipated or non-recurring expenses
for or in connection with the Premises (as adjusted by Lender to
reflect, inter alia, timing of the payment of expenses and such
other factors as Lender shall reasonably determine to be
relevant), including, without limitation (i) recurring expenses
(e.g. capital or non-capital improvements, fixtures, furnishings
and/or equipment replacements, and such others as determined by
Lender), but excluding any of the same to the extent paid for out
of any of the Mortgage Subaccounts, (ii) Taxes (whether paid
directly by Borrower or escrowed with Lender in accordance with
Section 7.1 hereof), (iii) Insurance Premiums (whether paid
directly by Borrower or escrowed with Lender in accordance with
Section 7.1 hereof), (iv) management fees due under the
Management Agreement (whether paid or not) in an amount not to
exceed four percent (4.0%) of Receipts, and (v) Ground Lease
Reserve Payments.
"Extension Notice" shall have the meaning ascribed to
such term in Section 2.2.2 hereof.
"Financial Statements" shall mean the financial
statements and other documentation required to be delivered
pursuant to Section 4.14 hereof.
"Financing Notice" shall have the meaning ascribed to
such term in Section 9.3 hereof.
"First Extension Commencement Date" shall have the
meaning ascribed to such term in Section 2.2.2 hereof.
"First Extension LIBOR Interest Rate" shall have the
meaning ascribed to such term in Section 2.3.2 hereof.
"First Extension Term" shall have the meaning ascribed
to such term in Section 2.2.2 hereof.
"Fixed Amortization Payment" shall have the meaning
ascribed to such term in Section 2.4.2 hereof.
"Funding Losses" shall have the meaning ascribed to such
term in Section 2.5(a) hereof.
"Funding Party" shall mean any bank or other entity, if
any, which is indirectly or directly funding Lender with respect
to the Loan, in whole or in part, including, without limitation,
any direct or indirect assignee of, or participant in, the Loan.
"General Partner" shall mean, collectively, Wesmark
Fifty Realty Corp., a South Carolina corporation, and Newcastle
Fifty Realty Corp., Xxxx Plaza Realty Corp., and Xxxxxxxx Fifty
Realty Corp., each a Pennsylvania corporation.
"Governmental Authority" shall mean the United States,
the State of South Carolina, the Commonwealth of Pennsylvania,
the Cities of Union, Xxxxxx-Xxxxx, and Edwardsville, Pennsylvania
and Sumter, South Carolina, and any political subdivision of any
of the foregoing, and any agency, department, commission, board,
court, bureau or instrumentality of any of them.
"Ground Lease Reserve" shall have the meaning ascribed
to such term in Section 7.5 hereof.
"Ground Lease Reserve Subaccount" shall have the meaning
ascribed to such term in the Cash Management Agreement.
"Hazardous Substances" shall mean asbestos, ACM, PCBs,
urea-formaldehyde and urea-formaldehyde foam insulation, nuclear
fuel or waste, petroleum products and any hazardous waste, toxic
substance, related components, related constituents, pollutant or
contaminant, -including, without limitation, any substance
defined or treated as a "hazardous substance", "extremely
hazardous substance" or "toxic substance" (or comparable term) in
any applicable Environmental Law and any other material, which
may give rise to Environmental Costs.
"Improvements" shall have the meaning ascribed to such
term in the Recitals hereof.
"Indebtedness" shall mean any and all liabilities and
obligations owing by any Person to any Person, including
principal, interest, charges, fees, reimbursements and expenses,
however evidenced, whether as principal, surety, endorser,
guarantor or otherwise, direct or indirect, absolute or
contingent, joint or several, due or not due, primary or
secondary, liquidated or unliquidated, secured or unsecured,
original, renewed or extended, (i) in respect of any borrowed
money (whether by loans, the issuance and sale of debt securities
or the sale of any property to another Person subject to an
understanding, agreement, contract or otherwise to repurchase
such property) or for the deferred purchase price of any property
or services (other than trade accounts payable, or accrued
expenses, that are or would be incurred in the ordinary course of
business of such Person ("Trade Payables") and payable within
ninety (90) days), (ii) as lessee under any leases which shall
have been or should be, in accordance with generally accepted
accounting principles, recorded as capital leases, (iii) under
direct or indirect guarantees and obligations (contingent or
otherwise) to purchase or otherwise acquire, or otherwise assure
any creditor against loss in respect of the obligations of
others, (iv) in respect of letters of credit or similar
instruments issued or accepted by banks and other financial
institutions for the account of such indebted Person, or (v) in
respect of unfunded vested benefits under plans covered by ERISA
or any similar liabilities to, for the benefit of, or on behalf
of, any employees of such indebted Person.
"Indemnified Parties" shall mean each of Lender, the
Affiliates of Lender and the Participants and their respective
successors, assigns, partners, members, shareholders, officers,
directors, employees, agents and attorneys. "Independent
Director" shall mean a duly appointed member of the board of
directors of the relevant Person (which shall be an entity) who
shall not have been, at the time of such appointment or at any
time in the preceding five (5) years, (i) a direct or indirect,
legal or beneficial, owner in such Person or any of its
Affiliates, (ii) a creditor, supplier, employee, officer,
director, family member, manager or contractor of such Person or
any of its Affiliates, or (iii) a natural person who controls
(whether directly, indirectly, or otherwise) such Person or any
of its Affiliates or any creditor, supplier, employee, officer,
director, manager or contractor of such Person or any of its
Affiliates.
"Initial LIBOR Interest Rate" shall have the meaning
ascribed to such term in Section 2.3.1 hereof.
"Insolvent" shall mean (i) the inability of a Person to
pay its debts as they become due and/or (ii) the fair value of
such Person's debts is greater than the fair value of such
Person's assets.
"Insurance Premiums" shall have the meaning ascribed to
such term in Section 7.1 hereof.
"Interest Accrual Period" shall mean, with respect to
any Payment Date, the calendar month preceding such Payment Date,
provided, however, that no Interest Accrual Period shall end
later than the Maturity Date (other than for purposes of
calculating interest at the Default Rate), and the initial
Interest Accrual Period shall begin on the date of this
Agreement.
"Interest Reserve Funds" shall have the meaning ascribed
to such term in Section 7.2.1 hereof.
"Interest Reserve Subaccount" shall have the meaning
ascribed to such term in the Cash Management Agreement.
"Interest Reserve Subaccount Deficiency" shall mean, on
any date of determination, the amount by which the Interest
Reserve Target exceeds the amount then on deposit in the Interest
Reserve Subaccount.
"Land" shall have the meaning ascribed to such term in
the Recitals hereof.
"Law Change" shall have the meaning ascribed to such
term in Section 2.9(c) hereof.
"Lease" shall mean any lease now or hereafter on or
affecting the Premises, or any part thereof, whether written or
oral, and all licenses and other agreements for the use and/or
occupancy of the Premises, or any part thereof, as the same shall
have been or shall hereafter be amended.
"Lease Termination Payment" shall mean any payment
received by or on behalf of Borrower in connection with any early
termination, cancellation or surrender of an unexpired Lease or
other agreement for the use or occupancy of any portion of the
Premises, including, without limitation, any cancellation or
surrender payments, any reimbursement to or on behalf of Borrower
of Tenant Improvements, and any reimbursement to or on behalf of
Borrower of any Leasing Commissions.
"Leasing Guidelines" shall have the meaning ascribed to
such term in Section 4.6(c) hereof.
"Legal Requirement" shall mean any law, statute,
ordinance, order, rule, regulation, decree or other requirement
of a Governmental Authority, and all conditions of any Permit.
"Lender" shall have the meaning ascribed to such term in
the introductory paragraph hereof.
"Lender's Counsel" shall mean Xxxxxxx Xxxx & Xxxxx LLP,
located in New York, New York, and any other law firm acting as
counsel to Lender.
"Lender's Counsel Fees" shall mean all fees and
disbursements of Lender's Counsel.
"Lender's Proposed Financing" shall have the meaning
ascribed to such term in Section 9.3 hereof.
"LIBOR" shall mean, with respect to any Interest Accrual
Period, the rate per annum (rounded upwards, if necessary, to the
nearest one-sixteenth (1/16th) of one percent (1%)) reported,
with respect to the initial Interest Accrual Period, at 11:00
a.m. London time on the date of this Agreement (or if such date
is not a Eurodollar Business Day, the immediately preceding
Eurodollar Business Day), and thereafter, at 11:00 a.m. London
time on the date two (2) Eurodollar Business Days prior to the
first day of such Interest Accrual Period, on Telerate Access
Service Page 3750 (British Bankers Association Settlement Rate)
as the non-reserve adjusted London Interbank Offered Rate for
U.S. dollar deposits having a thirty (30) day term and in an
amount of $1,000,000 or more (or on such other page as may
replace Telerate Page 3750 on that service or such other service
or services as may be nominated by the British Bankers
Association for the purpose of displaying such rate, all as
determined by Lender in its sole but good faith discretion). In
the event that (i) more than one such LIBOR is provided, the
average of such rates shall apply, or (ii) no such LIBOR is
published, then LIBOR shall be determined from such comparable
financial reporting company as Lender in its sole but good faith
discretion shall determine. LIBOR for any Interest Accrual
Period shall be adjusted from time to time by increasing the rate
thereof to compensate Lender and any Funding Party for any
aggregate reserve requirements (including, without limitation,
all basic, supplemental, marginal and other reserve requirements
and taking into account any transitional adjustments or other
scheduled changes in reserve requirements during any Interest
Accrual Period) which are required to be maintained by Lender or
such Funding Party with respect to "Eurocurrency Liabilities" (as
presently defined in Regulation D of the Board of Governors of
the Federal Reserve System) of the same term under Regulation D,
or any other regulations of a Governmental Authority having
jurisdiction over Lender or such Funding Party of similar effect.
"LIBOR Interest Rate" shall mean, as of any date,
whichever of the Initial LIBOR Interest Rate or the First
Extension LIBOR Interest Rate is then in effect in accordance
with the provisions of Section 2.3 hereof.
"Licensor" shall have the meaning ascribed to such term
in Section 4.26.1 hereof.
"Liens" shall have the meaning ascribed to such term in
Section 4.3 hereof.
"Limited Partners" shall have the meaning ascribed to
such term in Section 3.1.3 hereof.
"Liquid Assets" means, as to any Person as at any
particular date, all amounts that would be included as assets on
a consolidated balance sheet of such Person and its subsidiaries
as at such date computed in accordance with generally accepted
accounting principles consistently applied, but only to the
extent such assets consist of the following items: (i) cash; (ii)
marketable securities registered and/or traded on recognized
national exchanges; (iii) marketable direct obligations issued or
unconditionally guaranteed by the United Stated Government or
issued by any agency or instrumentality thereof and backed by the
full faith and credit of the United States, in each case maturing
within one year form the date of acquisition thereof; (iv)
marketable direct obligations issued by any state of the United
States or any political subdivision of any such state or any
public agency or instrumentality thereof maturing within one year
from the date of acquisition thereof and, at the at the time of
acquisition, having the highest rating obtainable from any Rating
Agency; (v) certificates of deposit or bankers' acceptances
maturing within one year from the date of acquisition thereof
issued by any commercial bank organized under the laws of the
United States or any state thereof or the District of Columbia
having combined capital and surplus of not less than
$250,000,000; (vi) demand deposits in the ordinary course of
business with commercial banks or savings banks or savings and
loan associations having membership in the Federal Deposit
Insurance Corporation or any other governmental authority that
insures demand deposits, in amounts not exceeding the maximum
amounts of such insurance; and (vii) Eligible Receivables.
"Loan" shall have the meaning ascribed to such term in
the Recitals hereof.
"Loan Amount" shall mean $20,700,000.00.
"Loan Documents" shall mean this Agreement, the Note,
the Mortgage, the Assignment of Leases and Rents, the
Environmental Indemnification Agreement, the Cash Management
Agreement and any other document or agreement now or hereafter
executed by Borrower or any other Person for the benefit of
Lender securing, evidencing or otherwise relating to the Loan.
"Loan Interest" shall have the meaning ascribed to such
term in Section 6.27.1 hereof.
"Loan Pool" shall have the meaning ascribed to such term
in Section 6.27.1 hereof.
"Loan Taxes" shall have the meaning ascribed to such
term in Section 2.9(a) hereof.
"Major Lease" shall mean any Lease described on Schedule
C annexed hereto, which is marked with an asterisk, and any other
Lease which either (i) is with an Affiliate of Borrower or (ii)
when taken together with all Leases, if any, to Affiliates of the
tenant thereunder demises in excess of five percent (5%) of the
net rentable square feet in the Improvements. For purposes of
this definition only, in determining the net rentable square
footage demised under any Lease, all space in the Improvements
which may in the future be demised to the tenant under such Lease
by reason of such tenant exercising any right or option contained
in such Lease shall be included in the calculation of the square
footage demised under such Lease.
"Management Agreement" shall mean that certain
Management Agreement dated May 28, 1998 between Manager and
Borrower, for the management of the Premises, as the same may be
amended or modified in accordance with the terms hereof and any
replacement thereof entered into in accordance with the terms of
this Agreement.
"Manager" shall have the meaning ascribed to such term
in Section 4.13.1(a) hereof. The Manager on the date hereof is
Xxxx Centers Limited Partnership.
"Manager Assignment and Subordination" shall have the
meaning ascribed to such term in Section 4.13.1(b) hereof.
"Material Adverse Effect" shall mean a material adverse
effect on (i) the property, business, operations, financial
condition, prospects or liabilities of any Significant Party,
(ii) the ability of any Significant Party to perform its material
obligations under any of the Loan Documents, including, without
limitation, the timely payment of principal of or interest on the
Loan or other amounts payable in connection therewith by any
Significant Party liable therefor,(iii) the validity or
enforceability of any of the Loan Documents by or against any
Significant Party, (iv) the rights and remedies of Lender under
any of the Loan Documents, or (v) without limiting the foregoing,
the Premises or any use or occupancy thereof and/or the
Collateral and the priority of the Liens thereon in favor of
Lender.
"Maturity Date" shall mean the day which is the earlier
to occur of (i) the Scheduled Maturity Date, or (ii) the date on
which payment of the Loan shall have been accelerated pursuant to
the terms of this Agreement.
"Monthly Interest Payment" shall have the meaning
ascribed to such term in Section 7.2.1(b) hereof.
"Mortgage" shall mean (i)that certain Fee and Leasehold
Mortgage, Security Agreement, Assignment of Leases and Fixture
Filing, dated as of the date hereof, made by Wesmark Fifty, L.P.
and Xxxx Centers Limited Partnership, in favor of Lender; (ii)
that certain Mortgage, Security Agreement, Assignment of Leases
and Fixture Filing, dated as of the date hereof, made by Xxxx
Twelve Associates, L.P. in favor of Lender; (iii) that certain
Fee and Leasehold Mortgage, Security Agreement, Assignment of
Leases and Fixture Filing, dated as of the date hereof, made by
Xxxx Plaza Fifty, L.P. and Xxxx Centers Limited Partnership in
favor of Lender; and (iv) that certain Mortgage, Security
Agreement, Assignment of Leases and Fixture Filing, dated as of
the date hereof, made by Xxxxxxxx Fifty, L.P. in favor of Lender;
each as the same may hereafter be amended, modified, increased,
consolidated or extended from time to time.
"Mortgage Subaccounts" shall have the meaning ascribed
to such term in the Cash Management Agreement.
"Negative Covenant" shall mean a promise or covenant by
any Person to not act, perform, suffer, permit or consent to.
"Nominal Principal Amount" shall have the meaning
ascribed to such term in Section 4.24 hereof.
"Note" shall mean that certain Mortgage Note, dated the
date hereof, made by Borrower to Lender, in the original
principal amount of $20,700,000.00, as the same may hereafter be
amended, modified, extended or substituted from time to time.
"Notices" shall have the meaning ascribed to such term
in Section 6.6 hereof.
"Obligated Party" shall have the meaning ascribed to
such term in Section 5.2(i) hereof.
"Obligations" shall mean Borrower's obligation to pay
the principal, interest and any other sums payable to Lender in
respect of the Loan hereunder and/or under the Note, the Mortgage
or any of the other Loan Documents, and to perform and observe
all of the terms, covenants and provisions of each of the Loan
Documents.
"Officer's Certificate" shall mean a certificate
delivered to Lender and signed by the President or a Vice
President of Borrower (or if, at any time, Borrower shall be a
partnership or limited liability company, by such an officer of a
general partner or managing member, as the case may be, of
Borrower, or if such general partner or managing member is a
limited liability company, by such an officer of such general
partner or managing member, as the case may be). Any Officer's
Certificate shall be based on the actual knowledge, upon due
inquiry, of the officer executing the same and shall contain a
statement by such officer that (i) in the ordinary course of the
performance of his duties he would normally obtain knowledge of,
or (ii) he has made such inquiry as in his judgment is reasonably
sufficient to obtain knowledge of, the existence of any condition
or event necessary to make the statement(s) otherwise set forth
in such Officer's Certificate.
"Organizational Documents" shall mean, with respect to
any Person who is not a natural person, the certificate or
articles of incorporation, memorandum of association, articles of
association, trust agreement, by-laws, partnership agreement,
limited partnership agreement, certificate of partnership or
limited partnership, limited liability company articles of
organization, limited liability company operating agreement or
any other organizational document, and all shareholder
agreements, voting trusts and similar arrangements with respect
to its stock, partnership interests, membership interests or
other equity interests.
"Outstanding Principal Balance" shall mean, as of any
date, the outstanding principal balance of the Loan.
"Ownership Interest" shall mean, with respect to any
Person, ownership of the right to profits and losses of, and/or
the right to exercise voting power to elect directors, managers,
operators or other management of, or otherwise to affect the
direction of management, policies or affairs of, such Person,
whether through ownership of securities or partnership,
membership or other interests therein, by contract or otherwise.
"Ownership Period" shall have the meaning ascribed to
such term in the definition of "Annualized Net Operating Income"
set forth above.
"Participants" shall have the meaning ascribed to such
term in Section 6.8.2 hereof.
"Party In Interest" shall have the meaning ascribed to
such term in Section 3.31 hereof.
"Payment Date" shall mean July 1, 1998 and the first day
of each month thereafter during the Term.
"PCBs" shall mean polychlorinated biphenyls.
"Permit" shall mean all approvals, consents,
registrations, franchises, permits, licenses, variances,
certificates of occupancy and other authorizations with regard to
zoning, landmark, ecological, environmental, air quality,
subdivision, planning, building or land use required by any
Governmental Authority for the construction, lawful occupancy and
operation of the Improvements and the actual and contemplated
uses thereof.
"Permitted Encumbrances" shall mean the encumbrances
listed on Schedule B of the Title Policy.
"Person" shall mean any individual, partnership,
corporation (including a business trust), limited liability
company, joint stock company, estate, trust, unincorporated
association, joint venture or other entity or a government or an
agency or political subdivision thereof.
"Placement Party" shall have the meaning ascribed to
such term in Section 6.27.1 hereof.
"Premises" shall mean the Land, the Improvements and all
personal property and other items described in the granting
clauses of the Mortgage, and any other property owned and/or
leased by Borrower and used or usable in the operation of the
Improvements.
"Prohibited Transaction" shall mean a prohibited
transaction as described under Section 406 of ERISA or Section
4975 of the Code which is not the subject of a statutory
exemption under Section 408(b) of ERISA or an administrative
exemption granted pursuant to Section 408(a) of ERISA.
"Proposed Financing" shall have the meaning ascribed to
such term in Section 9.3 hereof.
"Quarterly DCR Test" shall have the meaning ascribed to
such term in Section 7.4.3 hereof.
"Rating Agencies" shall mean (i) any nationally-
recognized statistical rating organizations that provide a rating
on any of the Certificates on the date of issuance of such
Certificates, or (ii) prior to the issuance of the Certificates,
Standard & Poor's Rating Group, a division of The McGraw Hill
Corporation, and any other nationally-recognized statistical
rating organization that has been designated by Lender in its
sole discretion.
"Receipts" shall mean all receipts, revenues, income
(including service charges), fees, payments and proceeds of sales
of every kind received by or on behalf of Borrower, directly or
indirectly, from operating the Premises for that period, and
services rendered to, and rentals, percentage rentals and other
fees, payments and charges received from, tenants, sub-tenants,
licensees, concessionaires and occupants of commercial, public
and retail space located in or at the Premises, calculated on a
cash basis, whether in cash or on credit, including, without
limitation, revenues from the rental of parking at the Premises,
the fair market value of any barter transaction, and other fees
and charges resulting from the operations of the Premises by or
on behalf of Borrower in the ordinary course of business, and
proceeds, if any, from business interruption or other loss of
income insurance (net of the costs of collection thereof) and
also including any proceeds received by Borrower in respect of
the Interest Rate Cap; provided, however, that Receipts shall not
include (i) non-recurring income and non-Premises related income
(as determined by Lender in its reasonable discretion), (ii)
security deposits received from any tenant unless and until the
same are applied to rent or any other of such tenant's
obligations in accordance with the terms of such tenant's Lease,
(iii) any loan proceeds or proceeds of capital or equity
contributions received by Borrower, (iv) gratuities or service
charges or other similar receipts which are to be paid over to
Premises employees or persons occupying similar positions for
performing similar duties; (v) proceeds of insurance or other
money or credits received in settlement for loss, theft or damage
to property relating to or used in or at the Premises; (vi)
excise taxes, sales taxes, use taxes, gross receipts taxes, value
added taxes, or other taxes or similar charges payable to any
Governmental Authority; (vii) condemnation awards; (viii)
proceeds from the sale of furniture, fixtures and/or equipment no
longer required for the operation of the Premises; and (ix) Lease
Termination Payments (the revenue exclusions in the preceding
clauses (i) through (ix), collectively, the "Excluded Revenue
Items"). In determining Receipts, the occupancy factor utilized
for the Premises shall be the lesser of (a) the actual occupancy
rate (paying rent), (b) the market occupancy rate for projects
similar to the Premises in the locality in which the Premises is
located or (c) an assumed ninety-five percent (95%) occupancy
rate.
"Related Party" shall have the meaning ascribed to such
term in Section 6.20 hereof.
"Remaining Receipts" shall have the meaning ascribed to
such term in Section 7.4.2(a)(v) hereof.
"Renovation Budget" shall have the meaning ascribed to
such term in Section 2.1.2 hereof.
"Rent Roll" shall mean a rent roll for the Premises
supplied to Lender, in such form as Lender shall reasonably
request. The Rent Roll must indicate whether any tenant is in
arrears in the payment of rent or expense reimbursement
obligations under its Lease, and the duration and amount of any
such arrears.
"Retained Receipts" shall have the meaning ascribed to
such term in Section 7.4.2(b) hereof.
"RICO" shall have the meaning ascribed to such term in
Section 6.20 hereof.
"Sale" shall have the meaning ascribed to such term in
Section 9.4 hereof.
"Sale Loan-to-Value Ratio" shall mean, as of the date of
a sale, the ratio, expressed as a percentage, of (i) the
Outstanding Principal Balance, all accrued and unpaid interest
thereon and all other obligations of Borrower to Lender, to (ii)
the market value of the Premises, as determined by an MAI
appraisal made in connection with any proposed Sale within thirty
(30) days after the Sale Notice or as shall otherwise be
determined by Lender in its sole discretion and in good faith.
"Sale Notice" shall have the meaning ascribed to such
term in Section 9.4 hereof.
"Scheduled Maturity Date" shall mean December 1, 1998,
as the same may be extended pursuant to Section 2.2 hereof.
"Secured Refinancing" shall have the meaning ascribed to
such term in Section 9.1 hereof.
"Securities Act" shall mean the Securities Act of 1933,
as amended.
"Securitization" shall have the meaning ascribed to such
term in Section 6.27.1 hereof.
"Securitization Indemnification" shall have the meaning
ascribed to such term in Section 6.27.3 hereof.
"Securitization Indemnified Party" shall have the
meaning ascribed to such term in Section 6.27.3 hereof.
"Servicer" shall have the meaning ascribed to such term
in Section 2.11 hereof.
"Servicing Fee" shall have the meaning ascribed to such
term in Section 2.11 hereof.
"Significant Party" shall mean each of Borrower and
General Partner.
"Survey" shall mean, collectively (i) that survey of
Xxxxxxxx Plaza, dated May 18, 1998, prepared by Xxxxxx, Harbour &
Associates, LLP; (ii) that survey of Wesmark Plaza dated May 19,
1998, prepared by Xxx & Xxxxxxx, Inc.; (iii) that survey of Union
Plaza, dated May 8, 1998, prepared by Xxxxx X. Xxxxxx
Engineering; and (iv) that survey of Xxxx Plaza, daed May 21,
1998, prepared by X. Xxxxx Associates.
"Sweep Commencement Date" shall have the meaning
ascribed to such term in that certain Cash Management Agreement,
by and between Borrower and Lender, dated as of the date hereof.
"Tax and Insurance Deposits" shall have the meaning
ascribed to such term in Section 7.1.1 hereof.
"Tax and Insurance Escrow Subaccount" shall have the
meaning ascribed to such term in the Cash Management Agreement.
"Taxes" shall have the meaning ascribed to such term in
the Mortgage.
"Term" shall mean the period commencing on the date
hereof and ending on the date on which the entire Outstanding
Principal Balance and all other sums that shall be due and
payable to Lender hereunder and under any of the other Loan
Documents shall be paid in full to Lender.
"Title Insurer" shall mean Commonwealth Land Title
Insurance Company .
"Title Policy" shall mean, collectively, those certain
title insurance policies, dated the date hereof, issued by the
Title Insurer to Lender under Policy Nos. 103057-PA, CMW980038,
K137196LA, and H185936EP in the aggregate amount of
$27,700,000.00.
"Total Capitalization" shall mean the aggregate sum of
(i) the Aggregate Purchase Price, (ii) the Aggregate Purchase
Closing Costs, provided that the Aggregate Purchase Closing Costs
shall not include fees or expenses of any nature paid to any
Affiliate of Borrower or General Partner, except for such sums as
are disclosed in writing to Lender and, in any event, are not in
excess of sums which would otherwise be payable to an unrelated
third-party for similar services, (iii) a reasonable amount, as
determined by Lender, for working capital (which sum shall
include the Interest Reserve Funds), and (iv) the amount shown on
the Renovation Budget as needed to complete the Capital
Improvements.
"Trade Payables" shall have the meaning ascribed to such
term in the definition of "Indebtedness" set forth above.
"Transfer" shall have the meaning ascribed to such term
in Section 4.2(a) hereof.
"Treasury Rate" shall mean, with respect to any Interest
Accrual Period, the rate per annum (rounded upwards, if
necessary, to the nearest one-sixteenth (1/16th) of one percent
(1%)) reported, with respect to the initial Interest Accrual
Period, at 11:00 a.m. New York time on the date of this Agreement
(or if such date is not a Domestic Business Day, the immediately
preceding Domestic Business Day), and during any Interest Accrual
Period thereafter, at 11:00 a.m. New York time on the date two
(2) Domestic Business Days prior to the first day of each such
Interest Accrual Period, on United States Treasury Securities,
adjusted to a constant maturity of one (1) year.
"U.S. Person" shall mean any Person that is (i) a
citizen or resident of the United States, (ii) a corporation,
partnership or other entity created or organized under the laws
of the United States or any state thereof or (iii) any estate or
trust that is subject to United States federal income taxation,
regardless of the source of its income.
"Update Certificate" shall have the meaning ascribed to
such term in Section 2.1.2(vii) hereof.
"Work" shall have the meaning ascribed to such term in
Section 7.3 hereof.
ARTICLE II
THE LOAN
Section 2.1 Funding.
2.1.1 Initial Funding. On the date hereof (the "Closing
Date"), subject to the terms and conditions of this Agreement,
and relying upon the representations and warranties set forth
herein, Lender shall disburse $16,700,000.00 to or on behalf of
Borrower.
2.1.2 Capital Improvements Holdback. A portion of the
Loan proceeds in an amount equal to $2,000,000.00 (the "Capital
Improvements Holdback") shall be retained by Lender as a holdback
for the costs and expenses incurred in connection with the making
and/or construction of capital improvements at Wesmark Plaza
pursuant to the lease between Xxxx Centers Limited Partnership
and Theatre Management, Inc. ("Tenant"), as approved by Lender
(the "Capital Improvements"). Within ninety (90) days of the
Closing Date, Borrower shall submit to Lender, for approval by
Lender and its independent consultant, a description of the
Capital Improvements, including a schedule for completion
("Completion Schedule") and a construction budget (the
"Renovation Budget"). Lender shall endeavor to approve or
disapprove such items within ten (10) Domestic Business Days
after Lender's receipt thereof. Lender shall make disbursements
of portions of the Capital Improvements Holdback to the Borrower
(except as otherwise provieded herein) subject to the following
conditions:
(i) Lender and its independent consultant shall
have reviewed and approved the Renovation Budget, the Completion
Schedule, final plans and specifications for construction of the
Capital Improvements, a fixed price contract with a bondable
general contractor which shall not be an Affiliate for
construction of the Capital Improvements, and any and all
architect's and engineer's agreements relating to such Capital
Improvements, which approval shall not be unreasonably withheld
(all of the foregoing and all other documents and reports used in
preparation for or in the actual construction of the Capital
Improvements shall collectively be called the "Construction
Documents");
(ii) at least ten (10) Domestic Business Days
prior to the date of any such advance, Borrower shall provide
Lender with a written request for payment executed by Borrower
and a copy of a corresponding request for payment from Borrower
by Tenant, together with copies of invoices, lien waivers,
applications for payments, canceled checks, or other evidence of
payment of amounts due and payable by, or already paid by
Borrower in connection with the Capital Improvements, it being
understood and agreed that (i) Lender will make advances to or on
behalf of Borrower for items not yet paid for by Borrower
provided such items are consistent with the Renovation Budget and
the payment therefor is immediately remitted to the Person on
whose behalf the advance was requested, and (ii) Lender will
advance sums to Borrower to be utilized as an advance deposit on
items such as carpet, furniture and special order items, provided
that Lender shall have received evidence reasonably satisfactory
to it that such deposits are required by the applicable vendors;
(iii) no Default shall have occurred and be
continuing, either at the time of the request for an advance
under this Section, or at the time of the funding of such
advance;
(iv) Lender shall have received, at Borrower's
expense, an endorsement to the Title Policy insuring the priority
of the Mortgage with respect to such advance and indicating that
no intervening liens exist against the Premises;
(v) Lender shall have approved, in its reasonable
discretion, the Capital Improvements, the Completion Schedule and
the Renovation Budget;
(vi) Borrower shall have delivered evidence
satisfactory to Lender, in its sole discretion, that the Capital
Improvements Holdback is sufficient to complete the Capital
Improvements or, if insufficient, Borrower shall have deposited
with Lender funds necessary to complete the Capital Improvements
(such deposit to be disbursed before any balance of the Capital
Improvements Holdback);
(vii) Borrower shall have delivered to Lender a
certificate (an "Update Certificate") executed by the chief
financial officer of the managing General Partner of Borrower
stating that all representations and warranties of Borrower set
forth in Article 5 hereof remain true and correct as of the date
of the request for such advance or setting forth any exceptions
to such representations and warranties;
(viii) Intentionally Omitted
(ix) Lender's independent consultant shall have
inspected and approved the portion of the Capital Improvements
completed;
(x) such advances shall be made no more than once
in a sixty (60) day period in minimum increments of $100,000.00
(with the exception of the final advance);
(xi) such advances shall be utilized to pay the
actual costs of the Capital Improvements as portions of same are
completed and, at Lender's option, with prior notice to Borrower,
advances shall be made by Lender directly to the architect,
contractor, supplier or other third party; and
(xii) Borrower shall complete the Capital
Improvements within the time frame provided for in the Completion
Schedule.
Section 2.1.3 Ground Lease Holdback. A portion of the
Loan proceeds in an amount equal to $1,000,000.00 (the "Ground
Lease Holdback") shall be retained by Lender as a holdback as
additional security in connection with the ground lease on Xxxx
Plaza (the "Ground Lease"). Lender shall advance the Ground Lease
Holdback to Borrower upon the earlier to occur of (i) the
purchase of the entire fee interest in Xxxx Plaza by either Xxxx
Centers Limited Partnership or Xxxx Plaza Fifty, L.P., and (ii)
payment in full of the entire Outstanding Principal Balance.
Lender's obligation to disburse the Ground Lease Holdback in the
event condition (i) occurs shall be conditioned upon (a) no
Default having occurred and continuing at the time of such
advance, (b) Lender having received, at Borrower's expense, an
endorsement to the Title Policy insuring the priority of the
Mortgage with respect to such advance and indicating that no
intervening liens exist against the Premises, and (c) Borrower
shall executing any documents required by Lender to subject such
fee interest to the lien of the Mortgage and paying all of
Lender's expenses in connection therewith.
Section 2.1.4 Interest Reserve Holdback. A portion of
the Loan proceeds in an amount equal to $1,000,000.00 (the
"Interest Reserve Holdback") shall be retained by Lender as a
holdback for interest costs. If, on any Payment Date, there are
insufficient Receipts for the prior calendar month to cover the
payment of interest then due and payable to Lender pursuant to
Section 2.4 hereof (each, a "Monthly Interest Payment"), Lender
shall be entitled, but not obligated, to draw on the Interest
Reserve Holdback and apply the funds to the payment of such
Monthly Interest Payment (or the portion thereof for which
insufficient Receipts for the prior calendar month exist), and
the Interest Reserve Holdback shall be reduced by an equal
amount; provided, however, that Lender shall not be obligated to
draw on the Interest Reserve Holdback for application to the
Monthly Interest Payment if a Default has occurred and is
continuing. In connection with any such advance of funds from
the Interest Reserve Holdback, Lender shall receive at Borrower's
expense, an endorsement to the Title Policy insuring the priority
of the Mortgage with respect to such advance and indicating that
no intervening liens exist against the Premises. Notwithstanding
the foregoing, Borrower expressly acknowledges and agrees that in
the event that on any day on which a Monthly Interest Payment is
due and payable (i) an Event of Default has occurred and is
continuing hereunder, or (ii) the amount of such Monthly Interest
Payment exceeds the Interest Reserve Holdback then on deposit,
Borrower shall remain liable for the payment of all Monthly
Interest Payments as and when due.
Section 2.2 Loan Term.
2.2.1 Maturity Date. The Loan shall mature on the
Maturity Date, at which time the entire Loan shall be due and
payable.
2.2.2 First Extension Option. Borrower shall have the
right to extend the Scheduled Maturity Date to June 1, 1999 (the
period commencing on the first (1st) day following the original
Scheduled Maturity Date and ending on June 1, 1999 being referred
to herein as the "First Extension Term"), provided that: (i)
Borrower shall have given Lender its written notice of such
extension (an "Extension Notice") not less than thirty (30) days
nor more than ninety (90) days prior to the original Scheduled
Maturity Date; (ii) on or before the date of the commencement of
the First Extension Term (the "First Extension Commencement
Date"), Borrower shall have paid or caused to be paid to Lender a
non-refundable extension fee equal to one percent (1.00%) of the
Loan Amount; and (iii) no Event of Default shall have occurred
and be continuing at the time of the delivery of the Extension
Notice with respect to the First Extension Term or on the First
Extension Commencement Date. In the event the original Scheduled
Maturity Date is extended by the First Extension Term in
accordance with the terms hereof, thereafter, all references
herein and in any of the other Loan Documents (except any such
references in this Section 2.2.2 to the "Scheduled Maturity Date"
shall be deemed to refer to the last day of the First Extension
Term.
2.2.3 Intentionally Omitted.
Section 2.3 Interest Rate.
2.3.1 Initial Term. Subject to the further provisions
of this Agreement, including, without limitation, Sections 2.3.2,
2.3.3, 2.5 and 2.7 hereof, the Outstanding Principal Balance
shall bear interest throughout the Term at a floating rate per
annum equal to three and 12/100 percent (3.12%) in excess of
LIBOR (the aggregate rate referred to in the preceding clause
being referred to as the "Initial LIBOR Interest Rate") for any
Interest Accrual Period commencing prior to the First Extension
Term Commencement Date.
2.3.2 First Extension Term. In the event that Borrower
shall exercise the extension option for the First Extension Term
in accordance with the terms hereof, for each Interest Accrual
Period commencing on or after the First Extension Commencement
Date throughout the remaining Term, subject to the further
provisions of this Agreement, including, without limitation,
Sections 2.5 and 2.7 hereof, the Outstanding Principal Balance
shall bear interest at a floating rate per annum equal to four
and 62/100 percent (4.62%) in excess of LIBOR (the aggregate rate
referred to in the preceding clause being the "First Extension
LIBOR Interest Rate").
2.3.3 bold offIntentionally Omitted.
2.3.4 Calculation of Interest. All interest payable
hereunder shall be computed on the basis of a 360-day year for
the actual number of days elapsed. In computing the number of
days during which interest accrues, the day on which funds are
initially advanced shall be included regardless of the time of
day such advance is made, and the day on which funds are repaid
shall, subject to Section 2.4.5 hereof, be excluded.
Section 2.4 Payments.
2.4.1 Interest. Prior to the Maturity Date, interest
accruing on the Outstanding Principal Balance during each
Interest Accrual Period shall be payable by Borrower monthly in
arrears on each Payment Date.
2.4.2 Interest During First Extension Term. In the
event that Borrower shall exercise the extension option for the
First Extension Term in accordance with the terms hereof,
commencing on December 1, 1998 and on each Payment Date
thereafter throughout the then remaining Term, interest accruing
on the Outstanding Principal Balance during each Interest Accrual
period shall be payable by Borrower monthly in arrears on each
Payment Date.
2.4.3 bold offIntentionally Omitted.
2.4.4 Repayment of Outstanding Principal Balance. The
entire Outstanding Principal Balance, together with all accrued
and unpaid interest thereon and all other amounts payable
hereunder or under any of the other Loan Documents, shall, to the
extent not sooner paid pursuant to the terms of the Note and the
other Loan Documents, be due and payable in full on the Maturity
Date.
2.4.5 General. All sums payable to Lender hereunder
shall be payable, without setoff, deduction or counterclaim, in
immediately available funds, no later than 12:00 P.M. New York
City time on the date when due by wire transfer to the following
account: Bank of America, San Francisco, CA, ABA Number: 121-
000-358, Account Number: 0000-0-00000, Account Name: Pacific
Mutual Life in Trust for Credit Suisse First Boston Mortgage
Capital LLC, Reference: Xxxx Centers Trust, or to such other
account or address as Lender may from time to time designate in a
written notice to Borrower. Payments received by Lender in
immediately available funds on any day after 12:00 P.M. New York
City time shall be treated for all purposes of the Loan as having
been paid and received by Lender on the next Domestic Business
Day. Notwithstanding anything to the contrary contained herein,
when any payment is due hereunder or under any of the other Loan
Documents on a day which is not a Domestic Business Day, such
payment shall be made on the next succeeding Domestic Business
Day.
Section 2.5 Funding Losses; Change in Law, Etc.
(a) Borrower hereby agrees to pay to Lender any amount
necessary to compensate Lender and any Funding Party for any
losses or costs (including, without limitation, the costs of
breaking any "LIBOR" contract, if applicable, or funding losses
determined on the basis of Lender's or such Funding Party's
reinvestment rate and the interest rate thereon) (collectively,
"Funding Losses") sustained by Lender or any Funding Party: (i)
if the Loan, or any portion hereof, is repaid for any reason
whatsoever on any date other than a Payment Date (including,
without limitation, from condemnation or insurance proceeds);
(ii) upon the conversion of the interest rate on the Loan to the
Base Rate in accordance with Section 2.5(b) hereof; (iii) as a
consequence of (A) any increased costs that Lender or any Funding
Party may sustain in maintaining the borrowing evidenced hereby
or (B) the reduction of any amounts received or receivable from
Borrower, in either case, due to the introduction of, or any
change in, law or applicable regulation or treaty (including the
administration or interpretation thereof), whether or not having
the force of law, or due to the compliance by Lender or the
Funding Party, as the case may be, with any directive, whether or
not having the force of law, or request from any central bank or
domestic or foreign governmental authority, agency or
instrumentality having jurisdiction; and/or (iv) any other set of
circumstances not attributable to Lender's or a Funding Party's
acts. Payment of Funding Losses hereunder shall be in addition
to any obligation to pay a prepayment premium under Section 2.6
hereof in circumstances where such prepayment premium would be
due and owing.
(b) If Lender determines (which determination shall be
conclusive and binding upon Borrower, absent manifest error) (i)
that Dollar deposits in an amount approximately equal to the then
Outstanding Principal Balance are not generally available at such
time in the London Interbank Market for deposits in Eurodollars,
(ii) that the rate at which such deposits are being offered will
not adequately and fairly reflect the cost to Lender or a Funding
Party of maintaining a LIBOR Interest Rate on the Loan (or the
portion of the Loan being funded by such Funding Party), or of
funding the same in such market for such Interest Accrual Period,
due to circumstances affecting the London Interbank Market
generally, (iii) that reasonable means do not exist for
ascertaining LIBOR, or (iv) that the LIBOR Interest Rate would be
in excess of the maximum interest rate which Borrower may by law
pay, then, in any such event, Lender shall so notify Borrower
and, as of the date of such notification with respect to an event
described in clause (ii) or (iv) above, or as of the expiration
of the applicable Interest Accrual Period with respect to an
event described in clause (i) or (iii) above, interest shall
accrue at the Base Rate until such time as the situations
described above are no longer in effect, or as otherwise provided
herein; provided, however, if the situation described in clause
(ii) above occurs, (x) Borrower shall have the option, to be
exercised by written notice to Lender, to pay Lender (in the
manner reasonably required by Lender) for such increased cost of
maintaining the LIBOR Interest Rate, and (y) if the same only
affects a portion of the Loan, then only such portion shall have
interest accrue at the Base Rate (provided the remaining portion
is at least $1,000,000), and interest shall continue to accrue on
the remaining portion at the LIBOR Interest Rate.
(c) If the introduction of, or any change in, any law,
regulation or treaty, or in the interpretation thereof by any
governmental authority charged with the administration or
interpretation thereof, shall make it unlawful for Lender or any
Funding Party to maintain the LIBOR Interest Rate with respect to
the Loan, or any portion thereof, or to fund the Loan, or any
portion thereof, in Eurodollars in the London Interbank Market,
then, (i) the Loan (or such portion of the Loan) shall thereafter
bear interest at the Base Rate (unless the Default Rate shall be
applicable), and (ii) Borrower shall pay to Lender the amount of
Funding Losses (if any) incurred in connection with such
conversion. The accrual of interest at the Base Rate shall
continue until such Payment Date, if any, as the situation
described in this Section 2.5(c) is no longer in effect.
(d) If Lender or a Funding Party, as the case may be,
shall have determined that the applicability of any law, rule,
regulation or guideline adopted pursuant to or arising out of the
July 1988 report of the Basle Committee on Banking Regulations
and Supervisory Practices entitled "International Convergence of
Capital Measurement and Capital Standards", or the adoption of
any other law, rule, regulation or guideline (including, but not
limited to, any United States law, rule, regulation or guideline)
regarding capital adequacy, or any change becoming effective in
any of the foregoing or in the enforcement or interpretation or
administration of any of the foregoing by any court or any
domestic or foreign governmental authority, central bank or
comparable agency charged with the enforcement or interpretation
or administration thereof, or compliance by Lender or its holding
company or such Funding Party or its holding company, as the case
may be, with any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority,
central bank or comparable agency, has or would have the effect
of reducing the rate of return on the capital of Lender, Lender's
holding company, such Funding Party or such Funding Party's
holding company, as the case may be, to a level below that which
Lender or its holding company or the Funding Party or its holding
company, as the case may be, could have achieved but for such
applicability, adoption, change or compliance (taking into
consideration Lender's or its holding company's or such Funding
Party's or its holding company's, as the case may be, policies
with respect to capital adequacy) (the foregoing being
hereinafter referred to as "Capital Adequacy Events"), then, upon
demand by Lender, Borrower shall pay to Lender, from time to
time, such additional amount or amounts as will compensate Lender
or such Funding Party for any such reduction suffered.
(e) Any amount payable by Borrower under Section
2.5(a) or 2.5(d) hereof shall be paid to Lender within five (5)
days of receipt by Borrower of a certificate signed by an officer
of Lender setting forth the amount due and the basis for the
determination of such amount, which statement shall be conclusive
and binding upon Borrower, absent manifest error. Failure on the
part of Lender to demand payment from Borrower for any such
amount attributable to any particular period shall not constitute
a waiver of Lender's right to demand payment of such amount for
any subsequent or prior period. Lender shall use reasonable
efforts to deliver to Borrower prompt notice of any event
described in Sections 2.5(a) or 2.5(d) hereof and of the amount
to be paid under this Section 2.5 as a result thereof; provided,
however, any failure by Lender to so notify Borrower shall not
affect Borrower's obligation to make the payments to be made
under this Section 2.5 as a result thereof. All amounts which
may become due and payable by Borrower in accordance with the
provisions of this Section 2.5 shall constitute additional
interest hereunder and shall be secured by the Mortgage and the
other Loan Documents.
(f) If Lender or any Funding Party requests
compensation for any losses or costs to be reimbursed pursuant to
any one or more of the provisions of Sections 2.5(a)(iii),
2.5(a)(iv) or 2.5(d) hereof, or if any event occurs as described
in Sections 2.5(b) or 2.5(c) hereof which would cause the Note no
longer to bear interest at the LIBOR Interest Rate then, upon
request of Borrower, Lender or such Funding Party shall use
reasonable efforts, in a manner consistent with such
institution's practice in connection with loans like the Loan, to
designate a different lending office for funding or booking the
Loan or to assign its rights and obligations under this Agreement
to another of its offices, branches or Affiliates if such
designation or assignment, in Lender's sole but good faith
judgment, (i) would eliminate, mitigate or reduce amounts payable
by Borrower in connection with Funding Losses or Capital Adequacy
Events or, with respect to an event described in Sections 2.5(b)
or 2.5(c) hereof, would allow the Loan to continue to bear
interest at the LIBOR Interest Rate without additional cost to
Lender, and (ii) would not be otherwise prejudicial to Lender.
Borrower hereby agrees to pay all reasonably incurred costs and
expenses incurred by Lender or any Funding Party in connection
with any such designation or assignment.
Section 2.6 Prepayment.
(a) Borrower may, at any time elect to prepay the Loan
(i) in whole, but not in part, on any Domestic Business Day
provided, and with respect to each such prepayment (x) Borrower
has given Lender written notice of such prepayment not more than
sixty (60) days and not less than fifteen (15) days prior to the
date of such prepayment, including, without limitation, any
amounts due under Section 2.5 hereof, and (y) such prepayment is
accompanied by all interest accrued on the amount so prepaid and
all other fees and other sums due hereunder and under the other
Loan Documents, if any, up to and including the date of
prepayment.
(b) Intentionally Omitted.
Section 2.7 Default Interest; Late Charge.
(a) If any payment of principal, interest or other sum
payable hereunder, or under any of the other Loan Documents, is
not paid when due (including by reason of failure to pay all
principal, interest and all other amounts due hereunder and under
the other Loan Documents on the Maturity Date (or such earlier
date as the same may become due, whether by acceleration or
otherwise)), such principal amount, interest or other sum shall
bear interest at a rate per annum (the "Default Rate") equal to
six percent (6%) in excess of LIBOR (or, if at such time Lender
shall have notified Borrower that reasonable means do not exist
for ascertaining LIBOR as provided in clause (iii) of Section
2.5(b) hereof, the Treasury Rate), which Default Rate shall so
apply from the date such amount was due until the date such
amount is indefeasibly paid to Lender. Without limiting the
foregoing, upon the occurrence of, and during the continuance of,
an Event of Default hereunder, the entire principal balance of
the Loan shall bear interest at the Default Rate. Interest at
the Default Rate shall be paid immediately upon demand, which
demand may be made as frequently as Lender shall elect.
(b) If any installment of interest or principal
(including, without limitation, the entire Outstanding Principal
Balance on the Maturity Date) is not paid within five (5) days
after the date when due, or if any other amount payable hereunder
or under any other Loan Document is not paid within ten (10) days
after written notice thereof is given to Borrower, Borrower shall
pay to Lender a late charge of three percent (3%) of the amount
so overdue in order to defray part of the expense incident to
handling such delinquent payment or payments. Such late charge
shall be immediately due and payable without notice or demand by
Lender. Such late charge shall be in addition to, and separate
from, any increase in interest due hereunder as a result of
calculation of interest due hereunder at the Default Rate.
Acceptance by Lender of any late charge or interest at the
Default Rate shall not be deemed a waiver of any of Lender's
rights hereunder or under the other Loan Documents with respect
to such late payment.
Section 2.8 Excess Interest. It is agreed that,
notwithstanding any provision to the contrary in this Agreement,
the Note, the Mortgage or any of the other Loan Documents, no
such provision shall require the payment or permit the collection
of any amount ("Excess Interest") in excess of the maximum amount
of interest permitted by law to be charged for the use or
detention, or the forbearance in the collection, of all or any
portion of the indebtedness evidenced by the Note. If any Excess
Interest is provided for, or is adjudicated to be provided for,
in the Note, this Agreement or any of the other Loan Documents,
then in such event:
(i) the provisions of this Section 2.8 shall
govern and control;
(ii) neither Borrower nor any of the other Persons
required to pay any amounts with respect to the Loan shall be
obligated to pay any Excess Interest;
(iii) any Excess Interest that Lender may have
received hereunder shall, at the option of Lender, (i) be applied
as a credit against the then Outstanding Principal Balance
(without payment of prepayment premium) due hereunder, accrued
and unpaid interest thereon not to exceed the maximum amount
permitted by law, or both, (ii) be refunded to the payor thereof,
or (iii) any combination of the foregoing;
(iv) the applicable interest rate or rates shall
be automatically subject to reduction to the maximum lawful rate
and this Agreement, the Note, the Mortgage and the other Loan
Documents shall be deemed to have been, and shall be, reformed
and modified to reflect such reduction in such interest rate or
rates; and
(v) neither Borrower nor any of the other Persons
required to pay any amounts with respect to the Loan shall have
any action or remedy against Lender for any damages whatsoever,
or any defense to enforcement of this Agreement, the Note, the
Mortgage or any of the other Loan Documents, arising out of the
payment or collection of any Excess Interest.
Section 2.9 Loan Taxes.
(a) Any and all payments by Borrower to Lender
hereunder and under the other Loan Documents shall, provided that
Lender complies with the requirements of Section 2.9(c) hereof,
be made free and clear of, and without deduction for, any and all
present or future taxes, levies, imposts, deductions, charges,
withholdings or liabilities with respect thereto, except for the
following, for which Borrower shall not be responsible: (i) taxes
imposed on or measured by Lender's net income or net receipts; or
(ii) franchise taxes imposed on Lender by the jurisdiction in
which (A) Lender is organized, (B) Lender is "doing business"
(unless such determination of "doing business" is made solely as
a result of Lender's interest in the Loan and the security
therefor), or (C) Lender's applicable lending office is located
(all such taxes, levies, imposts, deductions, charges or
withholdings and liabilities (except those described in the
foregoing clauses (i) and (ii)) being hereinafter referred to as
"Loan Taxes"). If Borrower shall be required by law to deduct or
withhold any Loan Taxes from or in respect of any sum payable
hereunder or under any other Loan Document, then (1) any such sum
payable hereunder or under any other Loan Document shall be
increased as may be necessary so that after making all required
deductions or withholdings (including deductions applicable to
additional sums payable under this Section 2.9), Lender receives
an amount equal to the sum it would have received had no such
deductions or withholdings (including deductions applicable to
additional sums payable under this Section 2.9) been made, (2)
Borrower shall make such deductions or withholdings, and (3)
Borrower shall pay the full amount deducted or withheld to the
relevant taxing authority in accordance with applicable law.
Borrower will indemnify Lender for the full amount of any Loan
Taxes (including, without limitation, any Loan Taxes (as well as
taxes described in clauses (i) and (ii) of the second preceding
sentence) imposed by any jurisdiction on any amounts payable
under this Section 2.9) paid or payable by Lender and any
liability (including, without limitation, penalties, interest and
expenses) arising therefrom or with respect thereto, whether or
not such Loan Taxes were correctly or legally asserted. A
certificate as to the amount of such payment or liability
delivered to Borrower by Lender shall be conclusive absent
manifest error. The agreements and obligations of Borrower
contained in this Section 2.9 shall survive the payment in full
of principal and interest under this Agreement and the Note.
(b) Within thirty (30) days after the date of any
payment of Loan Taxes withheld by Borrower in respect of any
payment to Lender, Borrower will furnish to Lender the original
or a certified copy of a receipt or other evidence satisfactory
to Lender evidencing payment thereof.
(c) If Lender is a U.S. Person (other than the lender
originally named herein), Lender shall deliver to Borrower, upon
request, a Form W-9 (unless it establishes to the reasonable
satisfaction of Borrower that it is otherwise eligible for an
exemption from backup withholding tax or other withholding tax).
If Lender is not a U.S. Person, Lender shall deliver to Borrower,
upon request, a Form W-8 and either (i) a Form 1001 which
indicates a 0% rate of tax or (ii) a Form 4224. If Lender is not
a U.S. Person, Lender further undertakes to deliver to Borrower
additional Forms W-8, 1001, 4224 (or any successor forms) or
other manner of certification, as the case may be, (A) on or
before the date that any such form expires or becomes obsolete,
(B) after the occurrence of any event requiring a change in the
most recent form previously delivered by it to Borrower, and (C)
such extensions or renewals thereof as may reasonably be
requested by Borrower, certifying that Lender is entitled to
receive payments hereunder without deduction or withholding of
any Loan Taxes. However, in the event that any change in law,
rule, regulation, treaty or directive, or in the interpretation
or application thereof (a "Law Change"), has occurred prior to
the date on which any delivery pursuant to the preceding sentence
would otherwise be required which renders such form inapplicable,
or which would prevent Lender from duly completing and delivering
any such form, or if such Law Change results in Lender being
unable to deliver a Form W-9 (or other satisfactory evidence that
it is otherwise eligible for an exemption from backup withholding
tax or other withholding tax), Lender shall not be obligated to
deliver such forms but shall, promptly following such Law Change,
but in any event prior to the time the next payment hereunder is
due following such Law Change, advise Borrower in writing whether
it is capable of receiving payments without any deduction or
withholding of Loan Taxes. In the event of such Law Change,
Borrower shall have the obligation to make Lender whole and to
"gross-up" under Section 2.9(a) hereof, despite the failure by
Lender to deliver such forms.
(d) If Lender receives a refund in respect of Loan
Taxes paid by Borrower, it shall promptly pay such refund,
together with any other amounts paid by Borrower pursuant to
Section 2.9(a) hereof in connection with such refunded Loan
Taxes, to Borrower; provided, however, that Borrower agrees to
promptly return such refund to Lender if it receives notice from
Lender that it is required to repay such refund. Nothing
contained herein shall be construed to require Lender to seek any
refund and Lender shall have no obligation to Borrower to do so.
(e) All amounts payable under this Section 2.9 shall
constitute additional interest hereunder and shall be secured by
the Mortgage and the other Loan Documents. The provisions of
this Section 2.9 shall survive any payment or prepayment of the
Loan and any foreclosure or satisfaction of the Mortgage.
(f) Any reference under this Section 2.9 to "Lender"
shall be deemed to include any Participant and any Assignees.
Section 2.10 Uses of Loan Proceeds. The uses of the
proceeds of the Loan shall be as set forth on a closing statement
to be executed by Borrower and Lender on the Closing Date (the
"Closing Statement"). Borrower shall deliver such information
and documentation as Lender shall reasonably request to verify
that the uses are as set forth on the Closing Statement. To the
extent that Borrower shall not apply any amounts necessary for
any of such uses as indicated on the Closing Statement, the Loan
shall be reduced by an equal amount.
Section 2.11 Servicing. The Loan shall be serviced
by an insured financial servicer selected by Lender in its sole
discretion (the "Servicer"). Lender may change the Servicer from
time to time without the consent of Borrower, on notice to
Borrower. Lender expressly acknowledges and agrees that the
Servicer's fees (the "Servicing Fee"), shall be payable by
Lender.
ARTICLE III
CERTAIN REPRESENTATIONS AND WARRANTIES OF BORROWER
As an inducement to Lender to enter into this Agreement
and to make the Loan, Borrower hereby represents and warrants as
follows, which representations and warranties shall be true and
correct as of the date hereof and which shall survive the Closing
Date hereunder and shall remain true and correct until all of the
Obligations are repaid in full:
Section 3.1 Borrower Organization, Enforceability,
Etc.
3.1.1 Borrower Status. Borrower is a duly formed
limited partnership under the laws of the State of South Carolina
or the Commonwealth of Pennsylvania, as applicable, validly
existing and in good standing under the laws of the State of
South Carolina or the Commonwealth of Pennsylvania, as
applicable, and has full power and authority to execute and
deliver to Lender this Agreement and all other Loan Documents to
which it is a party, and to own and operate the Premises and
perform the obligations and carry out the duties imposed upon
Borrower by this Agreement and the other Loan Documents. All
Loan Documents to be executed by Borrower have been duly
authorized, approved, executed and delivered by all necessary
parties and constitute the legal, valid and binding obligations
of Borrower, enforceable against Borrower in accordance with
their respective terms. Borrower is authorized to do business in
the State of South Carolina or the Commonwealth of Pennsylvania,
as applicable, and is not required by applicable law to be
authorized to do business in any other jurisdiction.
3.1.2 General Partner. General Partner shall mean,
collectively:
(i) Wesmark Fifty Realty Corp., which (a) is a
corporation duly organized, validly existing and in good standing
under the laws of the state of its incorporation; (b) is in good
standing under the laws of, and is authorized to transact
business in, all jurisdictions where it conducts business,
including the State of South Carolina; (c) has all requisite
power and authority to own its properties and to carry on its
business as now being conducted; (d) is the sole general partner
of Wesmark Fifty, L.P. and owns a one percent (1%) general
partnership interest in Wesmark Fifty, L.P., free and clear of
all liens, claims, and encumbrances, except as otherwise
contemplated or permitted under this Agreement; (e) has full
right, power and authority to execute and deliver this Agreement
and the other Loan Documents on its own behalf and on behalf of
Wesmark Fifty, L.P.; and (f) shall have full right, power and
authority to make all material business decisions for Wesmark
Fifty, L.P. during the Term;
(ii) Newcastle Fifty Realty Corp., which (a) is a
corporation duly organized, validly existing and in good standing
under the laws of the state of its incorporation; (b) is in good
standing under the laws of, and is authorized to transact
business in, all jurisdictions where it conducts business,
including the Commonwealth of Pennsylvania; (c) has all requisite
power and authority to own its properties and to carry on its
business as now being conducted; (d) is the sole general partner
of Xxxx Twelve Associates Fifty, L.P. and owns a one percent (1%)
general partnership interest in Xxxx Twelve Associates Fifty,
L.P., free and clear of all liens, claims, and encumbrances,
except as otherwise contemplated or permitted under this
Agreement; (e) has full right, power and authority to execute and
deliver this Agreement and the other Loan Documents on its own
behalf and on behalf of Xxxx Twelve Associates Fifty, L.P.; and
(f) shall have full right, power and authority to make all
material business decisions for Xxxx Twelve Associates Fifty,
L.P. during the Term;
(iii) Xxxx Plaza Fifty Realty Corp., which (a) is a
corporation duly organized, validly existing and in good standing
under the laws of the state of its incorporation; (b) is in good
standing under the laws of, and is authorized to transact
business in, all jurisdictions where it conducts business,
including the Commonwealth of Pennsylvania; (c) has all requisite
power and authority to own its properties and to carry on its
business as now being conducted; (d) is the sole general partner
of Xxxx Plaza Fifty, L.P. and owns a one percent (1%) general
partnership interest in Xxxx Plaza Fifty, L.P., free and clear of
all liens, claims, and encumbrances, except as otherwise
contemplated or permitted under this Agreement; (e) has full
right, power and authority to execute and deliver this Agreement
and the other Loan Documents on its own behalf and on behalf of
Xxxx Plaza Fifty, L.P.; and (f) shall have full right, power and
authority to make all material business decisions for Xxxx Plaza
Fifty, L.P. during the Term; and
(iv) Xxxxxxxx Fifty Realty Corp., which (a) is a
corporation duly organized, validly existing and in good standing
under the laws of the state of its incorporation; (b) is in good
standing under the laws of, and is authorized to transact
business in, all jurisdictions where it conducts business,
including the Commonwealth of Pennsylvania; (c) has all requisite
power and authority to own its properties and to carry on its
business as now being conducted; (d) is the sole general partner
of Xxxxxxxx Fifty, L.P. and owns a one percent (1%) general
partnership interest in Xxxxxxxx Fifty, L.P., free and clear of
all liens, claims, and encumbrances, except as otherwise
contemplated or permitted under this Agreement; (e) has full
right, power and authority to execute and deliver this Agreement
and the other Loan Documents on its own behalf and on behalf of
Xxxxxxxx Fifty, L.P.; and (f) shall have full right, power and
authority to make all material business decisions for Xxxxxxxx
Fifty, L.P. during the Term.
3.1.3 Limited Partners in Borrower. The sole limited
partner in Wesmark Fifty, L.P., Xxxx Plaza Fifty, L.P. and
Xxxxxxxx Fifty, L.P. is Xxxx Centers Limited Partnership, which
owns a ninety-nine percent (99%) limited partnership interest
therein, free and clear of all liens, claims and encumbrances,
except as otherwise contemplated or permitted under this
Agreement.
The sole limited partners in Xxxx Twelve Associates,
L.P. are Xxxx Centers Limited Partnership and Xxxxxx Xxxxxxxxx
(each, a "Limited Partner," and collectively, the "Limited
Partners"), who own an eighty-eight percent (88%) and an eleven
percent (11%) limited partnership interest therein, respectively,
free and clear of all liens, claims and encumbrances, except as
otherwise contemplated or permitted under this Agreement.
Section 3.2 Borrower Address. Borrower's principal
place of business is at the address first set forth above, and
shall not be changed during the Term without giving Lender at
least thirty (30) days' prior notice thereof. Borrower uses no
trade name, and has not and will not do any business under any
name other than its actual name set forth herein.
Section 3.3 Borrower's Organizational Documents. A
true and complete copy of Borrower's Organizational Documents
have been furnished to Lender. Borrower's Organizational
Documents constitute the entire agreement among the partners in
Borrower and are binding upon and enforceable against all of such
partners in accordance with their respective terms. There are no
other agreements, oral or written, among any of the partners in
Borrower relating to Borrower. No party is in default of its
obligations under Borrower's Organizational Documents and no
condition exists which, with the giving of notice and/or the
passage of time, would constitute a default under Borrower's
Organizational Documents.
Section 3.4 General Partner's Organizational
Documents. A true and complete copy of General Partner's
Organizational Documents have been furnished to Lender. General
Partner's Organizational Documents constitute the entire
agreement relating to such General Partner among the shareholders
in General Partner and are binding upon and enforceable against
all of such shareholders in accordance with their respective
terms. There are no other agreements, oral or written, among any
of the shareholders in General Partner relating to General
Partner. No party is in default of its obligations under General
Partner's Organizational Documents and no condition exists which,
with the giving of notice and/or the passage of time, would
constitute a default under General Partner's Organizational
Documents.
Section 3.5 Title. Fee simple title or leasehold
title, as applicable, to the Premises is, or contemporaneously
with the funding of the Loan will be, owned or leased by
Borrower, free and clear of all liens, claims, encumbrances,
covenants, conditions, restrictions, security interests and
claims of others, except for the Loan Documents, the Permitted
Encumbrances and such exceptions as have been approved in writing
by Lender.
Section 3.6 Valid Liens. Subject to the Permitted
Encumbrances, the Mortgage is a good and valid first mortgage
lien on the Premises and first priority security interest in the
personal property described in the Mortgage.
Section 3.7 Uses. The Premises consists solely of a
shopping center and related operations and is used for no other
purpose.
Section 3.8 No Structural Defects. To the best
knowledge of Borrower, there are no structural defects in the
Improvements, or material defects to the building systems
thereof, except as shown in the Engineer's Report.
Section 3.9 Compliance with Zoning, Etc.
(a) Except as may be disclosed by the Engineer's
Report or in the violations searches received from the Title
Insurer in connection with the Title Policy (the "Disclosed
Violations"), the Premises comply in all material respects with
all applicable Legal Requirements. Borrower shall use its
diligent efforts to cure, or cause to be cured, the Disclosed
Violations and to have them removed of record. Any zoning or
subdivision approval is based on no real property, or rights
appurtenant thereto, other than the Premises. The Premises as
improved and used are not in material violation of any recorded
and, to the best knowledge of Borrower, unrecorded covenants,
conditions or restrictions of any kind or nature affecting all or
any part of the Premises, or any interest therein. To the best
knowledge of Borrower, the Improvements can be fully rebuilt in
the event of casualty or destruction thereof under the Permits
applicable to the Premises, subject, however, to non-
discretionary requirements of any Governmental Authority. No
amendment or change in any such material Permit, and no amendment
or change in zoning or any other land use control, has been
sought or obtained by Borrower or any Affiliate of Borrower, or
will be sought or obtained by Borrower or any Affiliate of
Borrower, with respect to the Premises or the Improvements,
except as specifically approved in writing by Lender.
(b) Except as may be disclosed in the Disclosed
Violations, all Permits required by any Governmental Authority
for the operation of the Improvements and the actual and
contemplated uses thereof, or otherwise required to be in
compliance with any Environmental Laws, have been obtained. The
copy of the certificate of occupancy for the Premises delivered
to Lender prior to the date hereof is a true and correct copy of
the permanent certificate of occupancy for the Premises, remains
in full force and effect, and is not subject to any conditions or
limitations, other than those of general applicability to all
certificates of occupancy for shopping centers located in the
Counties of Xxxxxx, Xxxxxxxx and Luzerne, respectively.
(c) Borrower has heretofore delivered to Lender true,
correct and complete copies of each material Permit.
(d) There are no pending or, to the best knowledge of
Borrower, threatened actions, suits or proceedings to revoke,
attack, invalidate, rescind or modify the zoning of the Premises,
or any material Permits issued with respect to the Premises or
any part thereof, or asserting that such Permits or the zoning of
the Premises do not permit the use of the Premises as
contemplated by the Loan Documents.
Section 3.10 No Condemnation. Borrower has not
received any notice of, and to the best of Borrower's knowledge
there does not exist, any actual, proposed or threatened exercise
of the power of eminent domain or other taking by any
governmental or quasi-governmental body or agency, of all or any
portion of the Premises, or any interest therein, or any right of
access thereto.
Section 3.11 No Casualty. The Improvements have
suffered no material casualty or damage which has not been fully
repaired and the cost thereof fully paid.
Section 3.12 Purchase Options. Neither the Premises
nor any part thereof are subject to any purchase options or other
similar rights in favor of third parties.
Section 3.13 No Encroachments. There are no material
encroachments on the Land and the Improvements do not encroach
upon any Easement, any other interest in real property, any
adjoining land or any adjoining street, except as set forth in
the Survey.
Section 3.14 Litigation. Except as set forth on
Schedule D annexed hereto, there are no actions, suits,
proceedings, arbitrations, tenant disputes, labor disputes or
governmental investigations pending, or, to the best knowledge of
Borrower, threatened against or affecting Borrower, any Affiliate
of Borrower or the Premises, which, if successful, could have a
Material Adverse Effect. None of Borrower, General Partner or any
other Significant Party is operating under, or is subject to, any
order, writ, injunction, decree or demand of any court or any
Governmental Authority. Other than as set forth on said Schedule
D, no actions, suits, proceedings or arbitrations are pending or,
to the best knowledge of Borrower, threatened against Borrower,
General Partner or any other Significant Party which involve
claims, damages or sums of money not covered (including all
applicable deductibles) by insurance.
Section 3.15 No Conflict with Law or Agreements. The
execution and delivery of this Agreement and the other Loan
Documents, and the performance and consummation of the
transactions contemplated hereby and thereby, on the part of
Borrower and all other Significant Parties (as applicable), and
fulfillment of the terms of the Loan Documents by Borrower and
the other Significant Parties (as applicable), (i) do not and
will not conflict with, violate, or constitute a default (or a
condition or event which, after notice or lapse of time or both,
would constitute such a default) under any provision of any
Organizational Document or any contractual obligation of Borrower
or any other Significant Party, or any Legal Requirement or any
court decree or order applicable to the Premises, Borrower or any
other Significant Party, and (ii) will not result in, or require,
the creation or imposition of any lien or encumbrance on, or
conveyance of, any of Borrower's properties pursuant to any
contractual obligation, and (iii) do not require the consent or
approval of any Governmental Authority or other Person, except
for consents and approvals already obtained.
Section 3.16 Personal Property. All equipment and
other personal property necessary for (or otherwise actually used
in connection with) the proper and efficient operation and
maintenance of the Premises, the actual and contemplated uses of
the Premises and/or Borrower's compliance with its obligations
under the Leases, are owned or leased by Borrower and constitute
part of the Premises subject to the Mortgage and located thereat,
other than (i) any such equipment which is owned by a utility
company, or (ii) any such equipment and personal property which
is owned by tenants of the Premises and utilized solely by such
tenant.
Section 3.17 Easements; Access; Utilities. All
easements, cross easements, licenses, air rights and rights-of-
way or other similar property interests (collectively,
"Easements"), if any, necessary for the full utilization of the
Improvements for their intended purposes have been obtained, are
described in the Title Policy and are in full force and effect
without default thereunder. The Premises has direct rights of
access to public ways and is served by water, sewer, sanitary
sewer and storm drain facilities adequate to service the Premises
for its intended uses. All public utilities necessary or
convenient to the full use and enjoyment of the Premises are
located either in the public right of way abutting the Premises
(which are connected so as to serve the Premises without passing
over other property) or in recorded easements serving the
Premises and described in the Title Policy. All roads necessary
for the use of the Premises for its current purposes have been
completed and are available for public use.
Section 3.18 No Flood Hazard, Etc. Except as set
forth in the Survey, (i) the Premises are not situated in an area
designated as having special flood hazards as defined by the
Flood Disaster Protection Act of 1973, as amended, or designated
a wetlands by any governmental entity having jurisdiction over
such Premises, or (b) the Premises are situated in an area
designated as having special flood hazards as defined by the
Flood Disaster Protection Act of 1973, as amended, or as a
wetlands by any governmental entity having jurisdiction over the
Premises, but Borrower has obtained and paid for, and there is
currently in effect, the flood insurance required under the terms
of the Mortgage. No portion of the Premises is located on or
adjacent to navigable waters and no portion of the Premises
consists of filled-in land.
Section 3.19 Premises Taxed as a Separate Tax Lot.
The Premises are taxed as a separate and distinct tax lot. No
part of the Premises shares a tax lot with any adjoining lands
and for all purposes the Premises may be mortgaged, conveyed and
otherwise dealt with as a single, independent parcel.
Section 3.20 Leases.
(a) Borrower has not entered into any Lease which
continues in existence, and is not bound by any such Lease, other
than the Approved Leases.
(b) Rent has not been collected under any of the
Leases more than one (1) month in advance of the due date.
Except as disclosed on the Rent Roll, the term of each Lease has
commenced and the tenant has commenced the full payment of rent
under such Lease without the tenant thereunder being entitled to
any abatement thereof. Except as disclosed on the Rent Roll, the
landlord is not required to perform any tenant work or pay any
work allowances under any Lease. All security and other escrow
deposits made under any Lease are being, and have been held, in
accordance with all Legal Requirements and the terms of such
Lease. Except as disclosed on the Rent Roll, no tenant under a
Lease has any right of expansion, extension, cancellation or any
other option pursuant to such Leases, and no tenant has any right
of set off or reduction against rent.
(c) Each of the Leases has been duly authorized,
approved and executed by all parties thereto and constitutes the
legal, valid and binding obligations of the parties thereto,
enforceable against the parties thereto in accordance with their
respective terms. Borrower has delivered true, correct and
complete copies of the Leases (including all amendments and
supplements thereto) to Lender.
(d) Each of the Leases is in full force and effect and
there are no monetary or other material defaults by Borrower
thereunder, and, to the best knowledge of Borrower, except as set
forth on the Rent Roll, there are no monetary or other material
defaults by any tenant thereunder. None of Borrower, Manager or
any other Person acting on Borrower's behalf has given or
received any notice of default under any of the Leases that
remains uncured or in dispute, and Borrower is not intending to
deliver such a notice of default within the thirty (30) days
following the date hereof.
(e) Borrower has delivered to Lender true and correct
copies of all guaranties of Leases and all such guaranties are in
full force and effect and constitute the legal, valid and binding
obligations of the parties thereto, enforceable against such
parties in accordance with their respective terms.
(f) The Rent Roll for the Premises delivered to Lender
is true, correct and complete in all material respects.
(g) Borrower has delivered to Lender a true, correct
and complete list of all security deposits made by tenants at the
Premises which have not been applied (including accrued interest
thereon), all of which are held by Borrower in accordance with
the terms of the applicable Lease and applicable Legal
Requirements.
(h) Each tenant under a Major Lease is free from
bankruptcy or reorganization proceedings.
(i) No tenant under any Lease (or any sublease) is an
Affiliate of Borrower, except as may be disclosed otherwise on
Schedule C annexed hereto.
(j) There are no brokerage fees or commissions due and
payable in connection with the leasing of space at the Premises,
except as has been previously disclosed to Lender in writing, and
no such fees or commissions will become due and payable in the
future in connection with the Leases, including by reason of any
extension of such Lease or expansion of the space leased
thereunder, except as has previously been disclosed to Lender in
writing.
Section 3.21 Environmental. Borrower covenants and
represents to Lender that, except as may be actually disclosed in
the Environmental Report, (i) no Hazardous Substances are now, or
have ever been, located, produced, used, stored, treated,
transported, incorporated, discharged, emitted, released,
deposited or disposed of in, upon, under, over or from the
Premises in a manner that may give rise to any actual or
potential liability to pay response costs or other damages,
losses or expenses or otherwise violate any Environmental Laws;
(ii) no Hazardous Substances are currently located, stored or
used at the Premises, except with respect to such Hazardous
Substances which are (A) customarily located, stored or used in
shopping centers similar to the Premises, or (B) unique and
necessary to a tenant's business located in the Premises,
provided that such Hazardous Substances described in clause
(ii)(A) or (ii)(B) are at all times stored, located and used in
compliance with all Environmental Laws; (iii) no Hazardous
Substances have been discharged, released or emitted, upon or
from the Premises into the environment, and no threat exists of a
discharge, release or emission of a Hazardous Substance upon or
from the Premises into the environment, which discharge, release
or emission, in either case, would subject the owner of the
Premises to any damages, penalties or liabilities under any
applicable Environmental Laws; (iv) the Premises have not ever
been used as or for a mine, a landfill, a dump or other disposal
facility, or a gasoline service station; (v) no underground
storage tank is now located on or in the Premises or, if
previously located therein, each such tank has been removed
therefrom in compliance with all applicable Environmental Laws
and any clean-up of the surrounding soil in connection therewith
has been completed; (vi) no asbestos, ACM, materials containing
urea-formaldehyde, or transformers, capacitors, ballasts or other
equipment that contain PCBs are located about the Premises; (vii)
the Premises have never been used by Borrower or any Affiliate of
Borrower or, to the best of Borrower's knowledge, after due
inquiry, any other Person (including any prior owner of the
Premises), as a permanent or temporary treatment, storage or
disposal site for any Hazardous Substance; (viii) (A) no
violation of any Environmental Law now exists in, upon, under,
over or from the Premises, (B) no notice of any such violation or
any alleged violation thereof has been issued or given by any
Governmental Authority, and (C) there is not now any
investigation or report involving the Premises by any
Governmental Authority or agency which in any way relates to
Hazardous Substances; (ix) no Person has given any notice of or
asserted any claim, cause of action, penalty, cost or demand for
payment or compensation, whether or not involving any injury or
threatened injury to human health, the environment or natural
resources, resulting or allegedly resulting from any activity or
event described in clauses (i)-(viii) above and, to the best
knowledge of Borrower, no basis for such a claim exists; (x)
there are not now, nor to Borrower's best knowledge have there
ever been, any actions, suits, proceedings or damage settlements
relating in any way to Hazardous Substances in, upon, under, over
or from the Premises; (xi) no oral or written notification of a
Release (as such term is defined in 42 U.S.C. Subscript 9601(22))
of any Hazardous Substances has been filed by or on behalf of
Borrower through authorized employees or agents and the Premises
are not listed on the United States Environmental Protection
Agency's List of Hazardous Waste Sites or any other list of
Hazardous Substance sites maintained by any federal, state or
local Governmental Authority; (xii) there are no environmental
liens on the Premises and, to the best knowledge of Borrower, no
governmental actions have been taken or are in process which
could subject the Premises to such liens; (xiii) Borrower has not
transported or arranged for the transportation of any Hazardous
Substances to any location which is listed or proposed for
listing under CERCLA or on any similar state list or which is the
subject of federal, state or local enforcement actions or other
investigations; (xiv) no environmental or engineering
investigations, studies, audits, tests, reviews or other analyses
have been conducted by, or are in the possession of, Borrower or
its Affiliates in relation to the Premises, other than the
Environmental Report; Borrower has delivered a true, correct and
complete copy of the Environmental Report to Lender; and (xv) to
the best of Borrower's knowledge, the Environmental Report does
not contain any untrue statement of a material fact or omit to
state a material fact necessary to make any statement contained
therein or herein, in light of the circumstances under which such
statement was made, not misleading.
Section 3.22 Americans with Disabilities Act. The
Premises is in compliance in all material respects with all of
the requirements of the Americans with Disabilities Act of 1990.
Section 3.23 No Default. There is no Default on the
part of Borrower under this Agreement, the Note, the Mortgage or
any other Loan Document.
Section 3.24 No Offsets. Borrower has no
counterclaims, offsets or defenses with respect to the Loan, the
Note or any other Loan Document.
Section 3.25 Financial Statements. All financial
statements of Borrower and Xxxx Centers Trust heretofore
delivered to Lender in connection with the Loan are true and
correct in all material respects and fairly present the financial
condition of the subjects thereof as of the respective dates
thereof, and no material adverse change has occurred in the
financial condition reflected therein, or the operations or
business of, such Persons since the respective dates of the most
recent financial statements delivered to Lender. The financial
statements heretofore delivered have been prepared in accordance
with the procedures and accounting principles and standards
required by Section 4.14 hereof.
Section 3.26 No Insolvency. None of Borrower or any
other Significant Party is Insolvent, and none of the foregoing
Persons will be rendered Insolvent by the execution of this
Agreement, the Note or any other Loan Documents, or by the
consummation of the transactions contemplated hereby or thereby.
Section 3.27 Fraudulent Conveyance. Borrower (i) has
not entered into the transactions contemplated by this Agreement
or any other Loan Document with the actual intent to hinder,
delay, or defraud any creditor, and (ii) has received reasonably
equivalent value in exchange for its obligations under the Note,
this Agreement and the other Loan Documents. Giving effect to
the transactions contemplated by the Loan Documents, the fair
salable value of Borrower's assets exceeds, and will, immediately
following the execution and delivery of the Loan Documents and
the advance of the Loan proceeds thereunder, exceed, Borrower's
total probable liabilities, including, without limitation, the
maximum amount of its subordinated, unliquidated, disputed and/or
contingent liabilities. Borrower's assets do not, and,
immediately following the execution and delivery of the Loan
Documents and the advance of the Loan proceeds thereunder, will
not, constitute unreasonably small capital to carry out its
business as conducted or as proposed to be conducted. Borrower
does not intend to, and does not believe that it will, incur
debts and liabilities (including, without limitation, contingent
liabilities and other commitments) beyond its ability to pay such
debts and liabilities as they mature (taking into account the
timing and amounts to be payable on or in respect of obligations
of Borrower).
Section 3.28 Broker. No broker or consultant has
been retained by Borrower or any Affiliate of Borrower in
connection with the Loan or the Loan Documents. Borrower will
indemnify, defend and hold the Indemnified Parties harmless from
and against all loss, cost, liability and expense arising from
the claims of all brokers and consultants relating to the Loan
and/or the Premises with whom Borrower, any Affiliate of Borrower
or any employee or agent of Borrower has dealt, including,
without limitation, sales, mortgage or leasing brokers or
consultants.
Section 3.29 Fiscal Year. Each fiscal year of
Borrower commences on [January 1].
Section 3.30 No Other Financing. Borrower has not
borrowed any funds which have not heretofore been repaid in full,
except for the Loan.
Section 3.31 ERISA.
(a) The execution, delivery and performance of
this Agreement, the Mortgage and the other Loan Documents do not
constitute a Prohibited Transaction, assuming solely for this
purpose that Lender is a party in interest as defined in Section
3(14) of ERISA ("Party In Interest") or a disqualified person as
defined in Section 4975(e)(2) of the Code ("Disqualified Person")
with respect to an employee benefit plan, if any, which has
directly or indirectly invested in Borrower or in any General
Partner.
(b) Borrower has made, and shall continue to
make, all required contributions to all employee benefit plans,
if any, within the time periods required by the applicable
provisions of ERISA and any other federal or state law, and
Borrower has no knowledge of any material liability which has
been incurred by Borrower which remains unsatisfied for any taxes
or penalties with respect to any employee benefit plan or any
multi-employer plan. Each such plan has been administered in
compliance with its terms and the applicable provisions of ERISA
and any other federal or state law.
Section 3.32 FIRPTA. Borrower is not a "foreign
person" within the meaning of Sections 1445 or 7701 of the Code.
Section 3.33 PUHCA. Borrower is not a "holding
company" or a "subsidiary company" of a "holding company" or an
"affiliate" of either a "holding company" or a "subsidiary
company", all as defined in the Public Utility Holding Company
Act of 1935, as amended.
Section 3.34 Insurance. All Insurance Policies (as
defined in the Mortgage) required to be obtained and maintained
by Borrower pursuant to the Mortgage are in full force and effect
and the premiums due thereon have been paid in full. Borrower and
the Premises are in compliance with the provisions of such
Insurance Policies and the provisions relating to Insurance
Policies in the Mortgage, and no notice of cancellation,
termination or default has been received with respect to any such
policy.
Section 3.35 No Margin Stock. None of the proceeds
of the Loan will be used by Borrower for the purpose of
purchasing or carrying "margin stock" within the meaning of
Regulation G, T, U or X issued by the Board of Governors of the
Federal Reserve System, as at any time amended, and Borrower
agrees to execute all instruments which may be necessary from
time to time, if any, to comply with all the requirements of
Regulation U of the Federal Reserve System, as at any time
amended.
Section 3.36 Investment Company Act. Borrower is not
(i) an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company
Act of 1940, as amended, or (ii) subject to any other United
States federal or state law or regulation which purports to
restrict or regulate its ability to borrow money.
Section 3.37 Taxes. Borrower has filed all federal,
state and local tax returns required to be filed prior to the
date hereof and has paid all taxes, charges and assessments shown
to be due from Borrower on such tax returns. All Taxes due and
owing in respect of, and affecting, the Premises have been paid.
There are no pending, or to Borrower's best knowledge, proposed
special or other assessments for public improvements or otherwise
affecting the Premises.
Section 3.38 Full and Accurate Disclosure. No
statement of fact made by Borrower in this Agreement or in any of
the other Loan Documents contains any untrue statement of a
material fact or omits to state any material fact necessary to
make statements contained herein or therein not misleading
[provided, that with respect to any third party information
provided by the seller of the Premises to Borrower, the foregoing
representation is made to Borrower's best knowledge after due
inquiry]. There is no material fact presently known to Borrower
which has not been disclosed to Lender which adversely affects,
nor as far as Borrower can foresee, might adversely affect, the
Premises or the business, operations or condition (financial or
otherwise) of Borrower, other than with regard to market risk
inherent in projecting future operations.
Section 3.39 Contracts.
(a) Borrower has not entered into, and is not
bound by, any Contract which continues in existence, except the
Approved Contracts.
(b) Each of the Contracts is in full force and
effect, there are no monetary or other material defaults by
Borrower thereunder and, to the best knowledge of Borrower, there
are no monetary or other material defaults thereunder by any
other party thereto. None of Borrower, Manager or any other
Person acting on Borrower's behalf has given or received any
notice of default under any of the Contracts that remains uncured
or in dispute.
(c) Borrower has delivered true, correct and
complete copies of the Contracts (including all amendments and
supplements thereto) to Lender.
(d) Except for the Manager under the Management
Agreement, no Contract has as a party an Affiliate of Borrower.
All fees and other compensation for services previously performed
under the Management Agreement have been paid in full.
Section 3.40 Other Obligations and Liabilities.
Borrower has no liabilities or other obligations that arose or
accrued prior to the date hereof that, either individually or in
the aggregate, could have a Material Adverse Effect. Borrower
has no known material contingent liabilities, except as may be
set forth on Schedule E annexed hereto.
Section 3.41 Documents. Borrower has furnished (or
caused to be furnished) to Lender true and complete copies of all
material documents relating to the Premises which a reasonably
prudent institutional Lender, making a loan in a similar amount
and on similar terms as the Loan, would want to have the
opportunity to review prior to agreeing to make such loan or
prior to agreeing to any of the material terms thereof.
ARTICLE IV
CERTAIN COVENANTS OF BORROWER
Borrower hereby covenants and agrees with Lender as
follows:
Section 4.1 Payment and Performance of Obligations.
Borrower shall pay and otherwise perform the Obligations in
accordance with the terms of the Loan Documents.
Section 4.2 Transfers.
(a) Borrower will not, directly or indirectly, sell,
assign, convey, pledge, hypothecate, encumber or otherwise
transfer (each of the foregoing constituting a "Transfer") the
Premises or any part thereof, or any interest therein, or suffer,
consent to or permit the foregoing, without, in each instance,
the prior written consent of Lender. Borrower will not permit
any owner (directly or indirectly) of a legal or beneficial
interest in Borrower including, without limitation, any owner,
(directly or indirectly) of a legal or beneficial ownership
interest in General Partner to Transfer such interest, whether by
transfer of stock, assignment of partnership interest or other
transfer of legal or beneficial interest in Borrower or in any
direct or indirect owner thereof, or otherwise permit any new or
additional legal or beneficial ownership interests in Borrower or
any direct or indirect owner to be issued, including, without
limitation, by admission of new general partners, without, in
each instance, the prior written consent of Lender.
(b) To the extent that Lender elects to consent to any
Transfer as to which its consent is required hereunder, Lender
shall be entitled to condition its consent on such matters as
Lender may elect, in its sole discretion, including, without
limitation, execution of instruments of assignment and assumption
with respect to the Loan Documents and the Collateral, payment of
a transfer fee or other consideration, delivery of Officer's
Certificates and affidavits and indemnities, including an
affidavit and indemnification regarding Code Sections 1445 and
7701, agreements restricting actions which may or may not be
taken by any transferee or its owners or restrictions in any such
Person's Organizational Documents with respect thereto,
additional or replacement security for the Loan, restrictions as
to the use of any consideration paid for such Transfer, and
opinions, including opinions regarding the assumptions of
obligations hereunder, substantive consolidation and such other
matters as Lender may request. Within ten (10) days after the
closing of any Transfer, whether or not such Transfer required
Lender's consent, if (i) the Premises or any part thereof or any
interest therein, or (ii) any direct or indirect ownership
interests in Borrower, is transferred, Borrower will provide
Lender with a copy of the deed or other instrument of Transfer to
the transferee. Borrower will promptly after request therefor
provide Lender with such other information and documentation with
respect to such Transfer as Lender shall reasonably request,
including, without limitation, information as to ownership of
such transferee.
(c) Upon the occurrence of any Transfer, the
provisions of this Section 4.2 shall continue to apply to the
transferee as if it were the transferor hereunder, and any
consent by Lender permitting a transaction otherwise prohibited
under this Section 4.2, or any right of Borrower or any other
Person to Transfer without such consent, shall not constitute a
consent to or waiver of any right, remedy or power of Lender to
withhold its consent on a subsequent occasion to a transaction
not otherwise permitted by the provisions of this Section 4.2.
Notwithstanding the giving of any consent hereunder by Lender,
Borrower shall not engage in any Prohibited Transaction.
(d) Notwithstanding the provisions of this Section
4.2, Obsolete Collateral (as such term is defined in the
Mortgage) may be sold or otherwise disposed of, provided,
however, that either (i) such Obsolete Collateral has been or is
contemporaneously being replaced by Collateral (as such term is
defined in the Mortgage) of at least equal value and utility
which is subject to the Lien of the Mortgage with the same
priority as with respect to the Obsolete Collateral, or (ii) such
Obsolete Collateral may be removed without adversely affecting
the maintenance, safety and operations at the Premises.
Section 4.3 Liens. Borrower shall not create,
suffer or permit to exist any mortgage, pledge, lien, security
interest (including, without limitation, a purchase money
security interest), encumbrance, charge, attachment, levy,
distraint or other judicial process (collectively, "Liens") on,
of or against, or otherwise affecting, all or any portion of the
Premises (including, without limitation, fixtures and other
personal property), or any other property of Borrower (whether
tangible or intangible and now owned or hereafter acquired) in
favor of any Person other than Lender, without the prior written
consent of Lender (which consent may be withheld in Lender's sole
discretion) in each instance, other than the Permitted
Encumbrances.
Section 4.4 Indebtedness.
(a) Borrower shall not without Lender's prior written
consent, create, incur or assume any Indebtedness, except for (i)
the Loan, (ii) Trade Payables in connection with the operation of
the Premises payable within ninety (90) days, which shall in no
event exceed at any one time $500,000 (or such greater sum as
shall be included in any Approved Budget), and (iii) Indebtedness
evidenced by capital lease agreements which are secured solely by
the assets financed thereby, but in no event shall all of such
capital leases, in the aggregate, exceed at any time $2,000,000.
Each month, together with the other financial statements required
to be furnished hereunder, Borrower shall furnish Lender a
Certification detailing the Indebtedness then outstanding,
including the number of days (in increments of 30 days) that each
Trade Payable of Borrower has been outstanding. Borrower shall
not create, incur or assume any other Indebtedness, if doing so
would cause Borrower to be in violation of Section 8.1(vii)
hereof, or any other provision of this Agreement or the other
Loan Documents applicable thereto.
(b) Notwithstanding that any Trade Payables incurred
with respect to the Premises are otherwise permitted hereunder,
Borrower shall (subject to the terms of the next sentence) pay
any portion of such Trade Payables which becomes due and payable
within sixty (60) days following the date on which each such
amount is due and payable. Except with respect to the Loan,
nothing contained in this Section 4.4 shall be deemed to require
Borrower to pay any amount, so long as Borrower is in good faith,
and by proper legal proceedings, diligently contesting the
validity, amount or application thereof, provided, however, that
in each case, at the time of the commencement of any such action
or proceeding, and during the pendency of such action or
proceeding (i) adequate reserves with respect thereto are
maintained on the books of Borrower in accordance with generally
accepted accounting procedures (as determined by the Approved
Accountant), (ii) such contest operates to suspend collection or
enforcement, as the case may be, of the contested amount and such
contest is maintained and prosecuted continuously and with
diligence, and (iii) Borrower shall deliver to Lender cash in an
amount equal to one hundred twenty-five percent (125%) of the
amounts being contested which exceed $100,000 in the aggregate
and any estimated additional interest, charge or penalty arising
from such contest. Any cash so delivered shall constitute
additional security for the Loan. Any such cash shall be held
and invested in the same manner and subject to the same general
terms as amounts deposited in the Cash Collateral Account at any
time after a Sweep Commencement Date under the Cash Management
Agreement and, upon the occurrence of an Event of Default, Lender
may apply such monies in the same manner as other monies held in
the Cash Collateral Account. Borrower shall execute such
instruments as Lender shall require to evidence Lender's
perfected first priority security interest therein and to
effectuate the provisions hereof. If, prior to the occurrence of
an Event of Default, Borrower shall provide evidence satisfactory
to Lender, in its reasonable judgment, that Borrower has paid the
disputed amount, or otherwise settled the same and paid any
amount to be paid under such settlement, or that Borrower has
received a final unappealable judgment in its favor that it need
not pay any disputed amount, together with an Officer's
Certificate confirming the foregoing, then Lender shall return
any cash deposited with Lender with respect to such disputed
amount. If Borrower ceases to contest continuously and with due
diligence any contest described above, or fails to provide Lender
with evidence satisfactory to Lender that it is doing so within
ten (10) days after Lender's request, or if there shall be a
final judgment against Borrower with respect thereto, then Lender
may apply all or any portion of the cash to pay such disputed
amount and Lender shall have no liability to Borrower for any
determination made by Lender, in good faith, that it is entitled
to do so or as to the amount to then be paid with respect to such
disputed amount, whether or not that determination is found to be
accurate.
Section 4.5 Compliance with Restrictive Covenants,
Etc.
(a) Borrower will not modify, waive in any material
respect or release any Easements, restrictive covenants or other
Permitted Encumbrances, or suffer, consent to or permit the
foregoing, without Lender's prior written consent, which consent
may be granted or denied in Lender's sole discretion. Borrower
will timely comply in all material respects with the terms of all
Easements, restrictive covenants and all other Permitted
Encumbrances. Borrower shall take such further actions as Lender
may reasonably request from time to time with respect to such
Easements, restrictive covenants or Permitted Encumbrances.
(b) Borrower shall observe and comply with any
conditions and requirements necessary to preserve and extend any
and all rights, privileges, franchises and concessions that are
applicable to the Premises, the use and occupancy thereof, or the
business conducted thereat, and will timely comply in all
material respects with all regulations, rules, ordinances,
statutes, orders and decrees of any Governmental Authority or
court applicable to it and/or the Premises or any part thereof.
Section 4.6 Leases.
(a) Except as permitted in this Section 4.6, Borrower
will not enter into, modify, amend, consent to the cancellation
or surrender of (except to the extent such cancellation or
surrender is by the tenant thereunder pursuant to a pre-existing
right to do so under a Lease) or terminate any Lease, whether now
existing or hereafter entered into, without the prior written
consent of Lender, which may be granted or withheld in Lender's
sole discretion. Notwithstanding the foregoing, Lender shall use
its commercially reasonable discretion in granting or withholding
its consent with respect to a new Lease or a modification of a
Lease, provided, however, that (i) the tenant under the Lease in
question is not an Affiliate of Borrower, (ii) such transaction
is entered into on arms length terms (without consideration of
any other relationship Borrower or any Affiliate of Borrower may
have with the tenant or any Affiliate of such tenant), and (iii)
the fair market value of the Premises and the ability of Borrower
to make all payments under the Loan Documents is not adversely
affected thereby.
(b) Borrower will timely comply with all material
terms and conditions on its part to be performed under each
Lease. Borrower shall neither do nor neglect to do, nor permit
to be done, anything which may cause the termination of any
Lease, other than due to the default of the tenant(s) under such
Lease. Borrower shall not collect any rent or other payment
under any Lease more than one month in advance of the due date
thereof. Borrower will use its best efforts to require the
performance of all of the obligations of tenants and other
Persons bound by the Leases and to enforce the Leases, subject,
however, to the limitation on termination described in this
Section 4.6.
(c) Borrower may, without Lender's prior written
consent, enter into any Lease which will not be a Major Lease
when such Lease comes into effect, provided that each of the
following conditions is satisfied: (i) the rent and other
material business terms of such Lease satisfy the then applicable
Leasing Guidelines; (ii) the Lease does not provide for the rent
to decline at any point during the term of such Lease; (iii) such
Lease does not contain any options to purchase or other rights
with respect to the ownership of the Premises; (iv) such Lease
does not contain any restrictions on the landlord's rights to
lease remaining portions of the Premises, except that such Lease
may contain options to lease additional space in the Premises in
accordance with the Leasing Guidelines; (v) such Lease does not
contain any options for the tenant thereunder to terminate such
Lease, other than in the event of a material casualty or
condemnation or other events referenced in the Leasing
Guidelines; (vi) such Lease does not contain any extraordinary
landlord obligations (including obligations which an unaffiliated
landlord would have difficulty performing); (vii) such Lease is
entered into on the standard form of Lease which Lender has
previously approved, with such changes therein as are
necessitated by the business terms satisfying the Leasing
Guidelines or such other non-material changes thereto as a
proposed tenant may request and Borrower is willing to agree to;
(viii) such Lease is entered into on arms length terms, without
consideration of any relationship Borrower or any Affiliate of
Borrower may otherwise have with the tenant thereunder or any
Affiliate thereof; and (ix) the Lease shall contain each of the
provisions required by this Section 4.6. As used herein, the
term "Leasing Guidelines" shall mean a schedule setting forth
basic economic terms a Lease must satisfy in order to be entered
into without Lender's consent in accordance with this Section
4.6, including: (A) minimum fixed rent per square foot; (B)
minimum and maximum term; (C) maximum free rent period; (D)
maximum cost of tenant improvement and other work under such
Lease to be funded by the landlord under such Lease or allowance
or contribution by the landlord to be paid to the tenant; (E)
charges for electricity, taxes and operating expenses; (F)
options to extend or expand; (G) creditworthiness of tenant; and
(H) other material economic concessions. The initial Leasing
Guidelines are annexed hereto as Schedule F and may not be
changed without the prior written consent of Lender. Borrower
shall, simultaneously with the delivery of the quarterly
Financial Statements of Borrower, deliver to Lender any proposed
changes to the Leasing Guidelines based on changes in the market.
Lender will not unreasonably withhold its consent to any such
changes, provided that Borrower provides to Lender a letter from
a brokerage company acceptable to Lender setting forth that the
proposed changes reflect changes in the leasing market in the
applicable city or town. Effective as of the date that any
changes are made to the Leasing Guidelines as aforesaid, the term
"Leasing Guidelines" will refer to the Leasing Guidelines as
modified as provided above, and Borrower shall deliver to Lender
a revised Leasing Guidelines reflecting the same.
(d) Borrower may, without Lender's prior written
consent, modify or amend any Lease which is not a Major Lease,
provided that either (i) such modification or amendment is
required to be entered into pursuant to the terms of such Lease,
or (ii) each of the following conditions is satisfied: (A) such
amendment or modification is entered into on an arms-length basis
without consideration of any relationship of Borrower or any
Affiliate of Borrower with the tenant thereunder or any Affiliate
thereof; (B) such Lease would not be a Major Lease and would,
after such amendment or modification, satisfy the conditions set
forth in clauses (ii), (iii), (iv), (v), (vi), (vii) and (ix) of
Subsection 4.6(c) hereof, to as great an extent as it did prior
to such amendment or modification; (C) such amendment or
modification does not release any party from its liability under
the Lease or reduce the square footage demised thereunder; (D) to
the extent that any additional space is demised pursuant to such
amendment or modification, with respect thereto, such amendment
or modification satisfies this Section 4.6; (E) such amendment or
modification does not reduce the rent paid under the Lease; (F)
after such amendment, such Lease, as modified, continues to be
subordinate to the Liens of the Mortgage and the Assignment of
Leases and Rents; and (G) such amendment or modification does not
otherwise have a material adverse effect on the fair market value
of the Premises or the Lien of the Mortgage on the Premises.
Borrower may, without the prior written consent of Lender,
terminate any Lease which is not a Major Lease in its good faith
exercise of its remedies under such Lease, or at law or in
equity, by reason of a material monetary default having continued
under such Lease for at least thirty (30) days after notice to
the tenant thereof. Without first obtaining Lender's prior
written consent, Borrower shall not consent to any assignment or
subletting of any Lease unless the consent of Borrower may not be
withheld under such circumstances under the terms of the
applicable Lease, except that Borrower may, without Lender's
prior written consent, consent to any assignment or subletting
which does not release the liability of any Person then liable
thereunder as tenant, guarantor or otherwise (1) if such
assignment or subletting is of a Lease which is not a Major
Lease, or (2) is for a sublease under a Major Lease, which, if
Borrower had entered into such sublease directly, would not
constitute a Major Lease.
(e) Each Lease executed by Borrower after the date
hereof shall provide, in a manner satisfactory to Lender, for (i)
automatic subordination of such Lease to the Liens of the
Mortgage and the Assignment of Leases and Rents, (ii) attornment
by the tenant or licensee thereunder to Lender promptly after the
giving by Lender of a notice to such tenant requiring such
attornment, (iii) the tenant or licensee thereunder to give a
notice to Lender of each material default by the landlord or
licensor thereunder, simultaneously with the giving of notice of
such default to such landlord or licensor, (iv) Lender to have
the right, but not the obligation, to cure any default by the
landlord or licensor thereunder after the expiration of the
landlord's or licensor's cure period, if any, and (v) execution
and delivery (not more than ten (10) days after a request
therefor) of an estoppel certificate satisfactory to Lender.
Without limiting the foregoing, each Lease shall also provide
that Lender (or any other successor to the landlord or licensor
acquiring the Premises by foreclosure, deed in lieu of
foreclosure or otherwise in connection with the enforcement of
the Loan Documents) shall not be: (A) liable for any previous
act or omission of the landlord or licensor under such Lease; (B)
subject to any credit, demand, claim, counterclaim, offset or
defense which theretofore accrued to such tenant or licensee
against the landlord or licensor; (C) unless consented to by
Lender or permitted without Lender's consent under this Section
4.6, bound by any previous modification of such Lease, or by any
previous prepayment of more than one month's fixed rent or
additional rent; (D) bound by any covenant or obligation of the
landlord or licensor to perform, undertake or complete any work
in the leased space of the Premises or to prepare it for
occupancy; (E) required to account for any security deposit of
the tenant or licensee other than any security deposit actually
delivered to Lender by Borrower; (F) bound by any obligation to
make any payment to such tenant or licensee or grant any credits,
except for services, repairs, maintenance and restoration
provided for under the Lease to be performed by landlord or
licensor after the date of such attornment; and (G) responsible
for any monies owing by the landlord or licensor to such tenant
or licensee. Lender shall, upon request, execute and exchange
with any tenant under a Major Lease or any other Lease of office
space at the Premises demising one full floor or more of office
space, a non-disturbance, subordination and attornment agreement
in such form as Lender shall approve in its sole and absolute
discretion, provided, however, that Borrower shall deliver with
such request an Officer's Certificate stating that such Lease was
entered into in accordance with the terms of this Section 4.6 and
any other provisions of the Loan Documents applicable thereto.
All actual out of pocket costs and expenses of Lender (including,
without limitation, attorneys' fees and disbursements) in
connection with Lender's review of any Lease and the negotiation,
preparation, execution and delivery of any non-disturbance
agreement shall be paid by Borrower within five (5) days after
request therefor by Lender. Prior to seeking Lender's consent to
any Lease, Borrower shall deliver to Lender a copy of such Lease,
blacklined to show the changes from the standard form of Lease
previously approved by Lender.
(f) All security deposits of tenants, whether held in
cash or any other form, shall not be commingled with any other
funds of Borrower and, if cash, shall be deposited by Borrower at
such commercial or savings bank or banks as may be reasonably
satisfactory to Lender. Any bond or other instrument which
Borrower is permitted to hold in lieu of cash security deposits
under any applicable legal requirements (i) shall be maintained
in full force and effect in the full amount of such deposits
unless replaced by cash deposits as herein above described, (ii)
shall be issued by an institution reasonably satisfactory to
Lender, (iii) shall, if permitted pursuant to any legal
requirements, name Lender as payee or mortgagee thereunder (or at
Lender's option, be fully assignable to Lender), and (iv) shall
in all respects comply with any applicable Legal Requirements and
otherwise be satisfactory to Lender. Borrower shall, upon
request, provide Lender with evidence satisfactory to Lender of
Borrower's compliance with the foregoing. Following the
occurrence and during the continuance of any Event of Default,
upon Lender's demand, Borrower shall turn over to Lender the
security deposits (and any interest theretofore earned thereon)
with respect to all or any portion of the Premises, to be held by
Lender subject to the terms of the Leases. If Borrower is
entitled to retain a security deposit, then such amount shall be
transferred by Borrower into the Clearing Account.
Section 4.7 Delivery of Notices. Borrower will
promptly, but in no event later than five (5) days after Borrower
becomes aware of any of the following events, furnish a written
notice to Lender (together with the applicable correspondence and
papers relating thereto) specifying the nature and period of
existence of such condition or event and, with respect to events
described in clause (i) below, what action Borrower is taking or
proposes to take with respect thereto (compliance with the
provisions of this Section 4.7 shall not be deemed or construed
to constitute a waiver of or consent to any Default or Event of
Default of which Borrower has given Lender notice pursuant to
this Section 4.7):
(i) any Default hereunder or under any of the
other Loan Documents, or any Event of Default;
(ii) (A) any receipt or delivery by Borrower of a
notice of default or termination, (B) any proposed action with
respect to any default, or (C) any failure by any person or
entity to perform any material obligation, maintain any material
representation or warranty or satisfy any material condition, in
each instance, in connection with any Lease, the Management
Agreement, any material Contract, any Easement, any recorded
instrument or any Permit;
(iii) the filing of any action, suit or
proceeding against or affecting Borrower or the Premises that, if
adversely determined, could singly or collectively (A) impair the
validity or enforceability of this Agreement or any of the other
Loan Documents or otherwise have a Material Adverse Effect, or
(B) result in a Lien on any portion of the Premises; and/or
(iv) any notice received from any Governmental
Authority asserting a violation of any material Legal Requirement
and any correspondence to or from Borrower with respect thereto.
Without limiting the generality of the foregoing,
Borrower will transmit to Lender, immediately upon receipt
thereof, any communication (addressed to Borrower or any
Affiliate of Borrower) which relates to matters which could
adversely affect Lender's security for the Loan or could have an
adverse effect on the financial condition of Borrower and/or any
other Significant Party, and will promptly respond fully to any
inquiry of Lender made with respect thereto.
Section 4.8 ERISA.
(a) In addition to the prohibitions set forth in
Section 4.2 hereof, and not in limitation thereof, Borrower shall
not Transfer or hypothecate its interest or rights in this
Agreement or in the Premises, or attempt to do any of the
foregoing or suffer any of the foregoing, nor shall any Person
owning a direct or indirect interest in Borrower Transfer any of
its rights or interest (direct or indirect) in Borrower, attempt
to do any of the foregoing or suffer any of the foregoing, nor
shall Borrower or any Person owning a direct or indirect interest
in Borrower take, without limitation, any action or fail to take
any action, if, in any such case, doing so would (i) cause the
Loan or the exercise of any of Lender's rights in connection
therewith to constitute a Prohibited Transaction (unless Borrower
furnishes a legal opinion reasonably satisfactory to Lender that
the same is exempt from the Prohibited Transaction provisions of
ERISA and the Code or otherwise does not constitute a Prohibited
Transaction), assuming solely for this purpose that Lender is a
Party In Interest or a Disqualified Person with respect to an
employee benefit plan, if any, which has directly or indirectly
invested in Borrower or General Partner, or (ii) otherwise result
in Lender being deemed in violation of any applicable provisions
of ERISA with respect to the Loan. Borrower and General Partner
shall take such steps as are necessary to assure that each of
them (and their respective shareholders, partners and members)
does not commit any act, or fail to commit any act, the
occurrence of which or the failure of which to occur would cause
the Loan to be a Prohibited Transaction.
(b) If the provisions of this Section 4.8 are
violated, Borrower agrees, at its own cost and expense, to take
such steps as Lender shall reasonably request to prevent the
occurrence of a Prohibited Transaction or to correct the
occurrence of a Prohibited Transaction. Borrower agrees to
indemnify, defend and hold the Indemnified Parties free and
harmless from and against all loss, costs (including attorney's
fees and expenses), taxes, penalties, damages and expenses any
Indemnified Party may suffer by reason of the investigation,
defense and settlement of claims based upon a breach of the
foregoing provisions. The provisions of Section 6.5 hereof shall
apply to such indemnification. The foregoing indemnification
shall survive repayment of the Loan.
Section 4.9 Agreements with Affiliates. Borrower
shall not enter into any contract, agreement or other arrangement
with any Affiliate of Borrower without Lender's prior written
consent, which consent shall not be unreasonably withheld
provided such contract or agreement provides for market rates
which would be charged by third parties which are not Affiliates
in respect of the goods and/or services provided thereunder. If
requested by Lender, such contract or agreement shall provide
Lender the right to terminate it upon Lender's (or its
designee's) acquisition of the Premises through foreclosure, a
deed-in-lieu of foreclosure, Uniform Commercial Code sale or
otherwise.
Section 4.10 After Acquired Property. Borrower will
grant to Lender a first lien security interest in and to all
equipment and other personal property owned by Borrower, whether
or not used in the construction, maintenance and/or operation of
the Improvements, immediately upon acquisition of same or any
part of same.
Section 4.11 Books and Records. Borrower shall keep
and maintain at all times at its principal office complete, true
and accurate books of account and records reflecting the results
of its operations. Borrower shall permit Lender, its agents,
consultants and representatives, upon reasonable notice (which
may be given orally or in writing) and at reasonable times, to
examine and audit the books and records of Borrower and make
copies thereof, at Borrower's expense. Borrower shall cause the
Manager and its Affiliates to make all records relating to the
Premises available to Lender and shall cause the Manager to
cooperate with any examination, audit or other inquiry (including
causing the personnel responsible for the Premises to be
available to respond to inquiries).
Section 4.12 Delivery of Estoppel Certificates.
(a) Borrower shall, from time to time, within ten
(10) days after written request from Lender, furnish to Lender or
such other party (or parties as may be requested by Lender) a
written certificate setting forth the unpaid principal of and
interest due on the Note and any other sums evidenced or secured
by the Mortgage, and/or the other Loan Documents, stating the
date through which interest has been paid, and stating whether or
not any offsets, defenses or counterclaims exist with respect to
the Loan Documents. If requested, such certificate will also
attach true and correct copies of any Loan Documents and state
such other information as Lender shall require. Upon request of
Lender, Borrower shall cause Manager within ten (10) days after
such request to furnish Lender or such other party or parties as
Lender may request, a written certificate certifying as to such
matters as Lender may reasonably request.
(b) Borrower shall use all reasonable efforts to
deliver to Lender upon request, which may be made from time to
time, tenant estoppel certificates from each commercial tenant at
the Premises in form and substance reasonably satisfactory to
Lender.
Section 4.13 Management, Etc.
4.13.1 Management.
(a) The Premises are at all times to be managed on
Borrower's behalf in a competent and professional manner
appropriate for shopping centers similar to the Premises by a
prominent professional managing agent ("Manager"). Prior to
engaging such Manager or executing a Management Agreement, such
Manager and Management Agreement shall be subject to approval by
Lender in its reasonable discretion, it being understood that
Xxxx Centers Limited Partnership is hereby approved by Lender as
Manager for the building and the agreement in existence on the
date hereof with Manager, is approved as the Management
Agreement.
(b) Borrower represents it has delivered to Lender a
true, correct and complete copy of the Management Agreement,
which Management Agreement is hereby approved by Lender, subject
to the terms of the Assignment and Subordination of even date
herewith between Lender, Borrower and Manager (the "Manager
Assignment and Subordination"); provided, however, that the terms
and conditions of any subsequent Management Agreement between
Manager and Borrower, or any amendment or modification of any
Management Agreement between Manager and Borrower, and any
compensation of Manager with respect to its services performed at
or in connection with the Premises (other than an extension of
the existing Management Agreement for compensation which is no
greater, and on terms and conditions no less favorable to
Borrower, than those contained in the existing Management
Agreement) are subject to approval by Lender in its sole and
absolute discretion.
(c) Subject to Lender's rights to terminate the
Manager as set forth in Section 4.13.2 hereof, Lender's consent
to a proposed new management company shall not be unreasonably
withheld provided (i) no Event of Default shall have occurred and
be continuing, (ii) such proposed change shall have arisen due to
the exercise by General Partner of any rights it may have to
replace the Manager which are contained in Borrower's
Organizational Documents in effect on the date hereof. As a
condition to its retention as Manager, each Manager shall execute
and deliver a subordination and recognition agreement in respect
of its Management Agreement, which agreement shall also contain
(A) an estoppel from the Manager to the effect, inter alia, that
the Management Agreement is in full force and effect and (B) an
acknowledgment by the Manager of the provisions of Section
4.13.2, and which shall otherwise be satisfactory in form and
substance to Lender.
4.13.2 Management Termination. In the event that
there shall have occurred and be continuing an Event of Default
and the Debt has been accelerated, then, upon Lender's request,
Borrower shall replace the present Manager with a managing agent
approved by Lender in its sole discretion.
Section 4.14 Financial Statements; Audit Rights.
4.14.1 Statements to be Delivered. Until the Loan
is repaid in full, Borrower shall cause the following financial
statements and documentation to be delivered at the time and in
the form and manner referenced below:
(i) audited statements of financial position
(balance sheet) of Borrower as of the close of each fiscal year
of Borrower during the Term, and of Receipts, Expenses and
retained earnings, changes in financial position and cash flows
for such fiscal year, which statements shall be duly certified by
the Designated Officer to fairly represent the financial
condition of Borrower as of the date thereof and to have been
prepared in accordance with generally accepted accounting
principles and accompanied by an opinion of the Approved
Accountant (which opinion shall be unqualified and shall not
contain any "statement of emphasis") to the effect that such
financial statements present fairly, in all material respects,
the financial condition of Borrower as of the end of the fiscal
year being reported on and that the results of the operations and
cash flows for said year are in conformity with generally
accepted accounting principles, consistently applied, and that
the examination of the Approved Accountant in connection with
such financial statements has been conducted in accordance with
generally accepted auditing standards and included such tests of
the accounting records and such other auditing procedures as the
Approved Accountant deemed necessary in the circumstances;
(ii) an unaudited quarterly balance sheet of
Borrower, a statement of profits and losses and a calculation of
net cash flows for the applicable quarter, including Receipts and
Expenses and occupancy and firm statistics, such quarterly
financial statements to be certified by a Designated Officer to
fairly represent the financial condition of Borrower as of the
date thereof and to have been prepared in accordance with
generally accepted accounting principles;
(iii) a monthly operating statement showing
all Receipts, Expenses and net cash flow for the applicable
calendar month, year-to-date results and variances from the same
month in the prior calendar year and from the Approved Budget,
and such other matters as Lender shall reasonably require, which
monthly operating statements shall be certified by a Designated
Officer to be true, correct and complete in all material respects
and shall be prepared on a cash basis;
(iv) not later than each December 1 during the
Term, Borrower shall submit to Lender a detailed budget for the
Premises covering the calendar year commencing on the following
January 1, each of which budgets shall be subject to Lender's
approval (provided that Borrower shall have the option to submit
to Lender a revised budget not later than June 30 of each year
during the Term to adjust such budget on the basis of the actual
results of Borrower to such point in such calendar year)(each
such budget, when so approved, is referred to as an "Approved
Budget"); until Lender shall approve a new budget, the Approved
Budget from the prior year shall remain in effect. It is
expressly understood and agreed that the budget for the 1998
calendar year shall be submitted to Lender for approval within
thirty (30) days following the Closing Date;
(v) the annual Form 1065 (with accompanying
schedules K-1) (or any substitute therefor) prepared by Borrower;
(vi) a schedule of all accounts payable at the end
of each calendar quarter, certified by a Designated Officer to be
true, correct and complete in all material respects;
(vii) monthly Rent Rolls, certified by a
Designated Officer to be true, correct and complete in all
material respects; and
(viii) such other reports and information which
Lender reasonably requires certified by a Designated Officer to
be true, correct and complete in all material respects.
For the purposes of paragraphs (i), (ii), and (iii) of
this Section, Lender shall accept Xxxx Centers Trust consolidated
financial statements, provided such statements designate
financial information on a property-by-property basis.
4.14.2 Time for Delivery. The statements referred
to in paragraph (i) of Section 4.14.1 hereof shall be delivered
to Lender within ninety (90) days after the last day of each
fiscal year of Borrower. The statements referred to in
paragraphs (ii) and (vi) of Section 4.14.1 hereof shall be
delivered to Lender within thirty (30) days after the last day of
each calendar quarter. The reports referred to in paragraphs
(iii) and (vii) of Section 4.14.1 hereof shall be delivered to
Lender within twenty (20) days after the last day of each
calendar month. Notwithstanding anything to the contrary, the
information required under paragraph (v) of Section 4.14.1 hereof
shall be delivered to Lender simultaneously with delivery to the
partners/members of Borrower but in no event later than ninety
(90) days after the last day of each fiscal year of Borrower.
All Financial Statements shall be in form and substance
satisfactory to Lender.
4.14.3 Officer's Certificate. Each Financial
Statement described in paragraphs (i), (ii) and (iii) of Section
4.14.1 hereof shall be accompanied by an Officer's Certificate of
Borrower certifying that, to the best of such officer's
knowledge, Borrower has observed and performed, in all material
respects, all of its covenants and other agreements contained in
this Agreement and the other Loan Documents, whether there exists
any material Default or Event of Default and, if there is,
specifying the nature and period of existence thereof and the
action Borrower is taking or proposing to take with respect
thereto.
Section 4.15 Maintenance of Non-Taxable Status.
Borrower will maintain its status of being taxed as a partnership
for the purposes of federal, state and local income taxes.
Section 4.16 Lender's Attorneys' Fees and Expenses.
Borrower shall appear in and defend any action or proceeding
purporting to affect the security of the Mortgage or the security
interests granted under any of the other Loan Documents, or the
rights and powers of Lender under any of the Loan Documents, and
Borrower (in addition to Lender's attorneys' fees and expenses to
be paid by Borrower otherwise pursuant to this Agreement or the
other Loan Documents) shall pay all of Lender's attorneys' fees
and expenses in connection with the enforcement of this Agreement
and the other Loan Documents and the collection of all amounts
payable hereunder and thereunder. In case of any Default under
this Agreement or any of the other Loan Documents, or if any
action or proceeding is commenced in which it becomes necessary
to defend or uphold the Lien or priority of the Mortgage or the
other Loan Documents, or which adversely affects Lender's
interests in the Premises or any part thereof, including, but not
limited to, eminent domain, or proceedings of any nature
affecting the Premises or involving the bankruptcy, insolvency,
arrangement, reorganization or other form of debtor relief with
respect to Borrower or any other Significant Party or relating to
a decedent, then Lender may, but without obligation to do so, and
without releasing Borrower or any other Significant Party from
any obligation hereunder or under the other Loan Documents, make
such appearances, disburse such reasonable sums and take such
action as Lender deems necessary or appropriate to protect
Lender's interest in the Premises. All costs incurred by Lender,
including attorneys' fees and disbursements, in taking any action
described above shall be paid by Borrower upon demand together
with interest thereon at the Default Rate from the date paid by
Lender through the date of repayment by Borrower and the same
shall be deemed to constitute protective advances evidenced by
the Note and secured by the Mortgage and the other Loan
Documents. In addition to, and without limiting the generality
of, the foregoing, if, at any time hereafter, Lender employs
counsel (i) for advice or other representation (whether or not
any suit has been, or shall thereafter be, filed, and whether or
not other legal proceedings have been, or shall thereafter be,
instituted, and whether or not Lender shall be a party thereto)
with respect to the Loan, the Premises or any part thereof, this
Agreement or any of the other Loan Documents, or (ii) to protect,
collect, lease, sell, take possession of, foreclose upon or
liquidate all or any part of the Premises, or to attempt to
enforce any security interest or Lien in all or on any part of
the Premises, or to enforce any rights of Lender or any of
Borrower's obligations hereunder or under any of the other Loan
Documents, or any obligations of any other Person which may be
obligated to Lender by virtue of this Agreement or any other
agreement, instrument or document heretofore or hereafter
delivered to Lender by or for the benefit of Borrower, then, in
any such event, all of the attorneys' fees and expenses arising
from such services, and all expenses, costs and charges relating
thereto, shall be paid by Borrower upon demand, together with
interest thereon at the Default Rate from the date paid by Lender
through the date of repayment by Borrower, and the same shall be
deemed to constitute protective advances evidenced by the Note
and secured by the Mortgage and the other Loan Documents.
Section 4.17 Environmental.
(a) Borrower shall not (and it shall not permit any
tenant, subtenant, contractor, agent or manager to) locate,
produce, use, store, treat, transport, incorporate, discharge,
emit, release, deposit or dispose of any Hazardous Substance in,
upon, under, at, over or from the Premises, except that Borrower
(its tenants, subtenants, manager, contractors or agents) may
store, locate and use on the Premises Hazardous Substances which
are (i) customarily located, stored or used in [hotels] similar
to the Premises, or (ii) unique to a tenant's business located in
the Premises, provided that such Hazardous Substances described
in clauses (i) or (ii) above are at all times stored, located and
used in compliance with all Environmental Laws. Borrower shall
not permit any Hazardous Substances to be located, produced,
used, stored, treated, transported, incorporated, discharged,
emitted, released, deposited, disposed of or to escape in, upon,
under, over or from the Premises in violation of any
Environmental Law, and shall comply with all Environmental Laws
which are applicable to the Premises. Borrower shall not engage
in any conduct in connection with the Premises that may subject
Borrower to Environmental Costs or contribute to or aggravate a
release of Hazardous Substances. In addition to the foregoing
restrictions, Borrower agrees that no asbestos, ACM, materials
containing urea-formaldehyde, or transformers, capacitors,
ballasts or other equipment that contain PCBs are, or will at any
time be, located about the Premises.
(b) Borrower shall, promptly within the time permitted
by Environmental Laws, initiate and diligently pursue to
completion, any and all remedial action required pursuant to any
Environmental Laws in response to the presence of any Hazardous
Substances at, on, under or about, or emanating from, the
Premises, and shall take such remedial action as is required to
minimize any impairment of Lender's Lien on, and security
interest in, the Premises. If Borrower undertakes any remedial
action with respect to any Hazardous Substance about the
Premises, Borrower shall conduct and complete such remedial
action in compliance with all applicable Environmental Laws. If
any Hazardous Substance is removed or caused to be removed from
the Premises by Borrower, the generator number assigned by the
Environmental Protection Agency to such Hazardous Substance shall
not be in the name of Lender, and Borrower shall assume any and
all liability for such removed Hazardous Substance.
(c) The representations and warranties contained in
Section 3.21 hereof and the covenants contained in this Section
4.17 shall be deemed continuing covenants for the benefit of
Lender and any successors and assigns of Lender, including, but
not limited to, any purchaser at a foreclosure sale, any
transferee of the title of Lender or any other purchaser at a
foreclosure sale, and any subsequent owner of the Premises, and
shall survive the termination of this Agreement, or the
satisfaction or release of the Mortgage, any foreclosure of the
Mortgage and/or any acquisition of title to the Premises or any
part thereof by Lender, or anyone claiming by, through or under
Lender, by deed in lieu of foreclosure or otherwise.
(d) Borrower shall give prompt written notice to
Lender of:
(i) any proceeding or inquiry by any Governmental
Authority with respect to the presence of any Hazardous Substance
on the Premises or the migration thereof from or to other
property;
(ii) all claims made or threatened by any third
party against Borrower or the Premises relating to any loss or
injury resulting from any Hazardous Substance;
(iii) the storage, production, release,
discharge or disposal of any Hazardous Substances on the Premises
other than in accordance with all applicable Environmental Laws;
and/or
(iv) Borrower's discovery of any occurrence or
condition on any real property adjoining or in the vicinity of
the Premises that could cause the Premises or any part thereof to
be subject to any restrictions on the ownership, occupancy,
transferability or use of the Premises under any Environmental
Law or to be otherwise subject to any restrictions on the
ownership, occupancy, transferability or use of the Premises
under any Environmental Law.
(e) Borrower shall keep Lender apprised of the status
of, and any material developments in, any governmental
investigation relating to Environmental Matters at or about the
Premises, any and all enforcement, clean-up, removal or other
governmental or regulatory actions instituted, completed or
threatened pursuant to any Environmental Law with respect to the
Premises and any other claims, actions or proceedings with
respect to the Premises relating to Environmental Matters.
Borrower shall provide Lender with copies of all communications
with all Governmental Authorities relating to Hazardous
Substances Claims. Without Lender's prior written consent,
Borrower shall not enter into any settlement agreement, consent
decree or other compromise with respect to any such governmental
investigation or action, or other claim, action or proceeding
relating to Hazardous Substances which Borrower does not have the
funds available to pay or which may adversely affect Lender's
Lien on, or the value of, the Premises.
(f) The foregoing rights and remedies contained in
this Section 4.17 are cumulative with, and in addition to, any
rights and remedies Lender may have against Borrower or any other
Significant Party under the other terms and provisions of this
Agreement, under any other Loan Document or under any
Environmental Law, including, without limitation, CERCLA.
Section 4.18 Report Updates.
(a) Lender reserves the right at any time during the
Term to conduct or require Borrower to conduct, at Borrower's
expense, such environmental inspections, audits and tests as
Lender shall deem reasonably necessary or advisable from time to
time utilizing a company acceptable to Lender; provided, however,
that Borrower shall not be required to pay for such environmental
inspections, audits and tests more often than once every two (2)
years so long as: (i) no Event of Default exists under this
Agreement or any other Loan Document; (ii) Lender has no cause to
believe, in Lender's sole but good faith judgment, that there has
been a release or a threatened release of Hazardous Substances at
the Premises or that Borrower or the Premises is in violation of
any applicable Environmental Law; (iii) such inspections, audits
and tests are not being obtained in satisfaction of the
provisions of Section 6.27 hereof; and (iv) such inspection,
audit or test has not been recommended in any other audit,
inspection, test or consultants report previously conducted with
respect to the Premises. In the event that any environmental
site assessment report prepared for the Premises recommends that
an operations and maintenance plan be implemented for any
Hazardous Substance, including, without limitation, asbestos,
Borrower shall cause such operations and maintenance plan to be
prepared and implemented at Borrower's expense upon request of
Lender and in accordance with the recommendation.
(b) Lender shall have the right from time to time
throughout the Term to order additional engineering reports with
respect to the Premises. Such additional engineering reports
shall be paid for by Borrower in accordance with Section 6.4
hereof; provided, however, that Borrower shall not be required to
pay for such additional engineering reports more frequently than
once every two (2) years unless (i) an Event of Default has
occurred, (ii) any such additional engineering report is being
obtained pursuant to Section 6.27 hereof, (iii) any such
additional engineering report is required by applicable Legal
Requirements to be obtained, or (iv) in Lender's sole but good
faith judgment, an adverse change in the condition of the
Premises has occurred.
(c) Lender shall not be liable for any action or
inaction by Borrower with respect to any remedial or other
response activity in connection with any Hazardous Substance or
any repair or replacement recommended in any engineering report,
notwithstanding any review or approval of Borrower's method of
remediation or repair or replacement, as applicable, or any
response by Lender.
Section 4.19 Lender Access to Premises. Borrower
will permit Lender and its agents, consultants or
representatives, to enter upon the Premises on reasonable notice
(which may be given orally or in writing) at reasonable times to
inspect the Improvements. Lender or its agents, consultants or
representatives as part of any inspection may take soil, air,
water, building material and other samples, subject to the rights
of tenants under Leases.
Section 4.20 Lease Termination Payments.
Notwithstanding anything contained in this Agreement to the
contrary, within three (3) Domestic Business Days of receipt by
or on behalf of Borrower of any Lease Termination Payment,
Borrower shall pay such Lease Termination Payment to Lender. Any
breach of the provisions of the preceding sentence and the
continuation of such breach for two (2) or more Domestic Business
Days shall constitute fraud for the purposes of Section 6.20
hereof. Lender shall, in its sole discretion, either (i) at any
time after a Sweep Commencement Date, deposit the entire amount
or any portion of any Lease Termination Payment into the Cash
Collateral Account, (ii) apply the entire amount or any portion
of any Lease Termination Payment as a mandatory prepayment of the
Loan, or (iii) pay such Lease Termination Payment or any portion
thereof at any time to Borrower, in which case such Lease
Termination Payment or portion thereof shall be applied by
Borrower to the cost of Tenant Improvements.
Section 4.21 Delivery of Documents Regarding
Ownership. Borrower will deliver to Lender, on demand made
therefor by Lender, copies of all documents which evidence
Borrower's title in or to any materials, fixtures or articles
incorporated in the Improvements or subject to the Lien of any of
the Loan Documents.
Section 4.22 Use of Premises. Unless required by
applicable law, Borrower shall not permit changes in the use of
any part of the Premises from the use existing on the date
hereof. Borrower shall not initiate or acquiesce in a change in
the plat of subdivision or zoning classification of the Premises
without Lender's prior written consent.
Section 4.23 Insurance. Borrower shall at all times
maintain all Insurance Policies required to be obtained and
maintained by Borrower pursuant to the terms of the Mortgage.
Section 4.24 Intentionally Omitted.
Section 4.25 Construction. The Capital Improvements
shall be completed in substantial accordance with the
Construction Documents and in compliance with all applicable
laws, regulations, ordinances, codes, permits, licenses,
declarations, covenants, or restrictions of record or other
agreements relating to the Premises or any part thereof.
Section 4.26 Intentionally Omitted.
Section 4.27 Liquid Assets. Borrower shall not
permit its Liquid Assets at any time, as determined and certified
as of the close of each fiscal quarter of Borrower, to be less
than twenty five million and 00/100 Dollars ($25,000,000.00)].
ARTICLE V
EVENTS OF DEFAULT
Section 5.1 Events of Default; Defaults. The term
"Default" as used herein shall mean any one or more of the events
set forth below prior to the expiration of the applicable notice
or grace period, if any. The term "Event of Default", wherever
used in this Agreement, shall mean any one or more of the events
set forth below after the expiration of the applicable notice or
grace period, if any.
5.1.1 Non-Payment. Failure by Borrower to pay (i)
any periodic installment of interest or principal when the same
shall become due and payable hereunder or under the Note, in each
case, within five (5) Domestic Business Days of the date when the
same shall become due and payable, (ii) the outstanding principal
balance of the Note, together with the interest accrued thereon
and all other sums which may then be owed by Borrower to Lender,
at maturity or upon prepayment of the Note in full, and (iii) any
other sums to be paid by Borrower hereunder or under any other
Loan Documents, within ten (10) days following the date on which
Lender gives Borrower written notice of such failure.
5.1.2 Affirmative Covenants. Failure by Borrower
or any other Person to duly keep, perform and observe any
Affirmative Covenant or agreement in this Agreement, the Note,
the Mortgage or any other Loan Document (unless same constitutes
a Default under any other clause of this Section 5.1 or any other
Loan Document, in which case, the grace or cure period, if any,
set forth in such other clause shall govern) within thirty (30)
days after Lender gives Borrower written notice of such failure;
provided, however, that in the event such failure is not
susceptible of cure within such thirty (30) day period, it shall
not be an Event of Default hereunder if such failure is curable,
Borrower commences to cure such failure within such thirty (30)
day period, and Borrower diligently prosecutes such cure to
completion within ninety (90) days after the expiration of such
thirty (30) day period.
5.1.3 Negative Covenants. If Borrower or any other
Person shall breach or otherwise not comply with any Negative
Covenant set forth herein or in any other Loan Document (unless
same constitutes a Default under any other clause of this Section
5.1 or any other Loan Document, in which case, the grace or cure
period, if any, set forth in such other clause shall govern) and
such Default shall continue for five (5) Domestic Business Days
after written notice thereof by Lender to Borrower, provided that
no such notice and grace shall be required with respect to a
knowing, intentional and willful breach of a Negative Covenant.
5.1.4 Financial Statements. If any material
inaccuracy shall exist in any of the Financial Statements or in
any other financial statement or other information (i) furnished
to Lender by Borrower, any other Significant Party, any officer
of Borrower or of any other Significant Party (or their direct or
indirect general partners, managers or managing members), or any
other Person on behalf of the foregoing Persons, to Lender
pursuant to the provisions of this Agreement or any other Loan
Document, or (ii) furnished to or to be furnished to Lender to
induce Lender to make the Loan or any advance thereunder, to
extend the Term or to consent to any matter hereunder or under
any other Loan Document.
5.1.5 Representations. If, at any time, any
representation, warranty or certification made by Borrower or any
other Significant Party, as applicable, in this Agreement, the
Note or any other Loan Document, or in any document delivered
pursuant to any Loan Document, or otherwise delivered in
connection with the Loan, shall be untrue, incorrect or
misleading in any material respect when made, materiality to be
reasonably determined by Lender.
5.1.6 Other Loan Documents. If an "Event of
Default" shall occur under the Mortgage or any other Loan
Document (or under any document evidencing or securing or
delivered in connection with any loan (other than the Loan) which
Lender may hereafter elect to make to Borrower) or any other
default shall occur and continue beyond the applicable notice or
grace period, if any, under or with respect to any other Loan
Document (or under or with respect to any of the documents
evidencing or securing any such other loan).
5.1.7 Demolition or Alterations. Except as
permitted herein or in the other Loan Documents, the commencement
of demolition of or material alterations (as such term is defined
in the Mortgage) to the Premises without the prior written
consent of Lender, which consent may be withheld by Lender in
Lender's sole discretion.
5.1.8 Failure to Deliver Estoppel Certificate. If
Borrower shall fail to deliver any estoppel certificate required
by Section 4.12 hereof within the time period provided in said
Section.
5.1.9 Reserves; Deposits. If Borrower or Manager
fails to deposit any Receipts into the Clearing Account within
the time period provided herein or in the Cash Management
Agreement to do so.
5.1.10 Cessation of Borrower. If Borrower or any
other non-natural Person which is a Significant Party ceases to
exist.
5.1.11 Transfer. If, in violation of Section 4.2
hereof, (i) the Premises, or any part thereof, is Transferred, or
(ii) any direct or indirect legal or beneficial interest in
Borrower is Transferred.
5.1.12 Liens. If, in violation of Section 4.3
hereof, the Premises or any part thereof is mortgaged or any
other Lien is voluntarily placed thereon by Borrower.
5.1.13 Involuntary Bankruptcy, Etc. The entry by a
court of (i) a decree or order for relief in respect of any
Significant Party in an involuntary case or proceeding under any
applicable federal or state bankruptcy, insolvency,
reorganization or other similar law; or (ii) a decree or order
adjudging any Significant Party a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of any
Significant Party under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of any Significant Party
or of any substantial part of the property of any Significant
Party, or ordering the winding up or liquidation of the affairs
of any Significant Party, and the continuance of any such decree
or order for relief or any such other decree or order unstayed
and in effect for a period of sixty (60) days.
5.1.14 Voluntary Bankruptcy, Etc. (i) The
commencement by any Significant Party of a voluntary case or
proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law, or of any other
case or proceeding, to be adjudicated a bankrupt or insolvent;
(ii) the consent by any Significant Party (A) to the entry of a
decree or order for relief in respect of Borrower or such
Significant Party in an involuntary case or proceeding under any
applicable federal or state bankruptcy, insolvency,
reorganization or other similar law, or (B) to the commencement
of any bankruptcy or insolvency case or proceeding against
Borrower or such other Significant Party; (iii) the filing by any
Significant Party of a petition or answer or consent seeking
reorganization or relief under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law; (iv)
the consent by any Significant Party to the filing of such
petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator
or similar official of any Significant Party, or of any
substantial part of any property of any Significant Party; (v)
the making by any Significant Party of an assignment for the
benefit of creditors; or (vi) the admission by any Significant
Party in writing of its inability to pay its debts generally as
they become due.
5.1.15 Judgments. If, at any time, a judgment shall
be rendered against a Significant Party which could adversely
affect the ability of such Significant Party to perform any of
its obligations, if any, under this Agreement, the Note or any
other Loan Document; provided, however, that if such Significant
Party appeals said judgment and (i) said appeal (A) is timely
filed, (B) is diligently pursued, (C) is permitted by law, and
(D) has the effect of staying any action on such judgment, (ii)
such Significant Party posts any security required by law or
required by Lender in respect of said judgment, (iii) said
judgment does not subject Lender or the Premises to any civil or
criminal penalties, and (iv) such judgment is not a Lien on the
Premises or any other Collateral, then it shall not be an Event
of Default hereunder until such judgment is final and non-
appealable.
5.1.16 Termination or Modification of Leases.
Except as otherwise expressly permitted under Section 4.6 hereof,
if any Major Lease shall be terminated or materially modified or
amended by Borrower without the prior written consent of Lender.
5.1.17 Organizational Documents. If at any time (i)
any Organizational Document of Borrower or General Partner is
modified in violation of Article 8 hereof; (ii) Borrower or
General Partner shall fail to comply with the bankruptcy remote
single purpose entity requirements of its Organizational
Documents; or (iii) Borrower or General Partner shall otherwise
violate Article 8 hereof.
5.1.18 Delivery of Financial Statements. If
Borrower or Manager fails to deliver to Lender any Financial
Statement required to be delivered hereunder or under the Cash
Management Agreement or any other Loan Document, and such failure
continues (i) for fifteen (15) days after the date such Financial
Statement was required to be so delivered with respect to any
Financial Statement required to be delivered to Lender on a
monthly basis, (ii) for thirty (30) days after the date such
Financial Statement was required to be so delivered with respect
to any Financial Statement required to be delivered to Lender on
a quarterly basis, (iii) for sixty (60) days after the date such
Financial Statement was required to be so delivered with respect
to any Financial Statement required to be delivered to Lender on
an annual basis, or (iv) for thirty (30) days after request
therefor by Lender with respect to any other Financial Statement.
5.1.19 ERISA. If Borrower shall breach any of the
provisions of Section 4.8 hereof.
5.1.20 Termination of Management Agreement, etc..
If, without Lender's prior written consent, (i) the Manager
resigns or is removed or the Management Agreement terminates,
unless, in the case of a Management Agreement with an entity
which is not an Affiliate of Borrower, such Management Agreement
is replaced, within twenty (20) days after notice of such
resignation, removal or termination with a replacement Management
Agreement and Manager satisfying the provisions of Section 4.13.1
hereof; (ii) there is any material change in the Management
Agreement or termination thereof by reason of any default
thereunder by Borrower; or (iii) with respect to any Manager
which is an Affiliate of Borrower, the ownership, management or
control of such Manager is transferred to a Person who is not an
Affiliate of Borrower.
5.1.21 Other Conditions for Acceleration. The
occurrence of any conditions set forth herein or in the Note, the
Mortgage or any other Loan Document permitting Lender to
accelerate the Loan.
5.1.22 Material Adverse Change. If, in Lender's
reasonably exercised commercial business judgment, there shall
occur a material adverse change (including by reason of a
material default by a tenant under a Major Lease or a material
change in the financial condition of the tenant under such Lease
or of any guarantor thereof) in (i) the condition (financial or
otherwise), operations, performance, business, properties
(including, without limitation, the Premises) or prospects of
Borrower, (ii) the ability of Borrower or any other Significant
Party to make any payment or to otherwise perform any or all of
its obligations, if any, under this Agreement, the Note and/or
any other Loan Document to which it is a party, (iii) the
legality, validity or enforceability of this Agreement, the Note
and/or any other Loan Document, or (iv) the Lien and security
interest of Lender pursuant to the Mortgage or any other Loan
Document purporting to grant to Lender a Lien on any Collateral.
5.1.23 Denial of Obligation. If Borrower shall take
the position in any written communication with Lender, or in any
litigation, that any Loan Document is no longer the valid,
binding and enforceable obligation of Borrower or any other party
thereto.
5.1.24 Misapplication of Receipts. If Borrower
shall (i) apply any monies delivered to Borrower pursuant to
Section 8 of the Cash Management Agreement (or the Disbursement
Instructions effectuating the same) other than to pay amounts
permitted to be paid with such funds pursuant to the provisions
of Section 8 of the Cash Management Agreement, and such breach
shall continue for three (3) Domestic Business Days following
notice thereof; provided, however, that no such notice and grace
shall be required with respect to an intentional breach of such
provision; or (ii) fail to pay to Lender any amounts required to
be paid to Lender pursuant to Section 8(c) of the Cash Management
Agreement at the time such payment is to be made to Lender
thereunder.
5.1.25 Failure to Provide Further Assurances. If,
after fifteen (15) days, notice from Lender to Borrower that
Borrower has failed to comply with any of the provisions of
Section 6.25 hereof, Borrower fails to cure such Default.
Section 5.2 Rights upon Event of Default. Upon the
occurrence and during the continuance of any Event of Default,
Lender shall, in addition to all other remedies conferred upon
Lender at law or in equity or by the terms of the Note, the
Mortgage and the other Loan Documents, have the right, but not
the obligation, to pursue any one or more of the following
remedies, concurrently or successively, it being the intent
hereof that all such remedies shall be cumulative and that no
such remedy shall be to the exclusion of any other:
(i) take any action which, in Lender's sole
judgment, is necessary or appropriate to effect observance and
performance of the covenants, agreements and obligations (under
this Agreement and the other Loan Documents) of Borrower or any
other Person providing Collateral pursuant to, or obligated to
perform any of the terms and provisions of, this Agreement or the
other Loan Documents (each, an "Obligated Party");
(ii) declare the Note to be immediately due and
payable;
(iii) use and apply any monies deposited in or
credited to, as the case may be, the Clearing Account, the Cash
Collateral Account, the Tax and Insurance Escrow Subaccount, the
Deferred Maintenance Subaccount, the Interest Reserve Subaccount,
the Ground Lease Reserve Subaccount, the Environmental
Remediation Subaccount, the Capital Improvements Holdback, the
Ground Lease Holdback and the Interest Reserve Holdback, or any
other monies deposited by Borrower with Lender, regardless of the
purpose for which the same were deposited, to cure any Default or
Event of Default, or to apply such monies on account of any
indebtedness under this Agreement or any of the other Loan
Documents which is due and owing to Lender, or to operate the
Premises, or for any other purposes described herein or in any
other Loan Document;
(iv) institute an action, suit or proceeding at
law or in equity for the specific performance of any covenant,
condition or agreement contained herein or in the Mortgage, Note
or any other Loan Document, or in aid of the execution of any
power granted hereunder or for the enforcement of any other
appropriate legal or equitable remedy; and/or
(v) setoff against the obligations to Lender of
Borrower or any other Obligated Party, any sum owed by Lender or
any Affiliate of Lender in any capacity to Borrower or such other
Obligated Party, or any property of any of them in the possession
of Lender or any Affiliate of Lender.
Section 5.3 Waiver of Stay, Extension and Moratorium
Laws, Appraisal and Valuation, Redemption and Marshaling.
(a) Borrower shall not at any time insist upon, or
plead, or in any manner whatever claim or take any benefit or
advantage of any stay or extension or moratorium law, any
exemption from execution or sale of any of the Collateral, or any
part of any thereof, wherever enacted, which may affect the
covenants and terms of performance of the Loan Documents, nor
claim, take or insist upon any benefit or advantage of any law
now or hereafter in force providing for the valuation or
appraisal of any of the Collateral, or any part of any thereof,
prior to any sale or sales thereof which may be made pursuant to
any provision of any Loan Document, or pursuant to the decree,
judgment or order of any court of competent jurisdiction; nor,
after any such sale or sales, claim or exercise any right under
any statute to redeem the property so sold, or any part thereof,
and Borrower hereby expressly waives all benefit or advantage of
any such law or laws, and covenants not to hinder, delay or
impede the execution of any power herein granted or delegated to
Lender, but to suffer and permit the execution of every power as
though no such law or laws had been made or enacted. Borrower,
for itself and all who may claim under it, waives, to the extent
that it lawfully may, all right to have the Premises marshaled
upon any foreclosure.
(b) In the event that any bankruptcy or insolvency
proceeding under any federal, state or local law is filed by or
against Borrower or any of its assignees or designees at any time
prior to full satisfaction of the Loan, Lender shall, to the
extent permitted by law, be absolutely and unconditionally
entitled to relief from any automatic stay imposed with respect
to Borrower or its assignees or designees and/or the Premises by
the filing of such bankruptcy or insolvency proceeding,
including, but not limited to, the stay imposed by section 362(a)
of the Bankruptcy Code, 11 U.S.C. Subscript 362(a), effective as
of any such filing, without further action by Lender or order of
any court, and Lender shall be authorized to exercise all of its
rights and remedies with respect to the Premises, including, but
not limited to, commencing a foreclosure action, seeking the
appointment of a receiver therein and selling the Premises
therein, and Borrower hereby irrevocably consents to the
foregoing. Without limiting the previous sentence, Borrower
hereby irrevocably consents to, shall not oppose or contest, and
shall not request or cause any creditors' committee or any party
in interest to oppose or contest, any application for relief from
the automatic stay or for "adequate protection," as that term is
defined in the Bankruptcy Code, which may be filed by Lender in
any future bankruptcy or insolvency proceeding with respect to
Borrower and/or the Premises. No other action, inaction or
agreement by Lender in any future bankruptcy or insolvency
proceeding shall be deemed to be a waiver of the rights given to
Lender hereby.
Section 5.4 Preferences. Lender shall have no
obligation to marshal any assets in favor of Borrower or any
other party or against or in payment of the Loan. To the extent
Borrower makes a payment to Lender, which payment or the proceeds
or any part thereof are subsequently invalidated, declared to be
fraudulent, preferential or avoidable, set aside or required to
be repaid to a trustee, receiver or any other party having
requisite authority under any bankruptcy law, state or federal
law, common law or equitable cause, then, to the extent of such
payment or proceeds received, the obligation hereunder or part
thereof intended to be satisfied shall be revived and continue in
full force and effect, as if such payment or proceeds had not
been received.
ARTICLE VI
GENERAL PROVISIONS
Section 6.1 Rights Cumulative; Waivers.
(a) Each right, power and remedy conferred upon Lender
herein or in any of the other Loan Documents is cumulative and in
addition to every other right, power or remedy, express or
implied, now or hereafter provided by law or in equity, and each
and every right, power and remedy herein set forth or otherwise
so existing may be exercised, concurrently or independently, from
time to time as often and in such order as may be deemed
expedient to Lender. The exercise of one right, power or remedy
shall not be a waiver of the right to exercise at the same time
or thereafter any other right, power or remedy; and no delay or
omission of Lender in the exercise of any right, power or remedy
accruing hereunder or arising otherwise shall impair any such
right, power or remedy, or be construed to be a waiver of any
Default or acquiescence therein. Enumeration of special rights
or powers herein, in the Mortgage or in the other Loan Documents
shall not be construed to limit any grant of general rights or
powers herein, in the Mortgage or in the other Loan Documents or
to limit Lender's exercise of any and all rights granted under
the laws of the State of New York, the state where the Premises
are located or the United States of America. No act of Lender
shall be construed as an election to proceed under any provision
herein or in any other Loan Document to the exclusion of any
other provision herein or in any other Loan Document. Except as
otherwise specifically required herein, notice of the exercise of
any right, remedy or power granted to Lender by this Agreement or
any other Loan Document is not required to be given. Lender
shall be entitled to enforce payment of the Loan and any other
amount payable under the Loan Documents, and performance of this
Agreement and the other Loan Documents, and to exercise all
rights and remedies under this Agreement or the other Loan
Documents or otherwise at law or in equity, notwithstanding that
some or all of the indebtedness secured thereby may now or
hereafter be otherwise secured, whether by mortgage, security
agreement, pledge, lien, assignment or otherwise. Neither the
acceptance of this Agreement nor its enforcement shall prejudice
or in any manner affect Lender's right to realize upon or enforce
any other security now or hereafter held by Lender, it being
agreed that Lender shall be entitled to enforce this Agreement,
the Mortgage and any other security now or hereafter held by
Lender hereunder, under any of the other Loan Documents or
otherwise, in such order and manner as Lender may determine in
its absolute discretion.
(b) Lender may, by written notice to Borrower, at any
time and from time to time, waive in whole or in part, and
absolutely or conditionally, any Default or Event of Default
hereunder. Any such waiver shall be subject to such conditions
or limitations as shall be specified in any such notice. In the
case of any such waiver, the rights of Borrower shall be
otherwise unaffected, and any Default or Event of Default so
waived shall be deemed to be cured and not continuing only to the
extent, and only on the conditions or limitations, set forth in
such waiver, but no such waiver shall extend to any subsequent or
other Default or Event of Default, or impair any right, remedy or
power consequent thereupon.
Section 6.2 Lender's Action for its Own Protection
Only. The authority herein conferred upon Lender, and any action
taken by Lender, to inspect the Premises, to review and/or
approve all documents and instruments submitted to Lender, or
otherwise, will be exercised and taken by Lender and by Lender's
employees, agents, consultants or representatives for their own
protection only and may not be relied upon by Borrower or any
other party for any purposes whatever; and neither Lender nor
Lender's employees, agents, consultants or representatives shall
be deemed to have assumed any responsibility to Borrower or any
other party with respect to any such action herein or under any
of the other Loan Documents authorized to be taken by Lender or
Lender's employees, agents and representatives. Any review,
investigation or inspection conducted by Lender, any architect,
engineer or other consultant retained by Lender, or any agent or
representative of Lender, in order to verify independently
Borrower's satisfaction of the covenants, agreements and
obligations of Borrower under this Agreement or any of the other
Loan Documents, or the validity of any representations and
warranties made by Borrower or any other party (regardless of
whether or not the party conducting such review, investigation or
inspection should have discovered that any of such conditions
precedent were not satisfied or that any such covenants,
agreements or obligations were not performed or that any such
representations or warranties were not true) shall not affect (or
constitute, except as may specifically be provided in this
Agreement or in the other Loan Documents to the contrary, a
waiver by Lender of) (i) any representations and warranties under
this Agreement or the other Loan Documents or Lender's reliance
thereon, or (ii) Lender's reliance upon any certifications of
Borrower or any other party in connection with the Loan, or any
other facts, information or reports furnished to Lender by
Borrower or any other party in connection with the Loan. Lender
neither undertakes nor assumes any responsibility or duty to
Borrower to select, review, inspect, supervise, pass judgment
upon or inform Borrower of any matter in connection with the
Premises, and Borrower shall rely entirely upon its own judgment
with respect to such matters, and any review, inspection,
supervision, exercise of judgment or supply of information to
Borrower by Lender in connection with such matters is for the
protection of Lender only and neither Borrower nor any third
party is entitled to rely thereon.
Section 6.3 No Third Party Beneficiaries. All
conditions to the obligations of Lender hereunder and under the
other Loan Documents are imposed solely and exclusively for the
benefit of Lender and its Assignees and Participants, if any, and
its or their successors and assigns, and no other Person (other
than Servicer) shall have standing to require satisfaction of
such conditions in accordance with their terms, or be entitled to
assume that Lender will refuse to advance proceeds of the Loan or
refuse to agree or consent to any matter in the absence of strict
compliance with any or all thereof, and no other Person (other
than Servicer) shall, under any circumstances, be deemed to be
the beneficiary of such conditions, any or all of which may be
freely waived in whole or in part by Lender at any time if, in
its sole discretion, it deems it advisable to do so, it being
further understood that Lender and its Assignees and
Participants, if any, and its or their successors and assigns,
shall have no obligation to see to it that the Improvements or
any other work required or contemplated hereby or by the other
Loan Documents are properly and/or timely completed.
Section 6.4 Payment of Expenses, Etc.
6.4.1 Payment of Expenses. Borrower will, on the
Closing Date and at all times thereafter, pay all costs and fees
incurred by Lender in connection with the preparation,
negotiation, consummation, execution, administration, repayment,
collection and enforcement of the Loan, the Loan Documents and
any approval, consent, amendment, modification or waiver related
thereto. Without limiting the generality of the foregoing,
Borrower will pay:
(i) all Lender's Counsel Fees in connection with
the foregoing;
(ii) all taxes and recording fees and expenses,
including, without limitation, stamp and/or mortgage taxes and
transfer taxes, if any;
(iii) all fees and out-of-pocket expenses
incurred by Lender, including all expenses of Lender and its
respective agents and representatives, in connection with any
Default or Event of Default hereunder, under the Note or under
any other Loan Document or the collection or enforcement thereof;
(iv) subject to Sections 4.18 and 6.27 hereof, all
fees and expenses of any environmental, engineering, appraisal,
construction, insurance or other consultants retained by Lender
in connection with the Loan or the administration, enforcement or
collection thereof; and
(v) all brokers' fees and commissions relative to
the Loan, the Premises and/or any lease or purchase contract
affecting same.
Without limiting the generality of the foregoing, to the
extent that Lender, after the Closing Date, deems it necessary to
employ counsel and/or any other consultant for whatever purpose
relative to the Loan or Lender's interest in the Premises,
including, without limitation, all future amendments,
supplements, notices, recordings, approvals, consents and waivers
with respect to the Loan Documents (or any proposal by Borrower
therefor), whether or not consummated, the adjustment and
collection of any and all insurance proceeds with respect to any
insurance coverage required hereunder, or obtaining any and all
awards in connection with any condemnation, the fees and expenses
of such counsel and/or consultants shall be borne by Borrower.
Any fees and expenses referred to in this Section 6.4 which are
incurred by Lender are to be paid by Borrower within five (5)
days after demand is made by Lender therefor. Borrower hereby
agrees to indemnify, defend and hold Lender harmless from and
against any loss, cost (including attorneys' fees) or damage
whatsoever incurred by Lender as a result of Borrower's failure
to pay any cost or expense contemplated hereby. The provisions
of this Section 6.4.1 are not intended to limit any other
obligation of Borrower or any other Obligated Party to pay fees
and expenses of Lender or other Persons contained herein or in
any other Loan Document.
6.4.2 Advances Secured. All costs and
expenses incurred and payments made by Lender under this
Agreement or any of the other Loan Documents from time to time,
which are to be paid or reimbursed by Borrower as described
herein or in any of the other Loan Documents shall, as and when
advanced or incurred by Lender, constitute protective advances
evidenced by the Note and secured by the Mortgage and the other
Loan Documents to the same extent and with the same effect as if
the terms and provisions of this Agreement were set forth
therein, whether or not the principal balance of the Note plus
such protective advances shall exceed the face amount of the
Note. If Borrower shall fail to reimburse or pay to Lender the
amount of such protective advances by the applicable due date
therefor, interest at the Default Rate shall accrue on such
protective advances from the date such protective advances were
made by Lender to and including the date that such protective
advances are reimbursed or paid to Lender in full, together with
all such accrued interest thereon.
Section 6.5 Indemnification.
(a) In addition to any other indemnifications provided
herein or in the other Loan Documents, Borrower shall protect,
defend, indemnify and save harmless the Indemnified Parties from
and against all liabilities, obligations, claims, demands,
damages, penalties, causes of action, losses, fines, costs,
expenses (including, without limitation, attorneys' fees and
disbursements) and Environmental Costs, imposed upon or incurred
by or asserted against any Indemnified Party (other than by
reason of such Indemnified Party's gross negligence or willful
misconduct, provided that such gross negligence or willful
misconduct is determined to have occurred by a final and
unappealable decision of a court of competent jurisdiction) by
reason of (i) ownership or holding of the Mortgage, this
Agreement, the other Loan Documents, the Premises or any interest
therein or any other Collateral, including any funds deposited
with Lender, (ii) receipt and application of any Receipts or an
Indemnified Party's payment or non-payment of cost and expenses
of operating the Premises, (iii) any accident, injury to or death
of Persons or loss of or damage to property occurring on or about
the Premises or any part thereof or on the adjoining sidewalks,
curbs, adjacent property or adjacent parking areas, streets or
ways, (iv) any design, construction, alteration, operation,
maintenance, use, nonuse or condition of the Premises or any part
thereof or on adjoining sidewalks, curbs, adjacent property or
adjacent parking areas, streets or ways, (v) any failure on the
part of Borrower to perform or comply with any of the terms of
this Agreement or any other Loan Document, (vi) performance of
any labor or services or the furnishing of any materials or other
property in respect of the Premises or any part thereof, (vii)
any failure of the Premises to comply with any Legal
Requirements, (viii) the presence in, at or under the Premises of
any Hazardous Substance, or any release or discharge on or from
the Premises of any Hazardous Substance, (ix) any representation
or warranty made in the Note, the Mortgage, this Agreement or any
of the other Loan Documents being false or misleading in any
material respect as of the date such representation or warranty
was made, (x) except to the extent any such claims are made
solely as a result of any dealings between Lender and any broker,
finder or similar person claiming to be entitled to a commission
in connection with the Loan, and with whom Borrower has had no
dealings in connection with the Loan, any claim by brokers,
finders or similar Persons claiming to be entitled to a
commission in connection with the Loan, any Lease or any other
action involving the Premises or any part thereof, (xi) the
claims of any tenant of any portion of the Premises or any person
acting through or out of any tenant or otherwise arising out of
or as a consequence of any Lease, (xii) any claim that the
relationship of Lender and Borrower is other than that of lender
and borrower, and/or (xiii) the execution and delivery of this
Agreement, the Mortgage and the other Loan Documents, the
transactions contemplated hereby or thereby and the performance
by the parties hereto of their respective obligations hereunder
or thereunder. Any amounts payable to any Indemnified Party by
reason of the application of this Section 6.5 shall become
immediately due and payable and shall bear interest at the
Default Rate from the date loss or damage is sustained by any
Indemnified Party until paid. The obligations and liabilities of
Borrower under this Section 6.5 shall survive any termination,
satisfaction or assignment of this Agreement and the exercise by
Lender of any of its rights or remedies hereunder, including, but
not limited to, the acquisition of the Premises by foreclosure or
a conveyance in lieu of foreclosure.
(b) In case any claim, action or proceeding (a
"Claim") is brought against any Indemnified Party in respect of
which indemnification may be sought by such Indemnified Party
pursuant to this Section 6.5, such Indemnified Party shall give
notice thereof to Borrower, provided, however, that the failure
of such Indemnified Party to so notify Borrower shall not limit
or affect such Indemnified Party's rights to be indemnified
pursuant to this Section 6.5, except to the extent such delay
shall materially and adversely prejudice Borrower's defense of
such Claim. Upon receipt of such notice of Claim, Borrower
shall, at its sole cost and expense, diligently defend any such
Claim with counsel reasonably satisfactory to such Indemnified
Party (it being understood that counsel selected by Borrower's
insurance carrier shall be deemed to be acceptable to such
Indemnified Party, provided that such insurer is an acceptable
insurer under this Agreement and the other Loan Documents or
otherwise was accepted by Lender as an insurer), which counsel
may, without limiting the rights of Indemnified Party pursuant to
the next succeeding sentence, also represent Borrower in such
Claim. In the alternative, the Indemnified Parties may elect to
conduct their own defense through counsel of their own choosing,
and at the expense of Borrower, if (i) the Indemnified Parties
reasonably determine that the conduct of its defense by Borrower
presents a conflict or potential conflict between Borrower and
Lender that would make separate representation advisable or
otherwise could be prejudicial to its interests, (ii) Borrower
refuses to defend or (iii) Borrower (or, if applicable, its
insurance carrier) shall have failed, in Lender's reasonable
judgment, to diligently defend the Claim. Except as provided in
the preceding sentence, Borrower shall not be responsible for the
fees of counsel for any Indemnified Party incurred in connection
with the indemnification contained in this Section 6.5. Borrower
may settle any Claim against Indemnified Parties without such
Indemnified Parties' consent, provided that (i) such settlement
is without any liability, cost or expense whatsoever to such
Indemnified Parties, (ii) the settlement does not include or
require any admission of liability or culpability by such
Indemnified Parties under any Legal Requirement, whether criminal
or civil in nature, and (iii) Borrower obtains an effective
written release of liability for such Indemnified Parties from
the party to the Claim with whom such settlement is being made,
which release must be reasonably acceptable to such Indemnified
Parties, and a dismissal with prejudice with respect to all
claims made by the party with whom such settlement is being made,
with respect to any pending legal action against such Indemnified
Parties in connection with such Claim. If the Indemnified
Parties are conducting their own defense as provided above,
Borrower shall be responsible for any good faith settlement of
such Claim entered into by such Indemnified Parties, and such
Indemnified Parties shall not be required to obtain Borrower's
consent to any such settlement. Nothing contained herein shall
be construed as requiring any Indemnified Parties to expend funds
or incur costs to defend any Claim in connection with the matters
for which such Indemnified Parties are entitled to
indemnification pursuant to this Section 6.5.
Section 6.6 Notices. Any notice, report, demand or
other instrument authorized or required to be given or furnished
("Notices") shall be in writing and shall be given as follows:
(i) by hand delivery; (ii) by deposit in the United States mail
as first class certified mail, return receipt requested, postage
paid; (iii) by overnight nationwide commercial courier service;
or (iv) by telecopy transmission with a confirmation copy to be
delivered by duplicate notice in accordance with any of clauses
(i) through (iii) above, in each case, to the party intended to
receive the same at the following address(es):
Lender: Credit Suisse First Boston Mortgage
Capital LLC
Principal Transactions
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Asset Management
Re: Xxxx Centers Trust/Xxxx Xxxxxx
Telecopier: (000) 000-0000
with a copy to: Credit Suisse First Boston Mortgage
Capital LLC
Legal & Compliance Department
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx, Esq.
Re: Xxxx Centers Trust/Xxxx Xxxxxx
Telecopier: (000) 000-0000
and
Pacific Life Insurance Company
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx, Account
Representative
Telecopier: (000) 000-0000
or any successor Servicer
and
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx, Esq.
Telecopier: (000) 000-0000
Borrower: 000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx Xxxx
Telecopier: (000) 000-0000
with a copy to:
Xxxxxxx & Masyr, LLP
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telecopier: (000) 000-0000
Any party may change the address to which any such Notice is
to be delivered, by furnishing ten (10) days written notice of
such change to the other parties in accordance with the
provisions of this Section 6.6. Notices shall be deemed to have
been given on the date they are actually received; provided,
however, that the inability to deliver Notices because of a
changed address of which no Notice was given, or rejection or
refusal to accept any Notice offered for delivery shall be deemed
to be receipt of the Notice as of the date of such inability to
deliver or rejection or refusal to accept delivery. Notice for
either party may be given by its respective counsel.
Additionally, notice from Lender may also be given by Servicer.
Section 6.7 No Oral Modification. Borrower
recognizes that, in general, borrowers who 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, loan
agreements or other instruments evidencing or affecting loan
transactions, frequently present in court the argument, often
without merit, that some loan officer or administrator of lender
made an oral modification or made some statement which 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, the
Mortgage, the Note and the other Loan Documents and all
instruments referred to in any of them can be extended, modified
or amended only in a 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 Borrower's understanding 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.
Section 6.8 Assignment by Lender.
6.8.1 Assignment. Lender may assign (and
thereafter, at any time and from time to time, repurchase) all or
a portion of its rights and obligations under this Agreement and
the other Loan Documents to one or more Persons ("Assignees"; the
term "Assignee" or "Assignees" shall, unless otherwise expressly
indicated, include Lender) and, with respect to any Assignee, be
released from its rights and obligations as Lender in respect of
such portion of the Loan, this Agreement and the other Loan
Documents.
6.8.2 Participations. Lender and each of the other
Assignees may sell participations in the Loan to one or more
Persons (collectively, the "Participants"). Notwithstanding such
sale, (i) the selling party's obligations to Borrower under this
Agreement and the other Loan Documents shall remain unchanged by
reason thereof, and (ii) the selling party shall remain solely
responsible to Borrower for the performance of such obligations.
In order to assist Lender in any sales of interests in the Loan,
Borrower agrees for itself, and agrees to cause General Partner
and the Manager, to reasonably cooperate with Lender in
connection with any efforts by Lender to obtain one or more
Assignees or Participants, to provide additional information and
to execute and deliver such further documents, instruments or
agreements, in each case, as Lender or any Assignee or
Participant may reasonably require.
6.8.3 Assignment and Acceptance. From and after
the effective date of any assignment to an Assignee, (i) such
Assignee shall be a party hereto and to each of the other Loan
Documents to the extent of the applicable percentage or
percentages assigned to such Assignee and, except as otherwise
specified herein, shall succeed to the rights and obligations of
Lender hereunder in respect of such applicable percentage or
percentages, and (ii) Lender shall relinquish its rights and be
released from its obligations hereunder and under the Loan
Documents to the extent of such applicable percentage or
percentages. The liabilities of Lender and each of the other
Assignees shall be separate and not joint and several. Neither
Lender nor any Assignee shall be responsible for the obligations
of any other Assignee.
6.8.4 Other Business. Lender, each Assignee and
each Participant and their respective Affiliates may accept
deposits from, lend money to, act as trustee under indentures of,
and generally engage in any kind of business with, Borrower, any
Affiliate of Borrower, any of Borrower's subsidiaries and any
Person who may do business with or own interests in or securities
of Borrower or any such Affiliate or subsidiary, without any duty
to account therefor to each other.
6.8.5 Privity of Contract. This Agreement is being
entered into by Lender individually and as agent for all present
and future Assignees, and privity of contract is hereby created
among Lender, all present and future Assignees and Borrower.
6.8.6 Availability of Records. Borrower
acknowledges and agrees that Lender may provide to any Assignees
or prospective Assignees, and that Lender and each of the
Assignees may provide to any Participants or prospective
Participants, originals or copies of this Agreement, all other
Loan Documents and all other documents, instruments,
certificates, opinions, insurance policies, letters of credit,
reports, requisitions and other materials and information of
every nature or description, and may communicate all oral
information, at any time submitted by or on behalf of Borrower,
General Partner, the Manager, any other Significant Party or any
Affiliate of any of the foregoing.
Section 6.9 Severability. In the event that any of
the covenants, agreements, terms or provisions contained in the
Note, this Agreement, the Mortgage or any other Loan Document
shall be invalid, illegal or unenforceable in any respect, the
validity of the remaining covenants, agreements, terms or
provisions contained herein or in the Note, the Mortgage or any
other Loan Document shall be in no way affected, prejudiced or
diminished thereby.
Section 6.10 No Assignment by Borrower. Borrower
shall not assign or transfer any of its rights hereunder without
the prior written consent of Lender. Any assignment made without
Lender's prior written consent shall be void.
Section 6.11 Governing Law. The place of
negotiation, execution and delivery of this Agreement is the
State of New York. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State
of New York, except that the provisions of the laws of the State
of South Carolina or Commonwealth of Pennsylvania, as applicable,
shall be applicable to the creation, perfection and enforcement
of the Liens created by the applicable Mortgage. It is the intent
of the parties hereto that the provisions of Section 5-1401 of
the General Obligations Law of the State of New York apply to
this Agreement.
Section 6.12 Successors and/or Assigns. Subject to
the restrictions on transfer and assignment contained in this
Agreement and the other Loan Documents, whenever in this
Agreement any of the parties hereto is referred to, such
reference shall be deemed to include the permitted successors
and/or assigns of such party, and this Agreement shall inure to
the benefit of and shall be binding on the parties hereto and the
successors and/or assigns of such party.
Section 6.13 Entire Contract. This Agreement and the
other Loan Documents, including all annexes, schedules and
exhibits hereto and all other documents furnished to Lender in
connection with this Agreement and/or the Loan, constitutes the
entire agreement between the parties hereto with respect to the
subject matter hereof and thereof and shall supersede and take
the place of any other instruments purporting to be an agreement
of the parties hereto relating to the transactions contemplated
hereby, including, without limitation, any letter of intent or
loan commitment letter.
Section 6.14 Liability. If Borrower consists of more
than one Person, the obligations and liabilities of each such
Person hereunder and under the other Loan Documents shall be
joint and several.
Section 6.15 Counterparts; Headings. This Agreement
may be executed in counterparts, each of which shall constitute
an original, and all of which, when taken together, shall
constitute but one instrument. The captions and headings of the
various sections of this Agreement are for purposes of reference
only and are not to be construed as confining or limiting in any
way the scope or intent of the provisions hereof. Whenever the
context requires or permits, the singular shall include the
plural, the plural shall include the singular, and the masculine,
feminine and neuter shall be freely interchangeable.
Section 6.16 Time of the Essence. Time is of the
essence as to Borrower's obligations under this Agreement and the
other Loan Documents.
Section 6.17 Consents.
6.17.1 No Subsequent Consent. Any consent or
approval by Lender in any single instance shall not be deemed or
construed to be Lender's consent or approval in any like matter
arising at a subsequent date. Any consent or approval requested
of and granted by Lender pursuant hereto or to any of the other
Loan Documents shall be narrowly construed to be applicable only
to Borrower and to the matter identified in such consent or
approval and no third party shall claim any benefit by reason
thereof. Wherever this Agreement, the Mortgage, the Cash
Management Agreement or any other Loan Document refers to the
consent or approval of Lender, or provides that any document or
Person will be satisfactory or acceptable to Lender or words of
similar import, (i) such consent or approval may be given or
withheld by Lender, and such document or Person must be
satisfactory or acceptable to Lender, in its sole and absolute
discretion, unless otherwise expressly provided herein or
therein, and (ii) such consent or approval shall not be effective
unless given in writing. Wherever this Agreement, the Mortgage,
the Cash Management Agreement or any other Loan Document refers
to the provision of documents or other items being as Lender may
require, provides for the selection by Lender of any person to
provide reports or other items hereunder or thereunder or for the
selection by Lender of any means of determining any matter, or
otherwise refers to terms and conditions hereof or thereof being
as Lender deems appropriate, any such requirement, selection or
determination of appropriateness shall be made by Lender in its
sole and absolute discretion, unless expressly provided otherwise
herein or therein. The foregoing provisions are intended to be
effective whether or not the applicable provision hereof or of
any other Loan Document specifies that the applicable consent,
approval or other matter is to be determined by Lender in its
"sole and absolute discretion" or words of similar import.
6.17.2 Withholding of Consent. Wherever in this
Agreement, the Mortgage, the Cash Management Agreement or any
other Loan Document, reference is made to any consent or approval
not being "unreasonably withheld" or words of similar import, the
same shall be deemed to include within its meaning (unless
expressly provided otherwise) that if such consent or approval is
to be granted, the same will occur within a commercially
reasonable period of time. If Borrower believes that Lender has
improperly failed to grant its consent or approval (or otherwise
improperly failed to act as requested by Borrower as described in
Section 6.17.1 hereof (e.g., determined that a document is not
acceptable to Lender) hereunder or under the Mortgage, the Cash
Management Agreement or any other Loan Document (including,
without limitation, by failing to respond within a commercially
reasonable period of time) where such consent or approval is
required to be given by (or such action which was not taken is in
breach of) the terms of this Agreement or such other Loan
Document, Borrower's sole remedy shall be to obtain declaratory
relief in a final, non-appealable judgment determining such
withholding to have been improper, whereupon such consent or
approval shall be deemed given (or such other action described in
Section 6.17.1 hereof shall be deemed taken), and Borrower hereby
waives all claims for damages or set-off resulting from any
withholding of consent or approval (or failure to take any other
action described in Section 6.17.1 hereof) by Lender.
Section 6.18 No Partnership. Nothing contained in
this Agreement or the other Loan Documents shall be deemed to
create an equity investment in Borrower or the Premises on the
part of Lender or a joint venture or partnership between Lender
and Borrower, it being the intent of the parties hereto that only
the relationship of lender and borrower shall exist with respect
to the Premises. Borrower agrees that it shall report this
transaction for income tax purposes, and file all related tax
returns, in a manner consistent with the form of this transaction
as a loan.
Section 6.19 Waiver of Jury Trial. EACH OF BORROWER
AND LENDER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE
ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS AGREEMENT, THE MORTGAGE, THE CASH
MANAGEMENT AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR
WRITTEN), OR ACTIONS OF BORROWER, GENERAL PARTNER OR LENDER
RELATING TO THE LOAN AND/OR THE LENDING RELATIONSHIP WHICH IS THE
SUBJECT OF THIS AGREEMENT. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR LENDER ENTERING INTO THIS AGREEMENT AND THE OTHER
LOAN DOCUMENTS.
Section 6.20 Limited Recourse. Notwithstanding
anything to the contrary contained in this Agreement or in any of
the other Loan Documents, except as provided otherwise in this
Section 6.20, neither Borrower nor any direct or indirect member,
shareholder, partner, principal, Affiliate, employee, officer,
director, agent or representative of Borrower (each, a "Related
Party") shall have any personal liability for (i) the payment of
any sum of money which is or may be payable hereunder or under
the Note or any other Loan Document, including, but not limited
to, the repayment of the Loan, or (ii) the performance or
discharge of any covenants, obligations or undertakings of
Borrower hereunder or under any Loan Document, and no monetary or
deficiency judgment shall be sought or enforced against Borrower
or any Related Party with respect thereto; provided, however,
that a judgment may be sought against Borrower or any Related
Party to enforce the rights of Lender in, to or against the
Premises, including the Receipts and any other Collateral, and
Lender shall have full recourse to and the right to proceed
against the Premises, the Receipts and any other Collateral.
Notwithstanding the foregoing, nothing contained herein shall
impair the validity of the Obligations or in any way affect or
impair the Lien of the Mortgage, or the right of Lender to
enforce any and all rights and remedies under and by virtue of
the Note, this Agreement and/or any other Loan Document (limited,
however, as expressly provided otherwise above), including,
without limitation, naming Borrower as a party defendant in any
foreclosure action, or limit Lender from pursuing or seeking to
enforce the rights of Lender against any third parties, including
any guarantor, indemnitor or surety under any guaranty or
indemnity delivered in connection with this Agreement, the Note
or any other Loan Document or otherwise in connection with the
Loan. Additionally, the provisions of this Section 6.20 shall
not relieve Borrower from any personal liability for, and
Borrower shall be fully and personally liable for, (i) the full
recourse obligation to pay the Obligations upon the occurrence of
any event set forth in the following clauses (M) and/or (N), and
(ii) any liabilities, costs, losses (including, without
limitation, any reduction in value of the Premises or any other
Collateral, or the loss of any such Collateral or Lender's
security interest therein), damages, expenses (including, without
limitation, attorneys' fees and disbursements and court costs, if
any), or claims suffered or incurred by Lender (or any
Indemnified Party) by reason of or in connection with the
occurrence of any event set forth in any of the following clauses
(A) through (O): (A) any fraud or breach of trust by Borrower or
any Related Party, including by reason of any claim under the
Racketeer Influenced and Corrupt Organizations Act ("RICO"); (B)
the misapplication of any insurance proceeds or condemnation
awards; (C) the failure of Borrower or any Related Party to
direct or pay Receipts received by Borrower or any Related Party
to the Clearing Account or the Cash Collateral Account; (D) the
misapplication by Borrower or any Related Party (or at any such
Person's direction) of monies held in or paid out from any
account (including any reserve or escrow) maintained under this
Agreement, the Cash Management Agreement or any of the other Loan
Documents, including without limitation, monies paid to Borrower
pursuant to Section 8 of the Cash Management Agreement and the
related Disbursement Instructions; (E) any and all tenant
security deposits held by Borrower not being properly applied,
returned to tenants when due or delivered to Lender, any receiver
or any Person purchasing the Premises at a foreclosure sale upon
the taking of possession of the Premises by Lender, such receiver
or other Person as provided herein; (F) a breach by Borrower of
any of the covenants contained in Sections 4.2 or 4.8 hereof; (G)
wrongful removal or destruction of property constituting the
Premises or any intentional waste of the Premises by Borrower or
a Related Party; (H) any Legal Requirement (including RICO)
mandating the forfeiture by Borrower of the Premises, or any
portion thereof, because of the conduct or purported conduct of
criminal activity by Borrower or any Related Party in connection
therewith; (I) any material misrepresentation, miscertification
or breach of warranty by Borrower with respect to any
representation, warranty or certification contained in this
Agreement or any other Loan Document or in any document executed
in connection therewith, pursuant to any of the Loan Documents or
otherwise to induce Lender to make the Loan, or any advance
thereof, or to release monies from any account held by Lender
(including any reserve or escrow) or to take any other action
with respect to any of the Collateral; (J) a breach of any of the
provisions of Article 8 hereof (if and to the extent a
substantive consolidation of Borrower and another Person occurs
as a result thereof); (K) any damage or destruction of the
Premises or any part thereof due to fire or other casualty to the
extent not covered by insurance required under the Mortgage, but
only to the extent the same would have been covered by insurance
if Borrower had obtained and maintained the insurance coverage
required under the Mortgage; (L) the amount of any Lien
voluntarily placed on the Premises by Borrower (or any
predecessor-owner of the Premises which is an Affiliate of
Borrower) which is prior to the Lien of the Mortgage against the
Property; (M) (1) Borrower or General Partner filing a voluntary
petition under the Bankruptcy Code or any other federal or state
bankruptcy or insolvency law, or (2) any Related Party filing or
joining in the filing of, an involuntary petition against
Borrower or General Partner under the Bankruptcy Code or any
other federal or state bankruptcy or insolvency law, or (3)
Borrower or General Partner filing an answer consenting to or
acquiescing in any involuntary petition filed against it or
against Borrower or General Partner by any other Person under the
Bankruptcy Code or any other federal or state bankruptcy or
insolvency law, or (4) any Related Party consenting to or
acquiescing in or joining in an application for the appointment
of a custodian, receiver, trustee or examiner for Borrower or
General Partner or any portion of the Collateral, or (5) Borrower
or General Partner making an assignment for the benefit of
creditors, or admitting its insolvency or inability to pay its
debts as they become due; (N) Borrower or any Related Party
contesting or in any way interfering with, directly or indirectly
(collectively, a "Contest"), any foreclosure action, Uniform
Commercial Code sale and/or deed in lieu of foreclosure
transaction commenced by Lender or with any other enforcement of
Lender's rights, powers or remedies under any of the Loan
Documents or under any document evidencing, securing or otherwise
relating to any of the Collateral (whether by making any motion,
bringing any counterclaim, claiming any defense, seeking any
injunction or other restraint, commencing any action, seeking to
consolidate any such foreclosure or other enforcement with any
other action, or otherwise); or (O) the cost of enforcement of
any of Lender's rights or remedies hereunder or under any of the
other Loan Documents, or costs incurred in any bankruptcy or
similar proceeding which may be brought by or against Borrower or
General Partner. Nothing contained herein is intended to limit
the obligations and personal liability of the guarantors under
any guaranty and the indemnitors under any indemnity agreement,
including, without limitation, the Environmental Indemnification
Agreement, executed by Borrower or any other Person for the
benefit of Lender.
Section 6.21 Limitation on Liability. In no event
shall Lender be liable to Borrower for consequential damages,
whatever the nature of a breach by Lender of its obligations
under this Agreement or any of the other Loan Documents and
Borrower, for itself and all Related Parties, hereby waives all
claims for consequential damages. Unless, within ninety (90)
days after Borrower first has actual knowledge of the occurrence
of any event about which Borrower has a dispute or claim,
Borrower notifies Lender in writing of the general nature of its
dispute or claim, Borrower shall be deemed to have waived any and
all rights to raise such dispute or claim in any lawsuit, action
or proceeding of any kind.
Section 6.22 Jurisdiction, Venue, Service of Process.
ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT,
THE MORTGAGE OR ANY OTHER LOAN DOCUMENT SHALL BE BROUGHT, AT
LENDER'S OPTION, IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX, XXX XXXX
XXXXXX OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN
DISTRICT OF NEW YORK. BORROWER HEREBY ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE NON-
EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS. BORROWER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE
AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE
MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO BORROWER AT ITS ADDRESS FOR NOTICES PURSUANT
TO SECTION 6.6 HEREOF. BORROWER HEREBY IRREVOCABLY WAIVES ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF
VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT
OF OR IN CONNECTION WITH THIS AGREEMENT, THE MORTGAGE OR ANY
OTHER LOAN DOCUMENT BROUGHT IN THE COURTS REFERRED TO ABOVE AND
HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR
CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. NOTHING CONTAINED HEREIN SHALL AFFECT THE RIGHT OF LENDER
TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST BORROWER
IN ANY OTHER JURISDICTION.
Section 6.23 Appointment of Agent for Service of
Process. Borrower hereby designates Xxxxxx X. Xxxxxx, Esq.
("Designee") as its agent and attorney-in-fact to accept service
of process in any action or proceeding arising under or in
connection with this Agreement, the Mortgage and/or the other
Loan Documents. The foregoing designation is irrevocable and
coupled with an interest. If Designee is not personally
available, process may be served upon Designee by United States
registered or certified mail, which service will be effective
five (5) days after mailing, to the address of Designee set forth
below:
Xxxxxxx & Masyr, LLP
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Section 6.24 Rule of Construction.
This Agreement and the other Loan Documents shall not be
construed more strictly against one party than against the other
merely by virtue of the fact that it may have been prepared by
counsel for one of the parties, it being recognized that both
Lender and Borrower have contributed substantially and materially
to the preparation of this Agreement and the other Loan
Documents.
Section 6.25 Further Assurances.
(a) Borrower will, at its sole cost and expense, do,
execute, acknowledge and deliver or cause to be done, executed,
acknowledged and delivered all such further acts, conveyances,
notes, mortgages, assignments, security agreements, financing
statements and assurances as Lender shall from time to time
require or deem advisable (i) to carry into effect the purposes
of this Agreement and the other Loan Documents, (ii) for the
better assuring, conveying, mortgaging, assigning and confirming
unto Lender of all property and rights mortgaged, granted,
bargained, alienated, confirmed, pledged, hypothecated, conveyed
or assigned by this Agreement or any of the other Loan Documents
or property intended now or hereafter to be, or which Borrower
may be or may hereafter become bound to convey or assign to
Lender, (iii) for facilitating the placement of a Loan Interest
in a Loan Pool as described in Section 6.27 hereof, (iv) for the
perfection of any Lien or security interest granted herein or in
the other Loan Documents, and (v) for the better assuring and
confirming of all of Lender's rights, powers and
remedies hereunder and under the other Loan Documents. Borrower,
on demand, will execute and deliver, and hereby authorizes Lender
to execute in the name of Borrower or without the signature of
Borrower to the extent Lender may lawfully do so, one or more
financing statements, chattel mortgages or other instruments, to
evidence more effectively the security interest of Lender in the
Premises and the other Collateral.
(b) Borrower forthwith upon the execution and delivery
of this Agreement and thereafter, from time to time, will cause
the Mortgage and any security instrument creating a Lien or
security interest or evidencing the Lien of the Mortgage and the
other applicable Loan Documents upon the Premises or other
property and each instrument of further assurance to be filed,
registered or recorded in such manner and in such places as may
be required by any present or future Legal Requirement in order
to publish notice of and fully to protect the Lien or security
interest of, and the priority of, each of the Mortgage and the
other Loan Documents upon, and the interest of Lender in, the
Premises or other applicable property. Borrower will pay all
filing, registration or recording fees, and all expenses incident
to the foregoing and all taxes, duties, assessments and charges
of any Governmental Authority arising out of or in connection
with the execution and delivery of the Mortgage, any other
security instrument, any instrument of further assurance or any
other Loan Document. Upon Lender's request, Borrower shall, from
time to time, furnish Lender with evidence reasonably
satisfactory to Lender that such property is free of Liens and
security interests (except as permitted hereunder), including
searches of applicable public records.
(c) Upon any failure by Borrower to do so, Lender may
make, execute, record, file, re-record or refile any and all such
mortgages, instruments, certificates and documents for and in the
name of Borrower, and Borrower hereby irrevocably appoints (which
appointment is coupled with an interest and with full power of
substitution) Lender the agent and attorney-in-fact of Borrower
to do so, and Borrower shall reimburse Lender, on demand, for all
costs and expenses (including attorneys' fees) incurred by Lender
in connection therewith. Upon foreclosure, the appointment of a
receiver or any other relevant action, Borrower will, at the cost
of Borrower and without expense to Lender, cooperate fully and
completely to effect the assignment or transfer of any Permit,
agreement or any other right necessary or useful to the operation
of the Premises and shall deliver to Lender all books and records
relating to the Premises.
Section 6.26 Recitals. The Recitals set forth at the
beginning of this Agreement are hereby incorporated into the
substantive provisions of this Agreement.
Section 6.27 Placement of Loan.
6.27.1 Loan Pool. Borrower acknowledges that
Lender, any Assignee or any Participant (each of Lender, any
Assignee or any Participant, a "Placement Party") may elect to
place the Loan, or its participation interest in the Loan, as the
case may be (whichever of the Loan or such participation is to be
so placed, is called the "Loan Interest") in a pool of loans,
participation interests and/or notes secured by or dependent on
the cash flow of mortgage loans, which will constitute security
for a rated securities offering (such pool is called a "Loan
Pool"; and such rated securities offering is called a
"Securitization").
6.27.2 Rating Agency Requirements. At the request
of Lender, Borrower will, at its sole cost and expense (which
shall not exceed $10,000.00), use its best efforts to satisfy the
market standards to which Lender customarily adheres or which may
be required in the marketplace or by any Rating Agency in order
to enable a Placement Party to place a Loan Interest in a Loan
Pool, including, without limitation, to:
(i) structure and maintain its
organizational, operational and financial affairs and those of
its Affiliates (collectively, the "Entities") as special-purpose
bankruptcy remote entities to enable its counsel to render a
reasoned opinion customarily given in securitization transactions
that upon a petition for bankruptcy under the Bankruptcy Code,
none of an Entity as a debtor in possession, its bankruptcy
trustee or its creditors could cause a court to order the
substantive consolidation of the assets and liabilities of such
Entity with those of Borrower or General Partner, which counsel
shall be reasonably satisfactory to, and which opinions or
memoranda shall be satisfactory to, Lender and each Rating
Agency;
(ii) provide such financial and
other information with respect to the Premises, the Manager and
the Entities as may be reasonably requested by Lender or any
Rating Agency for annual rating reviews, including, without
limitation, occupancy statistics, average rents and periodic and
annual financial statements (including cash flow statements) for
the Premises (reviewed and, in the case of annual financial
statements, audited) by a firm of certified public accountants
reasonably acceptable to Lender and each Rating Agency (Lender
acknowledging that the Approved Accountant is an accounting firm
acceptable to Lender);
(iii) prepare and deliver such
agreements and instruments relating to the Note, the Loan
Interest, the Premises and the Entities, including (A) agreements
to indemnify each Rating Agency, Lender and any servicer or
trustee (except to the extent that any requested indemnification
for any loss, claim, damage, cost, expense or liability results
solely from the negligent, or with respect to Lender, grossly
negligent acts or omissions by such indemnified party in
performing the duties, functions and activities undertaken by it
in connection with the placement of the Loan Interest in a Loan
Pool, including, without limitation, any failure by the
indemnified party or parties to comply with all applicable
securities laws and regulations), and (B) amendments of any of
the Loan Documents that are necessary to effect the placement of
the Loan Interest in a Loan Pool, as may be reasonably requested
by, and in form and scope reasonably satisfactory to, Lender and
each Rating Agency; provided, however, that such amendments shall
not, without the consent of Borrower, affect the terms and
conditions of the Note or any other material obligation of
Borrower under the Loan Documents;
(iv) cause to be performed such
site inspections, appraisals, market studies, environmental
reviews and reports (Phase I assessments and, where appropriate,
Phase II assessments), engineering reports and other due
diligence investigations of the Premises customarily and
reasonably requested by Lender or any Rating Agency in connection
with the placement of the Loan Interest in a Loan Pool and the
rating of any securities issued in connection therewith;
(v) provide such business plans,
budgets and title insurance (including surveys) relating to the
Premises as may be reasonably requested by Lender or any Rating
Agency;
(vi) cause counsel to render
opinions as to "true sale" and bankruptcy remoteness and other
matters customary in securitization transactions with respect to
the Premises, the Entities, the Loan Interest and the Loan
Documents, which counsel shall be reasonably satisfactory to, and
which opinion shall be satisfactory to, Lender and each Rating
Agency; provided, however, that Borrower shall not be responsible
for providing a "true sale" opinion that relates solely to the
sale by Lender of the Loan or a Loan Interest into a Loan Pool;
and
(vii) make the representations
and warranties contained in the Loan Documents as of the date of
the closing of the transfer of the Loan Interest and make such
other representations with respect to the Premises, the Entities,
the Loan Interest and the Loan Documents as are customarily
provided in securitization transactions and as may be reasonably
requested by Lender or any Rating Agency in connection with such
closing.
6.27.3 Disclosure; Indemnification. At Lender's
request, Borrower shall cooperate with Lender's preparation of a
private placement memorandum or registration statement and
amendments and supplements thereto (the "Disclosure Document") to
privately place or publicly distribute the Note or the Loan
Interest or securities issued in connection therewith in a manner
that satisfies the requirements of the Securities Act and
applicable state Legal Requirements. At the time of Lender's
preparation of such Disclosure Document, Borrower shall execute
and deliver to Lender and any underwriter or placement agent an
instrument (a "Securitization Indemnification") (in form and
substance reasonably satisfactory to Lender) (i) certifying as to
the veracity of all written information that it supplied and
which was incorporated in such Disclosure Document, and (ii)
indemnifying and holding each of them and any Person who controls
any of them, within the meaning of Section 15 of the Securities
Act or Section 70 of the Exchange Act (each, a "Securitization
Indemnified Party"), harmless against all costs, expenses and
damages incurred by any Securitization Indemnified Party as a
result of any untrue statement of a material fact made or
supplied by Borrower as contained in such Disclosure Document or
the failure by Borrower (after receipt of a draft of the
Disclosure Statement) to specify for inclusion in the Disclosure
Document any material fact regarding Borrower (or any General
Partner), the Premises or the Loan necessary in order to make the
statements therein, in light of the circumstances under which
they were made, not misleading, but only to the extent that such
statement of material fact is made in reliance upon and in
conformity with written information Borrower furnished for use
therein or the omission of such a material fact is based upon
Borrower's failure to specify such material fact or upon
Borrower's furnishing inaccurate information that shows that such
material fact is not material. If Lender (or a placement agent
or underwriter acting on behalf of Lender) shall deliver a draft
of the Disclosure Document to Borrower for its review, Borrower
shall provide Lender (or the placement agent or underwriter
acting on behalf of Lender) with its comments, if any, on such
Disclosure Document as soon as practicable, but in all events
within fifteen (15) days after receipt thereof, in the case of
the first draft of such Disclosure Document, and within three (3)
Domestic Business Days after receipt of any subsequent draft of
such Disclosure Document. If, in connection with such review,
Borrower advises Lender of the existence of a fact regarding
Borrower (or any General Partner), the Premises or the Loan and
advises Lender that it deems such fact material, Lender shall
include such fact in the Disclosure Document or shall waive the
rights of the Indemnified Parties with respect to such fact.
Upon receipt of the Securitization Indemnification, Lender shall
execute and deliver to Borrower an instrument (in form and
substance reasonably satisfactory to Borrower) indemnifying and
holding Borrower harmless against all costs, expenses and damages
incurred by it as a result of the preparation or distribution of,
and any untrue statement of a material fact contained in, such
Disclosure Document or the failure to include therein any
material fact in order to make the statements made therein, in
light of the circumstances under which they were made, not
misleading; provided, however, that such indemnification shall
not apply if any such costs, expenses or damages arise out of or
are based upon an untrue statement of a material fact or an
omission to state a material fact in such Disclosure Document
made in reliance upon and in conformity with written information
furnished by Borrower expressly for use therein or (after receipt
of a draft of the Disclosure Statement) the omission of a
material fact concerning Borrower (or any General Partner), the
Premises or the Loan (other than the express terms of the Loan
Documents) necessary to make the statements in the Disclosure
Statement not misleading. Borrower shall notify Lender if it is
necessary to amend or supplement such Disclosure Document at any
time in order that such Disclosure Document does not contain any
untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements made therein, in
light of the circumstances under which they were made, not
misleading. Lender shall prepare as soon as may be reasonably
practicable an amendment or supplement to such Disclosure
Document correcting such statement or omission. At the request
of Lender, in connection with any sale of the Note or any Loan
Interest, Borrower shall confirm, as of the date of such sale,
that such Disclosure Document, as it may be so amended or
supplemented, does not contain any untrue statement of a material
fact concerning Borrower, any General Partner, the Premises or
the Loan or omit to state a material fact concerning Borrower,
any General Partner, the Premises or the Loan necessary in order
to make the statements therein, in light of the circumstances
under which they were made, not misleading. Borrower shall not
be obligated to incur more than $10,000.00 in the aggregate for
costs incurred to comply with this Section and Section 6.27.2.
6.27.4 Trustee. It is expressly understood
hereunder that in connection with the placement of any Loan
Interest in a Loan Pool, Lender intends to transfer the Loan
Interest to a trustee which shall hold such Loan Interest for the
benefit of the holders of the interests in the Loan Pool. In
connection therewith, Borrower shall execute and deliver or cause
to be executed and delivered, all such additional instruments,
and do, or cause to be done, all such additional acts as (i) may
be necessary or proper to carry out such transfer, including,
without limitation, the delivery of such instruments and
documents, including assignments of mortgage (and similar
documents), assignments of Loan Documents, re-certifications of
surveys with respect to the Premises, and the delivery of such
mortgagee's title insurance endorsements in favor of the trustee
as may be required to confirm and/or evidence the transfer to the
trustee of the title insurance issued to Lender in respect of the
Premises or the Mortgage, including payment of all fees, title
insurance premiums and other insurance premiums, and/ or (ii)
Lender may reasonably request.
6.27.5 Information Access. Lender shall be
permitted to share any information provided by Borrower pursuant
to this Section 6.27 in connection with the placement of a Loan
Interest in a Loan Pool with the investment banking firms, each
Rating Agency, accounting firms, law firms and other third-party
advisory firms involved with any transfer of the Loan, the Loan
Documents or the applicable Securitization. It is understood
that the information provided by Borrower to Lender may
ultimately be incorporated into the offering documents for the
Securitization and thus various investors may also see some or
all of the information.
6.27.6 Timing of Transfer or Placement. Borrower
acknowledges that any transfer of the Loan or the placement of a
Loan Interest in a Loan Pool may occur at any time during the
term of this Agreement and the provisions of this Section 6.27
shall be applicable throughout the Term.
ARTICLE VII
SPECIAL PROVISIONS
Section 7.1 Tax and Insurance Escrow. In order to assure
the payment of Taxes and premiums with respect to all insurance
coverage required pursuant to Section 8 of the Mortgage
(collectively, "Insurance Premiums") as and when the same shall
become due and payable, the following provisions shall apply:
7.1.1 Tax and Insurance Deposits. On the date
hereof, $239,770.44 of the Loan proceeds advanced to Borrower
shall be deposited with Lender for deposit into the Tax and
Insurance Escrow Subaccount (and shall constitute part of the
Outstanding Principal Balance) and shall be pledged to Lender as
additional Collateral, all as more particularly described in the
Cash Management Agreement. Thereafter, on each Payment Date,
Borrower shall pay to Lender, in immediately available funds for
deposit into the Tax and Insurance Escrow Subaccount, an amount
equal to one-twelfth (1/12) of the Taxes and Insurance Premiums
to become due during the period commencing on the first day of
the first month following such Payment Date and ending twelve
(12) months following such first day. In all cases there must be
paid hereunder, to be deposited and held in the Tax and Insurance
Escrow Subaccount, an amount sufficient to pay such Taxes and
Insurance Premiums, one month prior to the date when they are due
and payable. The amounts of all of the foregoing deposits with
respect to Taxes and Insurance Premiums together with all
interest accruing thereon from time to time, being (herein
collectively called "Tax and Insurance Deposits") shall be
determined by Lender based on actual invoices, or if such
invoices are not available, based on one hundred and five percent
(105%) of the cost of the prior year's Taxes and Insurance
Premiums. Borrower shall promptly, upon the demand of Lender,
make additional Tax and Insurance Deposits as Lender may from
time to time require due to (i) failure of Borrower to make Tax
and Insurance Deposits in previous months, (ii) underestimation
of the amounts of Taxes and/or Insurance Premiums, (iii) the
particular due dates and amounts of Taxes and/or Insurance
Premiums, or (iv) application of the Tax and Insurance Deposits
pursuant to this Agreement. All Tax and Insurance Deposits shall
be held by Lender in the Tax and Insurance Escrow Subaccount and
invested and applied as provided in the Cash Management
Agreement.
7.1.2 Payment of Taxes and Insurance Premiums.
Provided that no Event of Default has then occurred and is
continuing, Lender will, out of the funds in the Tax and
Insurance Escrow Subaccount (provided such funds are sufficient
for such purpose), upon the presentation to Lender by Borrower of
the bills therefor, pay the Taxes and Insurance Premiums or will,
upon the presentation of official receipted bills therefor,
reimburse Borrower for such payments made by Borrower. If the
total funds on deposit in the Tax and Insurance Escrow Subaccount
shall not be sufficient to pay all of the Taxes and Insurance
Premiums when the same shall become due, then Borrower shall pay
to Lender on demand the amount necessary to make up the
deficiency. Lender shall be entitled, without request of
Borrower, but, prior to an Event of Default upon two (2) Domestic
Business Days notice to Borrower, to apply any funds in the Tax
and Insurance Escrow Subaccount to the payment of any Taxes
(other than any Taxes which Borrower has notified Lender that it
is contesting and such contest is then permitted under the
Mortgage) and Insurance Premiums which have become due and have
not yet been paid. Borrower and Lender acknowledge and agree
that Borrower shall not be in default under the Mortgage for
failure to pay Taxes or Insurance Premiums, if such failure
arises by reason of Lender's failure to comply with its agreement
contained in this Section 7.1.2.
7.1.3 Application upon Event of Default. Upon the
occurrence and during the continuance of an Event of Default,
Lender may, at its option, without being required to do so, apply
any Tax and Insurance Deposits on hand to pay Taxes or Insurance
Premiums or to pay principal, interest and other amounts payable
to Lender hereunder or under the other Loan Documents, all in
such order and manner as Lender, in its sole discretion, may
elect. When the principal and interest under the Note and all
prepayment premiums, if any, in connection therewith and all
other Obligations have been fully and properly paid, any
remaining Tax and Insurance Deposits shall be returned to
Borrower.
7.1.4 Reliance. Lender shall be absolutely entitled
to rely on any statements of any Governmental Authority with
respect to Taxes and any statement of Borrower's insurance
carrier or its agent with respect to Insurance Premiums.
7.1.5 Borrower's Obligations. Borrower and Lender
acknowledge that Borrower shall not be in Default hereunder in
its obligation to make the Tax and Insurance Deposit on any
Payment Date, to the extent funds are available to make such
deposit from monies deposited in the Cash Collateral Account
during the applicable Collection Period after applying such funds
to any item with a higher priority than such application to the
Tax and Insurance Escrow Subaccount in accordance with the terms
of Section 7.4.2 hereof and of the Cash Management Agreement.
Any transfer of funds from the Cash Collateral Account to the Tax
and Insurance Escrow Subaccount shall satisfy Borrower's
obligation hereunder to make the corresponding Tax and Insurance
Deposit, to the extent of the funds so transferred.
7.1.6 No Third Party Beneficiary. No provision of
this Agreement, the Mortgage or any other Loan Document shall be
construed as creating in any party other than Borrower and Lender
(and Servicer), any rights in and to the Tax and Insurance
Deposits or any rights to have the Tax and Insurance Deposits
applied to payment of Taxes and Insurance Premiums. Lender shall
have no obligation or duty to any third party to collect or apply
Tax and Insurance Deposits.
Section 7.2 Mortgage Subaccounts.
7.2.1 Interest Reserve Subaccount.
(a) Upon the exercise of the Conversion Option,
the Interest Reserve Holdback shall be deposited into the Cash
Collateral Account for credit to the Interest Reserve Subaccount
(and shall constitute a part of the Outstanding Principal
Balance) (such sum, together with interest accruing thereon from
time to time, being referred to herein as the "Interest Reserve
Funds"), to be held as additional Collateral and to be governed
by and treated in accordance with the terms of this Agreement and
the Cash Management Agreement. So long as no Event of Default
shall have occurred and be continuing hereunder, Lender shall
apply the Interest Reserve Funds as contemplated by the following
paragraphs of this Section 7.2.1. Upon and during the
continuance of any Event of Default, Lender may apply all such
Interest Reserve Funds to the Obligations, in such amounts and
order of priority as Lender shall elect in its sole discretion.
On the Maturity Date, any such Interest Reserve Funds remaining
on deposit with Lender shall, at Lender's option, be applied
against the Obligations or returned to Borrower.
(b) So long as no Event of Default shall have
occurred and be continuing hereunder, and, subject in all events
to Section 7.2.1(c) hereof, if, on any Payment Date, there are
insufficient Receipts for the prior calendar month to cover the
payment of interest then due and payable to Lender pursuant to
Section 2.4 hereof (each, a "Monthly Interest Payment"), Lender
shall apply Interest Reserve Funds then on deposit to the payment
of such Monthly Interest Payment (or the portion thereof for
which insufficient Receipts for the prior calendar month exist),
and the Interest Reserve Funds shall be reduced by an equal
amount. Notwithstanding the foregoing, Borrower expressly
acknowledges and agrees that in the event that on any day on
which a Monthly Interest Payment is due and payable (i) an Event
of Default has occurred and is continuing hereunder, or (ii) the
amount of such Monthly Interest Payment exceeds the Interest
Reserve Funds then on deposit, Borrower shall remain liable for
the payment of all Monthly Interest Payments as and when due.
(c) Until the provisions of Section 7.2.1(d)
hereof shall be applicable, if, at any time, and from time to
time, during the Term there shall exist an Interest Reserve
Subaccount Deficiency, whether due to application of Interest
Reserve Funds pursuant to Section 7.2.1(b) hereof or otherwise,
Borrower shall provide funds to Lender in the amount of the
Interest Reserve Subaccount Deficiency, for deposit into the Cash
Collateral Account and for credit to the Interest Reserve
Subaccount, prior to the Payment Date immediately following the
date on which such Interest Reserve Subaccount Deficiency shall
have occurred.
(d) Any Interest Reserve Funds on deposit in the
Interest Reserve Subaccount shall be released to Borrower upon
the Prepayment of the Loan. Upon the release, if ever, of the
Interest Reserve Funds in accordance with this Section 7.2.1(d),
all of the provisions of this Section 7.2.1 shall thereafter be
of no further force or effect.
7.2.2 Intentionally Omitted.
7.2.3 Environmental Remediation Subaccount. On the
date hereof, $16,375.00 of the Loan proceeds advanced to Borrower
shall be deposited with Lender (and shall constitute a part of
the Outstanding Principal Balance) (such sum, together with
interest accruing thereon from time to time, being herein
referred to as the "Environmental Remediation Funds"), to be used
for funding the remediation of those environmental conditions
(the "Environmental Remediation Items") at the Premises set forth
on Schedule G annexed hereto. The Environmental Remediation
Funds shall be deposited into the Cash Collateral Account for
credit to the Environmental Remediation Subaccount and pledged to
Lender as additional Collateral, all as more particularly
described in the Cash Management Agreement. Funds credited to
the Environmental Remediation Subaccount shall be disbursed to
Borrower in accordance with the terms of Section 7.3 hereof. On
the Maturity Date or on such earlier date as there shall occur an
Event of Default, the moneys credited to the Environmental
Remediation Subaccount shall, at the option of Lender, be applied
against the outstanding Obligations.
7.2.4 Deferred Maintenance Subaccount. On the date
hereof, $31,343.75 of the Loan proceeds advanced to Borrower
shall be deposited with Lender (and shall constitute a part of
the Outstanding Principal Balance) (such sum, together with
interest accruing thereon from time to time, being herein
referred to as the "Deferred Maintenance Funds") to be used for
funding those deferred maintenance items at the Premises set
forth on Schedule H annexed hereto (the "Deferred Maintenance
Items"). The Deferred Maintenance Funds shall be deposited into
the Cash Collateral Account for credit to the Deferred
Maintenance Subaccount and pledged to Lender as additional
Collateral, all as more particularly described in the Cash
Management Agreement. Funds credited to the Deferred Maintenance
Subaccount shall be disbursed to Borrower in accordance with the
terms of Section 7.3 hereof. On the Maturity Date or on such
earlier date as there shall occur an Event of Default, the moneys
credited to the Deferred Maintenance Subaccount shall, at the
option of Lender, be applied against the outstanding
Obligations..
Section 7.3 Requests for Disbursement from Mortgage
Subaccounts. Borrower shall, from time to time, complete the
Environmental Remediation Items and the Deferred Maintenance
Items (collectively, the "Work") in accordance with the time
frame therefor set forth in the schedules provided to and
approved by Lender. In connection with Borrower's performance of
such Work, Borrower may, from time to time, request from Lender,
in writing, reimbursement from the applicable Mortgage
Subaccount. Borrower's request for reimbursement shall include
(A) a detailed description of the Work performed, together with
evidence, reasonably satisfactory to Lender, that the cost of
such Work has been paid, and (B) lien waivers from each
contractor and material supplier supplying labor or materials for
such Work, provided that the costs of all such contractors and
material suppliers shall exceed $10,000 in the aggregate, if
required by Lender.
7.3.1 Conditions Precedent to Disbursement.
Disbursements from the Mortgage Subaccounts shall be made no more
frequently than once every Disbursement Period. Disbursements
shall be made only if the following conditions precedent have
been satisfied, as reasonably determined by Lender:
(i) the Work has been performed and/or
installed at, in or on the Premises in a good workmanlike manner
with suitable materials (or in the case of a partial
disbursement, performed and/or installed at, in or on the
Premises to an acceptable stage) and paid for as evidenced by
copies of all applicable paid invoices or bills submitted to
Lender by Borrower at the time Borrower requests disbursement
from the applicable Mortgage Subaccount;
(ii) there shall exist no Default or Event of
Default;
(iii) no lien or claim based on
furnishing labor or materials shall have been filed or asserted
against the Premises, unless Borrower has properly provided a
bond or other security against loss in accordance with applicable
law;
(iv) all licenses, permits and approvals of
governmental authorities required for the Work as completed to
the applicable stage shall have been obtained; and
(v) the Work, as completed to the applicable
stage, does not violate any law, ordinance, rule or regulation,
or building line or restriction applicable to the Premises.
7.3.2 Lender Right to Complete. If Borrower
abandons or fails to proceed diligently with and complete any
Work in a timely fashion or is otherwise in Default under this
Agreement, in addition to, and not in limitation of, any other
rights and remedies available to Lender hereunder, under any of
the other Loan Documents, at law or in equity, Lender shall have
the right (but not the obligation) to enter upon the Premises and
take over and cause the completion of such Work. Any contracts
entered into or indebtedness incurred upon the exercise of such
right may be in the name of Borrower, and Lender is hereby
irrevocably appointed the attorney-in-fact of Borrower, such
appointment being coupled with an interest, to enter into such
contracts, incur such obligations, enforce any contracts or
agreements made by or on behalf of Borrower (including the
prosecution and defense of all actions and proceedings in
connection with the Work and the payment, settlement or
compromise of all bills and claims for materials and work
performed in connection with the Work), and do any and all things
necessary or proper to complete any Work, including signing
Borrower's name to any contracts and documents as may be deemed
necessary by Lender. In no event shall Lender or the Servicer be
required to expend its own funds to complete any Work, but Lender
may, in its sole discretion, advance such funds. Any funds
advanced shall be added to the Obligations, shall be secured by
the Loan Documents and shall be payable to Lender by Borrower in
accordance with the provisions hereof and of the other Loan
Documents pertaining to the protection of Lender's security and
advances made by Lender. Borrower waives any and all claims it
may have against Lender and/or the Servicer for materials used,
work performed or resultant damage to the Premises.
7.3.3 Inspection. Subject to the rights of
tenants, Lender or any agent of Lender may periodically inspect
any Work in process and upon completion during normal business
hours or at any other reasonable time upon reasonable prior
notice (except in the event of an emergency) given orally or in
writing to Borrower. In making any such inspection, Lender shall
use its best efforts not to unreasonably interfere with or
disrupt Borrower's or any tenant's conduct of business. If
Lender, in its sole discretion, retains a professional inspection
engineer or other qualified third party to inspect any Work,
Lender shall be entitled to deduct from the applicable Mortgage
Subaccount an amount sufficient to pay all reasonable fees and
expenses charged by such third party inspector.
7.3.4 Insufficient Account. If Borrower requests a
disbursement from the applicable Mortgage Subaccount for Work in
accordance with this Agreement in an amount which exceeds the
amount on deposit in such Mortgage Subaccount, then, subject to
the satisfaction of the conditions precedent set forth in Section
7.3.1 hereof with respect to such request, Lender shall cause the
Servicer to disburse to Borrower only the amount then on deposit
in the applicable Mortgage Subaccount. All additional amounts
required in connection with any such Work shall be paid by
Borrower from Borrower's own funds, provided that Borrower may
request disbursement of such additional amounts from the
applicable Mortgage Subaccount at a later date in accordance with
the terms and conditions of this Agreement. In the event that
there is more than one pending and unsatisfied request for
disbursement hereunder and the aggregate amount requested
thereunder exceeds the amount on deposit in the applicable
Mortgage Subaccount, then, subject to the satisfaction of the
conditions precedent set forth in Section 7.3.1 hereof with
respect to such requests, Lender shall cause the Servicer to
apply the amount on deposit in such Mortgage Subaccount to such
of the requests for disbursement as Lender shall determine in its
sole discretion.
7.3.5 Compliance With Laws. All Work shall comply
with all applicable laws, ordinances, rules and regulations of
all governmental authorities having jurisdiction over the
Premises and applicable insurance requirements, including,
without limitation, applicable building codes, special use
permits, environmental regulations and requirements of insurance
underwriters.
7.3.6 Insurance Requirements. In addition to any
insurance required under the Mortgage or any other Loan
Documents, while performing Work hereunder, Borrower shall
provide or cause to be provided workers' compensation, builder's
risk (if required by Lender) and public liability insurance and
other insurance required under applicable law in connection with
such Work. All such policies which can be endorsed with standard
mortgagee clauses making losses payable to Lender or its assigns
shall be so endorsed. The originals of such policies shall be
deposited with Lender.
7.3.7 Completion of Work. The disbursement of
monies from any of the Mortgage Subaccounts, or other
acknowledgment by Lender and/or the Servicer of completion of any
Work in a manner satisfactory to Lender, shall not be deemed a
certification by Lender or the Servicer that such Work has been
completed in accordance with applicable building, zoning or other
codes, ordinances, statutes, laws, regulations or Legal
Requirements of any Governmental Authority. Borrower shall at
all times have the sole responsibility for insuring that all Work
is completed in accordance with all such governmental
requirements.
Section 7.4 Lock Box Events; Application of
Receipts.
7.4.1 Deposits into Clearing Account. After the
occurrence of a Lock Box Event and thereafter throughout the
Term, within one (1) Domestic Business Day of receipt by or on
behalf of Borrower, all Receipts from the Premises shall be
deposited into the Clearing Account, for credit to the Cash
Collateral Account in accordance with the terms of the Cash
Management Agreement. The terms, covenants and conditions of the
Cash Management Agreement are hereby incorporated herein by
reference. For purposes hereof, a "Lock Box Event" shall be
deemed to have occurred if there shall occur an Event of Default
hereunder. Following the occurrence of a Lock Box Event the
provisions of this Section 7.4.1(a) shall be and remain in effect
notwithstanding the curing of the Event of Default giving rise to
such Lock Box Event.
7.4.2 Application of Receipts.
(a) Unless and until the occurrence of a Lock Box
Event, on each Payment Date, Borrower shall apply all Receipts
(which, for purposes of this Section 7.4.2, shall include the sum
of all Excluded Revenue Items) received by or on behalf of
Borrower during the previous calendar month in the following
order of priority:
(i) first, to Lender, in payment of the Tax
and Insurance and Ground Lease Reserve deposits due on such date;
(ii) second, to Lender, in payment of (w) the
Monthly Interest Payment due on such date, then (x) any principal
payment due on such date, including all prepayments required or
permitted under any Loan Documents (together with any prepayment
fees required in connection therewith) and then (y) any other
amount payable on such date to Lender or Servicer pursuant to
this Agreement or any of the other Loan Documents including,
without limitation, pursuant to Section 2.5 hereof;
(iii) third, to Lender, in payment of the
Capital Expenditure Reserve deposits due on such date and
management fees due in accordance with the Property Management
Agreement;
(iv) fourth, to Borrower, for the payment of
Expenses in accordance with the applicable Approved Budget (other
than (A) Taxes and Insurance Premiums to be paid for out of the
Tax and Insurance Escrow Subaccount, and (B) Expenses to be paid
for out of the Capital Expenditure Holdback, the Deferred
Maintenance Subaccount, the Environmental Remediation Subaccount
or such other Expenses as shall have been approved by Lender; and
(v) finally, subject to Section 7.4.2(b)
hereof, to Borrower, any Receipts which remain after application
to items (i) through (iv) as set forth above, to be used by
Borrower for any purpose determined by Borrower.
(b) Notwithstanding anything to the contrary
contained herein, upon the occurrence and during the continuance
of an Event of Default, Servicer shall apply Receipts in any
manner permitted under the Cash Management Agreement, including,
without limitation, applying any portion of Receipts to all or
any portion of the outstanding Obligations, and in no event shall
Borrower be entitled to receive any of the Remaining Receipts.
(c) Lender and Borrower hereby acknowledge and
agree that Borrower shall remain liable for the payment of all
amounts due under clauses (i), (ii) and (iii) of Section 7.4.2(a)
hereof whether or not sufficient Receipts exist to satisfy the
same.
7.4 Intentionally Omitted.
7.5 Ground Lease Reserve. Borrower shall pay to
Lender on the date hereof the sum of Twenty-One Thousand Six
Hundred and 00/100 Dollars ($21,600.00), which shall be deposited
by Borrower for all ground lease payment obligations incurred
following the date hereof (the "Ground Lease Reserve"). Lender
shall make all required disbursements to be made to any ground
lessors out of the Ground Lease Reserve. The Ground Lease
Reserve shall be held in an interest bearing account in Lender's
name at a financial institution selected by Lender in its sole
discretion. All earnings or interest on the Ground Lease Reserve
shall be and become part of such Ground Lease Reserve and shall
be disbursed as provided in this Paragraph 7.5. Borrower hereby
pledges to Lender any and all monies now or hereafter deposited
in the Ground Lease Reserve as additional security for the
payment of the Debt. Lender may reassess its estimate of the
amount necessary to be deposited into the Ground Lease Reserve
and, upon notice to Borrower, Borrower shall be required to
deposit into the Ground Lease Reserve upon demand by Lender such
reassessed amount. The Ground Lease Reserve shall not constitute
a trust fund and may be commingled with other monies held by
Lender. Upon the occurrence of an Event of Default, Lender may
apply any sums then present in the Ground Lease Reserve to the
payment of the Debt in its sole discretion.
7.6 Capital Expenditure Reserve. Borrower shall pay
to Lender on the first day of each calendar month the sum of Nine
Thousand Eight Hundred Eighty-Seven and 42/100 Dollars
($9,887.42) which shall be deposited with and held by Lender for
replacements and repairs required to be made to the Premises
during the calendar year and for any other work approved by
Lender (bold off Capital Expenditure Reserve ). Lender may in
its reasonable discretion reassess its estimate of the amount
necessary for thebold off Capital Expenditure Reserve from time
to time and in its discretion, and may adjust the monthly amounts
required to be deposited into the Capital Expenditure Reserve by
thirty (30) days notice to Borrower. Lender shall make
disbursements from the Capital Expenditure Reserve as requested
by Borrower, and approved by Lender in its sole discretion, no
more frequently than once in any thirty (30) day period of no
less than $5,000.00 upon delivery by Borrower of Lender s
standard form of draw request accompanied by copies of paid
invoices for the amounts requested and, if required by Lender for
requests in excess of $10,000.00 for a single item, lien waivers
and releases from all parties furnishing materials and/or
services in connection with the requested payment. Lender may
require an inspection of the Property at Borrower s expense prior
to making a monthly disbursement in order to verify completion of
replacements and repairs of items in excess of $10,000.00 for
which reimbursement is sought. The Capital Expenditure Reserve
shall be held in an interest bearing account in Lender s name at
a financial institution selected by Lender in its sole
discretion. All earnings or interest on the Capital Expenditure
Reserve shall be and become part of such Capital Expenditure
Reserve and shall be disbursed as provided in this Paragraph 7.6.
Until expended or applied as above provided, the Capital
Expenditure Reserve shall constitute additional security for the
Debt. The Capital Expenditure Reserve shall not constitute a
trust fund and may be commingled with other monies held by
Lender. Upon the occurrence of an Event of Default, Lender may
apply any sums then present in the Capital Expenditure Reserve to
the payment of the Debt in its sole discretion.
ARTICLE VIII
SINGLE PURPOSE ENTITY/SEPARATENESS
Section 8.1 Representations, Warranties and Covenants.
Borrower represents, warrants and covenants as of the date hereof
and until such time as the Loan and all other amounts payable
under any of the Loan Documents are paid in full, that:
(i) neither Borrower nor General Partner
shall enter into any transaction of acquisition, merger,
consolidation or amalgamation, or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution), create any
subsidiaries, or acquire by purchase or otherwise all or
substantially all the business or assets of, or stock or other
evidences of beneficial ownership of, or make any investment in,
any Person, or make any material change in its present method of
conducting business or amend the terms of their respective
Organizational Documents;
(ii) neither Borrower nor General Partner is
contemplating either the filing of a petition by Borrower or
General Partner under any state or federal bankruptcy or
insolvency laws or the liquidation of all or a major portion of
Borrower's or General Partner's assets or property, and Borrower
has no knowledge of any Person contemplating the filing of any
such petition against it or General Partner;
(iii) except with respect to a Person
which is General Partner, in the ordinary course of such Person
acting as General Partner, neither Borrower nor General Partner
has, and no such Person will, guarantee or otherwise hold out its
credit as being available to satisfy obligations of any other
Person;
(iv) Borrower was organized for the sole
purpose of owning, managing and operating the Premises and
activities ancillary thereto and General Partner was organized
for the sole purpose of acting as the general partner of
Borrower;
(v) Borrower has not, and will not, engage
in any business unrelated to the ownership, management and
operation of the Premises and activities ancillary thereto and
will conduct and operate its business as presently conducted and
operated. General Partner has not, and will not, engage in any
business unrelated to acting as the general partner of Borrower;
(vi) neither Borrower nor General Partner
will enter into any contract or agreement with any member,
partner, principal, shareholder or Affiliate of Borrower or
General Partner, except upon terms and conditions that are
intrinsically fair and substantially similar to those that would
be available on an arms-length basis with unrelated third
parties;
(vii) in addition to any limitations with
respect thereto contained in Section 4.4 hereof, Borrower and
General Partner have not incurred, and will not incur, any
Indebtedness or material liabilities, secured or unsecured,
direct or contingent (including guaranteeing any obligation),
other than the Indebtedness permitted under Section 4.4 hereof;
provided, however, that no such Indebtedness or liabilities
(other than the Loan) may be secured (senior, subordinate or pari
passu) by the Premises or any portion thereof, except as
expressly permitted in said Section 4.4 hereof.
(viii) Neither Borrower nor General
Partner has made, nor will they make, any loans or advances to
any third party (including any Affiliate of Borrower) and will
not pledge its assets for the benefit of any third party
(including any Affiliate of Borrower);
(ix) each of Borrower and General Partner is
and will be solvent and will pay its debts and liabilities
(including employment and overhead expenses) from its own assets
as the same shall become due;
(x) each of Borrower and General Partner
will maintain its own separate books and records and bank
accounts, in each case which are and will be separate and apart
from those of any other Person;
(xi) each of Borrower and General Partner
will be, and at all times will hold itself out to the public as,
a legal entity separate and distinct from any other entity
(including any Affiliate thereof), shall maintain and utilize
separate stationery, invoices and checks, shall otherwise conduct
its business and own its assets in its own name, and shall
correct any known misunderstanding regarding its separate
identity;
(xii) each of Borrower and General
Partner has and will maintain separate financial statements and
will file its own tax returns;
(xiii) each of Borrower and General
Partner will maintain adequate capital for the normal obligations
reasonably foreseeable in a business of its size and character
and in light of its contemplated business operations;
(xiv) neither Borrower nor General
Partner will seek the dissolution or winding up, in whole or in
part, of Borrower or General Partner;
(xv) neither Borrower nor General Partner
will commingle its funds or other assets with those of any
Affiliate or other Person;
(xvi) each of Borrower and General
Partner has and will maintain its assets in such a manner that it
is not costly or difficult to segregate, ascertain or identify
its individual assets from those of any Affiliate or any other
Person;
(xvii) each of Borrower and General
Partner will not do any act which would make it impossible to
carry on the ordinary business of Borrower;
(xviii) neither Borrower nor General
Partner will file or consent to the filing of a petition for
bankruptcy, reorganization, assignment for the benefit of
creditors or similar proceeding under any federal or state
bankruptcy, insolvency, reorganization or other similar law with
respect to Borrower or General Partner, without (A) if Borrower
or General Partner shall be a limited liability company, without
the unanimous consent of its members, (B) if Borrower or General
Partner shall be a partnership, the unanimous consent of its
limited partners and general partners, or (C) if Borrower or
General Partner shall be a corporation, the unanimous consent of
its directors;
(xix) the sole assets of Borrower are,
and for the Term shall be, (A) the fee interest in the Premises,
(B) such assets as are otherwise acquired in connection with the
use, operation, maintenance, repair or management of the
Premises, and (C) cash and accounts receivable;
(xx) each of Borrower and General Partner has
and will observe all partnership formalities, limited liability
company formalities or corporate formalities, as applicable;
(xxi) Borrower and General Partner have
not and will not acquire the obligations or securities of any of
their partners, members or shareholders, as applicable;
(xxii) Borrower and General Partner shall
each allocate fairly and reasonably any overhead for any office
space which such entity shares with any other entity;
(xxiii) Borrower and General Partner will
at all times comply, with each of the representations,
warranties, and covenants contained in this Article 8; and
(xxiv) General Partner shall, at all times
while any of the Obligations remain outstanding and for a period
of three hundred sixty six (366) days thereafter, have an
Independent Director, whose vote shall be required in connection
with the activities of General Partner and/or Borrower specified
in Article 6 of General Partner's Certificate of Incorporation,
which Certificate of Incorporation provides that it may not be
amended without the consent of such Independent Director.
ARTICLE IX
REFINANCING THE LOAN; LOAN ASSUMPTION
Section 9.1 Intentionally Omitted.
Section 9.2 bold offfIntentionally Omitted.
Section 9.3 fRight of First Refusal.
(a) Borrower shall, from time to time during the
Term, give Lender a written notice (a "fFinancing Notice")
setting forth a description in reasonable detail of any proposal
by another Person to provide a Secured Refinancing to Borrower,
whether by way of a credit facility, mortgage repurchase facility
or otherwise (each, a "fProposed Financing"), including a copy of
any term sheet, draft commitment letter and/or draft agreements
for any such proposed transaction to the extent permitted by
applicable confidentiality requirements. The Financing Notice
shall be delivered within five (5) Domestic Business Days
following Borrower's and such Person's agreement with respect to
the terms of the Proposed Financing. Borrower shall not enter
into a binding agreement with respect to a Proposed Financing
prior to giving the Financing Notice or, after the Financing
Notice is given, until such time as the Financing Notice is
deemed revoked pursuant to this fSection 9.3.
(b) During the fifteen (15) calendar day period
commencing on the date Lender receives a Financing Notice, Lender
shall have the option (but not the obligation) to provide
financing for Borrower on terms which shall match the material
terms of the Proposed Financing ("fLender's Proposed Financing")
by giving Borrower written notice (the "fExercise Notice");
fprovided, fhowever, that the terms of Lender's Proposed
Financing proposed to be provided by Lender may differ from the
non-material terms of the Proposed Financing. Upon Lender giving
the Exercise Notice, Borrower and Lender shall negotiate in good
faith the non-material terms of Lender's Proposed Financing, and
Borrower shall take all action reasonably required by it or its
agents to consummate a financing with Lender on the terms of the
Lender's Proposed Financing, or such other terms as Borrower and
Lender may agree. For the purposes of this fSection 9.3,
"material" terms shall include interest rate, term of the
facility, principal amount of the facility, recourse, if any, to
Borrower, amortization, collateral, advance rate, points and
other fees. Borrower may at any time and from time to time elect
not to refinance.
(c) If (i) Lender fails to give the Exercise
Notice during such fifteen (15) calendar day period, or (ii)
Lender gives the Exercise Notice during such fifteen (15)
calendar day period but Lender and Borrower shall fail to
consummate Lender's Proposed Financing within thirty (30) days
(or such longer period as is agreed to by Lender and Borrower)
after the giving of the Exercise Notice (other than by reason of
Borrower failing to perform its obligations under the preceding
paragraph), the Financing Notice shall be deemed revoked and of
no further force and effect, and Borrower may thereafter proceed
with the Proposed Financing with the Person referred to in the
related Financing Notice upon the terms thereof. If Borrower
shall fail to consummate such Proposed Financing in accordance
with the terms thereof and the Financing Notice, Borrower shall
continue to comply with the provisions of this fSection 9.3 and
provide Lender with a Financing Notice of any new Proposed
Financing prior to consummating a Proposed Financing with any
Person. If Lender shall willfully fail to close Lender's
Proposed Financing after providing the Exercise Notice (provided
any such failure to close was not occasioned by Borrower's
default under any term sheet or other documents executed by
Borrower and Lender in connection with such Lender's Proposed
Financing, and provided further that no Event of Default
hereunder has occurred), the rights of Lender under this fSection
9.3 shall terminate and become void and of no further force and
effect.
(d) Neither Lender's failure to give an Exercise
Notice nor Lender's failure to consummate any Lender's Proposed
Financing shall in any manner terminate or limit Borrower's
obligations under fSection 9.1 hereof.
Section 9.4 fAssumption of Loan. Notwithstanding
anything to the contrary contained herein during the Term, Lender
shall permit one (1) sale, conveyance or transfer of the Premises
in its entirety (hereinafter, "fSale") to any Person provided
that each of the following terms and conditions are satisfied:
(i) no Event of Default has occurred and is
then continuing;
(ii) Borrower gives Lender written notice (a
"fSale Notice") of the terms of such prospective Sale not less
than thirty (30), nor more than sixty (60) days, before the date
on which such Sale is scheduled to close and, concurrently
therewith, gives Lender all such information concerning the
proposed transferee of the Premises (the "fBuyer") as Lender
would require in evaluating an initial extension of credit to
such Buyer as a borrower. Lender shall have the right to approve
or disapprove the proposed Buyer, which approval shall not be
unreasonably withheld. In determining whether to give or
withhold its approval of the proposed Buyer, Lender shall
consider the Buyer's experience and track record in owning and
operating facilities similar to the Premises, the Buyer's
financial strength, net worth and credit history, the Buyer's
general business standing and the Buyer's relationships and
experience with contractors, vendors, tenants, lenders and other
business entities; fprovided, fhowever, that, notwithstanding
Lender's agreement to consider the foregoing factors in
determining whether to give or withhold such approval, such
approval shall be given or withheld based on what Lender
determines to be commercially reasonable in Lender's sole
discretion and, if given, may be given subject to such conditions
as Lender may deem appropriate;
(iii) Borrower pays Lender, concurrently
with the closing of such Sale, a non-refundable assumption fee in
an amount equal to (A) all out-of-pocket costs and expenses,
including, without limitation, attorneys' fees, incurred by
Lender in connection with the Sale, plus (B) an amount equal to
one percent (1.0%) of the then Outstanding Principal Balance;
(iv) the Buyer assumes and agrees to pay the
Obligations and, prior to or concurrently with the closing of
such Sale, (A) the Buyer executes, without any cost or expense to
Lender, such documents and agreements as Lender shall reasonably
require to evidence and effectuate said assumption, in form and
substance satisfactory to Lender, and (B) delivers such legal
opinions as Lender may require including, without limitation, an
opinion as to the substantive non-consolidation of the assets of
the Buyer and any other Person in any bankruptcy proceeding
against the Buyer, any Affiliate of the Buyer and/or any other
Person;
(v) Borrower and the Buyer execute, without
any cost or expense to Lender, new financing statements or
financing statement amendments and any additional documents
reasonably requested by Lender including, without limitation,
such amendments to this Agreement, the Note and/or the Mortgage
as are necessary to conform such documents to the organizational
structure of the Buyer;
(vi) Borrower delivers to Lender, without any
cost or expense to Lender, such endorsements to the Title Policy,
hazard insurance endorsements or certificates and other similar
materials as Lender may deem necessary at the time of the Sale,
all in form and substance satisfactory to Lender, including,
without limitation, an endorsement or endorsements to the Title
Policy insuring the Lien of the Mortgage, extending the effective
date of such policy to the date of execution and delivery (or, if
later, of recording) of the assumption agreement referenced above
in subparagraph (iv) of this fSection 9.4, with no additional
exceptions added to such policy and insuring that fee simple
title to the Premises is vested in the Buyer;
(vii) Borrower executes and delivers to
Lender, a release of Lender and its officers, directors,
employees and agents, from all claims and liability relating to
the transactions evidenced by the Loan Documents through and
including the date of the closing of the Sale, which release
shall be in form and substance satisfactory to Lender;
(viii) the DCR (as determined by Lender
upon its receipt of the Sale Notice as of the date of such
receipt) is no less than the Closing Date DCR;
(ix) the Sale Loan-to-Value Ratio is no
greater than the Closing Date Loan-to-Value Ratio;
(x) the Buyer is a single purpose,
bankruptcy remote entity which has an Independent Director or
whose organizational structure is otherwise acceptable to Lender
in its sole discretion;
(xi) the representations and warranties on
the part of Borrower contained in fSection 8.1 hereof are true
and correct as if made by the Buyer on the date of the Sale, and
the Buyer delivers to Lender a certificate to such effect;
(xii) the Buyer delivers to Lender a
Partner Pledge Agreement, executed by each of its partners,
members or shareholders, as applicable; and
(xiii) Lender receives copies of all
consents, licenses and approvals, if any, required in connection
with such assignment and assumption.
Section 9.5 fConversion Option Following the
Scheduled Maturity Date of the First Extension Option (as defined
in Section 2.2.2 hereof), Lender shall have the option to convert
the Loan to a permanent loan with a term of ten (10) years, an
amortization period of thirty (30) years and an interest rate
equal to three percent (3%) in excess of the then applicable
Treasury Rate upon such other terms and conditions determined by
Lender. Borrower shall pay all costs in connection with such
conversion and shall execute all documents as Lender shall
require. The exercise of the Conversion Option shall be a Lock
Box Event, as defined in the Cash Management Agreement. Upon the
exercise of the Conversion Option, all remaining funds in the
Capital Improvements Holdback, the Ground Lease Holdback, and the
Interest Reserve Holdback shall be funded into the applicable
Subaccounts of the Cash Collateral Account and shall constitute a
part of the Outstanding Principal Balance.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, each of Borrower and Lender have
executed and delivered this Agreement or caused its duly authorized
representative to execute and deliver the same as of the day and
year first above written.
LENDER:
CREDIT SUISSE FIRST BOSTON
MORTGAGE CAPITAL LLC
By: /S/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Authorized Signatory
WESMARK FIFTY, L.P., a South Carolina
limited partnership
By: /s/ Xxxxxx Xxxx
Name: Xxxxxx Xxxx
Title: Senior Vice President
XXXX TWELVE ASSOCIATES,L.P., a
Pennsylvania limited partnership
By: Newcastle Fifty Realty Corp, its
general partner
By: /s/ Xxxxxx Xxxx
Name: Xxxxxx Xxxx
Title: Senior Vice President
XXXX PLAZA FIFTY, L.P., a Pennsylvania
limited partnership
By: Xxxx Plaza Fifty Realty Corp., its
general partner
By: /s/ Xxxxxx Xxxx
Name: Xxxxxx Xxxx
Title: Senior Vice President
XXXXXXXX FIFTY, L.P., a Pennsylvania
limited partnership
By: Xxxxxxxx Fifty Realty Corp., its
general partner
By: /s/ Xxxxxx Xxxx
Name: Title
Title: Senior Vice President
SCHEDULE A
Description of Land
SCHEDULE B
Contracts
A. WESMARK PLAZA
1) Carolina Sweeping
B. XXXX PLAZA
1) Kleen Keeper
X. XXXXXXXX PLAZA
1) Kleen Keeper
D. UNION PLAZA
1) SMG Landscaping
2) Jen Plaza Maintenance
SCHEDULE C
Leases
SCHEDULE D
Litigation
None.
SCHEDULE E
Contingent Liabilities
None.
SCHEDULE F
Leasing Guidelines
SCHEDULE G
Environmental Remediation Items
SCHEDULE H
Deferred Maintenance Items
