LOAN AGREEMENT between DOUGLAS EMMETT 2008, LLC, as Borrower THE LENDERS PARTY HERETO, as Lenders and GENERAL ELECTRIC CAPITAL CORPORATION, as Administrative Agent Dated as of March 26, 2008
between
XXXXXXX XXXXXX 2008,
LLC,
as
Borrower
THE LENDERS PARTY
HERETO,
as
Lenders
and
GENERAL ELECTRIC CAPITAL
CORPORATION,
as Administrative
Agent
Dated as of March
26,
2008
THIS LOAN
AGREEMENT (this “Agreement”)
is entered into as of March 26, 2008 among XXXXXXX XXXXXX 2008, LLC, a
Delaware limited liability company (“Borrower”);
each of the lenders that is a signatory hereto identified under the caption
“LENDERS” on the
signature pages hereof and each lender that becomes a “Lender” after the date
hereof pursuant to Section 12.24(2)
(individually, a “Lender”
and, collectively, the “Lenders”);
and GENERAL ELECTRIC CAPITAL
CORPORATION, a Delaware corporation, as administrative agent for the
Lenders (in such capacity, together with its successors in such capacity, the
“Administrative
Agent”).
ARTICLE
1
. As
used herein, the following terms have the meanings indicated:
(1) “Additional
Costs” has the meaning assigned in Section 2.7(1)(a).
(2) “Adjusted
Libor Rate” means, for any Interest Period for any Eurodollar Loan, a
rate per annum (rounded upwards, if necessary, to the nearest 1/10,000 of 1%)
determined by the Administrative Agent to be equal to the Libor Base Rate for
such Interest Period divided by 1 minus the Reserve Requirement (if any) for
such Eurodollar Loan for such Interest Period.
(3) “Advance
Date” has the meaning assigned in Section 2.6(3).
(4) “Affiliate”
means, as to any Person, (a) any corporation in which such Person or any
partner, shareholder, director, officer, member, or manager of such Person, at
any level, directly or indirectly owns or controls more than ten percent (10%)
of the beneficial interest, (b) any partnership, joint venture or limited
liability company in which such Person or any partner, shareholder, director,
officer, member, or manager of such Person, at any level, is a partner, joint
venturer or member, (c) any trust in which such Person or any partner,
shareholder, director, officer, member or manager of such Person, at any level,
or any individual related by birth, adoption or marriage to such Person, is a
trustee or beneficiary, (d) any entity of any type which is directly or
indirectly owned or controlled by (or is under common control with) such Person
or any partner, shareholder, director, officer, member or manager of such
Person, at any level, (e) any partner, shareholder, director, officer,
member, manager or employee of such Person, or (f) any individual related
by birth, adoption or marriage to any partner, shareholder, director, officer,
member, manager, or employee of such Person. Each Borrower Party
shall be deemed to be an Affiliate of Borrower for purposes of this
Agreement.
(5) “Agreement”
means this Loan Agreement, as amended from time to time.
(6) “Allocated
Loan Amount” means, for any Project, the portion of the Loans allocated
to such Project in Exhibit B attached
hereto solely for the purposes of performing certain calculations hereunder;
provided, however, that in the
case of either a condemnation or a fire or other casualty where the
Administrative Agent is not required to, and does not, make the insurance or
condemnation proceeds available to the Borrower to complete the restoration of
the same and where, in either case, the insurance or condemnation proceeds
received by the Administrative Agent and applied to repay the principal of the
Loans are less than the Allocated Loan Amount for the Project in question, each
Allocated Loan Amount for each remaining Project (exclusive of the Project in
question) shall be increased by an amount equal to the product of (a) the
difference between the applicable Allocated Loan Amount for the Project in
question and the insurance or condemnation proceeds so applied to repay the
principal of the Loans and (b) a fraction, the numerator of which is the
applicable Allocated Loan Amount (prior to the adjustment in question) for such
remaining Projects and the denominator of which is the Allocated Loan Amounts
(prior to such adjustment) for all such Remaining Projects.
(7) “Alternate
Base Rate” means, for any day, a rate per annum equal to the Prime Rate
in effect for such day.
(8) “Alternate
Base Rate Loans” means Loans that bear interest at rates based upon the
Alternate Base Rate.
(9) “Anti-Money
Laundering Laws” means those laws, regulations and sanctions, state and
federal, criminal and civil, that (a) limit the use of and/or seek the
forfeiture of proceeds from illegal transactions; (b) limit commercial
transactions with designated countries or individuals believed to be terrorists,
narcotics dealers or otherwise engaged in activities contrary to the interests
of the United States; (c) require identification and documentation of the
parties with whom a Financial Institution conducts business; or (d) are
designed to disrupt the flow of funds to terrorist
organizations. Such laws, regulations and sanctions shall be deemed
to include the Patriot Act, the Bank Secrecy Act , the Trading with the Enemy
Act, 50 U.S.C. App. Section 1 et seq., the
International Emergency Economic Powers Act, 50 U.S.C. Section 1701
et seq.,
and the sanction regulations promulgated pursuant thereto by the OFAC, as well
as laws relating to prevention and detection of money laundering in
18 U.S.C. Sections 1956 and 1957.
(10) “Applicable
Lending Office” means, for each Lender and for each Type of Loan, the
“Lending Office” of such Lender (or of an affiliate of such Lender) designated
for such Type of Loan on the respective signature pages hereof or such other
office of such Lender (or of an affiliate of such Lender) as such Lender may
from time to time specify to the Administrative Agent and Borrower as the office
by which its Loans of such Type are to be made and maintained.
(11) “Assignment
and Acceptance” means an Assignment and Acceptance, duly executed by the
parties thereto, in substantially the form of Exhibit D hereto and
consented to by the Administrative Agent in accordance with Section 12.24(2).
(12) “Assignment
of Rents and Leases” means each Assignment of Rents and Leases, executed
by Borrower for the benefit of the Administrative Agent (on behalf of the
Lenders), and pertaining to leases of space in a Project, as the same may be
modified or amended from time to time.
(13) “Bankruptcy
Party” has the meaning assigned in Section
10.8.
(14) “Bank
Secrecy Act” means the Bank Secrecy Act, 31 U.S.C.
Sections 5311 et seq.
(15) “Basle
Accord” means the proposals for risk-based capital framework described by
the Basle Committee on Banking Regulations and Supervisory Practices in its
paper entitled “International Convergence of Capital Measurement and Capital
Standards” dated July 1988, as amended, modified and supplemented and in effect
from time to time or any replacement thereof.
(16) “Borrower
Party” shall mean the Borrower and Borrower’s Manager but shall not
include the Operating Partnership or the REIT (regardless of whether the
Operating Partnership or the REIT is the member, general partner or manager of
the Borrower). Upon the acquisition of the Projects, but not of
direct or indirect ownership interests in Borrower, by a Controlled
Subsidiary, “Borrower Party” shall also mean and include any such Controlled
Subsidiary and the general partner or manager thereof (except that if the
general partner or manager of such Fund is the REIT or the Operating
Partnership, the term “Borrower Party” shall not include the REIT or the
Operating Partnership) and, unless the Borrower, the Borrower’s Manager or any
other Person constitutes the general partner or manager of such Controlled
Subsidiary , shall no longer include the applicable Borrower, the Borrower’s
Manager or such other applicable Person (and in any event shall not include any
such Person that is not the general partner or manager of such Controlled
Subsidiary).
(17) “Borrower’s
Manager” shall mean Xxxxxxx Xxxxxx Management, Inc., a Delaware
corporation, or any successor thereto in such capacity permitted by this
Agreement.
(18) “Borrower’s
Member” means Xxxxxxx Xxxxxx Properties, LP, a Delaware limited
partnership.
(19) “Business
Day” means (a) any day other than a Saturday, a Sunday, or other day on
which commercial banks located in New York City (or, with respect
only to payments to be made by Borrower, in California) are authorized or
required by law to remain closed and (b) in connection with a borrowing of, a
payment or prepayment of principal of or interest on, a Conversion of or into,
or an Interest Period for, a Eurodollar Loan or a notice by Borrower with
respect to any such borrowing, payment, prepayment or Conversion, the term
“Business Day” shall also exclude a day on which banks are not open for dealings
in Dollar deposits in the London interbank market.
(21) “Closing
Date” means the date on which Lenders make the advance of Loan
proceeds, which shall be the date of this Agreement.
(22) “Collateral”
means Borrower’s interest in the Projects and all other “Mortgaged Property”
described in the applicable Mortgages, and any other property that at any time
secures the Loan or any portion thereof.
(23) “Commitment”
means, as to each Lender, the obligation of such Lender to make a Loan in the
principal amount equal to but not exceeding the amount set opposite
the name of such Lender on Schedule 1 under
the caption “Commitment” or, in the case of a Person that becomes a Lender
pursuant to an assignment permitted under Section 12.24(2),
as specified in the respective instrument of assignment pursuant to which such
assignment is effected. The original aggregate principal amount of
the Commitments is $380,000,000.
(24) “Continue”
“Continuation”
and “Continued”
refer to the continuation pursuant to Section 2.2 of a
Eurodollar Loan from one Interest Period to the next Interest Period for such
Loan.
(25) “Contract
Rate” has the meaning assigned in Article 2.
(26) “Control”
means that a Person shall be deemed to control another Person if the controlling
Person possesses, directly or indirectly, the power to direct or cause the
direction of the management and policies of the other Person, whether through
the ownership of voting securities, by contract or otherwise.
(27) “Controlled
Subsidiary” means an entity that the Operating Partnership, directly or
indirectly, (i) manages and Controls, and (ii) owns at least ten percent (10%)
of the equity interests.
(28) “Convert”
“Conversion”
and “Converted”
refer to a conversion pursuant to the terms of this Agreement of one Type of
Loans into another Type of Loans, which may be accompanied by the transfer by a
Lender (at its sole discretion) of a Loan from one Applicable Lending Office to
another.
(29) “Debt”
means, for any Person, without duplication: (a) all indebtedness
of such Person for borrowed money, for amounts drawn under a letter of credit,
or for the deferred purchase price of property for which such Person or any of
its assets is liable, (b) all unfunded amounts under a loan agreement,
letter of credit, or other credit facility for which such Person or any of its
assets would be liable or subject, if such amounts were advanced under the
credit facility, (c) all amounts required to be paid by such Person as a
guaranteed payment to partners, members, shareholders or other equity holders,
or a preferred or special dividend, including any mandatory redemption of shares
or interests, (d) all indebtedness guaranteed by such Person, directly or
indirectly, (e) all obligations under leases that constitute capital leases
for which such Person or any of its assets is liable or subject, and
(f) all obligations of such Person under interest rate swaps, caps, floors,
collars and other interest hedge agreements, in each case whether such Person or
any of its assets is liable or subject, contingently or otherwise, as obligor,
guarantor or otherwise, or in respect of which obligations such Person otherwise
assures a creditor against loss.
(30) “Debt
Service” means the aggregate interest, monthly principal (if any), and
other scheduled payments due under the Loans for the period of time for which
calculated.
(32) “Default
Rate” means the lesser of (a) the maximum rate of interest allowed
by applicable law, and (b) five percent (5%) per annum in excess of (i)
with respect to Alternate Base Rate Loans required to be maintained pursuant to
Sections 2.8(2) or 2.8(3) of this Agreement, the Alternate Base Rate as in
effect from time to time or (ii) with respect to Eurodollar Loans, the
respective Contract Rate for such Eurodollar Loan.
(33) “Dollars”
and “$”
means lawful money of the United States of America.
(34) “Environmental
Indemnity” means that certain Hazardous Materials Indemnity Agreement
dated concurrently herewith by Borrower in favor of Administrative Agent for the
Lenders.
(35) “Environmental
Laws” means any federal, state or local law (whether imposed by statute,
ordinance, rule, regulation, administrative or judicial order, or common law),
now or hereafter enacted, governing health, safety, industrial hygiene, the
environment or natural resources, or Hazardous Materials, including, without
limitation, such laws governing or regulating (a) the use, generation,
storage, removal, recovery, treatment, handling, transport, disposal, control,
release, discharge of, or exposure to, Hazardous Materials, (b) the
transfer of property upon a negative declaration or other approval of a
governmental authority of the environmental condition of such property, or
(c) requiring notification or disclosure of releases of Hazardous Materials
or other environmental conditions whether or not in connection with a transfer
of title to or interest in property.
(36) “ERISA”
has the meaning assigned in the Section
6.8(1).
(37) “Eurodollar
Loans” means Loans that bear interest at rates based on rates referred to
in the definition of “Libor Base Rate”.
(38) “Event of
Default” has the meaning assigned in Article 10.
(39) “Federal
Funds Rate” means, for any day, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) equal to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day, provided that (a) if the day for which such rate is to be determined
is not a Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day as so published on the next
succeeding Business Day and (b) if such rate is not so published for any
Business Day, the Federal Funds Rate for such Business Day shall be the average
rate charged to Bankers Trust Company on such Business Day on such transactions
as determined by the Administrative Agent, or such other commercial bank as
selected by the Administrative Agent.
(40) “Financial
Institution” means a United States Financial Institution as defined in
31 U.S.C. 5312, as periodically amended.
(41) “Fund”
means a real estate investment fund that is a Controlled
Subsidiary.
(42) “GECC”
means General Electric Capital Corporation.
(43) “Hazardous
Materials” means (a) petroleum or chemical products, whether in
liquid, solid, or gaseous form, or any fraction or by-product thereof,
(b) asbestos or asbestos-containing materials, (c) polychlorinated
biphenyls (pcbs), (d) radon gas, (e) underground storage tanks,
(f) any explosive or radioactive substances, (g) lead or lead-based
paint, or (h) any other substance, material, waste or mixture which is or
shall be listed, defined, or otherwise determined by any governmental authority
to be hazardous, toxic, dangerous or otherwise regulated, controlled or giving
rise to liability under any Environmental Laws.
(44) “Improvements”
has the meaning assigned in the Mortgage.
(45) “Indebtedness”
has the meaning assigned in the Mortgage.
(46) “Interest
Period” means, for any Eurodollar Loan, each period commencing on the
date such Eurodollar Loan is made or Converted from a Loan of another Type or
(in the event of a Continuation) the day immediately following the last day of
the preceding Interest Period for such Loan, and ending on (but not including)
the first Business Day of the next calendar month. In no event may
Borrower have more than one Interest Period in respect of Eurodollar Loans from
all Lenders outstanding at any one time. Notwithstanding the
foregoing, the first Interest Period shall be the Stub Interest
Period.
(47) “Libor
Base Rate” means, for any Interest Period, the British Bankers
Association LIBOR Rate (rounded upward, if necessary, to the nearest
1/10,000th of one
percent) listed on Reuters Screen LIBOR01 Page at approximately 11:00 a.m.
London time on the date two Business Days prior to the first day of such
Interest Period as the rate for the offering of Dollar deposits having a one
month or 30 day Interest Period, provided that if such rate does not appear on
such page, or if such page shall cease to be publicly available, or if the
information contained on such page, in the reasonable judgment of the
Administrative Agent shall cease accurately to reflect the rate offered by
leading banks in the London interbank market as reported by any publicly
available source of similar market data selected by the Administrative Agent,
the Libor Base Rate for such Interest Period shall be determined from such
substitute financial reporting service as the Administrative Agent in its
reasonable discretion shall determine.
(48) “Licenses”
has the meaning assigned in Section
6.20.
(49) “Lien”
means any interest, or claim thereof, in the Collateral securing an obligation
owed to, or a claim by, any Person other than the owner of the Collateral,
whether such interest is based on common law, statute or contract, including the
lien or security interest arising from a deed of trust, mortgage, assignment,
encumbrance, pledge, security agreement, conditional sale or trust receipt or a
lease, consignment or bailment for security purposes. The term “Lien”
shall include reservations, exceptions, encroachments, easements, rights of way,
covenants, conditions, restrictions, leases and other title exceptions and
encumbrances affecting the Collateral.
(50) “Loans”
means the loans to be made by the Lenders to Borrower under this Agreement and
all other amounts evidenced or secured by the Loan Documents.
(51) “Loan
Documents” means: (a) this Agreement, (b) the Notes,
(c) the Mortgage, (d) the Assignment of Rents and Leases, (e) the
Environmental Indemnity Agreement, (f) the Subordination of Management
Agreement, (g) Uniform Commercial Code financing statements, (h) such
assignments of management agreements, contracts and other rights as may be
required under the Commitment or otherwise requested by the Administrative
Agent, (i) all other documents executed and delivered by Borrower or
any other Borrower Party in accordance with this Agreement evidencing, securing,
governing or otherwise pertaining to the Loans, and (j) all amendments,
modifications, renewals, substitutions and replacements of any of the
foregoing.
(52) “Majority
Lenders” means Lenders holding at least sixty-six and two-thirds percent
(66 2/3%) of the aggregate outstanding principal amount of the Loans or, if the
Loans shall not have been made, at least sixty-six and two-thirds percent (66
2/3%) of the Commitments.
(53) “Management
Agreement” means each of the management agreements identified on Schedule
6.14 hereof, between Manager and Borrower with respect to the management of the
Projects by the Manager, together with any management agreements entered into
with future Managers in accordance with the terms of this Agreement (or
otherwise contemplated by Section 8.1(2)(d)), individually or collectively, in
each case while such management agreement remains in effect.
(54) “Manager”
means Xxxxxxx Xxxxxx Management, LLC, a Delaware limited liability company,
which is initially the manager of the Projects under the Management Agreements,
together with any successor property managers appointed for the Projects in
accordance with the terms of this Agreement or otherwise contemplated by Section
8.1(2)(d).
(55) “Maturity
Date” means the earlier of (a) January 2, 2009, or (b) any earlier
date on which all of the Loans are required to be paid in full, by acceleration
or otherwise, under this Agreement or any of the other Loan
Documents.
(56) “Mortgage”
means each Deed of Trust, Security Agreement and Fixture Filing, executed by
Borrower in favor of the Administrative Agent (on behalf of the Lenders),
covering a Project and any amendments, modifications, renewals, substitutions,
consolidations, severances and replacements thereof.
(57) “Net
Operating Income” means the amount by which Operating Revenues exceed
Operating Expenses.
(58) “Notes”
means the promissory note or notes of even date herewith as provided for in
Section 2.1(4)
and all promissory notes delivered in substitution or exchange therefor, in each
case as the same may be consolidated, replaced, severed, modified, amended or
extended from time to time.
(59) “OFAC”
means the Office of Foreign Assets Control, Department of the
Treasury.
(60) “Operating
Expenses” means, for any period, all reasonable and necessary expenses of
operating the Projects in the ordinary course of business which are paid in cash
by Borrower during such period and which are directly associated with and fairly
allocable to the Projects for the applicable period, including ad valorem real
estate taxes and assessments, insurance premiums, maintenance costs, management
fees and costs, accounting, legal, and other professional fees, fees and other
expenses incurred by the Administrative Agent and reimbursed by Borrower under
this Agreement and the other Loan Documents, wages, salaries, and personnel
expenses. Operating Expenses shall exclude Debt Service, capital
expenditures, tenant improvement costs, leasing commissions, any of the
foregoing operating expenses which are paid from deposits to cash reserves and
such deposits were previously included as Operating Expenses, any payment or
expense for which Borrower was or is to be reimbursed from proceeds of the Loans
or insurance or by any third party, and any non-cash charges such as
depreciation and amortization. Operating Expenses shall
not include federal, state or local income taxes.
(61) “Operating
Partnership” shall mean Xxxxxxx Xxxxxx Properties LP, a Delaware limited
partnership.
(62) “Operating
Revenues” means, for any period, all cash receipts of Borrower during
such period from operation of the Projects or otherwise arising in respect of
the Projects after the date hereof which are properly allocable to the Projects
for the applicable period, including receipts from leases and parking
agreements, concession fees and charges, other miscellaneous operating revenues
and proceeds from rental or business interruption insurance, but excluding (a)
security deposits and xxxxxxx money deposits until they are forfeited by the
depositor, (b) advance rentals until they are earned, and (c) proceeds from a
sale or other disposition.
(63) “Participant”
has the meaning assigned in Section 12.24(3).
(64) “Patriot
Act” means the USA PATRIOT Act of 2001, Pub. L.
No. 107-56.
(65) “Payment
Date” has the meaning assigned in Section 2.3(1).
(66) “Payor”
has the meaning assigned in Section 2.6(3).
(67) “Permitted
Encumbrances” has the meaning set forth in the Mortgage.
(68) “Permitted
Transfers” means
(i) a Transfer of any or all of the Projects to a Controlled Subsidiary that is
a Single Purpose Entity and in accordance with the provisions of Section 8.1(2),
(ii) so long as the Fund remains a Controlled Subsidiary, a Transfer of the
direct or indirect equity interests in the Borrower to the Fund or any direct or
indirect subsidiary of the Fund that is a Controlled Subsidiary, (iii) so long
as the Borrower remains a Controlled Subsidiary, the Transfer of any direct or
indirect ownership interests in, or the admission or withdrawal of any partner,
member or shareholder to or from, Borrower’s Member, (iv) following any of the
Transfers made pursuant to clauses (i) or (ii) above, and so long as the
transferee (pursuant to clause (i) above) remains a Controlled Subsidiary that
is a Single Purpose Entity, or the Fund (pursuant to clause (ii) above) remains
a Controlled Subsidiary, the Transfer of any direct or indirect ownership
interests in such Controlled Subsidiary or the Fund, (v) the Permitted
Encumbrances, (vi) any leases affecting any of the Projects in effect as of the
Closing Date and any future leases entered into after the Closing Date that are
permitted pursuant to the Loan Documents, and/or (vii) any Liens permitted
pursuant to the Loan Documents.
(69) “Person”
means any individual, corporation, partnership, joint venture, association,
joint stock company, trust, trustee, estate, limited liability company,
unincorporated organization, real estate investment trust, government or any
agency or political subdivision thereof, or any other form of
entity.
(70) “Potential
Default” means the occurrence of any event or condition which, with the
giving of notice, the passage of time, or both, would constitute an Event of
Default.
(71) “Prime
Rate” means the highest prime rate (or base rate) reported in the Money
Rates column or section of The
Wall Street Journal as the rate in effect for corporate loans at large
United States money center commercial banks (whether or not such rate has
actually been charged by any such bank) from time to time. If The Wall Street Journal
ceases publication of the Prime Rate, the “Prime
Rate” shall mean the prime rate (or base rate) announced by Citibank, New
York, New York (whether or not such rate has actually been charged by such
bank). If such bank discontinues the practice of announcing the Prime
Rate, the “Prime
Rate” shall mean the prime or base rate charged by a large United States
commercial bank selected by the Administrative Agent to its most creditworthy
large corporate borrowers.
(72) “Project”
means each of the office buildings identified on Exhibit A-1, and all
related land, facilities, amenities, fixtures, and personal property owned by
Borrower and any improvements now or hereafter located on the real property
described in Exhibit
A-2; provided, however, the term
“Project” shall not include any Project which is released from the Liens,
assignments and security interests of the Mortgage pursuant to Section 2.4
hereof from and after the date of such release
(73) “Proposed
Lender” has the meaning assigned in Section 2.7(7).
(74) “Regulation
D” means Regulation D of the Board of Governors of the Federal Reserve
System of the United States of America (or any successor), as the same may be
modified and supplemented and in effect from time to time.
(75) “Regulatory
Change” means, with respect to any Lender, any change after the date
hereof in Federal, state or foreign law or regulations (including, without
limitation, Regulation D) or the adoption or making after such date of any
interpretation, directive or request applying to a class of banks including such
Lender of or under any Federal, state or foreign law or regulations (whether or
not having the force of law and whether or not failure to comply therewith would
be unlawful) by any court or governmental or monetary authority charged with the
interpretation or administration thereof.
(76) “REIT”
shall mean Xxxxxxx Xxxxxx, Inc., a Maryland corporation.
(78) “Requesting
Lender” has the meaning assigned in Section 2.7(7).
(79) “Required
Payment” has the meaning assigned in Section 2.6(3).
(80) “Reserve
Requirement” means, for any Interest Period for any Eurodollar Loan, the
average maximum rate at which reserves (including, without limitation, any
marginal, supplemental or emergency reserves) are required to be maintained
during such Interest Period under Regulation D by member banks of the
Federal Reserve System in New York City with deposits exceeding $1,000,000,000
against “Eurocurrency liabilities” (as such term is used in
Regulation D). Without limiting the effect of the foregoing, the
Reserve Requirement shall include any other reserves required to be maintained
by such member banks by reason of any Regulatory Change with respect to
(i) any category of liabilities that includes deposits by reference to
which the Libor Base Rate for any Interest Period for any Eurodollar Loans is to
be determined as provided in the definition of “Libor Base Rate” or
(ii) any category of extensions of credit or other assets that includes
Eurodollar Loans.
(81) “Restoration
Threshold” means, as of any date, $10,000,000.
(82) “Secondary
Market Transaction”
has the meaning assigned in Section
12.9(2).
(83) “Single
Purpose Entity” shall mean a corporation, limited partnership or limited
liability company which at all times on and after the date hereof, unless
otherwise approved in writing by the Administrative Agent:
(a) does not
have and will not have any assets other than (i) the Projects, (ii) those
related to the Projects and (iii) any of the Projects (or assets related to
Projects) that are released from the Liens, assignments and security interests
of the Mortgage pursuant to Section 2.4 hereof; and
(b) has not
incurred and will not incur any Debt other than (A) the Loans and (B) trade and
operational debt and equipment leases which is (i) incurred in the ordinary
course of business, (ii) not more than sixty (60) days past due, (iii) with
trade creditors, (iv) in the aggregate, in an amount not to exceed $5,000,000,
(v) not evidenced by a note, and (C) non-recourse Debt (which may include “carve
outs” for fraud, misrepresentation, misappropriation and environmental matters
and other exceptions from non-recourse that are not materially more favorable to
such lender than the exceptions from non-recourse set forth in Article 13 or
than exceptions from non-recourse that are customary in the real estate finance
industry) secured by Liens on Projects (it being understood that such Liens may
also include Liens encumbering interest in accounts, rents, lease, management
and other contracts, personal property and other items related to the applicable
Project) that have been released from the Collateral pursuant to Section 2.4
hereof (which Debt may also be secured by Liens on other real estate projects
owned by any direct or indirect subsidiary of the REIT or the Fund), provided
that the amount of such Debt (or if there is multiple collateral the applicable
allocated loan amount), when incurred, does not exceed seventy percent (70%) of
the value of such Projects or other real estate projects, as determined by the
lender’s appraisal. No Debt other than the Loans (and equipment
leases permitted herein) may be secured (subordinate or pari passu) by the
Projects unless such Project has been released from the Collateral pursuant to
Section 2.4 hereof.
(84) “Site
Assessment” means each environmental engineering report for the Projects
listed on Schedule 1.1(84) attached hereto.
(85) “Specially
Designated National and Blocked Persons” means those Persons that have
been designated by executive order or by the sanction regulations of OFAC as
Persons with whom United States Persons may not transact business or must limit
their interactions to types approved by OFAC.
(87) “State”
means the State of California.
(88) “Stub
Interest Period” has the meaning assigned in Section
2.3(1).
(89) “Subordination
of Management Agreement” means each Manager’s Consent and Subordination
of Management Agreement, dated the date hereof, by the Manager in favor of the
Administrative Agent (on behalf of the Lenders) and relating to the
Projects.
(90) “Taxes”
has the meaning assigned in Section
8.2.
(91) “Type”
has the meaning assigned in Section 1.2.
(92) “UCC”
means the Uniform Commercial Code as the same may, from time to time, be enacted
and in effect in the State; provided, that to the extent that the UCC is used to
define any term herein or in any other Loan Document and such term is defined
differently in different Articles or Divisions of the UCC, the definition of
such term contained in Article or Division 9 shall govern; provided further,
that in the event that, by reason of mandatory provisions of law, any or all of
the attachment, perfection or priority of, or remedies with respect to, the
Administrative Agent’s or any Lender’s Lien on any Collateral is governed by the
Uniform Commercial Code as enacted and in effect in a jurisdiction other than
the State, the term “UCC”
shall mean the Uniform Commercial Code as enacted and in effect in such other
jurisdiction solely for purposes of the provisions thereof relating to such
attachment, perfection, priority or remedies and for purposes of definitions
related to such provisions.
(93) “Underwritten
NOI” means the amount by which Underwritten Operating Revenues exceed
Underwritten Operating Expenses.
(94) “Underwritten
Operating Expenses” means Operating Expenses as determined and adjusted
by the Administrative Agent to reflect the Standard Adjustments and otherwise in
accordance with its then current audit policies and procedures for properties
similar to the Project.
(95) “Underwritten
Operating Revenues” means Operating Revenues as determined and adjusted
by the Administrative Agent to reflect the Standard Adjustments and otherwise in
accordance with its then current audit policies and procedures for properties
similar to the Project.
(96) “United
States Person” means any United States citizen, any entity organized
under the laws of the United States or its constituent states or territories, or
any entity, regardless of where organized, having its principal place of
business within the United States or any of its territories.
ARTICLE
2
(4) Prepayment. Except
as otherwise permitted by Section 2.4 below,
Borrower may prepay the Loans, in whole but not in part, upon not less than five
(5) days prior written notice to the Administrative Agent and without payment of
any prepayment premium. If the Loans are prepaid such prepayment
shall be made to the Administrative Agent on the prepayment date specified in
the notice to the Administrative Agent pursuant hereto (unless such notice is
revoked (or the date of prepayment is postponed) by a further written notice
delivered by the Borrower to the Administrative Agent. Any notice
revoking a notice of prepayment (or postponing a previously-specified prepayment
date) shall be delivered not less than one (1) Business Day prior to the date of
prepayment specified in the notice of prepayment; provided, however, in the event
that the Borrower revokes or postpones such notice during the last three (3)
Business Days of any Interest Period for a Eurodollar Loan, Borrower shall pay
any losses, costs or expenses of Lender that may subsequently result from the
early repayment, termination, cancellation or failure of the Borrower to
continue any Eurodollar Loan that was to have been automatically continued), and
together with (a) the accrued and unpaid interest on the principal amount
prepaid and (b) any amounts payable to a Lender pursuant to Section 2.8(5)
as a result of such prepayment while a Eurodollar Loan is in
effect. If the Loans are prepaid for any reason (including
acceleration), other than casualty or condemnation, Borrower shall pay to the
Administrative Agent (on behalf of the Lenders) the amount(s) described in
clauses (a) and (b) of the immediately preceding sentence. The
prepayment premiums, if any, required by this Section 2.3(4) are
acknowledged by Borrower to be partial compensation to Lenders for the costs of
reinvesting the Loan proceeds and for the loss of the contracted rate of return
on the Loan. Furthermore, Borrower acknowledges that the loss that
may be sustained by Lenders as a result of such a prepayment by Borrower is not
susceptible of precise calculation and the prepayment premium, if any,
represents the good faith effort of Borrower and Lenders to compensate Lender
for such loss. By initialing this provision where indicated below,
Borrower waives any rights it may have under California Civil Code
Section 2954.10, or any successor statute, and Borrower confirms that
Lenders’ agreement to make the Loan at the interest rate and on the other terms
set forth herein constitutes adequate and valuable consideration, given
individual weight by Borrower, for the prepayment provisions set forth in this
Section 2.3(4).
______________________
Borrower’s
Initials
(i) Borrower
shall remit to the Administrative Agent an amount equal to the Allocated Loan
Amount (as such amount may have been reduced by any insurance or condemnation
proceeds previously paid to Administrative Agent with respect to such Project
and applied to the principal of the Loans in accordance with the terms hereof)
for the applicable Project;
(ii) Borrower
shall pay to the Administrative Agent all sums, including, but not limited to,
interest payments (including accrued interest on the principal amount required
to be paid pursuant to clause (i) above ), and all costs due pursuant to
subsection 2.8(5) below and subpart (vii) hereof;
(iii) The
applicable Project is transferred by Borrower to another Person which is not an
Affiliate of Borrower pursuant to a contract of sale that is a bona fide arm's
length contract with market-rate terms, or is refinanced subject to the
limitations on debt set forth in clause (b) of the definition of Single Purpose
Entity;
(iv) Borrower
shall submit to the Administrative Agent (on behalf of the Lenders), prior to
the date of such release, a release of Lien and related Loan Documents (or, in
the case of a Mortgage, a request for reconveyance) for such Project for
execution by the Administrative Agent, which the Administrative Agent shall
promptly execute and deliver to the Borrower for recordation upon satisfaction
of all conditions set forth in this Section 2.4(1). Such release
shall be in a form appropriate in each jurisdiction in which the applicable
Project is located and reasonably satisfactory to the Administrative
Agent;
(v) So long
as the Project known as the “Warner Corporation Center” has not been released in
accordance with the terms hereof, then, after giving effect to such release,
there shall be at least one Project other than the Project known as the “Warner
Corporation Center” remaining as Collateral for the Loan;
(vi) No
Potential Default or Event of Default shall have occurred and be continuing on
the date of the proposed release or after giving effect thereto;
(vii) Borrower
shall pay all actual and reasonable costs and expenses (including reasonable
legal fees and disbursements) incurred by Administrative Agent or Lenders in
connection with such release; and
(viii) Such
release shall be in compliance with all applicable legal requirements, and will
not impair or otherwise adversely affect the Liens, security interests and other
rights of the Administrative Agent or Lenders under the Loan Documents not being
released (or as to the parties to the Loan Documents and Projects subject to the
Loan Documents not being released).
(a) if
the Required Payment shall represent a payment to be made by Borrower to the
Lenders, Borrower and the recipient(s) shall each be obligated retroactively to
the Advance Date to pay interest in respect of the Required Payment at the
Default Rate (without duplication of the obligation of Borrower under Section 2.2 to
pay interest on the Required Payment at the Default Rate), it being understood
that the return by the recipient(s) of the Required Payment to the
Administrative Agent shall not limit such obligation of Borrower under Section 2.2 to
pay interest at the Default Rate in respect of the Required Payment,
and
(b) if
the Required Payment shall represent proceeds of a Loan to be made by the
Lenders to Borrower, the Payor and Borrower shall each be obligated
retroactively to the Advance Date to pay interest in respect of the Required
Payment pursuant to whichever of the rates specified in Section 2.2 is
applicable to the Type of such Loan, it being understood that the return by
Borrower of the Required Payment to the Administrative Agent shall not limit any
claim Borrower may have against the Payor in respect of such Required
Payment.
(i) shall
subject any Lender (or its Applicable Lending Office for any of such Loans) to
any new or increased tax, duty or other charge in respect of such Loans or its
Note or changes the basis of taxation of any amounts payable to such Lender
under this Agreement or its Note in respect of any of such Loans (excluding
income, franchise, gross receipts or similar taxes and changes in the rate of
tax on the overall net income of such Lender or of such Applicable Lending
Office by the jurisdiction in which such Lender has its principal office or such
Applicable Lending Office); or
(ii) imposes
or modifies any reserve, special deposit or similar requirements (other than the
Reserve Requirement used in the determination of the Adjusted Libor Rate for any
Interest Period for such Loan) relating to any extensions of credit or other
assets of, or any deposits with or other liabilities of, such Lender (including,
without limitation, any of such Loans or any deposits referred to in the
definition of “Libor Base Rate”), or any commitment of such Lender (including,
without limitation, the Commitment of such Lender hereunder); or
(iii) imposes
any other condition affecting this Agreement or its Note (or any of such
extensions of credit or liabilities) or its Commitment.
If any
Lender requests compensation from Borrower under this paragraph (a),
Borrower may, by notice to such Lender (with a copy to the Administrative
Agent), suspend the obligation of such Lender thereafter to make or Continue
Eurodollar Loans, or to Convert Loans into Eurodollar Loans, until the
Regulatory Change giving rise to such request ceases to be in effect (in which
case the provisions of Section 2.8(4)
shall be applicable), provided that such suspension shall not affect the right
of such Lender to receive the compensation so requested.
(b) Costs Attributable to Regulatory
Change or Risk-Based Capital Guidelines. Without limiting the
effect of the foregoing provisions of this Section 2.8(1)
(but without duplication), Borrower shall pay directly to each Lender from time
to time on request such amounts as such Lender may determine to be necessary to
compensate such Lender (or, without duplication, the bank holding company of
which such Lender is a subsidiary) for any costs that it determines are
attributable to the maintenance of the Eurodollar Loans hereunder by such Lender
(or any Applicable Lending Office or such bank holding company), pursuant to any
law or regulation or any interpretation, directive or request (whether or not
having the force of law and whether or not failure to comply therewith would be
unlawful) of any court or governmental or monetary authority (i) following
any Regulatory Change or (ii) implementing any risk-based capital guideline
or other requirement (whether or not having the force of law and whether or not
the failure to comply therewith would be unlawful) hereafter issued by any
government or governmental or supervisory authority implementing at the national
level the Basle Accord, of capital in respect of its Commitment or Eurodollar
Loans (such compensation to include, without limitation, an amount equal to any
reduction of the rate of return on assets or equity of such Lender (or any
Applicable Lending Office or such bank holding company) to a level below that
which such Lender (or any Applicable Lending Office or such bank holding
company) could have achieved but for such law, regulation, interpretation,
directive or request).
(a) after
making reasonable efforts, the Administrative Agent determines, which
determination shall be conclusive absent manifest error, that, as a result of
circumstances arising after the Closing Date, quotations of interest rates for
the relevant deposits referred to in the definition of Libor Base Rate are not
being provided in the relevant amounts or for the relevant maturities for
purposes of determining rates of interest for Eurodollar Loans as provided
herein; or
(b) the
Majority Lenders determine, which determination shall be conclusive absent
manifest error, and notify the Administrative Agent that, as a result of
circumstances arising after the Closing Date, the relevant rates of interest
referred to in the definition of Libor Base Rate upon the basis of which the
rate of interest for Eurodollar Loans for such Interest Period is to be
determined are not likely adequately to cover the cost to such Lenders of making
or maintaining Eurodollar Loans for such Interest Period;
then the
Administrative Agent shall give Borrower and each Lender prompt notice thereof
and, so long as such condition remains in effect, the Lenders shall be under no
obligation to make additional Eurodollar Loans, to Continue Eurodollar Loans or
to Convert Loans of any other Type into Eurodollar Loans, and Borrower shall, on
the last day(s) of the then current Interest Period(s) for the outstanding
Eurodollar Loans, either prepay such Loans or such Loans shall be automatically
Converted into Alternate Base Rate Loans.
(a) to
the extent that such Lender’s Loans have been so Converted, all payments and
prepayments of principal that would otherwise be applied to such Lender’s Loans
shall be applied instead to its Alternate Base Rate Loans; and
(b) all
Loans that would otherwise be made or Continued by such Lender as Eurodollar
Loans shall be made or Continued instead as Alternate Base Rate Loans, and all
Loans of such Lender that would otherwise be Converted into Eurodollar Loans
shall remain as Alternate Base Rate Loans.
If such
Lender gives notice to Borrower with a copy to the Administrative Agent that the
circumstances specified in Section 2.8(1)
or 2.8(3)
that gave rise to the Conversion of such Lender’s Loans pursuant to this Section 2.8(4)
no longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when Eurodollar Loans made by other Lenders are
outstanding, such Lender’s Alternate Base Rate Loans shall be automatically
Converted, on the first day(s) of the next succeeding Interest Period(s) for
such outstanding Eurodollar Loans, to the extent necessary so that, after giving
effect thereto, all Alternate Base Rate Loans and Eurodollar Loans are allocated
among the Lenders ratably (as to principal amounts, Types and Interest Periods)
in accordance with their respective Commitments.
Without
limiting the effect of the preceding sentence, such compensation shall include
an amount equal to the excess, if any, of (i) the amount of interest that
otherwise would have accrued on the principal amount so paid, prepaid, Converted
or not borrowed for the period from the date of such payment, prepayment,
Conversion or failure to borrow to the last day of the then current Interest
Period for such Loan (or, in the case of a failure to borrow, the Interest
Period for such Loan that would have commenced on the date specified for such
borrowing) at the applicable rate of interest for such Loan provided for herein
over (ii) the amount of interest that otherwise would have accrued on such
principal amount at a rate per annum equal to the interest component of the
amount such Lender would have bid in the London interbank market for Dollar
deposits of leading banks in amounts comparable to such principal amount and
with maturities comparable to such period (as reasonably determined by such
Lender), or if such Lender shall cease to make such bids, the equivalent rate,
as reasonably determined by such Lender, derived from Page 3750 of the Dow
Xxxxx Markets (Telerate) Service or other publicly available source as described
in the definition of Libor Base Rate.
(i) to
any payment to any Lender hereunder unless such Lender is, on the date hereof
(or on the date it becomes a Lender hereunder as provided in Section 12.24(2))
and on the date of any change in the Applicable Lending Office of such Lender,
either entitled to submit a Form W-8BEN (relating to such Lender and
entitling it to a complete exemption from withholding on all interest to be
received by it hereunder in respect of the Loans) or Form W-8ECI (relating
to all interest to be received by such Lender hereunder in respect of the
Loans), or
(ii) to
any United States Taxes imposed solely by reason of the failure by such
non-United States Person to comply with applicable certification, information,
documentation or other reporting requirements concerning the nationality,
residence, identity or connections with the United States of America of such
non-United States Person if such compliance is required by statute or regulation
of the United States of America as a precondition to relief or exemption from
such United States Taxes.
For the
purposes hereof, (A) “United
States Person” means a citizen, national or resident of the United States
of America, a corporation, limited liability company, partnership or other
entity created or organized in or under any laws of the United States of America
or any State thereof, or any estate or trust that is subject to Federal income
taxation regardless of the source of its income, (B) “United
States Taxes” means any present or future tax, assessment or other
charge or levy imposed by or on behalf of the United States of America or any
taxing authority thereof or therein, (C) ”Form W-8BEN”
means Form W-8BEN of the Department of the Treasury of the United States of
America and (D) ”Form W-8ECI”
means Form W-8ECI of the Department of the Treasury of the United States of
America. Each of the Forms referred to in the foregoing clauses (C)
and (D) shall include such successor and related forms as may from time to time
be adopted by the relevant taxing authorities of the United States of America to
document a claim to which such Form relates.
ARTICLE
3
(1) if
the loss is less than or equal to the Restoration Threshold, Borrower may
directly collect and apply the insurance proceeds for restoration provided
(a) no Event of Default or Potential Default exists, and (b) Borrower
promptly commences and is diligently pursuing restoration of such
Project;
(2) if
the loss exceeds the Restoration Threshold the Administrative Agent shall apply
the insurance proceeds to restoration provided that at all times during such
restoration (a) no Event of Default or Potential Default exists;
(b) the Administrative Agent determines that there are sufficient funds
available to restore and repair the Project to its condition prior to the
casualty or to such other condition approved by the Administrative Agent;
(c) the Administrative Agent determines that the Net Operating Income of
the subject Project during restoration together with the Net Operating Income of
the other Projects will be sufficient to pay Debt
Service; (d) the Administrative Agent determines that
restoration and repair of the Project to its condition prior to the casualty or
to such other condition approved by the Administrative Agent will be
completed within six months after the date of loss or casualty and in any event
thirty (30) days prior to the Maturity Date; (e) Borrower
promptly commences and is diligently pursuing restoration of the Project; and
(f) the Project after the restoration will be in compliance with and
permitted under all applicable zoning, building and land use laws, rules,
regulations and ordinances;
(3) if
the conditions set forth above are not satisfied, in the Administrative Agent’s
sole but reasonable discretion, the Administrative Agent may (subject to the
approval of the Majority Lenders) apply any insurance proceeds it may receive to
the payment of the amounts owing under the Loan Documents in such order and
manner as the Administrative Agent in its sole discretion determines (and
provided there is a concomitant reduction in the Allocated Loan
Amount for such Project) or allow all or a portion of such proceeds to be used
for the restoration of the Project; and
(4) insurance
proceeds applied to restoration will be disbursed on receipt of satisfactory
plans and specifications, contracts and subcontracts, schedules, budgets, lien
waivers and architects’ certificates, and otherwise in accordance with prudent
commercial construction lending practices for construction loan advances,
including, as applicable, the advance conditions under Schedule
2.1. Any insurance proceeds remaining after payment of all
restoration costs shall be applied by the Administrative Agent to the
outstanding principal balance of the Loans or, at the Administrative Agent’s
sole option, remitted to Borrower.
ARTICLE
4
(1) Borrower
shall (a) comply with applicable Environmental Laws; (b) notify the
Administrative Agent promptly upon Borrower’s discovery of any spill, discharge,
release or presence of any Hazardous Material at, upon, under, within,
contiguous to or otherwise affecting any Project; (c) promptly remove such
Hazardous Materials and remediate any Project in compliance with
applicable Environmental Laws and in accordance with the recommendations and
specifications of an independent environmental consultant approved by the
Administrative Agent to the extent such recommendations and specifications are
necessary to comply with applicable Environmental Laws; and (d) promptly
forward to the Administrative Agent copies of all orders, notices, permits,
applications or other communications and reports in connection with any spill,
discharge, release or the presence of any Hazardous Material or any other
matters relating to the Environmental Laws or any similar laws or regulations,
as they may affect any Project or Borrower.
(2) Borrower
shall not cause, shall prohibit any other Person within the control of Borrower
from causing, and shall use prudent, commercially reasonable efforts to prohibit
other Persons (including tenants) from causing (a) any spill, discharge or
release, or the use, storage, generation, manufacture, installation, or
disposal, of any Hazardous Materials at, upon, under, within or about any
Project or the transportation of any Hazardous Materials to or from any Project
(except for cleaning and other products used in connection with the routine
maintenance or repair of a Project in compliance with applicable
Environmental Laws), (b) any underground storage tanks to be installed at
any Project, or (c) any activity that requires a permit or other
authorization under Environmental Laws to be conducted at any Project unless
such activity is currently conducted pursuant to such permit or
authorization.
(3) If
the Administrative Agent has a reasonable suspicion that a release of Hazardous
Materials has occurred at or near any Project after the Closing Date, Borrower
shall provide to the Administrative Agent, at Borrower’s expense promptly upon
the written request of the Administrative Agent , a Site Assessment or, if
required by the Administrative Agent, an update to any existing Site Assessment,
to assess the presence or absence of any Hazardous Materials and the potential
costs in connection with abatement, cleanup or removal of any Hazardous
Materials found on, under, at or within any Project.
ARTICLE
5
ARTICLE
6
Borrower
represents and warrants to the Administrative Agent and the Lenders as of the
date hereof that:
(1) The
financial statements, to the extent, if any, that are delivered by Borrower and
each Borrower Party to Administrative Agent are true and correct in all material
respects as of the date or dates thereof with no significant change since the
date of preparation. Except as disclosed in such financial
statements, there are no liabilities (fixed or contingent) affecting Borrower,
or, to Borrower’s knowledge, the Projects except for Borrower’s obligations
under the Loan Documents and liabilities relating to the
Projects. Except as disclosed in such financial statements or in the
litigation searches provided to the Administrative Agent (or its counsel) prior
to the Closing Date, there is no litigation, administrative proceeding,
investigation or other legal action (including any proceeding under any state or
federal bankruptcy or insolvency law) pending or threatened in writing against
the Project, Borrower or any Borrower Party which if adversely determined could
have a material adverse effect on such party, any of the Projects or the
Loans.
(2) Borrower
is not, and has not been, bound (whether as a result of a merger or otherwise)
as a debtor under a pledge or security agreement entered into by another Person,
which has not heretofore been terminated.
(1) As of the
Closing Date and throughout the term of the Loan, (a) Borrower is not and
will not be an “employee benefit plan” as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended (“ERISA”),
which is subject to Title I of ERISA, and (b) the assets of Borrower
do not and will not constitute “plan assets” of one or more such plans for
purposes of Title I of ERISA; and
(2) As of the
Closing Date and throughout the term of the Loan Borrower is not and will not be
a “governmental plan” within the meaning of Section 3(3) of
ERISA.
Section
6.15 No Conflicts. The
execution, delivery and performance of this Agreement and the other Loan
Documents by Borrower will not conflict with or result in a breach of any of the
terms or provisions of, or constitute a default under, or result in the creation
or imposition of any Lien (other than pursuant to the Loan Documents) upon any
of the property or assets of Borrower pursuant to the terms of any indenture,
mortgage, deed of trust, loan agreement, operating agreement or other agreement
or instrument to which Borrower is a party or by which any of Borrower’s
property or assets is subject, nor will such action result in any violation of
the provisions of any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over Borrower or any of
Borrower’s properties or assets, and any consent, approval, authorization,
order, registration or qualification of or with any court or any such regulatory
authority or other governmental agency or body required for the execution,
delivery and performance by Borrower of this Agreement or any other Loan
Documents has been obtained and is in full force and effect.
Section
6.21 Reserved.
Section
6.22 Reserved.
Section
6.23 Reserved.
ARTICLE
7
ARTICLE
8
Borrower
covenants and agrees with the Administrative Agent and the Lenders as
follows:
(1) Except
for Permitted Transfers, without the prior written consent of the Administrative
Agent and the Lenders (to the extent required under Section 12.2),
no Transfer shall occur or be permitted, nor shall Borrower enter into any
easement or other agreement granting rights in or restricting the use or
development of the Project;
(2) Without
limiting the foregoing, the conveyance of all of the Projects (or all of the
Projects owned by Borrower) to a Controlled Subsidiary which is a Single Purpose
Entity and which assumes all of the obligations of the Borrower under the Loan
Documents in form and substance satisfactory to the Administrative Agent and in
recordable form shall be permitted subject to the following terms and
conditions:
(a) the
Controlled Subsidiary and the general partner, manager or managing member of
such Controlled Subsidiary, after giving effect to such Transfer, is in
compliance with all of the covenants of the Borrower or any Borrower
Party (as applicable) contained in the Loan Documents (with all
references herein to “Borrower” to mean such Controlled Subsidiary, and all
references herein to “Borrower’s Manager” to mean any general
partner, manager or managing member of the Controlled Subsidiary;
(b) no
Potential Default or Event of Default is then existing or would result
therefrom;
(c) upon
the transfer of such Projects to such Controlled Subsidiary, such Controlled
Subsidiary, and the general partner, manager or managing member of such
Controlled Subsidiary are in compliance in all material respects with all of the
representations and warranties of the Borrower or applicable to the Borrower’s
Manager contained herein and in the other Loan Documents (after
giving effect to the modifications reflecting the identity of the transferee
resulting from such transfer) (with all references herein to
“Borrower” to mean such Controlled Subsidiary, and all references herein to
“Borrower’s Manager” to mean any general partner, manager or managing
member of the Controlled Subsidiary);
(d) such
Projects shall be managed by the REIT or any property management company owned
or controlled directly or indirectly by the REIT;
(e) prior
to such Transfer, the Administrative Agent shall have received notice of the
proposed transferee and, within thirty (30) days after the date of such
Transfer, the Administrative Agent shall have received copies of the
Organizational Documents of such Controlled Subsidiary and the general partner,
manager or managing member of such Controlled Subsidiary;
(f) concurrently
with such Transfer, the Administrative Agent shall have received such
endorsements to the Title Policies insuring the continued priority of
the Liens of the applicable Mortgages after giving effect to the delivery by
such entity of the assumption agreement referred to above (subject only to
Permitted Encumbrances), in form and substance satisfactory to the
Administrative Agent;
(g) the
assumption agreement to be entered into by the Borrower and the Controlled
Subsidiary shall include such modifications to this Agreement and the
other Loan Documents as the Administrative Agent may reasonably require,
including, without limitation, such modifications to the covenants and other
provisions that are contained herein and that relate to the Borrower or
Borrower’s Manager, as shall be deemed necessary by the Administrative Agent to
allocate to the Controlled Subsidiary and its general partner or manager
responsibility for the performance of the covenants of, and satisfaction of the
other provisions set forth herein that relate to, the Borrower or Borrower’s
Manager; and
(h) upon
compliance with the foregoing requirements in this Section 8.1(2) in connection
with such Transfer, the Borrower, shall be released from its obligations under
the Loan Documents arising from and after such Transfer, but such release shall
not limit the obligations of the Borrower to comply with any requirements
applicable to it (if any) in other capacities (including, without limitation, in
capacities such as the general partner, managing member or manager of such
Controlled Subsidiary).
As used
in this Agreement, “Transfer”
shall mean any direct or indirect sale, transfer, conveyance, installment sale,
master lease, mortgage, pledge, encumbrance, grant of Lien or other interest,
license, lease, alienation or assignment, whether voluntary or involuntary, of
all or any portion of the direct or indirect legal or beneficial ownership of,
or any interest in (a) the Project or any part thereof, or
(b) Borrower, including any agreement to transfer or cede to another Person
any voting, management or approval rights, or any other rights, appurtenant to
any such legal or beneficial ownership or other interest in
Borrower. “Transfer” is specifically intended to include any pledge
or assignment, directly or indirectly, of a controlling interest in Borrower or
its general partner, controlling limited partner or controlling member for
purposes of securing so-called “mezzanine” indebtedness. “Transfer”
shall not include (i) the leasing of space within the Project so long as
Borrower complies with the provisions of the Loan Documents relating to such
leasing activity; (ii) the transfer of limited partner or non-managing
member interests in Borrower so long as the transfer does not violate the
provisions of Sections 8.1(2),
does not violate the provisions of Article 9, and
so long as Borrower remains a Controlled Subsidiary; or (iii) any sale,
transfer, conveyance, pledge, hypothecation, encumbrance, grant of Lien or other
interest in, alienation, assignment, issuance, conversion or redemption of any
shares, stock, securities, warrants, membership interests, partnership interests
or other equity interests of any kind or nature in, or relating to, the REIT,
the Operating Partnership, the Fund (so long as the Fund remains a Controlled
Subsidiary), any direct or indirect subsidiary of any of the foregoing, or any
direct or indirect constituents of any of the foregoing, so long as the Borrower
(or any Controlled Subsidiary that acquires ownership to the Projects as
permitted herein) remains a Controlled Subsidiary. Notwithstanding
anything to the contrary set forth herein no Transfer shall be permitted which
would result in a violation of the provisions of Article 9.
(1) Notwithstanding
any provisions set forth herein or in any other document regarding the
Administrative Agent’s approval of alterations of the Projects, Borrower shall
not alter the Projects in any manner which would materially increase Borrower’s
responsibilities for compliance with the applicable requirements of the
Americans with Disabilities Act of 1990, the Fair Housing Amendments Act of
1988, all state and local laws and ordinances related to handicapped access and
all rules, regulations, and orders issued pursuant thereto including, without
limitation, the Americans with Disabilities Act Accessibility Guidelines for
Buildings and Facilities (collectively, “Access Laws”) without the
prior written approval of the Administrative Agent. The foregoing
shall apply to tenant improvements constructed by Borrower or by any of its
tenants. The Administrative Agent may condition any such approval
upon receipt of a certificate of Access Law compliance from an architect,
engineer, or other person reasonably acceptable to the Administrative
Agent.
(2) Borrower
agrees to give prompt notice to the Administrative Agent of the receipt by
Borrower of any written complaints related to violation of any Access Laws with
respect to the Projects and of the commencement of any proceedings or
investigations which relate to compliance with applicable Access
Laws.
ARTICLE
9
ANTI-MONEY
LAUNDERING AND
INTERNATIONAL
TRADE CONTROLS
Section
9.1 Compliance with International Trade
Control Laws and OFAC Regulations. Borrower
represents, warrants and covenants to the Administrative Agent and the Lenders
that:
(1) It
is not now nor shall it be at any time until after the Loan is fully repaid a
Person with whom a United States Person, including a Financial Institution, is
prohibited from transacting business of the type contemplated by this Agreement,
whether such prohibition arises under United States law, regulation, executive
orders and lists published by the OFAC (including those executive orders and
lists published by OFAC with respect to Specially Designated Nationals and
Blocked Persons) or otherwise.
(2) No
Borrower Party and no Person who owns a direct interest in Borrower is now nor
shall be at any time until after the Loans are fully repaid a Person with whom a
United States Person, including a Financial Institution, is prohibited from
transacting business of the type contemplated by this Agreement, whether such
prohibition arises under United States law, regulation, executive orders and
lists published by the OFAC (including those executive orders and lists
published by OFAC with respect to Specially Designated Nationals and Blocked
Persons) or otherwise.
Section
9.2 Borrower’s Funds. Borrower
represents, warrants and covenants to the Administrative Agent and the Lenders
that:
(1) It
has taken, and shall continue to take until after the Loans are fully repaid,
such measures as are required by law to assure that the funds invested in the
Borrower and/or used to make payments on the Loan are derived (a) from
transactions that do not violate United States law nor, to the extent such funds
originate outside the United States, do not violate the laws of the jurisdiction
in which they originated; and (b) from permissible sources under United
States law and to the extent such funds originate outside the United States,
under the laws of the jurisdiction in which they originated.
(2) To
the best of its knowledge after making due inquiry, neither Borrower, nor any
Borrower Party, nor any holder of a direct interest in Borrower, nor any Person
providing funds to Borrower (a) is under investigation by any governmental
authority for, or has been charged with, or convicted of, money laundering, drug
trafficking, terrorist-related activities, any crimes which in the United States
would be predicate crimes to money laundering, or any violation of any
Anti-Money Laundering Laws; (b) has been assessed civil or criminal
penalties under any Anti-Money Laundering Laws; and (c) has had any of its
funds seized or forfeited in any action under any Anti-Money Laundering
Laws.
(3) Borrower
shall make payments on the Loan using funds invested in Borrower, Operating
Revenues or insurance proceeds unless otherwise agreed to by
Lender.
(4) To
the best of Borrower’s knowledge, as of the Closing Date and at all times during
the term of the Loan, all Operating Revenues are and will be derived from lawful
business activities of Project tenants or other permissible sources under U.S.
law.
(5) On
the Maturity Date, Borrower will take reasonable steps to verify that funds used
to repay the Loan in full (whether in connection with a refinancing, asset sale
or otherwise) are from sources permissible under U.S. law and to the extent such
funds originate outside the United States, permissible under the laws of the
jurisdiction in which they originated.
ARTICLE
10
Each of
the following shall constitute an Event of Default under the Loans:
ARTICLE
11
ARTICLE
12
(1) Subject
to any consents required pursuant to this Section 12.2 and
any other provisions of this Agreement and any other Loan Document which
expressly require the consent, approval or authorization of the Majority
Lenders, this Agreement and any other Loan Document may be modified or
supplemented only by an instrument in writing signed by Borrower and the
Administrative Agent; provided that, the Administrative Agent may (without any
Lender’s consent) give or withhold its agreement to any amendments of the Loan
Documents or any waivers or consents in respect thereof or exercise or refrain
from exercising any other rights or remedies which the Administrative Agent may
have under the Loan Documents or otherwise provided that such actions do not, in
the Administrative Agent’s judgment reasonably exercised, materially adversely
affect the value of any collateral, taken as a whole, or represent a departure
from Administrative Agent’s standard of care described in Section 14.5
(and the assignment or granting of a participation by GECC shall not limit or
otherwise affect its discretion in respect of any of the foregoing), except that
the Administrative Agent will not, without the consent of each Lender, agree to
the following (provided that no Lender’s consent shall be required for any of
the following which are otherwise required or contemplated under the Loan
Documents): (a) reduce the principal amount of the Loans or reduce the interest
rate thereon; (b) extend any stated payment date for principal of or interest on
the Loans payable to such Lender; (c) release Borrower or any other party from
liability under the Loan Documents (except for any assigning Lender pursuant to
Section 12.24
and any resigning Administrative Agent pursuant to Section 14.8); (d)
release or subordinate in whole or in part any material portion of the
collateral given as security for the Loans; (e) modify any of the provisions of
this Section, the definition of “Majority Lenders” or any other provision in the
Loan Documents specifying the number or percentage of Lenders required to waive,
amend or modify any rights thereunder or make any determination or grant any
consent thereunder; (f) modify the terms of any Event of Default; or (g) consent
to (i) the sale, transfer or encumbrance of any portion of the Project (or any
interest therein) or any direct or indirect ownership interest therein and (ii)
the incurrence by Borrower of any additional indebtedness secured by the
Project, in each case to the extent (and subject to any standard of
reasonability) such consent is required under the Loan Documents.
(2) Notwithstanding
anything to contrary contained in this Agreement, any modification or supplement
of Article 14, or
of any of the rights or duties of the Administrative Agent hereunder, shall
require the consent of the Administrative Agent.
(1) Subject
to the provisions of Section 12.24, this
Agreement shall be binding upon and inure to the benefit of the Administrative
Agent, the Lenders and Borrower and their respective successors and permitted
assigns.
(2) Borrower
acknowledges that Administrative Agent and each Lender and its respective
successors and assigns may without notice to or consent from Borrower, and at
the Administrative Agent’s sole cost and expense, (a) sell this Agreement, the
Mortgages, the Notes, the other Loan Documents, and any and all servicing rights
thereto, or any portions thereof, to one or more investors, (b) participate
and/or syndicate the Loans to one or more investors, (c) deposit this Agreement,
the Notes and the other Loan Documents, or any portions thereof, with a trust,
which trust may sell certificates to investors evidencing an ownership interest
in the trust assets, or (d) otherwise sell, transfer or assign the Loans or
interests therein in one or more transactions to investors (the transactions
referred to in clauses (a) through (d) are hereinafter each referred to as a
“Secondary Market
Transaction”). Borrower shall reasonably cooperate with the
Administrative Agent and each Lender in effecting any such Secondary Market
Transaction and shall reasonably cooperate and use all reasonable efforts, at no
cost or expense to Borrower or any Borrower Party, to satisfy the market
standards to which the Administrative Agent and each Lender customarily adheres
or which may be reasonably required by any participant, investor, purchaser or
any Rating Agency involved in any Secondary Market Transaction
.. Borrower shall provide such information and documents relating to
Borrower and the Projects as the Administrative Agent and each Lender may
reasonably request in connection with such Secondary Market
Transaction. In addition, Borrower shall make available to the
Administrative Agent and the Lenders all information concerning the Projects,
its business and operations that the Administrative Agent and the Lenders may
reasonably request. The Administrative Agent and the Lenders shall be
permitted to share all information with the participants, investors, purchasers,
investment banking firms, Rating Agencies, accounting firms, law firms and
third-party advisory firms involved with the Loans and Loan Documents or the
applicable Secondary Market Transaction. The Administrative Agent and
the Lenders and all of the aforesaid participants, investors, purchasers,
advisors, Rating Agencies and professional firms shall be entitled to rely on
the information supplied by or on behalf of Borrower. Borrower also
agrees to execute any amendment of or supplement to this Agreement and the other
Loan Documents as the Administrative Agent and the Lenders may reasonably
request in connection with any Secondary Market Transaction, provided that such
amendment or supplement does not change any of the economic terms of the Loans,
reduce any of Borrower’s rights, or increase any of Borrower’s duties,
responsibilities or liabilities under the Loan Documents.
(3) The
Administrative Agent and each Lender shall have the right, at any time (whether
prior to, in connection with, or after any Secondary Market Transaction), with
respect to all or any portion of the Loan, to modify, split and/or sever all or
any portion of the Loan as hereinafter provided. Without limiting the
foregoing, Administrative Agent may (i) cause the Notes and Mortgages to be
split into a first and second mortgage loan, (ii) create one more senior
and subordinate notes, or (iii) create multiple components of the Notes
(and allocate or reallocate the principal balance of the Loans among such
components) , in each such case, in whatever proportion and whatever priority
Administrative Agent determines; provided, however, in each such instance the
outstanding principal balance of all the Notes evidencing the Loans (or
components of such Notes) immediately after the effective date of such
modification equals the outstanding principal balance of the Loans immediately
prior to such modification and the weighted average of the interest rates for
all such Notes (or components of such Notes) immediately after the effective
date of such modification equals the interest rate of the original Note
immediately prior to such modification. If requested by
Administrative Agent, Borrower (and Borrower’s constituent members, if
applicable) shall execute within two (2) Business Days after such request, such
documentation as Lender may reasonably request to evidence and/or effectuate any
such modification or severance.
Section
12.21 GOVERNING LAW. THIS AGREEMENT,
THE NOTES AND THE OTHER LOAN DOCUMENTS ARE TO BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF CALIFORNIA (AS PERMITTED BY
SECTION 1646.5 OF THE CALIFORNIA CIVIL CODE OR ANY SIMILAR SUCCESSOR PROVISION),
WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW RULE THAT WOULD CAUSE THE APPLICATION
OF THE LAWS OF ANY JURISDICTION OTHER THAN THE INTERNAL LAWS OF THE STATE OF
CALIFORNIA TO GOVERN THE RIGHTS AND DUTIES OF THE PARTIES.
(a) no
such consent by the Administrative Agent shall be required in the case of any
assignment by any Lender to another Lender or an affiliate of such Lender or
such other Lender;
(b) except
to the extent the Administrative Agent shall otherwise consent, any such partial
assignment (other than to another Lender or an affiliate of a Lender) shall be
in an amount at least equal to $10,000,000;
(c) each
such assignment (including an assignment to another Lender or an affiliate of a
Lender) by a Lender of its Loans or Commitment shall be made in such manner so
that the same portion of its Loans and Commitment is assigned to the respective
assignee;
(d) subject
to the applicable Lender’s compliance with the provisions of clauses (b) and (c)
above, the Administrative Agent’s consent to an assignment shall not be
unreasonably withheld, delayed or conditioned if (i) in the reasonable judgment
of the Administrative Agent, such assignment is made to a reputable
institutional investor with substantial experience in real estate lending and
originating mortgage loans similar to the Loans, and a financial net worth of at
least $100,000,000, (ii) such assignment is first offered to the Administrative
Agent in accordance with the terms and conditions a separate agency agreement
among the Administrative Agent and the Lenders, and (iii) the provisions of
clause (e) have been satisfied; and
(e) upon
execution and delivery by the assignee (even if already a Lender) to Borrower
and the Administrative Agent of an Assignment and Acceptance pursuant to which
such assignee agrees to become a “Lender” hereunder (if not already a Lender)
having the Commitment and Loans specified in such instrument, and upon consent
thereto by the Administrative Agent to the extent required above, the assignee
shall have, to the extent of such assignment (unless otherwise consented to by
the Administrative Agent), the obligations, rights and benefits of a Lender
hereunder holding the Commitment and Loans (or portions thereof) assigned to it
(in addition to the Commitment and Loans, if any, theretofore held by such
assignee) and the assigning Lender shall, to the extent of such assignment, be
released from the Commitment (or portion thereof) so assigned. Upon
each such assignment the assigning Lender shall pay the Administrative Agent a
processing and recording fee of $3,500 and the reasonable fees and
disbursements of the Administrative Agent’s counsel incurred in connection
therewith.
ARTICLE
13
(1) Except
as provided below, neither Borrower nor any past, present or future member in,
partner in, or manager of the Borrower, Borrower’s Member or any Borrower Party,
nor any owner of any direct or indirect equity interests in the Borrower,
Borrower’s Member or any Borrower Party, shall be personally liable
for amounts due under the Loan Documents.
(2) Borrower
shall be personally liable to the Administrative Agent and the Lenders for any
deficiency, loss or damage suffered by the Administrative Agent or any Lender
because of: (a) Borrower’s commission of a criminal act;
(b) the failure by
Borrower or any Borrower Party to apply any funds derived from the Projects,
including Operating Revenues, security deposits, insurance proceeds and
condemnation awards as required by the Loan Documents; (c) the fraud or
intentional misrepresentation by Borrower or any Borrower Party made in or in
connection with the Loan Documents or the Loan; (d) Borrower’s collection
of rents more than one month in advance (except as otherwise permitted pursuant
to the Loan Documents) , or receipt of monies by Borrower or any Borrower Party
in connection with the modification or cancellation of any Major Leases, in
violation of this Agreement or any of the other Loan Documents;
(e) Borrower’s interference with the Administrative Agent’s exercise of
rights under the Assignment of Rents and Leases; (f) Borrower’s failure to
turn over to the Administrative Agent all tenant security deposits upon the
Administrative Agent’s demand following an Event of Default;
(g) [reserved]; (h) Borrower’s failure to maintain insurance as
required by this Agreement ; (i) damage or destruction to any of the
Projects caused by the negligent or intentional acts or omissions of Borrower,
its agents, employees, or contractors; (j) Borrower’s failure to perform
its obligations with respect to environmental matters under Article 4;
(k) Borrower’s failure to pay for any loss, liability or expense (including
attorneys’ fees) incurred by the Administrative Agent or any Lender arising out
of any claim or allegation made by Borrower, its successors or assigns, that
this Agreement or the transactions contemplated by the Loan Documents establish
a joint venture, partnership or other similar arrangement between Borrower, the
Administrative Agent and any Lender; (l) any brokerage commission or
finder’s fees claimed by any broker or finder engaged by Borrower in connection
with the transactions contemplated by the Loan Documents; or (m) any amount due
pursuant to Section
2.7(5) hereof. Borrower also shall be personally liable to
Lender for any and all attorneys’ fees and expenses and court costs incurred by
the Administrative Agent and the Lenders in enforcing this Section 13.1(2)
or otherwise incurred by the Administrative Agent and the Lenders in connection
with any of the foregoing matters, regardless of whether such matters are legal
or equitable in nature or arise under tort or contract law.
(3) Notwithstanding
anything to the contrary contained in the Loan Documents, the limitation on
Borrower’s liability contained in Section 13.1(1) SHALL BECOME NULL AND
VOID and shall be of no further force and effect if: (a) any Transfer
in violation of the Loan Documents occurs; (b) Borrower files a petition under
the United States Bankruptcy Code or similar state insolvency laws; or (c)
Borrower becomes the subject of an involuntary proceeding under the United
States Bankruptcy Code or similar state insolvency laws, and either
(i) Borrower or any Affiliate of Borrower conspired or cooperated with one
or more creditors of Borrower (other than the Administrative Agent or the
Lenders) to commence such involuntary proceeding, or (ii) Borrower fails to
use commercially reasonable efforts to obtain a dismissal of such involuntary
proceeding.
(5) Nothing
in this Section
13.1 shall be deemed to be a waiver of any right which the Administrative
Agent or any Lender may have under Sections 506(a), 506(b), 1111(b) or any
other provision of the United States Bankruptcy Code, as such sections may be
amended, or corresponding or superseding sections of the Bankruptcy Amendments
and Federal Judgeship Act of 1984, to file a claim for the full amount due to
the Administrative Agent or such Lender under the Loan Documents or to require
that all collateral shall continue to secure the amounts due under the Loan
Documents
ARTICLE
14
THE
ADMINISTRATIVE AGENT
Section
14.1 Appointment, Powers and
Immunities. The provisions of
this Article 14 constitute agreements between the Administrative Agent and the
Lenders. Each Lender hereby appoints and authorizes the
Administrative Agent to act as its agent hereunder and under the other Loan
Documents with such powers as are specifically delegated to the Administrative
Agent by the terms of this Agreement and of the other Loan Documents, together
with such other powers as are reasonably incidental thereto. The
Administrative Agent (which term as used in this sentence and in Section 14.5 and
the first sentence of Section 14.6
shall include reference to its affiliates and its own and its affiliates’
officers, directors, employees and agents):
(1) shall
have no duties or responsibilities except those expressly set forth in this
Agreement and in the other Loan Documents, and shall not by reason of this
Agreement or any other Loan Document be a trustee for any Lender;
(2) shall
not be responsible to the Lenders for any recitals, statements, representations
or warranties contained in this Agreement or in any other Loan Document, or in
any certificate or other document referred to or provided for in, or received by
any of them under, this Agreement or any other Loan Document, or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement, any Note or any other Loan Document or any other document referred to
or provided for herein or therein or for any failure by Borrower or any other
Person to perform any of its obligations hereunder or thereunder;
and
(3) shall
not be responsible for any action taken or omitted to be taken by it hereunder
or under any other Loan Document or under any other document or instrument
referred to or provided for herein or therein or in connection herewith or
therewith, except to the extent any such action taken or omitted violates the
Administrative Agent’s standard of care set forth in the first sentence of Section 14.5.
The
Administrative Agent may employ agents and attorneys-in-fact, and may delegate
all or any part of its obligations hereunder, to third parties and shall not be
responsible for the negligence or misconduct of any such agents,
attorneys-in-fact or third parties selected by it in good faith. The
Administrative Agent may deem and treat the payee of a Note as the holder
thereof for all purposes hereof unless and until a notice of the assignment or
transfer thereof shall have been filed with the Administrative
Agent.
Section
14.2 Reliance by Administrative
Agent. The
Administrative Agent shall be entitled to rely upon any certification, notice or
other communication (including, without limitation, any thereof by telephone,
telecopy, telegram or cable) reasonably believed by it to be genuine and correct
and to have been signed or sent by or on behalf of the proper Person or Persons,
and upon advice and statements of legal counsel, independent accountants and
other experts selected by the Administrative Agent. As to any matters
not expressly provided for by this Agreement or any other Loan Document, the
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, hereunder or thereunder in accordance with instructions
given by the Majority Lenders, and such instructions of the Majority Lenders and
any action taken or failure to act pursuant thereto shall be binding on all of
the Lenders.
Section
14.3 Defaults. The
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of a Potential Default or Event of Default unless the Administrative
Agent has received notice from a Lender or Borrower specifying such Potential
Default or Event of Default and stating that such notice is a “Notice of
Default”. In the event that the Administrative Agent receives such a
notice of the occurrence of a Potential Default or Event of Default, the
Administrative Agent shall give prompt notice thereof to the
Lenders. The Administrative Agent shall (subject to Section 14.7)
take such action with respect to such Potential Default or Event of Default and
other matters relating to the Loans as shall be directed by the Lenders in
accordance with a separate agreement entered into by the Administrative Agent
and the Lenders.
Section
14.4 Rights as a
Lender. With respect to GECC’s Commitment and the Loans made
by it, GECC (and any successor acting as Administrative Agent) in its capacity
as a Lender hereunder shall have the same rights and powers hereunder as any
other Lender and may exercise the same as though it were not acting as the
Administrative Agent, and the term “Lender” or “Lenders” shall, unless the
context otherwise indicates, include the Administrative Agent in its individual
capacity. GECC (and any successor acting as Administrative Agent) and
its affiliates (including GECC) may (without having to account therefor to any
Lender) lend money to, make investments in and generally engage in any kind of
lending, trust or other business with Borrower (and any of its Affiliates) as if
it were not acting as the Administrative Agent, and GECC and its affiliates
(including GECC may accept fees and other consideration from Borrower for
services in connection with this Agreement or otherwise without having to
account for the same to the Lenders.
Section
14.5 Standard of Care;
Indemnification. In performing its duties under the Loan
Documents, the Administrative Agent will exercise the same degree of care as
GECC normally exercises in connection with real estate loans in which no
syndication or participations are involved, but the Administrative Agent shall
have no further responsibility to any Lender except as expressly provided herein
and except for its own gross negligence or willful misconduct which resulted in
actual loss to such Lender, and, except to such extent, the Administrative Agent
shall have no responsibility to any Lender for the failure by the Administrative
Agent to comply with any of the Administrative Agent’s obligations to Borrower
under the Loan Documents or otherwise. The Lenders agree to indemnify
the Administrative Agent (to the extent not reimbursed under Section 12.5,
but without limiting the obligations of Borrower under Section 12.5)
ratably in accordance with the aggregate principal amount of the Loans held by
the Lenders (or, if no Loans are at the time outstanding, ratably in accordance
with their respective Commitments), for any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever that may be imposed on, incurred
by or asserted against the Administrative Agent (including by any Lender)
arising out of or by reason of any investigation in or in any way relating to or
arising out of this Agreement or any other Loan Document or any other documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby (including, without limitation, the costs and
expenses that Borrower is obligated to pay under Section 12.5,
but excluding, unless a Event of Default has occurred and is continuing, normal
administrative costs and expenses incident to the performance of its agency
duties hereunder) or the enforcement of any of the terms hereof or thereof or of
any such other documents, provided that no Lender shall be liable for any of the
foregoing to the extent they arise from the Administrative Agent’s breach of its
standard of care set forth in the first sentence of this Section.
Section
14.6 Non-Reliance on Administrative Agent
and Other Lenders. Each Lender agrees that it has,
independently and without reliance on the Administrative Agent or any other
Lender, and based on such documents and information as it has deemed
appropriate, made its own credit analysis of Borrower and its Affiliates and
decision to enter into this Agreement and that it will, independently and
without reliance upon the Administrative Agent or any other Lender, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own analysis and decisions in taking or not taking action
under this Agreement or under any other Loan Document. Subject to the
provisions of the first sentence of Section 14.5,
the Administrative Agent shall not be required to keep itself informed as to the
performance or observance by Borrower of this Agreement or any of the other Loan
Documents or any other document referred to or provided for herein or therein or
to inspect the Project or the books of Borrower or any of its
Affiliates. Except for notices, reports and other documents and
information expressly required to be furnished to the Lenders by the
Administrative Agent hereunder or as otherwise agreed by the Administrative
Agent and the Lenders, the Administrative Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the affairs, financial condition or business of Borrower or any of
its Affiliates that may come into the possession of the Administrative Agent or
any of its affiliates.
Section
14.7 Failure to Act. Except for action
expressly required of the Administrative Agent hereunder, and under the other
Loan Documents, the Administrative Agent shall in all cases be fully justified
in failing or refusing to act hereunder and thereunder unless it shall receive
further assurances to its satisfaction from the Lenders of their indemnification
obligations under Section 14.5
against any and all liability and expense that may be incurred by it by reason
of taking or continuing to take any such action.
Section
14.8 Resignation of Administrative
Agent. The Administrative Agent may resign at any time by
giving notice thereof to the Lenders and Borrower. Upon any such
resignation, the Majority Lenders shall have the right to appoint a successor
Administrative Agent which shall be a financial institution that has (a) an
office in New York, New York with a combined capital and surplus of at least
$500,000,000 and (b) knowledge and experience comparable to the resigning
Administrative Agent’s knowledge and experience in the servicing of loans
similar to the Loans hereunder. If no successor Administrative Agent
shall have been so appointed by the Majority Lenders and shall have accepted
such appointment within 30 days after the retiring Administrative Agent’s giving
of notice of resignation of the retiring Administrative Agent, then the retiring
Administrative Agent’s resignation shall nonetheless become effective and
(i) the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder and (ii) the Majority Lenders shall perform the
duties of the Administrative Agent (and all payments and communications provided
to be made by, to or through the Administrative Agent shall instead be made by
or to each Lender directly) until such time as the Majority Lenders appoint a
successor agent as provided for above in this Section 14.8. Upon
the acceptance of any appointment as Administrative Agent hereunder by a
successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring (or retired) Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder (if not already discharged therefrom as provided above in this Section 14.8). The
fees payable by Borrower to a successor Administrative Agent shall be the same
as those payable to its predecessor unless otherwise agreed between Borrower and
such successor. After any retiring Administrative Agent’s resignation
hereunder as Administrative Agent, the provisions of this Article 14 and
Section 12.5
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as the Administrative
Agent.
[Signature
Pages Follow]
EXECUTED
as of the date first written above.
|
LENDER:
|
GENERAL
ELECTRIC CAPITAL CORPORATION, a Delaware
corporation
|
By:
|
|
Name:
|
|
Title: Authorized
Signatory
|
Address
for Notices:
General
Electric Capital Corporation
0000 Xxxx
Xxxxxx, 0xx
Xxxxx
Xxxxxx,
Xxxxxxxxxx 00000
Attention: Asset
Manager: Xxxxxxx Xxxxxx LA Portfolio
Telecopier
No.: 000 000-0000
Lending
Office for Eurodollar and
Alternate
Base Rate Loans:
General
Electric Capital Corporation
0000 Xxxx
Xxxxxx, 0xx
Xxxxx
Xxxxxx,
Xxxxxxxxxx 00000
Attention: Asset
Manager: Xxxxxxx Xxxxxx LA Portfolio
Telecopier
No.: 000 000-0000
[Signatures
Continued on Next Page]
|
BORROWER:
|
XXXXXXX
XXXXXX 2008, LLC,
|
|
a
Delaware limited liability company
|
|
By:
|
Xxxxxxx
Xxxxxx Management, Inc.,
|
|
a
Delaware corporation, its Manager
|
By: __________________
Name: Xxxxxxx
Xxxxx
Title: Chief
Financial Officer
Address
for Notices:
Xxxxxxx
Xxxxxx 2008, LLC
c/o
Douglas Xxxxxx Properties, LP
000 Xxxxxxxx
Xxxxxxxxx, Xxxxx 000
Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Jordan X.
Xxxxxx
Telecopier
No.: (000) 000-0000
With
copies to:
Xxxxxxx
Xxxxxx 2008, LLC
c/o
Douglas Xxxxxx Properties, LP
000 Xxxxxxxx
Xxxxxxxxx, Xxxxx 000
Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx
Xxxxx, Esq.
Telecopier
No.: (000) 000-0000
[Signatures
Continue on Next Page]
ADMINISTRATIVE
AGENT:
|
GENERAL
ELECTRIC CAPITAL CORPORATION, a Delaware
corporation,
|
|
as
Administrative Agent
|
By:
|
|
Name:
|
|
Title: Authorized
Signatory
|
Address
for Notices:
General
Electric Capital Corporation
0000 Xxxx
Xxxxxx, 0xx
Xxxxx
Xxxxxx,
Xxxxxxxxxx 00000
Attention: Asset
Manager: Xxxxxxx Xxxxxx LA Portfolio
Telecopier
No.: 000 000-0000
EXHIBIT
A-1
THE
PROJECTS
Address
|
Square
Footage
|
Year
Built
|
No.
Floors
|
0000
Xxxxxxxx Xxxx., Xxxxx Xxxxxx, XX
|
101,125
|
1980
|
6
|
0000
Xxxxxxxx Xxxx., Xxxxxxx Xxxxx, XX
|
424,375
|
1971/1993
|
10
|
0000
Xxxxxxxx Xxxx., Xxxxxxx Xxxxx, XX
|
331,551
|
1971/1990
|
10
|
00000
Xxxxxxx Xxxx., Xxxxxxx Xxxx, XX
|
112,954
|
1970/1991
|
12
|
00000
Xxxxxxx Xxxx., Xxxxxx, XX
|
174,841
|
1980/1996
|
12
|
00000
Xxxxxxx Xxxx., Xxxxxxxx Xxxxx, XX
|
245,159
|
1988
|
12
|
EXHIBIT
A-2
LEGAL DESCRIPTION OF EACH
PROJECT
(See
Attached)
EXHIBIT
B
ALLOCATED LOAN
AMOUNTS
Project
|
Allocated
Loan Amount
|
0000
Xxxxxxxx Xxxx., Xxxxx Xxxxxx, XX
|
$30,000,000
|
0000
Xxxxxxxx Xxxx., Xxxxxxx Xxxxx, XX
|
$125,000,000
|
0000
Xxxxxxxx Xxxx., Xxxxxxx Xxxxx, XX
|
$100,000,000
|
00000
Xxxxxxx Xxxx., Xxxxxxx Xxxx, XX
|
$26,000,000
|
00000
Xxxxxxx Xxxx., Xxxxxx, XX
|
$42,000,000
|
00000
Xxxxxxx Xxxx., Xxxxxxxx Xxxxx, XX
|
$57,000,000
|
TOTAL
|
$380,000,000
|
EXHIBIT
C
[Form of
Note]
PROMISSORY
NOTE
$380,000,000 March
28, 0000
Xxx
Xxxxxxx, Xxxxxxxxxx
FOR VALUE
RECEIVED, XXXXXXX XXXXXX 2008,
LLC, a Delaware limited liability company (“Borrower”),
hereby promises to pay to GENERAL ELECTRIC CAPITAL CORPORATION (the “Lender”),
for account of its respective Applicable Lending Offices provided for by the
Agreement referred to below, at the principal office of General Electric Capital
Corporation at 0000 Xxxx Xxxxxx, 0xx Xxxxx, Xxxxxx, Xxxxxxxxxx 00000, the
principal sum of Three Hundred Eighty Million and No/100s Dollars ($380,000,000)
(or such lesser amount as shall equal the aggregate unpaid principal amount of
the Loans made by the Lender to Borrower under the Agreement), in lawful money
of the United States of America and in immediately available funds, on the dates
and in the principal amounts provided in the Agreement, and to pay interest on
the unpaid principal amount of each such Loan, at such office, in like money and
funds, for the period commencing on the date of such Loan until such Loan shall
be paid in full, at the rates per annum and on the dates provided in the
Agreement.
The date,
amount, Type, interest rate and duration of Interest Period (if applicable) of
each Loan made by the Lender to Borrower, and each payment made on account of
the principal thereof, shall be recorded by the Lender on its books and, prior
to any transfer of this Note, endorsed by the Lender on the schedule attached
hereto or any continuation thereof, provided that the failure of the Lender to
make any such recordation or endorsement shall not affect the obligations of
Borrower to make a payment when due of any amount owing under the Agreement or
hereunder in respect of the Loans made by the Lender.
Borrower,
co-makers, sureties, endorsers and Guarantors, and each of them, expressly waive
demand and presentment for payment, notice of nonpayment, protest, notice of
protest, notice of dishonor, notice of intent to accelerate the maturity hereof,
notice of the acceleration of the maturity hereof, bringing of suit and
diligence in taking any action to collect amounts called for hereunder and in
the handling of securities at any time existing in connection herewith; such
parties are and shall be jointly, severally, directly and primarily liable for
the payment of all sums owing and to be owing hereon, regardless of and without
any notice (except for notices required by the Loan Documents), diligence, act
or omission as or with respect to the collection of any amount called for
hereunder or in connection with any right, lien, interest or property at any and
all times had or existing as security for any amount called for
hereunder.
This Note
is one of the Notes referred to in the Loan Agreement dated as of March 28, 2008
(as modified, supplemented, extended and in effect from time to time, the “Agreement”)
between Borrower, the lenders party thereto (including the Lender) and General
Electric Capital Corporation, as Administrative Agent, and evidences Loans made
by the Lender thereunder. Terms used but not defined in this Note
have the respective meanings assigned to them in the Loan
Agreement.
The Loan
Agreement provides for the acceleration of the maturity of this Note upon the
occurrence of certain events and for prepayments of Loans upon the terms and
conditions specified therein.
Except as
permitted by Sections 12.9 and 12.24 of the Loan Agreement, this Note may
not be assigned by the Lender to any other Person.
This Note
shall be governed by, and construed in accordance with, the law of the State of
California .
The
liability of the Borrower and certain others for the Borrower’s obligations
hereunder is subject to the limitation on liability provisions of Section 13.1
of the Loan Agreement.
XXXXXXX
XXXXXX 2008, LLC,
a
Delaware limited liability company
|
By:
|
Xxxxxxx
Xxxxxx Management, Inc.,
|
|
a
Delaware corporation, its Manager
|
By:
Name: Xxxxxxx
Xxxxx
Title:Chief
Financial Officer
SCHEDULE OF
LOANS
This Note
evidences Loans made, Continued or Converted under the within-described
Agreement to Borrower, on the dates, in the principal amounts, of the Types,
bearing interest at the rates and having Interest Periods (if applicable) of the
durations set forth below, subject to the payments, Continuations, Conversions
and prepayments of principal set forth below:
EXHIBIT
D
[Form of
Assignment and Acceptance]
ASSIGNMENT
AND ACCEPTANCE
Reference
is made to the Loan Agreement dated as of _________ __, 2008 (as amended and in
effect on the date hereof, the “Agreement”),
between XXXXXXX XXXXXX 2008, LLC, a Delaware limited liability company, the
Lenders named therein and GENERAL ELECTRIC CAPITAL CORPORATION, as
Administrative Agent for the Lenders. Terms defined in the Agreement
are used herein with the same meanings.
The
Assignor named below hereby sells and assigns, without recourse, to the Assignee
named below, and the Assignee hereby purchases and assumes, without recourse,
from the Assignor, effective as of the Assignment Date set forth below, the
interests set forth below (the “Assigned
Interest”) in the Assignor’s rights and obligations under the Agreement,
including, without limitation, the interests set forth below in the Commitment
of the Assignor on the Assignment Date and Loans owing to the Assignor which are
outstanding on the Assignment Date, together with (a) interest on the assigned
Loans from and after the Assignment Date and (b) the amount, if any, set forth
below of the fees accrued to the Assignment Date for account of the
Assignor. The Assignee hereby acknowledges receipt of a copy of the
Agreement and the Agency Agreement. From and after the Assignment
Date (i) the Assignee shall be a party to and be bound by the provisions of
(x) the Agreement and (y) the Agency Agreement and, in each case, to the extent
of the interests assigned by this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the
extent of the interests assigned by this Assignment and Acceptance, relinquish
its rights and be released from its obligations under the Agreement and the
Agency Agreement.
This
Assignment and Acceptance is being delivered to the Administrative Agent
together with, if the Assignee is not already a Lender under the Agreement, an
administrative questionnaire in the form supplied by the Administrative Agent,
duly completed by the Assignee. The [Assignee/Assignor] shall pay the
fee payable to the Administrative Agent pursuant to Section 12.24(2)(e) of
the Agreement.
This
Assignment and Acceptance shall be governed by and construed in accordance with
the laws of the State of New York.
The
Assignor represents and warrants to the Assignee that the Assignor is the legal
and beneficial owner of the Assigned Interest and has not created any adverse
interest therein. The Assignor and the Assignee represent and warrant
to each other that they are, respectively, authorized to execute and deliver
this Assignment and Acceptance.
Date of
Assignment:
Legal
Name of Assignor:
Legal
Name of Assignee:
Assignee’s
Address for Notices:
Effective
Date of Assignment
(“Assignment
Date”)1:
Percentage
Assigned of
Facility/Commitment
(set
forth, to at
least 4
decimals, as a
percentage
of the
Facility
and the
aggregate
Commitments
Principal
Amount of
all Lenders
Assigned thereunder
Current
Outstanding
Loans
Assigned: $ %]
2
Future
Funding
Commitment: $ %
[Fees
Assigned (if any):]
The terms
set forth above and below are hereby agreed to:
[NAME OF
ASSIGNOR] , as Assignor
By:_________________________
Name:
Title:
[NAME OF
ASSIGNEE] , as Assignee
By:_________________________
Name:
Title:
The
undersigned hereby consent to the within assignment:3
[ ],
as
Administrative Agent
|
By:_________________________
|
|
Name:
|
|
Title:
|
SCHEDULE
1
COMMITMENTS
LENDER COMMITMENT
GENERAL
ELECTRIC CAPITAL
CORPORATION $380,000,000
SCHEDULE
2.1
The
initial advance of the Loans shall be subject to the Administrative Agent’s
receipt, review, approval and/or confirmation of the following, each in form and
content satisfactory to the Administrative Agent in its sole
discretion:
1. The
Loan Documents, executed by Borrower and, as applicable, each Borrower Party and
each other party thereto.
2. An
ALTA (or equivalent) mortgagee policy of title insurance in the maximum amount
of the Loans, with reinsurance and endorsements as the Administrative Agent may
require, containing no exceptions to title (printed or otherwise) which are
unacceptable to the Administrative Agent, and insuring that the Mortgages are a
first-priority Lien on the Projects and related collateral (subject to Permitted
Encumbrances).
3. All
documents evidencing the formation, organization, valid existence, good
standing, and due authorization of and for Borrower and each Borrower Party for
the execution, delivery, and performance of the Loan Documents by Borrower and
each Borrower Party.
4. Legal
opinions issued by counsel for Borrower and each Borrower Party, opining as to
the due organization, valid existence and good standing of Borrower and each
Borrower Party, and the due authorization, execution, delivery, enforceability
and validity of the Loan Documents with respect to Borrower; that the Loans, as
reflected in the Loan Documents, are not usurious; and as to such other matters
as the Administrative Agent and the Administrative Agent’s counsel reasonably
may specify.
5. Current
Uniform Commercial Code searches, and litigation, bankruptcy and judgment
reports as requested by the Administrative Agent, with respect to Borrower,
Borrower’s Member and Borrower’s Manager. As of the Closing Date, the
Administrative Agent acknowledges that this item has been satisfied or
waived.
6. Evidence
of insurance as required by this Agreement, and conforming in all respects to
the requirements of the Administrative Agent, as set forth herein.
7. A
current ALTA/ACSM survey of each Project, certified to the Administrative Agent
(on behalf of the Lenders) and the issuer of the title insurance, prepared by a
licensed surveyor acceptable to the Administrative Agent and the issuer of the
title insurance, and conforming to the Administrative Agent’s current standard
survey requirements. As of the Closing Date, the Administrative Agent
acknowledges that this item has been satisfied or waived.
8. A
current engineering report or architect’s certificate with respect to the
Project, covering, among other matters, inspection of heating and cooling
systems, roof and structural details, showing no failure of compliance with
building plans and specifications, applicable legal requirements (including
requirements of the Americans with Disabilities Act) and fire, safety and health
standards. As requested by the Administrative Agent, such report
shall also include an assessment of any Project’s tolerance for earthquake and
seismic activity. As of the Closing Date, the Administrative Agent
acknowledges that this item has been satisfied or waived.
9. A
current Site Assessment for each Project. The Administrative Agent acknowledges
that this item has been satisfied or waived. As of the Closing Date,
the Administrative Agent acknowledges that this item has been satisfied or
waived.
10. All
environmental reports, building condition reports and Site Assessments delivered
to the Administrative Agent prior to the execution of this Agreement shall be
certified to the Administrative Agent (on behalf of the Lenders and their
successors and assigns) without modification or change thereto in the form
reasonably requested by the Administrative Agent. As of the Closing
Date, the Administrative Agent acknowledges that this item has been satisfied or
waived.
11. A
current rent roll of the Projects, certified as being true and correct by
Borrower or the current owner of the Projects. As of the Closing
Date, the Administrative Agent acknowledges that this item has been satisfied or
waived.
12. A
copy of each Management Agreement, certified by Borrower as being true, correct
and complete.
13. All
fees and commissions payable to real estate brokers, mortgage brokers, or any
other brokers or agents engaged by Borrower in connection with the Loans or the
acquisition of the Projects have been paid.
14. Payment
of the Administrative Agent’s attorneys’ fees and costs in documenting, and
closing the transaction.
15. Such
credit checks, background investigations and other information required by The
Administrative Agent regarding Borrower, each Borrower Party and any other
Person holding a direct or indirect interest in Borrower, including such
additional information as The Administrative Agent may request regarding
compliance by Borrower, and by direct and indirect interest holders in Borrower,
with the provisions of Article 9. As of the Closing Date, the
Administrative Agent acknowledges that this item has been satisfied or
waived.
16. Licenses
and permits, applicable to the operation or use of the Project. As of
the Closing Date, the Administrative Agent acknowledges that this item has been
satisfied or waived.
17. The
representations and warranties contained in this Loan Agreement and in all other
Loan Documents are true and correct in all material respects.
18. The
title policy, survey, insurance policies, appraisal, environmental report,
engineering report and other third party reports shall run in favor of “General
Electric Capital Corporation or its designee, as Administrative Agent on behalf
of the lenders in its lending syndicate from time to time, and the successors
and assigns of each of the foregoing, all of whom may rely
thereon.” Except solely with respect to naming the Administrative
Agent as an additional insured or loss payee, as applicable, with respect to the
insurance policies required to be provided by Borrower pursuant to the Loan
Documents, as of the Closing Date, the Administrative Agent acknowledges that
this item has been satisfied or waived.
19. No
Potential Default or Event of Default shall have occurred or
exist.
SCHEDULE
2.3(1)
WIRE
INSTRUCTIONS
Deutsche
Bank
ABA#
000000000
Acct#
00-000-000
Acct
Name: GEMSA Incoming Wire Account
Ref: Xxxxxxx
Xxxxxx LA Portfolio
SCHEDULE
6.1
ORGANIZATIONAL CHART AND
INFORMATION
(See
organizational chart attached)
Borrower:
Name: Xxxxxxx
Xxxxxx 2008, LLC
Entity Type: Limited
Liability Company
State
of Formation: Delaware
Organizational
Identification Number: 4516254
Borrower’s
Manager:
Name: Xxxxxxx
Xxxxxx Management, LLC
Entity
Type: Limited Liability Company
State
of Formation: Delaware
Organizational
Identification Number: 4210851
SCHEDULE
6.14
1.
|
Property
Management Agreement for 0000 Xxxxxxxx Xxxx., dated March 24, 2008, by and
between Xxxxxxx Xxxxxx 2008, LLC, as Owner, and Xxxxxxx Xxxxxx Management,
LLC, as Agent.
|
2.
|
Property
Management Agreement for 0000 Xxxxxxxx Xxxx., dated March 24, 2008, by and
between Xxxxxxx Xxxxxx 2008, LLC, as Owner, and Xxxxxxx Xxxxxx Management,
LLC, as Agent.
|
3.
|
Property
Management Agreement for 0000 Xxxxxxxx Xxxx., dated March 24, 2008, by and
between Xxxxxxx Xxxxxx 2008, LLC, as Owner, and Xxxxxxx Xxxxxx Management,
LLC, as Agent.
|
4.
|
Property
Management Agreement for 00000 Xxxxxxx Xxxx., dated March 24, 2008, by and
between Xxxxxxx Xxxxxx 2008, LLC, as Owner, and Xxxxxxx Xxxxxx Management,
LLC, as Agent.
|
5.
|
Property
Management Agreement for 00000 Xxxxxxx Xxxx., dated March 24, 2008, by and
between Xxxxxxx Xxxxxx 2008, LLC, as Owner, and Xxxxxxx Xxxxxx Management,
LLC, as Agent.
|
6.
|
Property
Management Agreement for 00000 Xxxxxxx Xxxx. (Warner Corporate Center),
dated March 24, 2008, by and between Xxxxxxx Xxxxxx 2008, LLC, as Owner,
and Xxxxxxx Xxxxxx Management, LLC, as
Agent.
|
SCHEDULE
1.1(84)
(1) 2001
Wilshire - Phase I Environmental Site Assessment by Citadel Environmental
Services, Inc., dated January 25, 2008;
(2) 8383
Wilshire - Phase I Environmental Site Assessment by Citadel Environmental
Services, Inc., dated January 25, 2008;
(3) 9100
Wilshire - Exit Assessment report by Citadel Environmental Services, Inc., dated
February 13, 2008;
(4) 15250
Ventura - Phase I Environmental Site Assessment by Vertex Environmental
Services, Inc., dated January 25, 2008;
(5) 16000
Ventura - Phase I Environmental Site Assessment by Citadel Environmental
Services, Inc., dated January 25, 2008; and
(6) Warner
Corp Ctr/21300 Victory - Phase I Environmental Site Assessment by Citadel
Environmental Services, Inc., dated January 25, 2008.
Page
No.
|
Additional
Costs1, 21
|
|
Adjusted
Libor Rate1
|
|
Administrative
Agent1
|
|
Advance
Date1, 19
|
|
Affiliate1
|
|
Agreement1,
2, 4, 3
|
|
Allocated
Loan Amount2
|
|
Alternate
Base Rate2
|
|
Alternate
Base Rate Loans2
|
|
Anti-Money
Laundering Laws2
|
|
Applicable
Lending Office2
|
|
Assignment
and Acceptance3
|
|
Assignment
of Rents and Leases3
|
|
Bank
Secrecy Act3
|
|
Borrower1
|
|
Borrower’s
Member3
|
|
Business
Day3, 6
|
|
Closing
Date4
|
|
Collateral4
|
|
Commitment4
|
|
Continue4
|
|
Contract
Rate4, 14
|
|
Control4
|
|
Controlled
Subsidiary4
|
|
Convert4
|
|
Debt4
|
|
Debt
Service5
|
|
Default
Rate5
|
|
Dollars5
|
|
Environmental
Indemnity5
|
|
Environmental
Laws5
|
|
ERISA5,
35
|
|
Eurodollar
Loans5
|
|
Event
of Default5
|
|
Federal
Funds Rate5
|
|
Financial
Institution6
|
|
Fund6
|
|
GECC6
|
|
Hazardous
Materials6
|
|
Improvements6
|
|
Indebtedness6
|
|
Interest
Period6
|
|
Lender1
|
|
Lenders1
|
|
Libor
Base Rate6, 21
|
|
Licenses7
|
|
Lien7
|
|
Loan
Documents7
|
|
Loans7
|
|
Majority
Lenders7
|
|
Manager7
|
|
Maturity
Date8
|
|
Mortgage8
|
|
Net
Operating Income8
|
|
Notes8
|
|
OFAC8
|
|
Operating
Expenses8
|
|
Operating
Partnership8
|
|
Operating
Revenues8
|
|
Participant9,
60
|
|
Patriot
Act9
|
|
Payment
Date9, 15
|
|
Payor9,
18
|
|
Permitted
Encumbrances9
|
|
Permitted
Transfers9
|
|
Person9
|
|
Potential
Default9
|
|
Prime
Rate9
|
|
Project10
|
|
Proposed
Lender10, 25
|
|
Regulation
D10
|
|
Regulatory
Change10
|
|
REIT10
|
|
Requesting
Lender10, 25
|
|
Required
Payment10, 18
|
|
Reserve
Requirement10
|
|
Restoration
Threshold10
|
|
Secondary
Market Transaction11
|
|
Single
Purpose Entity11
|
|
Site
Assessment11
|
|
Specially
Designated National and Blocked
Persons11
|
|
Standard
Adjustments11
|
|
State11
|
|
Stub
Interest Period12, 15
|
|
Subordination
of Management Agreement12
|
|
Taxes12,
42
|
|
Transfer41
|
|
Type12
|
UCC12
|
|
Underwritten
NOI12
|
|
Underwritten
Operating Xxxxxxxx00
|
|
Xxxxxx
Xxxxxx Xxxxxx00, 00
|
|
Xxxxxx
Xxxxxx Taxes25
|