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LOAN AGREEMENT
BY AND BETWEEN
SWH FUNDING CORP.,
AS LENDER
AND
CEDAR INCOME FUND PARTNERSHIP, L.P.,
AS BORROWER
AS OF NOVEMBER ___, 2002
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ARTICLE 1 -- PARTICULAR TERMS; DEFINITIONS........................................................................1
ARTICLE 2 -- THE LOAN............................................................................................17
2.1 Loan Funding..............................................................................................17
2.2 Interest Rate.............................................................................................18
2.3 Payments..................................................................................................18
2.3.1 Basic Interest...................................................................................18
2.3.2. Principal Payments...............................................................................18
2.3.3 Repayment of Outstanding Principal Balance.......................................................19
2.3.4 Fees.............................................................................................19
2.3.5 General..........................................................................................19
2.4 Loan Term.................................................................................................20
2.5 Change In Law, Etc........................................................................................20
2.6 Prepayment................................................................................................21
2.7 Default Interest; Late Charge.............................................................................21
2.8 Maximum Amount of Interest................................................................................22
2.9 Loan Taxes................................................................................................23
2.10 Servicing.................................................................................................24
ARTICLE 3 -- CERTAIN REPRESENTATIONS AND WARRANTIES OF BORROWER..................................................25
3.1 Borrower Organization, Enforceability, Etc................................................................25
3.1.1 Borrower Status..................................................................................25
3.1.2 Guarantor/General Partner Status.................................................................25
3.1.3 Status of Limited Partners.......................................................................26
3.1.3 Status of Borrower Affiliates....................................................................26
3.1.5 No Other Partners................................................................................26
3.1.6 Structure of Borrower and the Xxxxxx Owners......................................................26
3.1.7 Guarantor........................................................................................26
3.2 Address For Borrower Entities.............................................................................26
3.3 Organizational Documents..................................................................................26
3.4 Guarantor's Organizational Documents......................................................................27
3.5 Title.....................................................................................................27
3.6 Uses......................................................................................................27
3.7 No Structural Defects.....................................................................................27
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3.8 Compliance with Zoning, Etc...............................................................................27
3.9 No Condemnation...........................................................................................28
3.10 No Casualty...............................................................................................28
3.11 Purchase Options..........................................................................................28
3.12 No Encroachments..........................................................................................28
3.13 Litigation................................................................................................28
3.14 No Conflict with Law or Agreements........................................................................29
3.15 Personal Property.........................................................................................29
3.16 Easements; Access; Utilities..............................................................................29
3.17 No Flood Hazard, Etc......................................................................................30
3.18 Property Taxed as a Separate Tax Lot......................................................................30
3.19 Leases....................................................................................................30
3.20 Environmental.............................................................................................31
3.21 Access Laws...............................................................................................31
3.22 No Default................................................................................................32
3.23 No Offsets................................................................................................32
3.24 Fraudulent Conveyance.....................................................................................32
3.25 Broker....................................................................................................32
3.26 Financial Statements......................................................................................32
3.27 No Insolvency.............................................................................................33
3.28 Fiscal Year...............................................................................................33
3.29 No Other Financing........................................................................................33
3.30 ERISA ....................................................................................................33
3.31 FIRPTA....................................................................................................33
3.32 PUHCA ....................................................................................................33
3.33 Insurance................................................................................................33
3.34 Securities Laws...........................................................................................33
3.35 Investment Company Act....................................................................................34
3.36 Taxes; Impositions........................................................................................34
3.37 Full and Accurate Disclosure..............................................................................34
3.38 Contracts.................................................................................................34
3.39 Other Obligations and Liabilities.........................................................................35
3.40 Documents.................................................................................................35
3.41 No Strikes................................................................................................35
3.42 Consumer Credit Laws; Usury...............................................................................35
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ARTICLE 4 -- CERTAIN COVENANTS OF BORROWER.......................................................................35
4.1 Payment and Performance of Obligations....................................................................35
4.2 Transfers.................................................................................................36
4.3 Liens.....................................................................................................37
4.4 Indebtedness..............................................................................................37
4.5 Compliance with Restrictive Covenants, Etc................................................................37
4.6 Leases....................................................................................................38
4.7 ERISA.....................................................................................................40
4.8 Agreements with Affiliates................................................................................41
4.9 Books and Records.........................................................................................41
4.10 Management, Etc...........................................................................................41
4.11 Financial Statements; Approved Operating Budget, Audit Rights.............................................42
4.12 Maintenance of Taxable/Non-Taxable Status.................................................................44
4.13 Environmental.............................................................................................44
4.14 Inspections...............................................................................................45
4.15 Use of Premises; Zoning Change............................................................................45
4.16 Required Insurance........................................................................................45
4.17 Construction..............................................................................................45
4.18 Contracts.................................................................................................46
4.19 Report Updates............................................................................................46
4.20 Non-Competition...........................................................................................46
4.21 No Sale or Refinancing....................................................................................46
4.22 Lender's Attorneys' Fees and Expenses.....................................................................47
4.23 Delivery of Estoppel Certificates.........................................................................48
4.24 Delivery of Notices.......................................................................................48
ARTICLE 5 -- INSURANCE; CASUALTY AND CONDEMNATION................................................................49
5.1 Insurance; Coverages......................................................................................49
5.2 Approved Insurer; Premiums and Policies...................................................................51
5.3 No Separate Insurance.....................................................................................51
5.4 Notice of Casualty and Condemnation.......................................................................51
ARTICLE 6 -- EVENTS OF DEFAULT...................................................................................51
6.1 Events of Default.........................................................................................51
6.1.1 Non-Payment......................................................................................51
6.1.2 Affirmative Covenants............................................................................52
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6.1.3 Negative Covenants...............................................................................52
6.1.4 Financial Statements.............................................................................52
6.1.5 Representations..................................................................................53
6.1.6 Other Loan Documents.............................................................................53
6.1.7 Demolition or Alterations........................................................................53
6.1.8 Failure to Deliver Estoppel Certificate..........................................................53
6.1.9 Cessation........................................................................................53
6.1.10 Transfer.........................................................................................53
6.1.11 Liens............................................................................................53
6.1.12 Involuntary Bankruptcy, Etc......................................................................53
6.1.13 Voluntary Bankruptcy, Etc........................................................................54
6.1.14 Judgments........................................................................................54
6.1.15 Leasing Breach...................................................................................54
6.1.16 Organizational Documents.........................................................................55
6.1.17 Delivery of Financial Statements; Annual Operating Budget........................................55
6.1.18 ERISA............................................................................................55
6.1.19 Termination of Management Agreement, Etc.........................................................55
6.1.20 Other Conditions for Acceleration................................................................55
6.1.21 Prohibited Assignment............................................................................55
6.1.22 Holdings Agreement...............................................................................55
6.1.23 Mortgage Loan Documents..........................................................................55
6.2 Rights upon Event of Default..............................................................................55
6.3 Waiver of Stay, Extension and Moratorium Laws, Appraisal and Valuation, Redemption and Marshalling........57
6.4 Preferences; Revival......................................................................................57
ARTICLE 7 -- GENERAL PROVISIONS..................................................................................58
7.1 Rights Cumulative; Waivers................................................................................58
7.2 Lender's Action for its Own Protection Only...............................................................59
7.3 No Third Party Beneficiaries..............................................................................59
7.4 Payment of Expenses, etc..................................................................................60
7.4.1 Payment of Expenses..............................................................................60
7.4.2 Advances Secured.................................................................................61
7.5 Indemnification...........................................................................................61
7.6 Notices...................................................................................................63
7.7 No Oral Modification......................................................................................64
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7.8 Assignment by Lender; Participations......................................................................64
7.8.1 Assignment and Participations....................................................................64
7.8.2 Assignment and Acceptance........................................................................65
7.8.3 Other Business...................................................................................65
7.8.4 Privity of Contract..............................................................................65
7.9 Severability..............................................................................................66
7.10 No Assignment by Borrower.................................................................................66
7.11 Governing Law.............................................................................................66
7.12 Successors and/or Assigns.................................................................................66
7.13 Entire Contract...........................................................................................66
7.14 Liability.................................................................................................66
7.15 Counterparts; Headings....................................................................................67
7.16 Time of the Essence.......................................................................................67
7.17 Consents..................................................................................................67
7.17.1 No Subsequent Consent............................................................................67
7.17.2 Withholding of Consent...........................................................................67
7.18 No Partnership............................................................................................68
7.19 Waiver of Jury Trial......................................................................................68
7.20 Construction of Provisions................................................................................68
7.21 Limitation on Liability...................................................................................69
7.22 Jurisdiction, Venue, Service of Process...................................................................69
7.23 Rule of Construction......................................................................................70
7.24 Further Assurances........................................................................................70
7.25 Recitals..................................................................................................71
7.26 Effect of Environmental Representations and Covenants and Indemnities.....................................71
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TABLE OF CONTENTS
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EXHIBITS
EXHIBIT A-1 Legal Description of the Camp Hill Property
EXHIBIT A-2 Legal Description of Washington Center
EXHIBIT A-3 Legal Description of Academy Plaza
EXHIBIT A-4 Legal Description of Port Richmond Village
EXHIBIT B Approved Contracts
EXHIBIT C Approved Leases
EXHIBIT D-1 Structure of Borrower
EXHIBIT D-2 Structure of Cedar-Camp Hill LLC
EXHIBIT D-3 Structure of Washington Center 2 L.L.C.
EXHIBIT D-4 Structure of Xxxxxxx Xxxxx 0 X.X.X.
XXXXXXX X-0 Structure of Port Richmond Village 2 L.L.C.
EXHIBIT E-1 Rent Roll - Camp Hill
EXHIBIT E-2 Rent Roll - Washington Center
EXHIBIT E-3 Rent Roll - Academy Plaza
EXHIBIT E-4 Rent Roll - Port Richmond Village
EXHIBIT F Tenants who are Affiliates of Borrower or any Borrower Affiliate
EXHIBIT G-1 Approved Operating Budget for 2002 - Camp Hill
EXHIBIT G-2 Approved Operating Budget for 2002 - Washington Center
EXHIBIT G-3 Approved Operating Budget for 2002 - Academy Plaza
EXHIBIT G-4 Approved Operating Budget for 2002 - Port Richmond Village
LOAN AGREEMENT
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THIS LOAN AGREEMENT (as amended, modified, supplemented, extended,
restated or replaced from time to time, this "Agreement"), dated as of November
___, 2002, by and between SWH FUNDING CORP., a New Jersey corporation, having an
office at Xxx Xxxxxxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000 (together with its
successors, assigns and/or participants, "Lender"), and CEDAR INCOME FUND
PARTNERSHIP, L.P., a Delaware limited partnership, having an office c/o Cedar
Bay Realty Advisors, Inc., 00 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxx Xxxxxxxxxx,
Xxx Xxxx 00000 ("Borrower").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Borrower desires to borrow the sum of up to $6,000,000.00 (the
"Loan Amount") from Lender (the "Loan") in order to (a) re-pay to Lender in full
that certain loan in the original principal amount of $6,000,000.00 made by
Lender to Borrower, which loan was made pursuant to that certain Loan Agreement
dated as of October 9, 2001, between Borrower and Lender (the "Existing Loan"),
(b) provide a portion of the equity shortfall required to enable Cedar-Camp Hill
LLC, a Delaware limited liability company wholly owned by Borrower ("Camp Hill
LLC") to acquire the tracts and parcels of land located in Camp Hill
Pennsylvania, as more particularly described on Exhibit A-1 attached hereto and
made a part hereof and the improvements situate thereon (the "Camp Hill
Property") and (c) pay a portion of the Permitted Closing Fees and Costs (as
hereinafter defined); and
WHEREAS, Lender has advised Borrower that, subject to the terms and
conditions of this Agreement and of the Loan Documents (as hereinafter defined),
and in reliance upon the representations, warranties, covenants and undertakings
of Borrower herein and therein contained, Lender is willing to make the Loan to
Borrower on the terms and conditions set forth herein and therein.
NOW, THEREFORE, for Ten Dollars ($10.00) and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, and
the recitals hereinabove set forth which are hereby incorporated herein and made
a part hereof, and the mutual promises and agreements herein contained, Lender
and Borrower hereby agree as follows:
ARTICLE 1
PARTICULAR TERMS; DEFINITIONS
-----------------------------
The following terms shall have the respective meanings hereinafter
specified for all purposes of this Agreement, and shall be applicable equally to
the singular and plural forms of such terms:
"Academy Plaza Loan" shall mean that certain loan in the original
principal amount of $11,080,000.00 made by The Chase Manhattan Bank to Academy
Store, L.P., which loan (a) is secured by, inter alia, a mortgage encumbering
the Shopping Center known as Academy Plaza and (b) was assumed by Academy Plaza
L.L.C. 1.
"Access Laws" shall mean the Americans with Disabilities Act of 1990,
as amended, 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.
"Affiliate" shall mean, with respect to a specified Person, (a) a
Person who, directly or indirectly through one or more intermediaries, controls,
is controlled by or is under common control with, the specified Person, (b) any
Person who is an officer, director, partner, manager, employee, or trustee of,
or serves in a similar capacity with respect to, the specified Person or of
which the specified Person is an officer, partner, manager or trustee, or with
respect to which the specified Person serves in a similar capacity, (c) if the
Person is an individual, the spouse, issue, or parent of the specified Person,
and (d) any Person which would constitute an Affiliate of any such Person
described in clauses (a) through (d) immediately above.
"Affirmative Covenant" shall mean a promise or covenant by any Person
to perform, act, suffer, permit or consent.
"Agreement" shall have the meaning ascribed thereto in the introductory
paragraph hereof.
"Approved Accountants" shall mean one of the so-called "Big Four"
accounting firms or such other independent certified public accountants of
nationally recognized standing selected by the Person required to deliver the
applicable Financial Statements and other reports provided for herein, which
Approved Accountants, if not one of the so-called "Big Four" accounting firms,
shall be subject to Lender's prior written approval not unreasonably to be
withheld. Notwithstanding the foregoing, if (a) Borrower makes the First
Mandatory Prepayment in accordance with Section 2.3.2(b) hereof and (b) Camp
Hill LLC is required, pursuant to the terms of the Camp Hill Loan Documents, to
obtain the prior written approval of the Camp Hill Lender to any accountants
utilized by Camp Hill LLC for the preparation of any financial statements
required thereunder, then Borrower shall not be required to obtain Lender's
prior written approval hereunder so long as no Event of Default shall have
occurred, in which case, Lender's prior written approval shall be required
hereunder.
"Approved Base Building Work" shall mean, with respect to any Property,
any capital improvements to be made to any portion of such Property not occupied
or intended to be occupied by a Tenant.
"Approved Base Building Work Contractor(s)" shall mean, with respect to
any Approved Base Building Work, the contractor(s) selected or approved by the
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applicable Property Owner to perform the Approved Base Building Work, which
contractor(s) shall have been approved by Lender, such approval not unreasonably
to be withheld or delayed. Notwithstanding the foregoing, if (a) Borrower makes
the First Mandatory Prepayment in accordance with Section 2.3.2(b) hereof and
(ii) Camp Hill LLC is required, pursuant to the terms of the Camp Hill Loan
Documents, to obtain the approval of the Camp Hill Lender to any such
contractor(s) performing Approved Base Building Work at the Camp Hill Property,
then Borrower shall not be required to obtain Lender's approval hereunder with
respect to Approved Base Building Work to be performed at the Camp Hill Property
so long as no Event of Default shall have occurred, in which case, Lender's
approval shall be required hereunder.
"Approved Base Building Work Plans and Specifications" shall mean the
designs, plans and specifications for any Approved Base Building Work, which
designs, plan and specifications shall have been approved by Lender, such
approval not unreasonably to be withheld or delayed. Notwithstanding the
foregoing, if (a) Borrower makes the First Mandatory Prepayment in accordance
with Section 2.3.2(b) hereof and (b) Camp Hill LLC is required, pursuant to the
terms of the Camp Hill Loan Documents, to obtain the approval of the Camp Hill
Lender to any such designs, plans and specifications with respect to Approved
Base Building Work performed at the Camp Hill Property, then Borrower shall not
be required to obtain Lender's approval hereunder with respect to Approved Base
Building Work to be performed at the Camp Hill Property so long as no Event of
Default shall have occurred, in which case, Lender's approval shall be required
hereunder.
"Approved Contracts" shall mean the Contracts set forth on Exhibit B
attached hereto and made a part hereof and any other Contract entered into after
the date hereof in accordance with Section 4.18 hereof.
"Approved Leases" shall mean all Leases as set forth on Exhibit C
attached hereto and made a part hereof and all Leases entered into after the
Effective Date in accordance with Section 4.6 hereof.
"Approved Operating Budget" shall have the meaning ascribed thereto in
Section 4.11(d) hereof.
"Approved Operating Expenses" shall mean, with respect to any Property,
all Expenses set forth on the Approved Operating Budget then in effect in
respect of such Property.
"Approved Permitted Encumbrances" shall mean the encumbrances set forth
on Schedule B of each of the Title Policies.
"Approved Tenant Improvement Contractor(s)" shall mean, with respect to
any Approved Tenant Improvements, the contractor(s) selected or approved by the
applicable Property Owner to perform any Landlord Work and/or to oversee any
Tenant Work, which contractor(s) have been approved by Lender, such approval not
unreasonably to be withheld.
"Approved Tenant Improvement Plans and Specifications" shall mean the
designs, plans and specifications for any Approved Tenant Improvements, which
designs, plans and specifications have been approved by Lender, such approval
not unreasonably to be withheld.
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"Approved Tenant Improvements" shall mean any Tenant Work or Landlord
Work under an Approved Lease which has been approved by Lender.
"Assignees" shall have the meaning ascribed thereto in Section 7.8.1
hereof.
"Bankruptcy Code" shall mean Title 11 of the United States Code, 11
U.S.C. ss.ss.101 et seq., as amended.
"Basic Interest" shall mean interest due on the Outstanding Principal
Balance calculated at the Basic Interest Rate on the basis of a 360 day year for
the actual number of days elapsed.
"Basic Interest Rate" shall mean a fixed rate equal to (a) twelve and
one-half percent (12.5%) per annum, for any Interest Accrual Period or portion
thereof from and after the Effective Date through and including November 30,
2004 and (b) fourteen percent (14%) per annum for any Interest Accrual Period or
portion thereof from and after December 1, 2004 through and including the
Scheduled Maturity Date.
"best knowledge" or "knowledge" shall mean, for the purpose of this
Agreement and the other Loan Documents, the actual knowledge of the Person in
question, after having made due inquiry. If any Person with respect to which
this term would be applicable is a corporation, knowledge of such Person shall
refer to actual knowledge of its officers or directors, after having made due
inquiry. If any such Person is a partnership, knowledge of such entity shall
refer to actual knowledge of each of its partners who participates in the
management of such partnership (directly or indirectly), after having made due
inquiry. If any such Person is a limited liability company, knowledge of such
entity shall refer to actual knowledge of its managing member(s), after having
made due inquiry. The knowledge of Borrower for purposes of this definition
shall also include the knowledge of the Manager if it is an Affiliate of
Borrower.
"Boiler Insurance" shall have the meaning ascribed thereto in Section
5.1.7 hereof.
"Borrower" shall have the meaning ascribed thereto in the recitals to
this Agreement.
"Borrower Affiliates" shall mean, collectively, Camp Hill LLC, Holdings
LLC, the Xxxxxx Owners and the Xxxxxx Members.
"Borrower Entities" shall mean, collectively, Borrower and the Borrower
Affiliates.
"Broker" shall have the meaning ascribed thereto in Section 3.25
hereof.
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"Xxxxxx Loans" shall mean, collectively, the Academy Plaza Loan, the
Port Richmond Village Loan and the Washington Center Loan, and, each,
individually, is referred to herein as a "Xxxxxx Loan".
"Xxxxxx Loan Documents" shall mean, collectively, all of the documents
executed and/or delivered in connection with the Xxxxxx Loans.
"Xxxxxx Members" shall mean, collectively, Xxxxxxx Xxxxx X.X.X. 0, Xxxx
Xxxxxxxx L.L.C. 2 and Washington Center L.L.C. 2, each a Delaware limited
liability company.
"Xxxxxx Owners" shall mean, collectively, Xxxxxxx Xxxxx X.X.X. 0, Xxxx
Xxxxxxxx L.L.C. 1 and Washington Center L.L.C. 1., each a Delaware limited
liability company.
"Xxxxxx Shopping Centers" shall mean, collectively, (a) the fee simple
interest of Washington Center L.L.C. 1, in that certain parcel of real property
and the improvements situate thereon and the personal property used in
connection therewith, commonly known as Washington Center and located in Xxxxxx,
New Jersey, as more particularly described on Exhibit A-2 attached hereto and
made a part hereof, (b) the fee simple interest of Academy Plaza L.L.C. 1, in
that certain parcel of real property and the improvements situate thereon and
the personal property used in connection therewith, commonly known as Academy
Plaza and located in Philadelphia, Pennsylvania, as more particularly described
on Exhibit A-3 attached hereto and made a part hereof, and (c) the fee simple
interest of Port Richmond L.L.C. 1, in that certain parcel of real property and
the improvements situate thereon and the personal property used in connection
therewith, commonly known as Port Richmond Village and located in Philadelphia,
Pennsylvania, as more particularly described on Exhibit A-4 attached hereto and
made a part hereof. Each of the Xxxxxx Shopping Centers is referred to herein
individually as a "Xxxxxx Shopping Center."
"Builder's Risk Insurance" shall have the meaning ascribed thereto in
Section 5.1.5 hereof.
"Business Day" shall mean any day except a Saturday, Sunday or other
day on which commercial banks are required or permitted by law to close in New
York City.
"Business Insurance" shall have the meaning ascribed thereto in Section
5.1.3 hereof.
"Camp Hill LLC" shall have the meaning ascribed thereto in the recitals
to this Agreement.
"Camp Hill Lender" shall mean Citizens Bank of Pennsylvania.
"Camp Hill Loan" shall mean that certain loan in the original principal
amount of $14,000,000.00, made by the Camp Hill Lender to Camp Hill LLC, which
loan is secured by, inter alia, a mortgage encumbering the Camp Hill Property.
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"Camp Hill Loan Documents" shall mean documents executed and/or
delivered in connection with the Camp Hill Loan.
"Camp Hill Property" shall have the meaning ascribed thereto in the
recitals to this Agreement.
"Capital Adequacy Events" shall have the meaning ascribed thereto in
Section 2.5(a) hereof.
"Change in Control Event" shall mean any transaction or series of
transactions (including by way of merger, consolidation, exchange, dividend,
hypothecation, Transfer, distribution, redemption or similar event) or any other
event (including death, disability, incapacity, dissolution, insolvency,
resignation, withdrawal or similar occurrence) the result of which is either
that (a) Guarantor no longer controls, directly or indirectly, Borrower and/or
(b) Brentway Management LLC no longer manages all of the Properties or (c) Xxx
Xxxxxx no longer controls, directly or indirectly, Brentway Management LLC.
"Claim" shall have the meaning ascribed thereto in Section 7.5(b)
hereof.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, together with the regulations promulgated thereunder.
"Collateral" shall mean all collateral pledged to Lender in respect of
the Loan hereunder or under any of the other Loan Documents.
"Competitive Business" shall mean the relocation, solicitation,
enticement, inducement, interference with occupancy or other act or omission by
Borrower, any other Significant Party, any Borrower Affiliate or any Manager or
any of their respective Affiliates concerning any Tenant of any Property which
results in or may reasonably be anticipated to result in the relocation,
surrender, termination, takeover, removal or movement of any such Tenant from
its occupancy (including any renewal, extension or expansion right and options
of such Tenant), lease, sublease or tenancy at the applicable Property to any
property or building other than the applicable Property without Lender's prior
written consent in its sole and absolute discretion.
"Contract" shall mean, with respect to any Property, (a) any
management, brokerage or leasing agreement or (b) any cleaning, maintenance,
service, construction, engineering, architectural or other contract or agreement
of any kind (other than Leases) of a material nature (materiality for these
purposes to include contracts in excess of $10,000 or which extend beyond one
year (unless cancelable on thirty (30) days or less notice without penalty or
premium)), in either case relating to the ownership, leasing, management, use,
operation, maintenance, design, demolition, construction, repair or restoration
of such Property, whether written or oral.
"control" (and the correlative terms "controlled by" and "controlling")
shall mean, with respect to a specified Person, the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
6
policies of such Person, whether through ownership of voting securities or
partnership or other ownership interests, by contract or otherwise; provided,
however, that, without limiting the generality of the foregoing, (a) any Person
(including immediate family members of such Person) which owns, directly or
indirectly, securities representing ten percent (10%) or more of the value or
ordinary voting power of a corporation or ten percent (10%) or more of the
partnership or membership or other ownership interests (based upon value or
vote) of any other Person shall always be deemed to control such corporation or
other Person, (b) a general partner shall always be deemed to control any
partnership of which it is a general partner, and (c) a manager or
member-manager of a limited liability company shall always be deemed to control
any limited liability company of which it is a manager or member-manager, as the
case may be.
"Default" shall have the meaning ascribed thereto in Section 6.1
hereof.
"Default Rate" shall mean a per annum rate of interest equal to the
lesser of (a) the sum of five percent (5%) plus the then otherwise applicable
Basic Interest Rate per annum and (b) the highest rate permitted by law to be
paid.
"Designated Officer" shall mean with respect to any Person (a) if such
Person is a corporation, the chief financial officer of such corporation or such
other officer of such corporation as is fully familiar with the financial
affairs of such Person and is reasonably approved by Lender, (b) if such Person
is a partnership, the chief financial officer of such Person's managing general
partner or such other officer of such Person's managing general partner as is
fully familiar with the financial affairs of such Person and is reasonably
approved by Lender, or (c) if such Person is a limited liability company, the
chief financial officer of such Person's managing member or such other officer
of such Person's managing member as is fully familiar with the financial affairs
of such Person and is reasonably approved by Lender.
"Discretionary Expenses" shall mean all Expenses which are not
Nondiscretionary Expenses.
"Disqualified Person" shall have the meaning ascribed thereto in
Section 3.30 hereof.
"Dollar" or "$" shall mean lawful money of the United States of
America.
"Easements" shall have the meaning ascribed thereto in Section 3.16
hereof.
"Effective Date" shall mean the date on which this Agreement is
executed and delivered by Borrower to Lender, as set forth in the introductory
paragraph hereof.
"Environmental Covenants and Indemnities" shall mean the covenants set
forth in Section 3, and the indemnities set forth in Section 4, of the Hazardous
Waste Indemnity.
"Environmental Representations" shall mean the representations set
forth in Section 2 of the Hazardous Waste Indemnity.
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"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended, and the regulations promulgated thereunder from time to time.
"Eurodollar Business Day" shall mean any Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London, England.
"Event of Default" shall have the meaning ascribed thereto in Section
6.1 hereof.
"Existing Loan" shall have the meaning ascribed thereto in the recitals
to this Agreement.
"Exit Fee" shall mean an amount payable in connection with the
repayment of the Outstanding Principal Balance (but not in connection with any
partial prepayment of the Loan except for any partial prepayment which, when
combined with any other prepayments made in respect of the Loan, results in the
Outstanding Principal Balance being paid off in full) equal to (a) $120,000.00,
if the Obligations are indefeasibly paid and performed in full on or prior to
February 28, 2004 and (b) the sum of (i) $120,000.00, and (ii) the product of
(y) $30,000.00 and (z) the number of months between February, 2004 and the date
the Obligations are indefeasibly paid and performed in full, if the Obligations
are indefeasibly paid and performed in full on or after March 1, 2004.
"Expenses" shall mean, with respect to any Property, in respect of any
Interest Accrual Period, all reasonable and customary costs and expenses
actually incurred during such Interest Accrual Period by Borrower or any
Borrower Affiliate in respect of the ownership and operation of such Property
(as reasonably adjusted by Lender to reflect, inter alia, timing of the payment
of expenses and such other factors as Lender shall reasonably determine to be
relevant), calculated on a cash basis, including, without limitation (a)
Impositions, (b) Insurance Premiums and (c) management fees in an amount not to
exceed five percent (5%) of Receipts or such greater percentage as shall be
approved by Lender, but expressly excluding, however, (i) costs which under GAAP
are properly classified as capital expenditures and not currently expensed, (ii)
accounting, and legal fees and disbursements not directly related to the
operation of such Property, (iii) payments of principal or interest under the
Loan, (iv) leasing commissions, tenant improvements, tenant inducements and
allowances and base building work, from time to time (v) amounts expended on
items for which reserves have been established previously and (vi) depreciation
and amortization.
"Fidelity" shall mean New York Land Services, Inc., as agent for
Fidelity National Title Insurance Company of New York.
"Financial Statements" shall mean the financial statements and other
documentation required to be delivered pursuant to Section 4.11 hereof.
"First Mandatory Prepayment" shall have the meaning ascribed thereto in
Section 2.3(b) hereof.
8
"First Mandatory Prepayment Date" shall have the meaning ascribed
thereto in Section 2.3.2(b) hereof.
"Flood Insurance" shall have the meaning ascribed thereto in Section
5.1.4 hereof.
"Funding Fee" shall mean the sum of $300,000.00.
"GAAP" shall mean generally accepted accounting principles as adopted
by the American Institute of Certified Public Accountants, consistently applied.
"Governmental Authority" shall mean the United States, the State of New
York, the State of Delaware, the State of Maryland, the Commonwealth of
Pennsylvania, the State of New Jersey, any jurisdiction in which any of the
Collateral is located, and any political subdivision of any of the foregoing,
and any agency, department, commission, board, court, bureau or instrumentality
of any of the foregoing.
"Guarantor" shall mean Cedar Income Fund, Ltd., a Maryland corporation.
"Guaranty" shall mean that certain Guaranty, dated as of the Effective
Date, given by Guarantor in favor of Lender, as the same may hereafter be
amended, modified, supplemented, restated or replaced from time to time.
"Hazardous Substances" shall have the meaning ascribed thereto in the
Hazardous Waste Indemnity.
"Hazardous Waste Indemnity" shall mean that certain Hazardous Waste
Indemnity with respect to the Properties, dated as of the Effective Date, made
jointly and severally by Borrower and Guarantor to Lender, as same may be
amended, modified, supplemented, restated or replaced from time to time.
"Holdings" shall mean Cedar Center Holdings L.L.C. 3, a Delaware
limited liability company.
"Holdings Operating Agreement" means that certain Limited Liability
Company Agreement of Holdings effective as of September 14, 2001.
"Impositions" shall mean, with respect to any Property, all real estate
taxes, assessments (including, without limitation, all assessments for public
improvements or benefits), frontage and sewer rents, water meter charges,
charges for public or private utilities, license or permit fees, inspection fees
and other governmental levies or payments, of every kind and nature whatsoever,
general and special, ordinary and extraordinary, unforeseen as well as foreseen,
which at any time may be assessed, levied, confirmed, imposed or which may
become a Lien upon such Property, or any portion thereof, or which are payable
with respect thereto, or upon the rents, issues, revenues, income or profits
thereof, or on the occupancy, operation, use, possession or activities thereof,
whether any or all of the same be levied directly or indirectly or as excise
taxes or as income taxes and, except for Lender's Taxes, all taxes, assessments
or charges which may be levied on this Agreement or the Note.
9
"Improvements" shall mean, with respect to any Property, the buildings
and improvements now or hereafter situate on the applicable portion of the Land.
"Indebtedness" shall mean any and all liabilities and obligations owing
by any Person to any Person, including principal, interest, charges, fees,
reimbursements and expenses, however evidenced, whether as principal, surety,
endorser, guarantor or otherwise, direct or indirect, absolute or contingent,
joint or several, due or not due, primary or secondary, liquidated or
unliquidated, secured or unsecured, original, renewed or extended, (a) in
respect of any borrowed money (whether by loans, the issuance and sale of debt
securities or the sale of any property to another Person subject to an
understanding, agreement, contract or otherwise to repurchase such property) or
for the deferred purchase price of any property or services (other than trade
accounts payable or accrued expenses that are or would be incurred in the
ordinary course of business of such Person ("Trade Payables") and payable within
ninety (90) days after the date of delivery of the respective property or the
rendering of the respective service), (b) as lessee under any leases (other than
the Leases) which shall have been or should be, in accordance with GAAP,
recorded as capital leases, (c) under direct or indirect guarantees and
obligations (contingent or otherwise) to purchase or otherwise acquire, or
otherwise assure any creditor against loss in respect of the obligations of
others, (d) in respect of letters of credit or similar instruments issued or
accepted by banks and other financial institutions for the account of such
indebted Person, or (e) in respect of unfunded vested benefits under plans
covered by ERISA or any similar liabilities to, for the benefit of, or on behalf
of any employees of such indebted Person.
"Indemnified Parties" shall mean each of Lender, its Affiliates,
Assignees, Participants and their respective successors, assigns, partners,
members, shareholders, officers, directors, employees, agents and attorneys.
"Insolvent" shall mean (a) the inability of a Person to pay its debts
as they become due and/or (b) if the fair value of such Person's debts is
greater than the fair value of such Person's assets.
"Insurance Premiums" shall have the meaning ascribed thereto in Section
7.27 hereof.
"Interest Accrual Period" shall mean, with respect to any Payment Date,
the calendar month preceding such Payment Date, provided that no Interest
Accrual Period shall end later than the Maturity Date (other than for purposes
of calculating interest at the Default Rate), and the initial Interest Accrual
Period under the Loan shall begin on the Effective Date.
"Land" shall mean those certain tracts or parcels of land more
particularly described on Exhibit A-1 through and including Exhibit A-4,
attached hereto and made a part hereof.
10
"Landlord Work" shall mean any Approved Tenant Improvements required to
be performed by Borrower under the related Approved Lease.
"Late Charge" shall have the meaning ascribed thereto in Section 2.7(b)
hereof.
"Law Change" shall have the meaning ascribed thereto in Section 2.9(c)
hereof.
"Lease" shall mean any lease now or hereafter on or affecting any of
the Properties, or any part thereof, whether written or oral, and all licenses
and other agreements for the use and/or occupancy of any of the Properties, or
any part thereof as the same shall have been or shall hereafter be amended.
"Legal Requirement" shall mean any law, statute, ordinance, order,
rule, regulation, decree or other requirement of a Governmental Authority, and
all conditions of any Permit.
"Lender" shall have the meaning ascribed to such term in the
introductory paragraph of this Agreement.
"Lender's Counsel" shall mean Solomon and Xxxxxxxx LLP, located in New
York, New York, and any other law firm acting as counsel to Lender.
"Lender's Counsel Fees" shall mean all reasonable fees and
disbursements of Lender's Counsel.
"Liability Insurance" shall have the meaning ascribed thereto in
Section 5.1.2 hereof.
"Liens" shall have the meaning ascribed thereto in Section 4.3 hereof.
"Limited Partner" shall have the meaning ascribed thereto in Section
3.1.3 hereof.
"Loan" shall have the meaning ascribed thereto in the recitals of this
Agreement.
"Loan Amount" shall have the meaning ascribed thereto in the recitals
of this Agreement.
"Loan Documents" shall mean this Agreement, the Note, the Hazardous
Waste Indemnity, the Guaranty, the Pledge and any other document, assignment or
agreement now or hereafter executed by Borrower, or any other Person for the
benefit of Lender, evidencing, securing or otherwise relating to the Loan,
including, without limitation, all Uniform Commercial Code financing statements
in connection with any of the foregoing.
"Loan Taxes" shall having the meaning ascribed thereto in Section
2.9(a) hereof.
"Major Decision" shall mean any decision of or on behalf of any
Significant Party (other than Guarantor) to: (a) engage in any business or
activity other than as set forth in such Significant Party's Organizational
Documents in effect as of the Effective Date; (b) incur any Indebtedness or
11
assume or guaranty any Indebtedness of any other Person, other than in
connection with any business or activity as set forth in such Significant
Party's Organizational Documents in effect as of the Effective Date; (c)
voluntarily dissolve or liquidate, in whole or in part; (d) consolidate or merge
with or into any other Person or convey or transfer its properties and assets
substantially as an entirety to any other Person other than as set forth in such
Significant Party's Organizational Documents in effect as of the Effective Date;
(e) commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect,
including, without limitation, the Bankruptcy Code, or seek the appointment of a
trustee, receiver, liquidator, custodian, examiner or other similar official of
it or any substantial part of its property, or consent to any such relief or to
the appointment of or taking possession by any such official in an involuntary
case or other proceeding commenced against it, or make a general assignment for
the benefit of creditors, or fail generally to pay its debts as they become due,
or take any action to authorize any of the foregoing; or (f) amend such
Significant Party's Organizational Documents.
"Major Lease" shall mean any Lease which demises more than ten percent
(10%) of the leasable square feet of the applicable Property.
"Manager" and "Managers" shall have the meanings ascribed thereto in
Section 4.10(a) hereof, and any replacement thereof pursuant to Section 4.10(a)
hereof.
"Mandatory Prepayments" shall have the meaning ascribed thereto in
Section 2.3.3(d) hereof.
"Maturity Date" shall mean the day which is the earlier to occur of (a)
the Scheduled Maturity Date, (b) the date on which payment of the Obligations
shall have been accelerated pursuant to the terms of this Agreement, (c) the
date on which Borrower elects in accordance with this Agreement, in a Prepayment
Notice, to pay in full the Obligations and (d) the date on which the Outstanding
Principal Balance is reduced to $0.00 by virtue of the payments made pursuant to
Section 2.3.2 hereof or otherwise.
"Maximum Amount" shall have the meaning ascribed thereto in Section 2.8
hereof.
"Membership Interests" shall mean (a) the 100% membership interest in
Camp Hill and (b) the 100% membership interest in Holdings LLC.
"Mortgage Loan Documents" shall mean, collectively, the Xxxxxx Loan
Documents and the Camp Hill Loan Documents.
"Mortgage Loans" shall mean, collectively, the Xxxxxx Loans and the
Camp Hill Loan.
"Negative Covenant" shall mean a promise or covenant by any Person to
not act, perform, suffer, permit or consent to.
12
"Nondiscretionary Expenses" shall mean, with respect to any Property,
(a) utilities, wages and benefits of building employees, payments under
Contracts for service and maintenance and other Expenses attributable to the
maintenance, repair and operation of such Property which are not in the nature
of capital expenditures in accordance with GAAP, (b) fees payable pursuant to
the applicable Management Agreement, subject to the limitations contained
herein, (c) Impositions and (d) Insurance Premiums.
"Note" shall mean that certain Promissory Note dated as of the
Effective Date, made by Borrower to Lender, in the original principal amount of
$6,000,000.00, as the same may hereafter be amended, modified, supplemented,
increased, consolidated, restated, replaced, split, severed, extended or
substituted from time to time.
"Notices" shall have the meaning ascribed thereto in Section 7.6
hereof.
"Obligations" shall mean (a) Borrower's obligation to pay the
principal, interest and any other sums payable to Lender in respect of the Loan
hereunder, under the Note or any of the other Loan Documents, including, without
limitation, all Basic Interest, and (b) as applicable, Borrower's, Guarantor's
and any other Significant Party's obligation to perform and observe all of the
terms, covenants and provisions of each of the Loan Documents to which each is a
party.
"Organizational Documents" shall mean, with respect to any Person who
is not a natural person, the certificate or articles of incorporation,
memorandum of association, articles of association, trust agreement, by-laws,
partnership agreement, limited partnership agreement, certificate of partnership
or limited partnership, limited liability company articles of organization,
limited liability company operating agreement or any other organizational
document, and all shareholder agreements, voting trusts and similar arrangements
with respect to its stock, partnership interests, membership interests or other
equity interests.
"Outstanding Principal Balance" shall mean, as of any date, the
outstanding principal balance of the Loan.
"Participants" shall have the meaning ascribed thereto in Section 7.8.1
hereof.
"Partner" and "Partners" shall have the respective meanings ascribed
thereto in Section 3.1.5 hereof.
"Party In Interest" shall have the meaning ascribed thereto in Section
3.30 hereof.
"Payment Date" shall mean January 1, 2003 and the first day of each
month thereafter during the Term.
"Permit" shall mean all approvals, consents, registrations, franchises,
permits, licenses, variances, certificates of occupancy and other authorizations
with regard to zoning, landmark, ecological, environmental, air quality,
subdivision, planning, building or land use required by any Governmental
Authority for the construction, lawful occupancy and operation of the
Improvements and the actual and contemplated uses thereof.
13
"Permitted Closing Fees and Costs" shall mean (a) the Funding Fee and
(b) the costs and fees in connection with the closing of the Loan described on
the closing statement to be executed by Borrower and Lender on the Effective
Date.
"Permitted Transfer" shall mean any Transfer (a) to a Permitted
Transferee which (i) is made prior to the occurrence of an Event of Default and
(ii) does not result in a Change in Control Event, (b) by a Limited Partner of
its limited partnership interest in Borrower which does not result in a Change
in Control Event, (c) of any publicly traded shares of Guarantor which does not
result in a Change in Control Event and (d) to any Person of (i) any additional
limited partnership interests in Borrower or (ii) any additional shares in
Guarantor, which, in either case, does not result in a Change in Control Event.
"Permitted Transferee" shall mean, at any time after the Effective Date
for so long as there shall not have occurred and be continuing any Event of
Default and provided that there shall not result therefrom a Change in Control
Event, a Transfer by an individual, to (a) such Person's estate, (b) such
Person's spouse, parent or child or lineal descendant of such Person's spouse,
parent or child, (c) any trust established for the benefit of such Person or
such Person's spouse, parent or child or lineal descendant of such Persons'
spouse, parent or child and (d) the legal representative of such Person in the
event such Person is no longer legally competent to conduct such Person's
affairs.
"Person" shall mean any individual, partnership, corporation (including
a business trust), limited liability company, joint stock company, estate,
trust, unincorporated association, joint venture or other entity or a government
or an agency or political subdivision thereof.
"Pledge" means that certain Pledge and Security Agreement dated as of
the Effective Date, made by Borrower in favor of Lender.
"Port Richmond Village Loan" shall mean that certain loan in the
original principal amount of $12,000,000.00, made by The Chase Manhattan Bank to
Port Richmond Associates LLC, which loan (a) is secured by, inter alia, a
mortgage encumbering the Shopping Center commonly known as Port Richmond Village
and (b) was assumed by Port Richmond L.L.C. 1.
"Prepayment Notice" shall have the meaning ascribed thereto in Section
2.6(a) hereof.
"Prohibited Transaction" shall mean a prohibited transaction as
described under Section 406 of ERISA or Section 4975 of the Code which is not
the subject of a statutory exemption under Section 408(b) of ERISA or an
administrative exemption granted pursuant to Section 408(a) of ERISA.
14
"Property Insurance" shall have the meaning ascribed thereto in Section
5.1.1 hereof.
"Properties" shall mean, collectively, the Camp Hill Property and the
Xxxxxx Shopping Centers.
"Property Owners" shall mean, collectively, Borrower and the Xxxxxx
Owners.
"Receipts" shall mean, with respect to any Property, with respect to
the applicable periods set forth in this Agreement, all gross receipts, rents,
revenues, income, fees, payments and consideration derived from any and all
sources in any way, manner or respect relating to and/or arising from such
Property including, without limitation, (a) gross fixed, minimum and guaranteed
rentals or other sums paid by lessees, sublessees, tenants, subtenants or other
occupants, licensees or users of such Property to or for the account or benefit
of the applicable Property Owner or any Affiliate thereof, (b) percentage,
overage, additional and similar rentals paid by lessees, sublessees, tenants,
subtenants or other occupants, licensees or users of such Property to or for the
account or benefit of the applicable Property Owner or any Affiliate thereof,
(c) amounts paid by lessees, sublessees, tenants, subtenants or other occupants,
licensees or users of such Property to or for the account or benefit of the
applicable Property Owner or any Affiliate thereof, pursuant to escalation
provisions in Leases or other agreements or on account of maintenance, operating
and tax expenses for such Property or utility reimbursements, or otherwise, (d)
late charges and interest paid to or for the account or benefit of the
applicable Property Owner or any Affiliate thereof pursuant to Leases and
amounts paid to or for the account or benefit of the applicable Property Owner
or any Affiliate thereof as a result of provisions in Leases permitting the
landlord thereunder to receive or share in receipt from the subleasing of space
demised under, or the assignment of, Leases, (e) automobile parking fees and
rentals, if any, other fees, charges or payments, whether or not denominated as
rental, but paid to or for the account or benefit of the applicable Property
Owner or any Affiliate thereof for or in connection with the rental of any
portion of such Property and (f) proceeds of any Property Insurance, Business
Insurance or Awards received by or for the account or benefit of the applicable
Property Owner or any Affiliate thereof.
"Rent Roll" shall mean, with respect to any Property, each rent roll
hereafter delivered to Lender pursuant to Section 4.11 hereof with respect to
such Property, each of which must indicate, among other things, whether any
Tenant is in arrears in the payment of rent or expense reimbursement obligations
under its Lease, and the duration and amount of any such arrears. References in
this Agreement to the term "Rent Roll" shall mean and be deemed to refer to the
most recent rent roll delivered to Lender, unless the context otherwise
requires.
"Required Insurance" shall have the meaning ascribed thereto in Section
5.1.8 hereof.
"Scheduled Maturity Date" shall mean November 30, 2005.
15
"Second Mandatory Prepayment Date" shall have the meaning ascribed
thereto in Section 2.3.2(d) hereof.
"Security Deposits" shall mean, with respect to any Lease, all security
deposits, letters of credit, cash, certificates of deposit, securities, treasury
bills, instruments, collateral or other property deposited with the landlord or
otherwise for the landlord's benefit as security for the performance by the
Tenant of its obligations under such Lease.
"Servicer" shall have the meaning ascribed thereto in Section 2.10
hereof.
"Short Period Interest" shall mean Basic Interest at the Basic Interest
Rate on the Outstanding Principal Balance for the period commencing on the date
hereof through and including November 30, 2002.
"Significant Party" shall mean each of Borrower, Guarantor and each
Manager.
"Surveys" shall mean, collectively, (a) that certain survey of Academy
Plaza, dated August ___, 2000 (revised June 13, 2001 and September 27, 2001),
prepared by Xxxx X. Butler, Pennsylvania Registered Professional Land Surveyor
No. 27268, as certified to, without limitation, Borrower, Lender, SWH Xxxxxx
Member LLC, Academy Plaza L.L.C. 1 and Title Company; (b) that certain survey of
Port Richmond Village, dated September 5, 2000 (revised on June 4, 2001 and
September 27, 2001), prepared by Xxxxxx Engineering and Environmental Services,
as certified to, without limitation, Borrower, Lender, SWH Xxxxxx Member LLC,
Port Richmond L.L.C. 1 and Title Company; (c) that certain survey of Washington
Center, dated October 10, 1996 (revised January 24, 1997; October 31, 1997;
September 13, 2000; and June 8, 2001), prepared by Xxxxxx X. Xxxxx & Son, as
certified to, without limitation, Borrower, Lender, SWH Xxxxxx Member LLC,
Washington Center L.L.C. 1 and Title Company; and (d) that certain survey of
Camp Hill Mall, dated September 9, 2002 (revised November 12, 2002), prepared by
Xxxxxx Xxx Xxxxxxx, Registered Professional Land Surveyor No. 048538-E, as
certified to, without limitation, Brentway Management, LLC, Fidelity and Lender.
"Tax or Taxes" shall mean any present or future tax, levy, impost,
duty, charge, fee, deduction or withholding of any nature and whatever called,
by, any Governmental Authority and whenever imposed, levied, collected, withheld
or assessed which are not Impositions; provided, however, that "Tax on the
overall net income" of a Person shall be construed as a reference to a tax
imposed by the jurisdiction in which that Person's principal office (and/or, in
the case of Lender, its lending office) is located on all or part of the net
income of that Person.
"Tenant" shall mean, with respect to any Property, any tenant,
sub-tenant, licensee, concessionaire or occupant of any space located at any of
such Property.
"Tenant Allowance(s)" shall mean, with respect to any Property,
allowances payable by the applicable Property Owner to a Tenant of such Property
(or to contractors on behalf of such Tenant) under an Approved Lease to
compensate such Tenant for completed Approved Tenant Improvements.
16
"Tenant Work" shall mean, with respect to any Property, any work to be
performed for a Tenant at such Property by any Person other than the applicable
Property Owner and paid for by the applicable Property Owner pursuant to an
Approved Lease on the basis of the progress of completion of such work.
"Term" shall mean the period commencing on the Effective Date and
ending on the Maturity Date.
"The Point" shall have the meaning ascribed thereto in Section 4.4(a)
hereof.
"Title Company" shall mean New York Land Services, Inc., as agent for
Chicago Title Insurance Company.
"Title Policies" shall mean, collectively, (a) that certain title
insurance policy in respect of Academy Plaza, dated as of October 9, 2001,
issued by Title Company to Xxxxxxx Xxxxx X.X.X. 0 under Policy No. 00-0000 X;
(b) that certain title insurance policy in respect of Port Richmond Village,
dated as of October 9, 2001, issued by Title Company to Port Richmond L.L.C. 1
under Policy No. 01-256013; (c) that certain title insurance policy in respect
of Washington Center, dated as of October 9, 2001, issued by Title Company to
Washington Center L.L.C. 1 under Policy No. 01-LT-0242; and (d) that certain
title insurance policy in respect of the Camp Hill Property, dated as of the
Effective Date, issued by Fidelity to Camp Hill LLC under Policy No.
02-PHI-1068SR.
"Trade Payables" shall have the meaning ascribed thereto in the
definition of the term "Indebtedness."
"Transfer" shall have the meaning ascribed thereto in Section 4.2(a)
hereof.
"Washington Center Loan" shall mean that certain loan in the original
principal amount of $6,200,000.00, made by Credit Suisse First Boston Mortgage
Capital LLC to Washington Center Shops, L.P., which loan (a) is secured by,
inter alia, a mortgage encumbering the Shopping Center commonly known as
Washington Center and (b) was assumed by Washington Center L.L.C. 1.
"Worker's Compensation Insurance" shall have the meaning ascribed
thereto in Section 5.1.6 hereof.
ARTICLE 2
THE LOAN
--------
2.1 Loan Funding. On the Effective Date, subject to the terms and
conditions of this Agreement, and relying upon Borrower's representations,
warranties, covenants and undertakings set forth in this Agreement and in the
other Loan Documents, Lender shall disburse the entire Loan Amount to or on
17
behalf of Borrower. The proceeds of the Loan shall be used by Borrower solely
for the purpose of (a) paying off the Existing Loan, (b) funding a portion of
the equity shortfall in connection with the purchase of the Camp Hill Property
by Camp Hill LLC and (c) paying a portion of the Permitted Closing Fees and
Costs. Borrower's obligation to repay the Loan shall be evidenced by the Note
which shall be due and payable on the Maturity Date.
2.2 Interest Rate. Subject to the further provisions of this Agreement,
including, without limitation, Section 2.7(a) hereof, the Outstanding Principal
Balance of the Loan shall bear and accrue interest at the applicable Basic
Interest Rate from the Effective Date through and until the Maturity Date
thereof. Interest at the applicable Basic Interest Rate and interest at the
Default Rate payable under this Agreement shall be computed on the basis of a
360-day year and charged for the actual number of days elapsed. In computing the
number of days during which interest accrues, the day on which funds are
initially advanced shall be included regardless of the time of day such advance
is made, and the day on which funds are repaid shall, subject to Section 2.3.5
hereof, be excluded. Upon the payment in full (to the extent applicable) of all
amounts due and payable under the Loan Documents, the Note shall be fully
extinguished and Borrower shall have no further liability or obligations
thereunder; provided, however, that nothing contained in this Section 2.2 or
elsewhere in the Loan Documents shall extinguish any liability or obligation of
Borrower under this Agreement or any of the other Loan Documents if such
liabilities or obligations are intended to survive payment of the indebtedness
evidenced by the Note.
2.3 Payments.
2.3.1 Basic Interest. Prior to the Maturity Date, interest
accruing on the Outstanding Principal Balance of the Loan during each Interest
Accrual Period shall be payable by Borrower monthly in arrears on each Payment
Date, subject to the further provisions of this Agreement; provided, however,
Borrower shall pay Short Period Interest on the date hereof.
2.3.2 Principal Payments. Prior to the Maturity Date, Borrower
shall make principal payments on each Payment Date as follows:
(a) $50,000.00 on each Payment Date from and
including the first (1st) Payment Date through and including the third (3rd)
Payment Date;
(b) $2,000,000.00 (the "First Mandatory Prepayment")
on the fourth (4th) Payment Date (the "First Mandatory Prepayment Date");
(c) (i) if Borrower has made the First Mandatory
Prepayment on or before the First Mandatory Prepayment Date, (y) $50,000.00 on
each Payment Date commencing on the fifth (5th) Payment Date through and
including the twelfth (12th) Payment Date and (z) $60,000.00 on each Payment
Date commencing on the thirteenth (13th) Payment Date through and including the
seventeenth (17th) Payment Date or (ii) if Borrower has not made the First
Mandatory Prepayment on or before the First Mandatory Prepayment Date, (y)
18
$150,000.00 on each Payment Date commencing on the fifth (5th) Payment Date
through and including the twelfth (12th) Payment Date and (z) $200,000.00 on
each Payment Date commencing on the thirteenth (13th) Payment Date through and
including the seventeenth (17th) Payment Date;
(d) $3,000,000.00 (the "Second Mandatory Prepayment"
and, together with the First Mandatory Prepayment, the "Mandatory Prepayments")
on the eighteenth (18th) Payment Date (the "Second Mandatory Prepayment Date");
and
(e) (i) if Borrower has made the Second Mandatory
Prepayment on or before the Second Mandatory Prepayment Date, $60,000.00 on each
Payment Date commencing on the nineteenth (19th) Payment Date through and
including each Payment Date thereafter until the Obligations have been
indefeasibly paid and performed in full or (ii) if Borrower has not made the
Second Mandatory Prepayment on or before the Second Mandatory Prepayment Date,
$250,000.00 on each Payment Date commencing on the nineteenth (19th ) Payment
Date and each Payment Date thereafter until the Obligations have been
indefeasibly paid and performed in full.
2.3.3 Repayment of Outstanding Principal Balance. The entire
Outstanding Principal Balance of the Loan, together with all accrued and unpaid
interest thereon, the Exit Fee and all other amounts payable hereunder or under
any of the other Loan Documents shall, to the extent not sooner paid pursuant to
the terms of the Note and the other Loan Documents, be due and payable in full
on the Maturity Date.
2.3.4 Fees.
(a) Exit Fee. The Exit Fee, together with all accrued
interest thereon, shall be due and payable in full on the Maturity Date.
(b) Funding Fee. The Funding Fee shall be deemed
fully earned and payable in full on the Effective Date.
2.3.5 General. All amounts payable to Lender hereunder
(including, without limitation, amounts payable on the Maturity Date pursuant to
Section 2.4 hereof) shall be payable, without setoff, deduction or counterclaim,
in immediately available funds, no later than 2:00 P.M. New York City time on
the date when due by wire transfer to such account or address as Lender may from
time to time designate in a written notice to Borrower. Payments received by
Lender in immediately available funds on any day after 2:00 P.M. New York City
time shall be treated for all purposes of the Loan as having been paid and
received by Lender on the next Business Day. Notwithstanding anything to the
contrary contained herein, when any payment is due hereunder or under any of the
other Loan Documents on a day which is not a Business Day, such payment shall be
made on the next succeeding Business Day.
2.4 Loan Term. The Loan shall mature on the Maturity Date, at which
time the Loan shall be due and payable in full. On the Maturity Date, Borrower
shall pay to Lender the entire unpaid balance of the Outstanding Principal
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Balance of the Loan, together with all accrued and unpaid interest thereon, the
Exit Fee and all other amounts payable hereunder or under any of the other Loan
Documents, including, if applicable, interest at the Default Rate and Late
Charges.
2.5 Change In Law, Etc.
(a) If Lender shall have determined that the applicability of
any law, rule, regulation or guideline adopted after the Effective Date pursuant
to or arising out of the July 1988 report of the Basle Committee on Banking
Regulations and Supervisory Practices entitled "International Convergence of
Capital Measurement and Capital Standards," or the adoption after the Effective
Date of any other law, rule, regulation or guideline (including, without
limitation, any United States law, rule, regulation or guideline) regarding
capital adequacy, or any change becoming effective after the Effective Date in
any of the foregoing or in the enforcement or interpretation or administration
of any of the foregoing by any court or any domestic or foreign governmental
authority, central bank or comparable agency charged with the enforcement or
interpretation or administration thereof, or compliance by Lender or its holding
company, as the case may be, with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such authority, central
bank or comparable agency, has or would have the effect of reducing the rate of
return on the capital of Lender or Lender's holding company, as the case may be,
to a level below that which Lender or its holding company, as the case may be,
could have achieved but for such applicability, adoption, change or compliance
(taking into consideration Lender's or its holding company's, as the case may
be, policies with respect to capital adequacy) (the foregoing being hereinafter
referred to as "Capital Adequacy Events"), then, upon demand by Lender, Borrower
shall pay to Lender, from time to time, such additional amount or amounts as
will compensate Lender for any such reduction suffered.
(b) Any amount payable by Borrower under Section 2.5(a) hereof
shall be paid to Lender within five (5) Business Days of receipt by Borrower of
a certificate signed by an officer of Lender setting forth the amount due and
the basis for the determination of such amount, which statement shall be
conclusive and binding upon Borrower, absent manifest error. Failure on the part
of Lender to demand payment from Borrower for any such amount attributable to
any particular period shall not constitute a waiver of Lender's right to demand
payment of such amount for any subsequent or prior period. Lender shall use
reasonable efforts to deliver to Borrower prompt notice of any event described
in Section 2.5(a) hereof and of the amount to be paid under this Section 2.5 as
a result thereof; provided, however, that any failure by Lender to so notify
Borrower shall not affect Borrower's obligation to make the payments to be made
under this Section 2.5 as a result thereof. All amounts which may become due and
payable by Borrower in accordance with the provisions of this Section 2.5 shall
constitute additional interest hereunder and shall be secured by the Loan
Documents.
(c) If Lender requests compensation for any losses or costs to
be reimbursed pursuant to any one or more of the provisions of Section 2.5(a)
hereof, then, upon request of Borrower, Lender shall use reasonable efforts, in
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a manner consistent with such institution's practice in connection with loans
like the Loan in question, to designate a different lending office for funding
or booking the Loan in question or to assign its rights and obligations under
this Agreement to another of its offices, branches or Affiliates if such
designation or assignment, in Lender's sole but good faith judgment, (i) would
eliminate, mitigate or reduce amounts payable by Borrower in connection with
Capital Adequacy Events and (ii) would not be otherwise prejudicial to Lender.
Borrower hereby agrees to pay all reasonably incurred costs and expenses
incurred by Lender in connection with any such designation or assignment.
2.6 Prepayment.
(a) Borrower may voluntarily prepay the Loan, in whole or in
part, provided that, (i) Borrower has given Lender written notice (a "Prepayment
Notice") of such prepayment not more than thirty (30) days and not less than ten
(10) days prior to the date of such prepayment and (ii) such prepayment is
accompanied by (A) all interest accrued and unpaid on the Outstanding Principal
Balance to and including the date of such prepayment and (B) all other amounts,
if any, then due and payable hereunder and under the other Loan Documents;
provided however, that, if at the time such prepayment is made Lender has not
received six (6) full months of Interest at the Basic Interest Rate on the
original principal balance of the Loan (the "Minimum Interest Amount"), then, in
addition to any other amount payable by Borrower to Lender, Borrower shall pay
to Lender on the date of such prepayment an amount equal to the difference
between (A) the Minimum Interest Amount and (B) the amount of interest on the
Loan previously paid to Lender (the "Minimum Interest Payment"). Notwithstanding
the foregoing, no Minimum Interest Payment shall be payable by Borrower with
respect to any payments made by Borrower pursuant to Section 2.3.2 hereof.
(b) Mandatory prepayments made in connection with the
application of insurance proceeds or condemnation awards shall be paid in the
amounts and at the times specified in this Agreement.
(c) In addition to all other payments to be made by Borrower
hereunder or under the other Loan Documents, Borrower shall make the Mandatory
Prepayments as required by Section 2.3.2:
2.7 Default Interest; Late Charge.
(a) If any payment of principal, interest or other sum payable
hereunder, or under any of the other Loan Documents, is not paid when due (after
the expiration of any applicable notice or cure periods), or all principal,
interest and all other amounts due hereunder and under the other Loan Documents
are not paid in full on the Maturity Date, such principal amount, interest or
other sum shall bear interest at the Default Rate, which Default Rate shall so
apply from the date such amount was due until the date such amount is
indefeasibly paid to Lender. Without limiting the foregoing, upon the occurrence
of, and during the continuance of, an Event of Default, the entire Outstanding
21
Principal Balance of the Loan shall bear interest at the Default Rate. Interest
at the Default Rate shall be paid immediately upon demand, which demand may be
made as frequently as Lender shall elect.
(b) If any monthly installment of interest or principal is not
paid within five (5) Business Days after the date when due, or if any other
amount payable hereunder or under any other Loan Document is not paid when due,
Borrower shall pay to Lender a late charge of five percent (5%) of the amount so
overdue (a "Late Charge") in order to defray part of the expense incident to
handling such delinquent payment or payments. Such late charge shall be
immediately due and payable without notice or demand by Lender. Such late charge
shall be in addition to, and separate from, any increase in interest due
hereunder as a result of calculation of interest due hereunder at the Default
Rate. Acceptance by Lender of any late charge or interest at the Default Rate
shall not be deemed a waiver of any of Lender's rights hereunder or under the
other Loan Documents with respect to such late payment.
2.8 Maximum Amount of Interest. It is the intention of Borrower and
Lender to conform strictly to the usury and other laws relating to interest from
time to time in force, and all agreements between Borrower and Lender, whether
now existing or hereafter arising and whether oral or written, are hereby
expressly limited so that in no contingency or event whatsoever, whether by
acceleration or maturity or otherwise, shall the amount paid or agreed to be
paid to Lender, or collected by Lender for the use, forbearance or detention of
the money to be loaned under the Note, this Agreement or otherwise, or for the
payment or performance of any covenant or obligation contained herein or in any
of the other Loan Documents or in any other document evidencing, securing or
pertaining to the Loan, exceed the maximum amount of interest allowable under
applicable law (the "Maximum Amount"). If under any circumstances whatsoever
fulfillment of any provision hereof or of any other Loan Document, at the time
performance of such provision shall be due, shall involve transcending the
Maximum Amount, then ipso facto, the provisions of this Section 2.8 shall govern
and control and the obligation to be fulfilled shall be reduced to the Maximum
Amount. For the purposes of calculating the actual amount of interest paid and
or payable, in respect of laws pertaining to usury or such other laws, all
amounts paid or agreed to be paid to Lender for the use, forbearance or
detention of the Loan shall, to the extent permitted by applicable law, be
amortized, allocated and spread from the date of disbursement of the proceeds of
the Loan until payment in full of the Loan, so that the actual rate of interest
on account of the Loan is uniform throughout the Term. If under any
circumstances Lender shall ever receive an amount deemed interest by applicable
law, which would exceed the Maximum Amount, such amount that would be excessive
interest under applicable usury laws shall be deemed a payment in reduction of
the Outstanding Principal Balance and shall be so applied and not to the payment
of interest, or if such excessive interest exceeds the Outstanding Principal
Balance of the Loan, such excessive interest shall be deemed to have been a
payment made by mistake and shall be refunded to the Borrower or to any other
Person making such payment on the Borrower's behalf. Neither Borrower nor any of
the other Persons required to pay any amounts with respect to the Loan shall
have any action or remedy against Lender for any damages whatsoever, or any
defense to enforcement of this Agreement, the Note or any of the other Loan
Documents, arising out of the payment or collection of any interest in excess of
the Maximum Amount.
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2.9 Loan Taxes.
(a) Any and all payments by Borrower to Lender hereunder and
under the other Loan Documents shall, provided that Lender complies with the
requirements of Section 2.9(c) hereof, be made free and clear of, and without
deduction for, any and all future taxes, levies, imposts, deductions, charges,
withholdings or liabilities with respect thereto, except for the following, for
which Borrower shall not be responsible: (i) taxes imposed on or measured by
Lender's net income or net receipts and or (ii) franchise taxes imposed on
Lender by the jurisdiction in which (A) Lender is organized, (B) Lender is
"doing business" (unless such determination of "doing business" is made solely
as a result of Lender's interest in the Loan and the security therefor) or (C)
Lender's applicable lending office is located (all such taxes, levies, imposts,
deductions, charges or withholdings and liabilities (except those described in
the foregoing clauses (i) and (ii) immediately above), collectively, the "Loan
Taxes"). If Borrower shall be required by any law adopted after the Effective
Date to deduct or withhold any Loan Taxes from or in respect of any sum payable
hereunder or under any other Loan Document, then (I) any such sum payable
hereunder or under any other Loan Document shall be increased as may be
necessary so that after making all required deductions or withholdings
(including deductions applicable to additional sums payable under this Section
2.9), Lender receives an amount equal to the sum it would have received had no
such deductions or withholdings (including deductions applicable to additional
sums payable under this Section 2.9) been made, (II) Borrower shall make such
deductions or withholdings, and (III) Borrower shall pay the full amount
deducted or withheld to the relevant taxing authority in accordance with
applicable law. Borrower will indemnify Lender for the full amount of any Loan
Taxes (including, without limitation, any Loan Taxes (as well as taxes described
in clauses (i) and (ii) of the second preceding sentence) imposed by any
jurisdiction after the Effective Date on any amounts payable under this Section
2.9) paid or payable by Lender and any liability (including, without limitation,
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Loan Taxes were correctly or legally asserted. A certificate
as to the amount of such payment or liability delivered to Borrower by Lender
shall be conclusive absent manifest error. The agreements and obligations of
Borrower contained in this Section 2.9 shall survive the payment in full of
principal and interest under this Agreement, the Note and other Loan Documents.
(b) Within thirty (30) days after the date of any payment of
Loan Taxes withheld by Borrower in respect of any payment to Lender, Borrower
will furnish to Lender the original or a certified copy of a receipt or other
evidence satisfactory to Lender evidencing payment thereof.
(c) If Lender is a U.S. Person (other than the lender
originally named herein), Lender shall deliver to Borrower, upon request, a Form
W-9 (unless it establishes to the reasonable satisfaction of Borrower that it is
otherwise eligible for an exemption from backup withholding tax or other
withholding tax). If Lender is not a U.S. Person, Lender shall deliver to
23
Borrower, upon request, a Form W-8 and either (i) a Form 1001 which indicates a
0% rate of tax or (ii) a Form 4224. If Lender is not a U.S. Person, Lender
further undertakes to deliver to Borrower additional Forms W-8, 1001, 4224 (or
any successor forms) or other manner of certification, as the case may be, (A)
on or before the date that any such form expires or becomes obsolete, (B) after
the occurrence of any event requiring a change in the most recent form
previously delivered by it to Borrower, and (C) such extensions or renewals
thereof as may reasonably be requested by Borrower, certifying that Lender is
entitled to receive payments hereunder without deduction or withholding of any
Loan Taxes. However, in the event that any change in law, rule, regulation,
treaty or directive, or in the interpretation or application thereof (a "Law
Change"), has occurred prior to the date on which any delivery pursuant to the
preceding sentence would otherwise be required which renders such form
inapplicable, or which would prevent Lender from duly completing and delivering
any such form, or if such Law Change results in Lender being unable to deliver a
Form W-9 (or other satisfactory evidence that it is otherwise eligible for an
exemption from backup withholding tax or other withholding tax), Lender shall
not be obligated to deliver such forms but shall, promptly following such Law
Change, but in any event prior to the time the next payment hereunder is due
following such Law Change, advise Borrower in writing whether it is capable of
receiving payments without any deduction or withholding of Loan Taxes. In the
event of such Law Change, Borrower shall have the obligation to make Lender
whole and to "gross-up" under Section 2.9(a) hereof, despite the failure by
Lender to deliver such forms.
(d) If Lender receives a refund in respect of Loan Taxes paid
by Borrower, it shall promptly pay such refund, together with any other amounts
paid by Borrower pursuant to Section 2.9(a) hereof in connection with such
refunded Loan Taxes, to Borrower; provided, however, that Borrower agrees to
promptly return such refund to Lender if it receives notice from Lender that it
is required to repay such refund. Nothing contained herein shall be construed to
require Lender to seek any refund and Lender shall have no obligation to
Borrower to do so.
(e) All amounts payable under this Section 2.9 shall
constitute additional interest hereunder and shall be secured by the Loan
Documents. The provisions of this Section 2.9 shall survive any payment or
prepayment of the Loan.
(f) Any reference under this Section 2.9 to "Lender" shall be
deemed to include any Participant and any Assignees.
2.10 Servicing. The Loan may, in Lender's sole and absolute discretion,
be serviced by a third party loan servicer (together with any successor servicer
selected by Lender in its sole discretion, the "Servicer"). Lender may change
the Servicer from time to time without the consent of Borrower, on notice to
Borrower; provided, however, that Borrower shall not be required to pay the fees
charged by Servicer.
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ARTICLE 3
CERTAIN REPRESENTATIONS AND WARRANTIES OF BORROWER
--------------------------------------------------
As an inducement to Lender to enter into this Agreement and to make the
Loan, Borrower hereby represents and warrants as follows, which representations
and warranties shall be true and correct on and as of the Effective Date, shall
survive the Effective Date and shall be deemed restated during the Term and, as
restated, shall remain true and correct in all material respects until payment
in full and/or performance, as applicable, of the Obligations, except to the
extent there exist any changes in facts or circumstances which, pursuant to the
terms of this Agreement or the other Loan Documents, are permitted to have
occurred:
3.1 Borrower Organization, Enforceability, Etc.
3.1.1 Borrower Status. Borrower (a) is a limited partnership,
duly formed, validly existing and in good standing under the laws of the State
of Delaware; (b) is in good standing under the laws of, and is authorized to
transact business in, all jurisdictions where it conducts business; (c) has all
requisite power and authority to own and operate the Membership Interests and to
carry on its business as now being conducted; and (d) has full right, power and
authority to execute and deliver to Lender this Agreement and the other Loan
Documents to which it is a party and perform the obligations and carry out the
duties imposed upon Borrower by this Agreement and the other Loan Documents. All
Loan Documents to be executed by Borrower have been (or, prior to their
execution and delivery, will have been) duly authorized, approved, executed and
delivered by all necessary parties and constitute (or, upon execution and
delivery, will constitute) the legal, valid and binding obligations of Borrower,
enforceable against Borrower in accordance with their respective terms. Borrower
holds all licenses, certificates and permits from all applicable Governmental
Authorities necessary for the ownership of the Membership Interests and the
conduct of business in order to prevent any materially adverse effect on the
Membership Interests or the ability of Borrower to perform under the Loan
Documents.
3.1.2 Guarantor/General Partner Status. Guarantor (a) is a
corporation duly formed, validly existing and in good standing under the laws of
the State of Maryland; (b) is in good standing under the laws of, and is
authorized to transact business in, all jurisdictions where it conducts
business; (c) has all requisite power and authority to own its properties and to
carry on its business as now being conducted; (d) is the sole general partner of
Borrower, and owns a twenty-nine percent (29%) partnership interest in Borrower,
free and clear of all liens, claims, and encumbrances, except as otherwise
contemplated or permitted under this Agreement, and does not own any legal or
beneficial ownership interest in any other Person; (e) has full right, power and
authority to execute and deliver this Agreement and the other Loan Documents on
its own behalf and on behalf of Borrower; and (f) shall have full right, power
and authority to make all material business decisions for Borrower during the
Term.
3.1.3 Status of Limited Partners. In addition to Guarantor, as
of the date hereof, the only other partner in Borrower is Cedar Bay Company, a
New York general partnership (the "Limited Partner"), which Limited Partner is
solely a limited partner of Borrower.
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3.1.4 Status of Borrower Affiliates. Each of the Borrower
Affiliates (a) is a limited liability company duly formed, validly existing and
in good standing under the laws of the State of Delaware, (b) is in good
standing under the laws of, and is authorized to transact business in, all
jurisdictions where it conducts business and (c) has all requisite power and
authority to own and operate its respective Property or its respective
membership interest in the applicable Xxxxxx Owner, as applicable, and to carry
on its business as now being conducted. Each Borrower Affiliate has all
licenses, certificates and permits from all applicable Governmental Authorities
necessary for the ownership of its respective Property or its respective
membership interest in the applicable Xxxxxx Owner, as applicable, and the
conduct of business in order to prevent any materially adverse effect on its
respective Property or its respective membership interest in the respective
Xxxxxx Owner, as applicable.
3.1.5 No Other Partners. Guarantor and the Limited Partner
(collectively, the "Partners" and, each, individually, a "Partner") are the sole
partners of Borrower.
3.1.6 Structure of Borrower and the Xxxxxx Owners. The
structural charts of Borrower, each of the Xxxxxx Owners and Camp Hill LLC set
forth on Exhibit D-1 through and including Exhibit D-5 attached hereto and made
a part hereof are true, complete and correct in all respects.
3.1.7 Guarantor. All Loan Documents executed by Guarantor
constitute the legal, valid and binding obligations of Guarantor, enforceable
against Guarantor in accordance with their respective terms.
3.2 Address For Borrower Entities. The principal place of business of
each Borrower Entity is at the address first set forth above for Borrower, and
shall not be changed during the Term without giving Lender at least thirty (30)
days' prior notice thereof. No Borrower Entity uses any trade name and no
Borrower Entity has or will do any business under any other name.
3.3 Organizational Documents. A true and complete copy of the
Organizational Documents of each Borrower Entity have been furnished to Lender.
The Organizational Documents of each Borrower Entity constitute the entire
agreement among the members or the partners thereof, as applicable, and are
binding upon and enforceable against the members or the partners thereof, as
applicable, in accordance with their respective terms. There are no other
agreements, written or oral between such members or the partners, as applicable,
relating to any Borrower Entity except any agreements to which Lender is also a
party. No party is in default of its obligations under the Organizational
Documents of any Borrower Entity and no condition exists which, with the giving
of notice and/or the passage of time, or both, would constitute a default under
the Organizational Documents of any Borrower Entity.
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3.4 Guarantor's Organizational Documents. A true and complete copy of
the Organizational Documents of Guarantor have been furnished to Lender. The
Organizational Documents of Guarantor constitute the entire agreement relating
to Guarantor and are binding upon and enforceable against the shareholders of
Guarantor in accordance with their respective terms. There are no other
agreements, oral or written, between the shareholders of Guarantor, relating to
Guarantor. No party is in default of its obligations under the Organizational
Documents of Guarantor and no condition exists which, with the giving of notice
and/or the passage of time, or both, would constitute a default under the
Organizational Documents of Guarantor.
3.5 Title. Fee simple title to each Property is owned by the applicable
Property Owner free and clear of all liens, claims, encumbrances, covenants,
conditions, restrictions, security interests and claims of others, except for
the Mortgage Loan Documents and the Approved Permitted Encumbrances
3.6 Uses Each of the Xxxxxx Shopping Centers is used solely as a
shopping center. The Camp Hill Property is used solely as a regional mall.
3.7 No Structural Defects There are no structural defects in the
Improvements on any of the Properties, or material defects to the building
systems thereof.
3.8 Compliance with Zoning, Etc.
(a) Each Property complies in all material respects with all
applicable Legal Requirements. Any zoning or subdivision approval for each
Property is based on no real property, or rights appurtenant thereto, other than
such Property. Each Property as improved and used is not in material violation
of any recorded and, to the best knowledge of Borrower, unrecorded air rights,
parcel leases, covenants, conditions or restrictions of any kind or nature
affecting all or any part of any Property, or any interest therein. The
Improvements on each Property can be fully rebuilt in the event of casualty or
destruction thereof under the Permits applicable to such Property, subject,
however, to discretionary requirements of any Governmental Authority. No
amendment or change in any such material Permit, and no amendment or change in
zoning or any other land use control, has been sought or obtained by any
Borrower Entity or shall be sought or obtained by any Borrower Entity with
respect to any of the Properties or the Improvements on any of the Properties,
except as specifically approved in writing by Lender.
(b) All Permits required by any Governmental Authority for the
operation of the Improvements on each of the Properties as currently operated,
or otherwise required to be in compliance with any
(c) Laws or any other Legal Requirements, have been obtained.
The copy of the certificate of occupancy for each Property delivered to Lender
prior to the date hereof is a true and correct copy of the permanent certificate
of occupancy for such Property, each of which permanent certificate of occupancy
remains in full force and effect, and is not subject to any conditions or
limitations, other than those of general applicability to all certificates of
occupancy for commercial uses in the jurisdiction in which each such Property is
located.
27
(d) Borrower has heretofore delivered to Lender true, correct
and complete copies of each material Permit.
(e) There are no pending or, to the best knowledge of
Borrower, threatened actions, suits or proceedings to revoke, attack,
invalidate, rescind or modify the zoning of any Property, or any material
Permits issued with respect to any Property or any part thereof, or asserting
that any Property or the zoning of any Property do not permit the use of any
such Property as contemplated by the Loan Documents.
3.9 No Condemnation. Neither Borrower nor any Borrower Affiliate has
received any notice of, and to the best knowledge of Borrower, there does not
exist, any actual, proposed or threatened exercise of the power of eminent
domain or other taking by any governmental or quasi-governmental body or agency,
of all or any portion of any Property, or any interest therein, or any right of
access thereto.
3.10 No Casualty. None of the Improvements on any of the Properties
have suffered any material casualty or damage which has not been fully repaired
and the cost thereof fully paid.
3.11 Purchase Options. None of the Properties or any part thereof is
subject to any purchase options or other similar rights in favor of any Person.
3.12 No Encroachments. There are no material encroachments on the Land
and the Improvements on the Properties do not encroach upon any Easement, any
other interest in real property, any adjoining land or any adjoining street,
except as set forth on the applicable Survey.
3.13 Litigation. There are no actions, suits, proceedings,
arbitrations, tenant disputes, labor disputes or governmental investigations
pending, or, to the best knowledge of Borrower, threatened against or affecting
Borrower, any other Significant Party or any Borrower Affiliate or any Affiliate
thereof, or any of the Properties which, if adversely determined, (a) could have
a material adverse effect on Borrower, any other Significant Party, any Borrower
Affiliate or any of the Properties, or any such Person's ability to perform its
obligations pursuant to and as contemplated by the Loan Documents or the
Mortgage Loan Documents, as applicable, (b) might affect the validity or
enforceability of any of the Loan Documents or the priority of the Liens created
thereby or (c) could adversely affect the use of, operations at, or capital
improvements being made to, any of the Properties. No Borrower Entity or
Significant Party is operating under, or is subject to, any order, writ,
injunction, decree or demand of any court or any Governmental Authority. No
actions, suits, proceedings or arbitrations are pending or, to the best
knowledge of Borrower, threatened against Borrower, any other Significant Party
or any Borrower Affiliate or any Affiliate thereof which involve claims, damages
or sums of money not covered (including all applicable deductibles) by
insurance.
28
3.14 No Conflict with Law or Agreements. The execution and delivery of
this Agreement and the other Loan Documents, and the performance and
consummation of the transactions, contemplated hereby and thereby, on the part
of Borrower and all other Significant Parties (as applicable) and fulfillment of
the terms of the Loan Documents by Borrower and all other Significant Parties
(as applicable) (a) do not and will not conflict with, violate, or constitute a
default (or a condition or event which, after notice or lapse of time, or both,
would constitute such a default) under any provision of any Organizational
Document or any contractual obligation of Borrower or any other Significant
Party, or any Legal Requirement or any court decree or order applicable to any
Property, Borrower or any other Significant Party, (b) will not result in, or
require, the creation or imposition of any lien or encumbrance on, or conveyance
of, any of Borrower's properties pursuant to any contractual obligation and (c)
do not require the consent or approval of any Governmental Authority or other
Person, except for consents and approvals already obtained.
3.15 Personal Property. All equipment and other personal property
necessary for (or otherwise actually used in connection with) the proper and
efficient operation and maintenance of each Property, the actual and
contemplated uses of each Property, and each Borrower Affiliate's compliance
with its obligations under the applicable Leases, are owned by the applicable
Borrower Affiliate and constitute part of the applicable Property and located
thereat, other than (a) any such equipment which is owned by a utility company
or (b) any such equipment and personal property which is owned by Tenants and
utilized solely by such Tenants.
3.16 Easements; Access; Utilities. All easements, cross easements,
licenses, air rights, rights-of-way or other similar easements (collectively,
"Easements") if any, necessary for the full utilization of the Improvements on
each Property for its current use have been obtained, are described in the Title
Policies and are in full force and effect without default thereunder. Each
Property has direct rights of access to public ways and is served by water,
sewer, sanitary sewer and storm drain facilities adequate to service such
Property for its intended use. All public utilities necessary or convenient to
the full use and enjoyment of each Property are located either in the public
right of way abutting such Property (which are connected so as to serve such
Property without passing over other property) or in recorded easements serving
such Property and described in the applicable Title Policy. All roads necessary
for the use of each Property for its current purposes have been completed and
are available for public use.
3.17 No Flood Hazard, Etc. Except as set forth in the Surveys, (a) no
Property is situated in an area designated as having special flood hazards as
defined by the Flood Disaster Protection Act of 1973, as amended, or designated
a wetlands by any Governmental Authority having jurisdiction over any Property
or (b) one or more of the Property(ies) is(are) situated in an area designated
as having special flood hazards as defined by the Flood Disaster Protection Act
of 1973, as amended, or as a wetlands by any Governmental Authority having
jurisdiction over such Property(ies), but the applicable Property Owner(s)
has(have) obtained and paid for, and there is currently in effect, the flood
insurance comprising a part of the Required Insurance. No portion of any
Property is located on or adjacent to navigable waters and no portion of any
Property consists of filled-in land.
29
3.18 Property Taxed as a Separate Tax Lot. Each Property is taxed as
one or more separate and distinct tax lots. No part of any Property shares a tax
lot with any adjoining lands and for all purposes each Property may be
mortgaged, conveyed and otherwise dealt with as a single, independent parcel.
3.19 Leases.
(a) No Property Owner has entered into any Lease which
continues in existence or is bound by any such Lease, other than the Approved
Leases.
(b) Rent has not been collected under any of the Leases more
than one (1) month in advance of the due date. Except as disclosed on the Rent
Rolls attached hereto as Exhibit E-1 through and including Exhibit E-4, the term
of each Lease has commenced and the tenant has commenced the full payment of
rent under such Lease without the tenant thereunder being entitled to any
abatement thereof. Except as disclosed on the Rent Rolls attached hereto as
Exhibit E-1 through and including Exhibit E-4, no Property Owner is required to
perform any tenant work or pay any work allowances under any Lease. All security
and other escrow deposits made under any Lease are being, and have been held, in
accordance with all Legal Requirements and the terms of such Lease. Except as
disclosed on the Rent Rolls attached hereto as Exhibit E-1 through and including
Exhibit E-4, no tenant under a Lease has any right of expansion, extension,
cancellation or any other option pursuant to such Leases, and no tenant has any
right of set off or reduction against rent.
(c) Each of the Leases has been duly authorized, approved and
executed by all parties thereto and constitutes the legal, valid and binding
obligations of the parties thereto, enforceable against the parties thereto in
accordance with their respective terms. Borrower has delivered true, correct and
complete copies of the Leases (including, without limitation, all amendments and
supplements thereto and guaranties thereof) to Lender.
(d) Each of the Leases is in full force and effect and there
are no monetary or other material defaults by the applicable Property Owner
thereunder, and, to the best knowledge of Borrower, except as set forth on the
Rent Rolls attached hereto as Exhibit E-1 through and including Exhibit E-4,
there are no monetary or other material defaults by any tenant thereunder. No
Borrower Affiliate, Manager or any other Person acting on any Borrower
Affiliate's behalf has given or received any notice of default under any of the
Leases that remains uncured or in dispute, and no Property Owner is intending to
deliver such a notice of default within the thirty (30) days following the date
hereof.
(e) Borrower has delivered to Lender true, correct and
complete copies of all guaranties of Leases and all such guaranties are in full
force and effect and constitute the legal, valid and binding obligations of the
parties thereto, enforceable against such parties in accordance with their
respective terms.
30
(f) The Rent Rolls attached hereto as Exhibit E-1 through and
including Exhibit E-4 are true, correct and complete in all material respects.
(g) The Rent Rolls attached hereto as Exhibit E-1 through and
including Exhibit E-4 set forth a true, correct and complete list of all
security deposits made by tenants at each Property which have not been applied
(including accrued interest thereon), all of which are held by the applicable
Property Owner in accordance with the terms of the applicable Lease and all
applicable Legal Requirements.
(h) Except as set forth on Exhibit E-1 through and including
Exhibit E-4, to the best of Borrower's knowledge, each tenant under a Lease is
free from bankruptcy or reorganization proceedings.
(i) No tenant under any Lease (or any sublease) is an
Affiliate of Borrower or any Borrower Affiliate, except as disclosed otherwise
on Exhibit F attached hereto and made a part hereof.
(j) There are no brokerage fees or commissions due and payable
in connection with the leasing of space at any Property, except as has been
previously disclosed to Lender in writing, and no such fees or commissions will
become due and payable in the future in connection with the Leases existing on
the Effective Date, including by reason of any extension of such Lease or
expansion of the space leased thereunder.
3.20 Environmental. The Environmental Representations are true and
correct in all material respects.
3.21 Access Laws. Each Property is in compliance in all material
respects with all of the requirements of the Access Laws.
3.22 No Default. No Significant Party or Borrower Affiliate is in
default under this Agreement, any other Loan Document or any Mortgage Loan
Document, as applicable.
3.23 No Offsets. Borrower has no counterclaims, offsets or defenses
with respect to the Loan, the Note or any other Loan Document.
3.24 Fraudulent Conveyance. Borrower (a) has not entered into the
transactions contemplated by this Agreement and the other Loan Documents with
the actual intent to hinder, delay, impede or defraud any creditor and (b) has
received reasonably equivalent value in exchange for its respective obligations
under this Agreement, the Note and the other Loan Documents. Giving effect to
the transactions contemplated by the Loan Documents, the fair salable value of
Borrower's assets exceeds, and will, immediately following the execution and
delivery of the Loan Documents and each advance of the proceeds thereof, exceed,
Borrower's total probable liabilities, including, without limitation, the
maximum amount of its subordinated, unliquidated, disputed or contingent
liabilities. Borrower's assets do not and, immediately following the execution
and delivery of the Loan Documents and each advance of the proceeds thereof,
will not, constitute unreasonably small capital to carry out its business as
31
conducted or as proposed to be conducted. Borrower does not intend to, and does
not believe that it will, incur debts and liabilities (including, without
limitation, contingent liabilities and other commitments) beyond its ability to
pay such debts and liabilities as they mature (taking into account the timing
and amounts to be payable on or in respect of obligations of Borrower).
3.25 Broker. No broker or consultant has been retained by Borrower or
any Affiliate of Borrower in connection with the Loan or the Loan Documents
other than Xxxx Xxxxxx of Xxxxxxx Xxxxxxxxxx Corp. ("Broker"), which Broker
Borrower shall pay in full as of the Effective Date pursuant to a written
agreement between Borrower and Broker. Borrower hereby indemnifies, defends and
holds the Indemnified Parties harmless from and against all loss, cost,
liability and expense arising from the claims of all brokers and consultants
relating to the Loan with whom Borrower, any other Significant Party or any
Affiliate thereof or any employee or agent thereof has dealt, including, without
limitation, Broker and all other sales, mortgage or leasing brokers or
consultants.
3.26 Financial Statements. All financial statements of each Borrower
Entity and each Significant Party heretofore delivered to Lender in connection
with the Loan are true and correct in all material respects and fairly present
the financial condition of the subjects thereof as of the respective dates
thereof, and no material adverse change has occurred in the financial condition
reflected therein, or the operations or business of, such Persons since the
respective dates of the most recent financial statements delivered to Lender.
3.27 No Insolvency. None of Borrower, any other Significant Party or
any Borrower Affiliate is Insolvent, and none of the foregoing Persons will be
rendered Insolvent by the execution of this Agreement, the Note or any of the
other Loan Documents or by the consummation of the transactions contemplated
hereby and thereby.
3.28 Fiscal Year. The fiscal year of each Borrower Entity commences on
January 1.
3.29 No Other Financing. No Borrower Entity has borrowed any funds
which have not heretofore been repaid in full, except for the Loan and the
Mortgage Loans, as applicable.
3.30 ERISA. The execution, delivery and performance of this Agreement
and the other Loan Documents do not constitute a Prohibited Transaction,
assuming solely for this purpose that Lender is a party in interest as defined
in Section 3(14) of ERISA ("Party In Interest") or a disqualified person as
defined in Section 4975(e)(2) of the Code ("Disqualified Person") with respect
to an employee benefit plan, if any, which has directly or indirectly invested
in any Borrower Entity or in any Person holding an ownership interest therein.
Each Borrower Entity has made, and shall continue to make, all required
contributions to all employee benefit plans, if any, within the time periods
required by the applicable provisions of ERISA and any other federal or state
law, and neither Borrower nor Guarantor has any knowledge of any material
liability which has been incurred by any thereof which remains unsatisfied for
any taxes or penalties with respect to any employee benefit plan or any
multi-employer plan. Each such plan has been administered in compliance with its
terms and the applicable provisions of ERISA and any other federal or state law.
32
3.31 FIRPTA. No Borrower Entity or Significant Party is a "foreign
person" within the meaning of Sections 1445 or 7701 of the Code.
3.32 PUHCA. No Borrower Entity or Significant Party is a "holding
company" or a "subsidiary company" of a "holding company" or an "affiliate" of
either a "holding company" or a "subsidiary company" as defined in the Public
Utility Holding Company Act of 1935, as amended.
3.33 Insurance. All Required Insurance is in full force and effect and
the premiums due thereon have been paid in full. Each Borrower Affiliate and
each of the Properties is in compliance with the provisions of the policies of
such Required Insurance, and no notice of cancellation, termination or default
has been received with respect to any such policy.
3.34 Securities Laws. None of the transactions contemplated in this
Agreement the other Loan Documents will violate or result in a violation of
Section 7 of the Securities Exchange Act of 1934, as amended, or any regulations
issued pursuant thereto, including, without limitation, Regulations G, T, U and
X of the Board of Governors of the Federal Reserve System. None of Borrower, any
other Significant Party or any Borrower Affiliate owns or intends to carry or
purchase any "margin security" within the meaning of said Regulation G. The
proceeds of the Loan have not been used to purchase or refinance any borrowing,
the proceeds of which were used to purchase any "security" within the meaning of
the Securities Exchange Act of 1934, as amended.
3.35 Investment Company Act. None of Borrower, any other Significant
Party or any Borrower Affiliate is (a) an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, or (b) subject to any other United States
federal or state law or regulation which purports to restrict or regulate its
ability to borrow money.
3.36 Taxes; Impositions. Each Significant Party and each Borrower
Entity has filed all Federal, state and local tax returns required to be filed
prior to the date hereof and all taxes, charges and assessments shown to be due
from all such parties on such tax returns have been paid or have been legally
and validly extended. All Impositions due and owing in respect of, and affecting
any Property have been paid. There are no pending, or to the best of Borrower's
knowledge, proposed special or other assessments for public improvements or
otherwise affecting any Property.
3.37 Full and Accurate Disclosure. No statement of fact made by any
Significant Party or any Borrower Entity in this Agreement or in any other Loan
Document or in any Mortgage Loan Document, as applicable, contains any untrue
statement of a material fact or omits to state any material fact necessary to
make the statements contained herein or therein not misleading. There is no
33
material fact presently known to Borrower which has not been disclosed to Lender
which adversely affects, nor as far as Borrower can foresee, might adversely
affect, any Property or the business, operations or condition (financial or
otherwise) of any Significant Party or any Borrower Affiliate, other than with
regard to market risk inherent in projecting future operations.
3.38 Contracts.
(a) No Borrower Entity has entered into, or is bound by, any
Contract which continues in existence, except the Approved Contracts.
(b) Each of the Contracts is in full force and effect, there
are no monetary or other material defaults by any Borrower Entity thereunder
and, to the best knowledge of Borrower, there are no monetary or other material
defaults thereunder by any other party thereto. No Significant Party or any
other Person acting on behalf of any Borrower Entity has given or received any
notice of default under any of the Contracts that remains uncured or in dispute.
(c) There has been delivered to Lender true, correct and
complete copies of the Contracts (including all amendments and supplements
thereto).
(d) No Contract has as a party an Affiliate of any Significant
Party or any Borrower Affiliate.
3.39 Other Obligations and Liabilities. No Significant Party or
Borrower Affiliate has any liabilities or other obligations that arose or
accrued prior to the date hereof that, either individually or in the aggregate,
could have a material adverse effect on any such Person's ability to perform
their respective obligations under this Agreement, the other Loan Documents or
the Mortgage Loan Documents, as applicable, or any of such Person's
Organizational Documents, or any other obligations that any of them may have in
connection with the ownership and operation of the Properties. No Significant
Party or Borrower Affiliate has any known contingent liabilities.
3.40 Documents. Borrower has furnished or has caused to be furnished to
Lender a true and complete copy of all material documents relating to each
Significant Party, each Borrower Affiliate, the Loan and the Properties which a
reasonably prudent institutional Lender, making a loan or loans in a similar
amount and on similar terms as the Loan, would want to have the opportunity to
review prior to agreeing to make such loan or prior to agreeing to any of the
material terms thereof.
3.41 No Strikes. There are no strikes or other labor disputes or
grievances pending or threatened against any Property, Borrower, any other
Significant Party or any Borrower Affiliate.
3.42 Consumer Credit Laws; Usury. The indebtedness evidenced by the
Loan, including interest, fees and charges, (a) is a business loan, (b) is an
exempted transaction under the Truth in Lending Act, 15 U.S.C. 1601 et seq., and
(c) does not and will not, violate the provisions of the consumer credit laws or
usury laws of any applicable jurisdiction.
34
ARTICLE 4
CERTAIN COVENANTS OF BORROWER
Borrower hereby covenants and agrees with Lender as follows:
4.1 Payment and Performance of Obligations. Borrower shall pay and
otherwise perform the Obligations in accordance with the terms of the Loan
Documents.
4.2 Transfers.
(a) Except for a Permitted Transfer as expressly provided in
this Section 4.2 hereof, Borrower shall not, and shall not permit or cause any
Borrower Affiliate to, directly or indirectly, sell, assign, convey, mortgage,
pledge, hypothecate, encumber, grant a security interest in, exchange or
otherwise dispose of, or grant any option or warrant with respect to, directly
or indirectly, voluntarily or involuntarily, by operation of law or otherwise,
and whether or not for consideration or of record (each of the foregoing being
herein referred to and constituting a "Transfer"), all or any part of any
Property, or any part thereof or any interest therein, or any of the revenues to
be earned therefrom, or suffer, consent to or permit the foregoing, without, in
each instance, the prior written consent of Lender which may be granted or
withheld in Lender's sole discretion. Except for a Permitted Transfer, Borrower
shall not permit any owner, directly or indirectly, of a legal or beneficial
interest in Borrower or any Borrower Affiliate to Transfer such interest, either
of record or beneficially, whether by Transfer of stock, assignment of
partnership or membership interest or other Transfer of legal or beneficial
interest in Borrower or any Borrower Affiliate, or in any direct or indirect
owner thereof, or otherwise permit any new or additional legal or beneficial
ownership interests in Borrower or any Borrower Affiliate or any direct or
indirect owner to be issued, without, in each instance, the prior written
consent of Lender which may be granted or withheld in Lender's sole discretion.
(b) To the extent that Lender elects to consent to any
Transfer as to which its consent is required hereunder, Lender shall be entitled
to condition its consent on such matters as Lender may elect, in its sole
discretion, including, without limitation, execution of instruments of
assignment and assumption with respect to the Loan Documents and the Collateral
therefor, payment of a transfer fee or other consideration, delivery of
certificates and affidavits and indemnities, including an affidavit and
indemnification in respect of Code Sections 1445 and 7701, agreements
restricting actions which may or may not be taken by any transferee or its
owners or restrictions in any such Person's Organizational Documents with
respect thereto, additional or replacement security for the Loan, restrictions
as to the use of any consideration paid for such Transfer, and opinions,
including without limitation, opinions regarding the assumptions of obligations
hereunder, substantive consolidation and such other matters as Lender may
reasonably require. Within three (3) Business Days after the closing of any
Transfer, whether or not such Transfer required Lender's consent, if (i) any of
35
the Properties or any part thereof or any interest therein or (ii) any direct or
indirect ownership interest in Borrower or any Borrower Affiliate is
transferred, Borrower shall provide Lender with a copy of the deed or other
instrument of Transfer to any transferee. Borrower shall promptly after request
therefor provide Lender with such other information and documentation with
respect to such Transfer as Lender shall reasonably request, including, without
limitation, information as to the ownership of such transferee.
(c) Upon the occurrence of any Transfer, the provisions of
this Section 4.2 shall continue to apply to such transferee (including, without
limitation, any Permitted Transferee) as if it were the transferor hereunder,
and any consent by Lender permitting a transaction otherwise prohibited under
this Section 4.2, or any right of Borrower or any other Person to Transfer
without such consent, shall not constitute a consent to or waiver of any right,
remedy or power of Lender to withhold its consent on a subsequent occasion to a
transaction not otherwise permitted by the provisions of this Section 4.2.
Notwithstanding the giving of any consent hereunder by Lender, Borrower shall
not engage in any Prohibited Transaction.
4.3 Liens. No Borrower Entity shall create, suffer or permit to exist
any mortgage, pledge, lien, security interest (including, without limitation, a
purchase money security interest), encumbrance, charge, attachment, levy,
distraint or other judicial process (collectively, "Liens") on, of or against,
or otherwise affecting, all or any portion of any Property (including, without
limitation, fixtures and other personal property), or any other property of any
Borrower Entity (whether tangible or intangible and now owned or hereafter
acquired) in favor of any Person other than Lender, without the prior written
consent of Lender (which consent may be granted or withheld in Lender's sole
discretion), other than the Approved Permitted Encumbrances.
4.4 Indebtedness.
(a) No Borrower Entity shall, without Lender's prior written
consent, which may be granted or withheld in Lender's sole discretion, create,
incur or assume any Indebtedness, other than (i) the Loan or the Mortgage Loans,
as applicable, (ii) those certain guaranties and indemnities delivered in
connection with the Mortgage Loans, (iii) that certain guaranty in connection
with a lease with Giant Supermarket of certain space in the shopping center
commonly known as "The Point" and located in Harrisburg, Pennsylvania ("The
Point") owned by a subsidiary of Borrower and (iv) Trade Payables in connection
with the operation of the Properties, which shall in no event exceed at any one
time $50,000.00 per Property. Each month, together with the other financial
statements required to be furnished hereunder, Borrower shall furnish Lender a
written statement (certified by a Designated Officer to be true, correct and
complete) detailing the Indebtedness then outstanding, including the number of
days (in increments of thirty (30) days) that each Trade Payable of each
Borrower Entity has been outstanding. No Borrower Entity shall create, incur or
assume any other Indebtedness, if doing so would cause Borrower to be in
violation of any other provision of this Agreement or the other Loan Documents
or would cause any Borrower Entity to be in violation of any of the Loan
Documents or any of the Mortgage Loan Documents, as applicable.
36
(b) Notwithstanding that any Trade Payables incurred with
respect to the Properties are otherwise permitted hereunder, such Trade Payables
which become due and payable shall be paid within sixty (60) days following the
date on which each such amount is due and payable.
4.5 Compliance with Restrictive Covenants, Etc.
(a) No Borrower Entity shall modify, waive in any material
respect or release any Easements, restrictive covenants or other Approved
Permitted Encumbrances, or suffer, consent to or permit the foregoing, without
Lender's prior written consent, which consent may be granted or withheld in
Lender's sole and absolute judgment. Borrower shall cause each Borrower
Affiliate to timely comply in all material respects with the terms of all
Easements, restrictive covenants and all other Approved Permitted Encumbrances.
(b) Borrower shall cause each Borrower Affiliate to observe
and comply with any conditions and requirements necessary to preserve and extend
any and all rights, privileges, franchises and concessions that are applicable
to any of the Properties, the use and occupancy thereof, or the business
conducted thereat, and shall timely comply in all material respects with all
regulations, rules, ordinances, statutes, orders and decrees of any Governmental
Authority or court applicable to any of them and/or any of the Properties or any
part thereof.
(c) Borrower shall cause each Borrower Affiliate to cause the
Properties to be maintained in a good and safe condition and repair and shall
not remove, demolish or materially alter or suffer, consent to or permit to be
removed, demolished or materially altered, the Improvements on any of the
Properties except as permitted by this Agreement, without Lender's prior written
consent.
4.6 Leases.
(a) Except as permitted pursuant to this Section 4.6, Borrower
shall not permit or cause any Borrower Affiliate to enter into, modify, amend,
consent to the cancellation or surrender of (except to the extent such
cancellation or surrender is by the Tenant pursuant to a pre-existing unilateral
right under its Lease) or terminate any Lease whether now existing or hereafter
entered into, without the prior written consent of Lender, which may be granted
or withheld in Lender's sole discretion. Notwithstanding the foregoing, if (a)
Borrower makes the First Mandatory Prepayment in accordance with Section
2.3.2(b) hereof and (b) Camp Hill LLC is required, pursuant to the terms of the
Camp Hill Loan Documents, to obtain the prior written consent of the Camp Hill
Lender to take any of the actions described in this Section 4.6(a) with respect
to any Leases affecting the Camp Hill Property, then Borrower shall not be
required to obtain Lender's prior written consent pursuant to this Section
4.6(a) with respect to Leases affecting the Camp Hill Property so long as no
Event of Default shall have occurred, in which case, Lender's prior written
consent shall be required hereunder.
37
(b) Borrower shall timely cause each Borrower Affiliate to
comply with or cause to be timely complied with all material terms and
conditions on the landlord's part to be performed under each Lease. Borrower
shall cause each Borrower Affiliate to neither do nor neglect to do, nor permit
to be done, anything which may cause the termination of any Lease, other than
due to the default of the Tenant(s) under such Lease. Borrower shall cause each
Borrower Affiliate to not collect any rent or other payment under any Lease more
than one (1) month in advance of the due date thereof (except as disclosed on
the Rent Rolls) and shall cause each Borrower Affiliate to use its best efforts
to require the performance of all of the obligations of Tenants and other
Persons bound by the Leases and to enforce the Leases, subject, however, to the
limitation on termination described in this Section 4.6.
(c) Borrower may cause each Borrower Affiliate to, without
Lender's prior written consent, enter into any Lease which will not be a Major
Lease when such Lease comes into effect, provided that each of the following
conditions is satisfied: (i) the rent and other material business terms of such
Lease are on market terms for similarly situated properties; (ii) the Lease does
not provide for the rent to decline at any point during the term of such Lease;
(iii) such Lease does not contain any options to purchase or other rights with
respect to the ownership of the applicable Property; (iv) such Lease does not
contain any restrictions on the landlord's rights to lease remaining portions of
the applicable Property, except that such Lease may contain options to lease
additional space in the applicable Property on then existing market terms; (v)
such Lease does not contain any options for the Tenant thereunder to terminate
such Lease, other than in the event of the applicable Borrower Affiliate's
failure to deliver possession of the applicable premises or a material casualty
or condemnation or the applicable Borrower Affiliate's failure to deliver vacant
possession; (vi) such Lease does not contain any extraordinary landlord
obligations (including obligations which an unaffiliated landlord would have
difficulty performing); (vii) such Lease is entered into on the standard form of
Lease which Lender has previously approved, with such non-material changes
thereto as a proposed tenant may request and the applicable Borrower Affiliate
is willing to agree to; (viii) such Lease is entered into on arms length terms,
without consideration of any relationship with any Borrower Entity, any
Affiliate of any Borrower Entity, may otherwise have with the Tenant thereunder
or any Affiliate thereof; and (ix) the Lease shall contain each of the
provisions required by this Section 4.6.
(d) Borrower may permit any Borrower Affiliate, without
Lender's prior written consent, to modify or amend any Lease which is not a
Major Lease, provided that either (i) such modification or amendment is required
to be entered into pursuant to the express terms of such Lease, or (ii) each of
the following conditions is satisfied: (A) such amendment or modification is
entered into on an arms-length basis without consideration of any relationship
of any Borrower Entity or any Affiliate of any Borrower Entity with the Tenant
thereunder or any Affiliate thereof; (B) such Lease would not be a Major Lease
and would, after such amendment or modification, satisfy the conditions set
forth in clauses (ii), (iii), (iv), (v), (vi), (vii) and (ix) of Section 4.6(c)
38
hereof; (C) such amendment or modification does not release any party from its
liability under the Lease or reduce the square footage demised thereunder; (D)
to the extent that any additional space is demised pursuant to such amendment or
modification, with respect thereto, such amendment or modification satisfies
this Section 4.6(d); (E) such amendment or modification does not reduce the rent
paid under the Lease; and (F) such amendment or modification does not otherwise
have a material adverse effect on the fair market value of the applicable
Property. Borrower may permit any Borrower Affiliate, without the prior written
consent of Lender, to terminate any Lease which is not a Major Lease in its good
faith exercise of its remedies under such Lease, or at law or in equity, by
reason of a material monetary default having continued under such Lease beyond
the expiration of applicable cure periods. Without first obtaining Lender's
prior written consent, Borrower shall not permit or cause any Borrower affiliate
to consent to any assignment or subletting of any Lease unless the consent of
the applicable Borrower Affiliate may not be withheld under such circumstances
under the terms of the applicable Lease, except that Borrower may permit or
cause any Borrower Affiliate to, without Lender's prior written consent, consent
to any assignment or subletting which does not release the liability of any
Person then liable thereunder as tenant, guarantor or otherwise if such
assignment or subletting is of a Lease which is not a Major Lease.
(e) Each Lease executed by any Borrower Affiliate after the
date hereof shall provide, in a manner satisfactory to Lender, for (i) the
Tenant thereunder to give a notice to Lender of each material default by the
landlord or licensor thereunder, simultaneously with the giving of notice of
such default to such landlord or licensor, (ii) Lender to have the right, but
not the obligation, to cure any default by the landlord or licensor thereunder
after the expiration of the landlord's or licensor's cure period, if any, and
(iii) execution and delivery (not more than ten (10) Business Days after a
request therefor) of an estoppel certificate reasonably satisfactory to Lender.
All actual out of pocket costs and expenses of Lender (including, without
limitation, reasonable attorneys' fees and disbursements) in connection with
Lender's review of any Lease shall be paid by Borrower within five (5) Business
Days after request therefor by Lender. Prior to seeking Lender's consent to any
Lease, Borrower shall deliver to Lender a copy of such Lease, blacklined to show
the changes from the standard form of Lease previously approved by Lender,
together with a detailed term sheet setting forth the material terms of such
Lease.
(f) Security Deposits shall not be commingled with any other
funds of any Borrower Affiliate and, if cash, shall be deposited at such
commercial or savings bank or banks as may be reasonably satisfactory to Lender.
Any bond or other instrument which any Borrower Affiliate is permitted to hold
in lieu of Security Deposits in the form of cash under any applicable legal
requirements (i) shall be maintained in full force and effect in the full amount
of such deposits unless replaced by cash deposits as herein above described,
(ii) shall be issued by an institution reasonably satisfactory to Lender, and
(iii) shall in all respects comply with any applicable Legal Requirements and
otherwise be satisfactory to Lender. Borrower shall, upon request, provide
Lender with evidence satisfactory to Lender of compliance with the foregoing.
39
4.7 ERISA.
(a) In addition to the prohibitions set forth in Section 4.2
hereof, and not in limitation thereof, Borrower shall not, or permit or cause
any Borrower Affiliate to, Transfer its interest or rights in this Agreement or
the applicable Property, or attempt to do any of the foregoing or suffer any of
the foregoing, nor shall any Person owning a direct or indirect interest in any
Borrower Entity Transfer any of its rights or interest (direct or indirect) in
any Borrower Entity, attempt to do any of the foregoing or suffer any of the
foregoing, nor shall any Borrower Entity or any Person owning a direct or
indirect interest in any Borrower Entity take, without limitation, any action or
fail to take any action, if, in any such case, doing so would (i) cause the Loan
or the exercise of any of Lender's rights in connection therewith to constitute
a Prohibited Transaction (unless Borrower furnishes a legal opinion reasonably
satisfactory to Lender that the same is exempt from the Prohibited Transaction
provisions of ERISA and the Code or otherwise does not constitute a Prohibited
Transaction), assuming solely for this purpose that Lender is a Party In
Interest or a Disqualified Person with respect to an employee benefit plan, if
any, which has directly or indirectly invested in any Borrower Entity or
Guarantor, or (ii) otherwise result in Lender being deemed in violation of any
applicable provisions of ERISA with respect to the Loan. Borrower shall, and
Borrower and Guarantor shall cause each Borrower Affiliate to, take such steps
as are necessary to assure that each of them (and their respective shareholders,
partners and members) does not commit any act, or fail to commit any act, the
occurrence of which or the failure of which to occur would cause the Loan to be
a Prohibited Transaction.
(b) If the provisions of this Section 4.7 are violated,
Borrower agrees, at its own cost and expense, to take such steps as Lender shall
reasonably request to prevent the occurrence of a Prohibited Transaction or to
correct the occurrence of a Prohibited Transaction. Borrower agrees to
indemnify, defend and hold the Indemnified Parties free and harmless from and
against all loss, costs (including, without limitation, reasonable attorney's
fees and expenses), taxes, penalties, damages and expenses any Indemnified Party
may suffer by reason of the investigation, defense and settlement of claims
based upon a breach of the foregoing provisions. The provisions of Section 4.7
hereof shall apply to such indemnification. The foregoing indemnification shall
survive repayment of the Loan.
4.8 Agreements with Affiliates. From and after the Effective Date, no
Borrower Entity shall enter into any contract, agreement or other arrangement
with any Affiliate without Lender's prior written consent.
4.9 Books and Records. Borrower shall, and shall cause each Borrower
Affiliate to, keep and maintain, or cause to be kept and maintained, at all
times at its principal office or the applicable Manager's office, complete, true
and accurate books of account and records reflecting the results of its
operations. Borrower shall, and shall cause each Manager and each Borrower
Affiliate to, permit Lender, its agents, consultants and representatives, upon
reasonable notice (which may be given orally or in writing) and at reasonable
times, to examine and audit such books and records and make copies thereof, at
Borrower's expense. Borrower shall, and shall cause each Manager, each Borrower
40
Affiliate and their Affiliates to, make all records relating to the applicable
Property available to Lender and shall cause each Manager to cooperate with any
examination, audit or other inquiry (including causing the personnel responsible
for the Properties to be available to respond to inquiries).
4.10 Management, Etc.
(a) Each of the Properties shall at all times be managed in a
competent and professional manner appropriate for buildings similar to the
applicable Property by either Borrower or a prominent professional managing
agent approved by Lender (each, a "Manager" and, collectively, the "Managers")
pursuant to management agreement(s) with Manager(s) approved by Lender (each, a
"Management Agreement"), such approval not to be unreasonably withheld. Lender
hereby approves Brentway Management LLC as the initial Manager for each
Property. Notwithstanding anything to the contrary herein contained, any third
party managing agent, and the terms and conditions of any management agreement
therewith, or any amendment or modification of any management agreement
theretofore approved by Lender, shall be subject to Lender's prior approval
which may be granted or withheld in Lender's reasonable judgment.
(b) Borrower represents it has delivered to Lender a true,
correct and complete copy of the Management Agreement for each Property, each of
which is hereby approved by Lender; provided, however, that the terms and
conditions of any subsequent Management Agreement between any Manager and any
Borrower Affiliate, or any amendment or modification of any Management Agreement
between any Manager and any Borrower Affiliate, and any compensation of any
Manager with respect to its services performed at or in connection with any
Property (other than an extension of the existing Management Agreement for
compensation which is no greater, and on terms and conditions no less favorable
to the applicable Borrower Affiliate, than those contained in the existing
applicable Management Agreement) are subject to approval by Lender in its sole
but reasonable discretion.
(c) In the event that there shall have occurred and be
continuing an Event of Default, then, upon Lender's request, Borrower shall
replace the present Manager(s) with one or more managing agents approved by
Lender in its sole discretion.
4.11 Financial Statements; Approved Operating Budget, Audit Rights.
Until payment in full of the Obligations, Borrower shall cause the following
financial statements and information, in form and substance satisfactory to
Lender, to be delivered as and when hereinafter provided:
(a) as soon as practicable and in any event within ninety (90)
days after the end of each fiscal year of Guarantor and each Borrower Entity,
(i) audited statements of financial position (balance sheet) of Guarantor and
(ii) statements of financial position (balance sheet) of each Borrower Entity,
in each case, as of the end of each such fiscal year during the Term, detailing
all receipts in respect of each Property, all expenses in respect of each
Property (and, separately delineated, all other recurring and non-recurring
expenses in the nature of capital items under GAAP) and retained earnings,
41
changes in financial position and cash flows for such fiscal year, which
statements shall be duly certified by the Designated Officer of Borrower to
fairly represent the financial condition of Guarantor and each Borrower Entity
as of the date thereof, prepared in accordance with GAAP and accompanied by an
opinion of the Approved Accountants (which opinion shall be unqualified and
shall not contain any statement of emphasis) to the effect that such financial
statements present fairly, in all material respects, the financial condition of
Guarantor and the applicable Borrower Entity as of the end of the fiscal year
being reported on and that the results of the operations and cash flows for such
year were prepared and are in conformity with GAAP and that the examination of
the Approved Accountants in connection with such financial statements has been
conducted in accordance with GAAP and included such tests of the accounting
records and such other auditing procedures as the Approved Accountants deemed
necessary in the circumstances;
(b) promptly and in any event within forty-five (45) days
after the end of each fiscal quarter of each Borrower Entity, an unaudited
quarterly statement of financial position (balance sheet) of each Borrower
Entity, a statement of profits and losses and a calculation of net cash flows
for such quarter, including all receipts in respect of each Property and all
expenses in respect of each Property, and a schedule of accounts payable as of
the end of such fiscal quarter, such quarterly financial statements to be
certified by a Designated Officer of Borrower to fairly represent the financial
condition of the applicable Borrower Entity as of the date thereof and to have
been prepared and reported on in conformity with GAAP;
(c) promptly and in any event within fifteen (15) Business
Days after the end of each calendar month (i) a monthly operating statement,
prepared on a cash basis, showing all Receipts, Expenses (and, separately
delineated, all other recurring and non-recurring expenses in the nature of
capital items under GAAP) and net cash flow for the applicable calendar quarter
and year-to-date results and variances from the same month for prior calendar
year and from the Approved Operating Budget, and such other matters as Lender
shall reasonably require and (ii) monthly Rent Rolls, (dated as of the last day
of the applicable calendar month and identifying all current Tenants and the
floor and space occupied or leased thereby), the amount of square footage
demised under each Lease, the current monthly and annual rent payable under each
Lease, the calculated rent per rentable square foot, the commencement and
expiration date of each Lease, the Security Deposits held pursuant to each
Lease, a description of any termination or expansion options, rental increase
dates and amounts, CPI increases (if applicable), escalation and pass-through
expense detail (including base year data), any percentage rent formula (and most
recently available Tenant sales data if required to be provided by the related
Tenant) and such other matters as Lender shall reasonable require), which
monthly operating statements and Rent Rolls shall be certified by a Designated
Officer of Borrower to be true, correct and complete in all material respects;
(d) not later than each December 15 during the Term, a
reasonably detailed cash basis operating budget for each Property covering the
calendar year commencing on the following January 1, each of which budgets shall
be subject to Lender's approval (each such budget, when so approved, an
42
"Approved Operating Budget"). Until Lender shall approve a new budget, the
Approved Operating Budget from the prior year shall remain in effect. If as of
the beginning of any calendar year any operating budget for such year has not
been agreed to as provided above, Borrower shall cause the Borrower Affiliates
to operate each Property in accordance with the Approved Operating Budget
applicable during the immediately preceding year except (i) to the extent Lender
has approved particular Expenses in the proposed operating budget, Borrower
shall have the right to cause the Borrower Affiliates to incur and pay such
approved Expenses, (ii) Borrower shall have the right to cause the Borrower
Affiliates to incur and pay all Nondiscretionary Expenses when due, subject to
Lender's right to reject Nondiscretionary Expenses (other than Impositions and
Insurance Premiums) which exceed by more than five percent (5%) the amount of
such Nondiscretionary Expense in the Approved Operating Budget applicable during
the immediately preceding year and (iii) unless specifically approved by Lender,
no Discretionary Expenses, capital expenditures, tenant allowances, tenant
inducement or leasing commissions shall be incurred or paid. The Approved
Operating Budget for each Property for calendar year 2002 is attached hereto as
Exhibit G-1 through and including Exhibit G-4 and made a part hereof;
(e) contemporaneously with delivery to the Partners, but in no
event later than April 15 of each calendar year during the Term (subject to
legally permitted extensions), the annual Form 1065 (with accompanying schedules
K-1) prepared by Borrower;
(f) promptly and in any event within fifteen (15) Business
Days after the end of each calendar month, a project report setting forth in
narrative form the status, with respect to each Property of (i) all leasing
activity, including a listing of all leasing leads and a summary of the material
terms proposed, accompanied by copies of all term sheets and responses thereto,
(ii) all refinancing and construction loan activity, accompanied by copies of
all loan requests and proposals and (iii) all predevelopment and development
activities, accompanied by copies of all schematic design drawings and site
analyses, plans and specifications and design and construction documentation;
(g) from time to time, such other reports and information
which Lender reasonably requires, certified by a Designated Officer to be true,
correct and complete in all material respects; and
(h) together with each of the financial statements and
information required pursuant to clauses (a) through (g) immediately above,
inclusive, a certificate of the Designated Officer of Borrower certifying that
Borrower has observed and performed, in all material respects, all of its
covenants and other agreements contained in this Agreement and the other Loan
Documents, whether there exists any Default or Event of Default and, if there
is, specifying the nature and period of existence thereof and the action taken
or proposed to be taken with respect thereto.
4.12 Maintenance of Taxable/Non-Taxable Status. Borrower shall maintain
its status as a company taxable as a partnership for the purposes of federal,
43
state and local income taxation. Borrower shall cause each Borrower Affiliate to
maintain its status as a company taxable as a partnership for the purposes of
Federal, state and local income taxation.
4.13 Environmental. Borrower shall cause each Borrower Affiliate to
fully and truly comply with and perform or cause to be complied with and
performed each of the Environmental Covenants and Indemnities.
4.14 Inspections. Borrower shall cause each Borrower Affiliate to
permit Lender and its agents, consultants or representatives, to enter upon the
Properties on reasonable notice (which may be given orally or in writing) at
reasonable times to inspect the Improvements on the Properties. Lender or its
agents, consultants or representatives as part of any inspection may take soil,
air, water, building material and other samples, subject to the rights of
Tenants under Leases.
4.15 Use of Properties; Zoning Change. Borrower shall not permit or
cause any Borrower Affiliate to initiate or acquiesce in a change in the plat of
subdivision or zoning classification of any Property without Lender's prior
written consent, which consent shall not be unreasonably withheld or delayed.
4.16 Required Insurance. Borrower shall cause each Borrower Affiliate
at all times to maintain all Required Insurance pursuant to Section 5.8 hereof.
4.17 Construction.
(a) All Approved Tenant Improvements constituting Landlord
Work shall be completed pursuant to Approved Tenant Improvement Plans and
Specifications by Approved Tenant Improvement Contractor(s); all Approved Base
Building Work shall be completed pursuant to Approved Base Building Work Plans
and Specifications by Approved Base Building Work Contractor(s); and all
Approved Tenant Improvements constituting Landlord Work and Approved Base
Building Work shall be completed in compliance with all applicable Legal
Requirements. Borrower shall not permit or cause any Borrower Affiliate to
undertake any capital improvements to any portion of any of the Properties which
do not constitute Approved Tenant Improvements or Approved Base Building Work.
(b) In addition to all Required Insurance, while performing
Approved Tenant Improvements constituting Landlord Work and Approved Base
Building Work hereunder, Borrower shall cause the applicable Borrower Affiliate
to provide or cause to be provided workers compensation, builder's risk (if
required by Lender) and public liability insurance and other insurance required
under applicable law in connection therewith. Certified copies of such policies
shall be deposited with Lender. The disbursement of monies from any accounts
held by Lender, or other acknowledgment by Lender and/or the Servicer of
completion of any Approved Tenant Improvements constituting Landlord Work or
Approved Base Building Work in a manner satisfactory to Lender, shall not be
deemed a certification by Lender or the Servicer that the same has been
completed in accordance with applicable building, zoning or other codes,
ordinances, statutes, laws, regulations or Legal Requirements of any
Governmental Authority. Borrower shall at all times have the sole responsibility
for insuring that the foregoing is completed in accordance with all such Legal
Requirements.
44
4.18 Contracts.
(a) Except as permitted in this Section 4.18, Borrower shall
not, and shall not permit or cause any Borrower Affiliate to, enter into,
modify, amend, consent to the cancellation or surrender of or terminate any
Contract, whether now existing or hereafter entered into, without the prior
written consent of Lender, which consent shall not be unreasonably withheld.
Notwithstanding the foregoing, if (a) Borrower makes the First Mandatory
Prepayment in accordance with Section 2.3.2(b) hereof and (b) Camp Hill LLC is
required, pursuant to the terms of the Camp Hill Loan Documents, to obtain the
prior written consent of the Camp Hill Lender to take any of the actions
described in this Section 4.18(a) with respect to any Contracts affecting the
Camp Hill Property, then Borrower shall not be required to obtain Lender's prior
written consent pursuant to this Section 4.18(a) with respect to Contracts
affecting the Camp Hill Property so long as no Event of Default shall have
occurred, in which case, Lender's prior written consent shall be required
hereunder.
(b) Borrower shall, and shall cause each Borrower Affiliate
to, timely comply with or cause to be complied with all material terms and
conditions on Borrower's or the applicable Borrower Affiliate's part to be
performed under each Approved Contract.
4.19 Report Updates.
(a) Lender shall have the right at any time from time to time
throughout the Term to order additional engineering reports with respect to one
or more of the Properties. Such additional engineering reports shall be paid for
by Borrower in accordance with Section 7.4 hereof; provided, however, that
Borrower shall not be required to pay for such additional engineering reports
more frequently than once every year with respect to each Property unless (i) an
Event of Default has occurred, (ii) any such additional engineering report is
required by applicable Legal Requirements to be obtained or (iii) in Lender's
sole but good faith judgment, an adverse change in the condition of the
applicable Property has occurred.
(b) Lender shall not be liable for any action or inaction by
Borrower or any Borrower Affiliate with respect to any repair or replacement
recommended in any engineering report, notwithstanding any review or approval of
Borrower's or any Borrower Affiliate's method of repair or replacement, as
applicable, or any response by Lender.
4.20 Non-Competition. From and after the Effective Date until payment
in full of the Obligations, Borrower shall not, and shall not permit or cause
any Borrower Affiliate to, engage in any Competitive Business. Notwithstanding
the foregoing, Borrower has advised Lender and Lender acknowledges that the Camp
Hill Property and The Point are situated in the same market and the operation
and management thereof by Borrower and/or its Affiliates shall not be a default
hereunder.
45
4.21 No Sale or Refinancing. Supplementing the provisions of Sections
4.2 and 4.3 hereof, notwithstanding that either such activity may result in the
payment in full of the entire Outstanding Principal Balance and other sums and
charges, Borrower shall not, and shall not permit or cause any Borrower
Affiliate to, sell or refinance any of the Properties without the prior written
consent of Lender.
4.22 Lender's Attorneys' Fees and Expenses. Borrower shall appear in
and defend any action or proceeding purporting to affect the security of the
Collateral or the security interests granted under any of the Loan Documents, or
the rights and powers of Lender under any of the Loan Documents, and Borrower
(in addition to Lender's reasonable attorneys' fees and expenses to be paid by
Borrower otherwise pursuant to this Agreement or the other Loan Documents) shall
pay all of Lender's reasonable attorneys' fees and disbursements in connection
with the enforcement of this Agreement and the other Loan Documents and the
collection of all amounts payable hereunder and thereunder. In case of any
Default under this Agreement or any of the other Loan Documents, or if any
action or proceeding is commenced in which it becomes necessary to defend or
uphold the Lien or priority of the Pledge or the other Loan Documents, or which
adversely affects Lender's interests in the Collateral or any part thereof,
including, without limitation, proceedings of any nature involving the
bankruptcy, insolvency, arrangement, reorganization or other form of debtor
relief with respect to Borrower, any other Significant Party or any Borrower
Affiliate or relating to a decedent, then Lender may, but without any obligation
to do so, and without releasing Borrower, any other Significant Party or any
Borrower Affiliate from any obligation hereunder or under the other Loan
Documents, make such appearances, disburse such reasonable sums and take such
actions as Lender deems necessary or appropriate to protect Lender's interest in
the Collateral. All costs incurred by Lender, including, without limitation,
reasonable attorneys' fees and disbursements, in taking any action described
above shall be paid by Borrower upon demand, together with interest thereon at
the Default Rate from the date paid by Lender through the date of repayment and
the same shall be deemed to constitute protective advances evidenced by the Note
and secured by the Pledge and the other Loan Documents. In addition to, and
without limiting the generality of, the foregoing, if, at any time hereafter,
Lender employs counsel (a) for advice or other representation (whether or not
any suit has been, or shall thereafter be, filed, and whether or not other legal
proceedings have been, or shall thereafter be, instituted, and whether or not
Lender shall be a party thereto) with respect to the Loan, this Agreement or any
of the other Loan Documents or (b) to protect, collect, lease, sell, take
possession of, foreclose upon or liquidate all or any part of the Collateral, or
to attempt to enforce any security interest or Lien in all or on any part of the
Collateral, or to enforce any rights of Lender or any of Borrower's obligations
hereunder or under any of the other Loan Documents, or any obligations of any
other Person which may be obligated to Lender by virtue of this Agreement or any
other agreement, instrument or document heretofore or hereafter delivered to
Lender by or for the benefit of Borrower, then, in any such event, all of the
reasonable attorneys' fees and expenses arising from such services, and all
expenses, costs and charges relating thereto, shall be paid by Borrower upon
demand, together with interest thereon at the Default Rate from the date paid by
Lender through the date of repayment, and the same shall be deemed to constitute
protective advances evidenced by the Note and secured by the Pledge and other
46
Loan Documents. Notwithstanding the foregoing provisions of this Section 4.22,
Borrower shall not be required to pay Lender's attorneys' fees in connection
with any collection or enforcement action or proceeding against Borrower or any
other obligor under any of the other Loan Documents if Borrower or such other
obligor is the prevailing party in such action or proceeding, as determined by a
final nonappealable judgment or order of a court of competent jurisdiction.
4.23 Delivery of Estoppel Certificates. Borrower shall, from time to
time, within ten (10) Business Days after written request from Lender, furnish
to Lender or such other party (or parties as may be requested by Lender) a
written certificate setting forth the Outstanding Principal Balance of and
interest due on the Loan and any other amounts evidenced or secured by the Loan
Documents, stating the date through which interest has been paid and whether or
not any offsets, defenses or counterclaims exist with respect to the Loan
Documents. If requested, such certificate will also attach true and correct
copies of any Loan Documents, and state such other information as Lender shall
reasonably require. Upon request of Lender, Borrower shall cause the Manager(s)
within ten (10) days after such request to furnish Lender or such other
Person(s) as Lender may request, a written certificate certifying as to such
matters as Lender may reasonably request.
4.24 Delivery of Notices. Borrower shall promptly, but in no event
later than five (5) days after Borrower becomes aware of any of the following
events, furnish a written notice to Lender (together with the applicable
correspondence and papers relating thereto) specifying the nature and period of
existence of such condition or event and, with respect to events described in
clause (a) immediately below, what action Borrower is taking or proposes to take
with respect thereto (compliance with the provisions of this Section 4.24 shall
not be deemed or construed to constitute a waiver of or consent to any Default
or Event of Default of which Borrower has given Lender notice pursuant to this
Section 4.24):
(a) any Default hereunder or under any of the other Loan
Documents, or any Event of Default;
(b) any default or event of default (or any terms of similar
import) under any of the Mortgage Loan Documents;
(c) (i) any receipt or delivery by Borrower or any Borrower
Affiliate of a notice of default or termination, (ii) any proposed action with
respect to any default, (iii) any failure by any Person to perform any material
obligation, maintain any material representation or warranty or satisfy any
material condition, in each instance, in connection with any Lease, any
Management Agreement, any Contract, any Easement, any recorded instrument or any
Permit;
(d) the filing of any action, suit or proceeding against or
affecting Borrower, any other Significant Party, any Borrower Affiliate, the
Collateral or any of the Properties that, if adversely determined, could (i)
impair the validity or enforceability of this Agreement or any of the other Loan
Documents or the ability of Borrower, any Borrower Affiliate or any other
Significant Party to perform their respective obligations hereunder, thereunder
47
or under the Mortgage Loan Documents, (ii) have a material adverse effect on the
value of any Collateral or the Properties or their respective current use, or
(iii) result in a Lien on the Collateral or any of the Properties; and/or
(e) any notice received from any Governmental Authority
asserting a violation of any material Legal Requirement and any correspondence
to or from Borrower, any other Significant Party, any Borrower Affiliate, or any
Manager with respect thereto.
Without limiting the generality of the foregoing, Borrower shall
transmit or cause to be transmitted to Lender, immediately upon receipt thereof,
any communication (addressed to Borrower, any Borrower Affiliate or any
Affiliate of Borrower or any Borrower Affiliate) which relates to matters which
could adversely affect Lender's security for the Loan or could have a material
adverse effect on the Collateral, any Property, the financial condition of
Borrower, any other Significant Party and/or any Borrower Affiliate, and shall
promptly respond fully to any inquiry of Lender made with respect thereto.
ARTICLE 5
INSURANCE; CASUALTY AND CONDEMNATION
------------------------------------
5.1 Insurance; Coverages. Borrower shall at all times prior to payment
or satisfaction in full of the Obligations, cause each Property Owner to obtain
in respect of itself and the applicable Property the following policies of
insurance, to the extent applicable in Lender's sole discretion, issued by
insurance companies and containing terms satisfactory to Lender in its sole
discretion:
5.1.1 comprehensive all risk insurance (including coverage for
earthquake subsidence and/or earth movements, if necessary) on the Improvements
on the applicable Property and the personal property of the applicable Property
Owner (including coverage for earthquake subsidence and/or earth movements, if
necessary) or any Affiliate of the applicable Property Owner located on the
applicable Property (which may be carried on a blanket basis with other
properties provided that the coverages and premiums therefor are separately
allocated and stated) including contingent liability from "Operation of Building
Laws," "Demolition Costs" and "Increased Cost of Construction" endorsements, in
each case (a) in an amount equal to 100% of the "Full Replacement Cost" (which
for purposes hereof shall mean actual replacement value exclusive of costs of
excavations, foundations, underground utilities and footings), as determined by
an appraiser or contractor designated and paid by the applicable Property Owner
and reasonably approved by Lender, or by an engineer or appraiser in the regular
employ of the insurer, with a waiver of depreciation, (b) containing an "Agreed
Amount" endorsement with respect to the Improvements on the applicable Property
and personal property of the applicable Property Owner or any Affiliate of the
applicable Property Owner located on the applicable Property, waiving all
co-insurance provisions, (c) providing for no deductible in excess of $25,000.00
and (d) containing an "Ordinance or Law Coverage" or "Enforcement" endorsement
if any of the Improvements on the applicable Property or the use of the
applicable Property shall constitute legal non-conforming structures or uses
("Property Insurance");
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5.1.2 commercial general liability insurance against claims
for personal injury, bodily injury, death or property damage occurring upon, in
or about the applicable Property ("Liability Insurance"), which Liability
Insurance may be carried under one or more insurance policies aggregating the
minimum combined single limit hereinbelow described and shall (a) be on the
so-called "occurrence" form with a combined single limit of not less than
$2,000,000.00 with at least a $100,000,000.00 "umbrella" policy, (b) continue at
not less than the aforesaid limit until required to be changed by Lender in
writing by reason of changed economic conditions making such protection
inadequate and (c) cover at least the following hazards: (i) premises and
operations, (ii) products and completed operations on an "if any" basis, (iii)
independent contractors, (iv) blanket contractual liability for all written and
oral contracts and (v) contractual liability covering the indemnities contained
in the Loan Documents and the Mortgage Loan Documents to the extent the same is
available at commercially reasonable premium rates;
5.1.3 business income or interruption (loss of rents)
insurance ("Business Insurance") determined by Lender based on Lender's
reasonable estimate of the applicable Property Owner's gross income, (a) with
loss payable to Lender, (b) covering all risks required to be covered by the
Property Insurance, (c) containing an "Extended Period of Indemnity" endorsement
which provides that after the physical loss to the Improvements on the
applicable and personal property located on the applicable Property has been
repaired, the continued loss of income will be insured until the expiration of
not less than two (2) years from the date of the loss, notwithstanding that the
policy may expire prior to the end of such period and (d) in an amount equal to
100% of the projected gross income from the applicable Property for a period of
two (2) years;
5.1.4 flood hazard insurance ("Flood Insurance") for such
portions of the applicable Property as are located in a federally designated
"special flood hazard area" and in which flood insurance has been made available
under the National Flood Insurance Act of 1968, as amended;
5.1.5 at all times during which any work or construction,
repairs or alterations are being made with respect to the Improvements on the
applicable Property or on the applicable Property, Insurance, written on a
so-called builder's risk completed value form (a) on a non-reporting basis, (b)
against all risks insured against under the Property Insurance, (c) including
permission to occupy the subject property, and (d) with an "Agreed Amount"
endorsement waiving co-insurance provisions ("Builder's Risk Insurance");
5.1.6 if there shall be any employees of the applicable
Property Owner on the applicable Property, worker's compensation, subject to the
statutory limits of the State in which the applicable Property if located, and
employer's liability insurance with a limit of at least $5,000,000.00 per
accident and per disease per employee, and $5,000,000.00 for disease aggregate
in respect of any work or operations on or about the applicable Property or in
connection with the applicable Property ("Worker's Compensation Insurance");
49
5.1.7 comprehensive boiler and machinery insurance, if
applicable, in amounts as shall be reasonably required by Lender ("Boiler
Insurance"); and
5.1.8 such other insurance as Lender may reasonably require
from time to time (together with the Property Insurance, the Liability
Insurance, the Business Insurance, the Flood Insurance, the Builder's Risk
Insurance, the Worker's Compensation Insurance and the Boiler Insurance, as
applicable, the "Required Insurance").
5.2 Approved Insurer; Premiums and Policies. The Required Insurance for
each Property shall be carried by insurance companies authorized to do business
in the State in which the applicable Property is located general policy rating
of A or better and a financial class of VI or better by A.M. Best Company, Inc.
and be acceptable to Lender. Each Property Owner shall pay the premiums for the
Required Insurance as the same become due and payable. Not later than thirty
(30) days prior to the expiration date of the Required Insurance, Borrower shall
deliver to Lender or cause to be delivered to Lender a renewal policy or
policies (evidences of such renewal policy or policies in Xxxxx 27 Form) for the
Required Insurance marked "premium paid" or accompanied by other evidence of
payment of premium satisfactory to Lender. If at any time Lender is not in
receipt of written evidence that all Required Insurance is in force and effect
with respect to any Property, Lender shall have the right to take such action as
Lender deems necessary to protect its interest in such Property, including,
without limitation, the obtaining of such insurance coverage as Lender in its
sole discretion deems appropriate, and all expenses incurred by Lender in
connection with such action or in obtaining such insurance and keeping it in
effect shall be paid by Borrower to Lender upon demand.
5.3 No Separate Insurance. Borrower will not, nor permit or allow any
Property Owner to, take out separate insurance concurrent in form or
contributing in the event of loss with that required to be maintained pursuant
to this Section 5.
5.4 Notice of Casualty and Condemnation. Borrower shall give Lender
prompt notice of any loss or damage to or taking of any of the Properties.
ARTICLE 6
EVENTS OF DEFAULT
-----------------
6.1 Events of Default. The term "Default" shall mean any one or more of
the events set forth below prior to the expiration of the applicable notice or
grace period, if any. The term "Event of Default" shall mean any one or more of
the events set forth below after the expiration of the applicable notice or
grace period, if any.
6.1.1 Non-Payment. Failure by Borrower to pay (a) any periodic
installment of interest or principal or any other regularly scheduled payment
within seven (7) days after the same shall become due and payable hereunder or
under any other Loan Document, (b) the Outstanding Principal Balance of the
Note, together with all interest accrued thereon, the Exit Fee, all Late Charges
and all other sums which may then be owed by Borrower to Lender, on the Maturity
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Date or upon prepayment of the Note in full or (c) any other amounts to be paid
by Borrower hereunder or under any other Loan Document within ten (10) days from
the date on which Lender gives Borrower written notice of such failure.
Notwithstanding the foregoing, the failure of Borrower to make the First
Mandatory Prepayment on the First Mandatory Prepayment Date and/or the Second
Mandatory Prepayment on the Second Mandatory Prepayment Date shall not, in and
of itself constitute a default hereunder, provided that, in lieu thereof,
Borrower makes a principal payment to Lender in the amount of $50,000.00 on the
First Mandatory Prepayment Date and a principal payment to Lender in the amount
of $60,000.00 on the Second Mandatory Prepayment Date, as applicable.
6.1.2 Affirmative Covenants. Failure by Borrower or any other
Person to duly keep, perform and observe any Affirmative Covenant or agreement
in this Agreement, the Note or in any other Loan Document (unless the same
constitutes a Default under any other subsection of this Section 6.1 or any
other Loan Document, in which case the grace or cure period, if any set forth in
such other subsection shall govern) within thirty (30) days of Lender's notice
thereof; provided, however, that in the event such failure is curable but not
reasonably susceptible of cure within such thirty (30) days, and Borrower
commences the cure thereof within such thirty (30) days, Borrower's failure to
effect such cure within such thirty (30) days shall not constitute an Event of
Default if Borrower diligently prosecutes such cure to completion within sixty
(60) days of Lender's notice of such failure, but in no event beyond the
Maturity Date.
6.1.3 Negative Covenants. If Borrower or any other Person
shall breach or otherwise not comply with any Negative Covenant set forth herein
or in any other Loan Document (unless the same constitutes a Default under any
other subsection of this Section 6.1 or any other Loan Document, in which case,
the grace or cure period, if any, set forth in such other subsection shall
govern) and such Default shall continue for five (5) days after written notice
thereof by Lender to Borrower, provided that no such notice and grace shall be
required with respect to a knowing, intentional and willful breach of a Negative
Covenant.
6.1.4 Financial Statements. If any material inaccuracy shall
exist in any of the Financial Statements, or in any other financial statement or
other information furnished by Borrower or any Designated Officer or any other
Person on behalf of Borrower, any Borrower Affiliate or any other Significant
Party to Lender pursuant to the provisions of this Agreement or any other Loan
Document or to induce Lender to make the Loan or any advance thereunder or to
consent to any matter hereunder or under any other Loan Document.
6.1.5 Representations. If, at any time, any representation,
warranty or certification made by Borrower or any other Significant Party, as
applicable, in this Agreement, the Note or any other Loan Document, or in any
document delivered pursuant to any Loan Document, or otherwise delivered in
connection with the Loan, shall be untrue, incorrect or misleading in any
material respect when made.
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6.1.6 Other Loan Documents. If an "Event of Default" (or any
other term(s) of similar import) shall occur under the Pledge or under any other
Loan Document (or under any document evidencing or securing or delivered in
connection with any loan (other than the Loan) which Lender may hereafter elect
to make to Borrower) or any other default (or term(s) of similar import) shall
occur and continue beyond the applicable notice or grace period, if any, under
or with respect to any Loan Document (or under or with respect to any of the
documents evidencing or securing any such other loan).
6.1.7 Demolition or Alterations. Except as otherwise permitted
or contemplated herein or in the other Loan Documents, the commencement of
demolition of or material alterations to any of the Properties without the prior
written consent of Lender, which consent may be granted or withheld by Lender in
Lender's sole and absolute discretion.
6.1.8 Failure to Deliver Estoppel Certificate. If Borrower
shall fail to deliver any estoppel certificate required by Section 4.23 hereof
within the time period provided therein.
6.1.9 Cessation. If Borrower, any Borrower Affiliate or
Guarantor ceases to exist.
6.1.10 Transfer. If there shall occur a Transfer or other
event prohibited under Section 4.2(a) hereof which is not a Permitted Transfer.
6.1.11 Liens. If, in violation of Section 4.3 hereof, all or
any part of any Property and/or the Collateral or any part thereof is mortgaged,
pledged or hypothecated or any other Lien is placed thereon.
6.1.12 Involuntary Bankruptcy, Etc. The entry by a court of
(a) a decree or order for relief in respect of Borrower, any other Significant
Party or any Borrower Affiliate in an involuntary case or proceeding under any
applicable federal or state bankruptcy, insolvency, reorganization or other
similar law or (b) a decree or order adjudging Borrower, any other Significant
Party or any Borrower Affiliate a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of Borrower, any other Significant Party or any
Borrower Affiliate under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of
Borrower, any other Significant Party or any Borrower Affiliate or of any
substantial part of the property of Borrower, any other Significant Party or any
Borrower Affiliate or ordering the winding up or liquidation of the affairs of
Borrower, any other Significant Party or any Borrower Affiliate and the
continuance of any such decree or order for relief or any such other decree or
order unstayed and in effect for a period of sixty (60) days.
6.1.13 Voluntary Bankruptcy, Etc. (a) The commencement by
Borrower, any other Significant Party or any Borrower Affiliate of a voluntary
case or proceeding under any applicable federal or state bankruptcy, insolvency,
52
reorganization or other similar law, or of any other case or proceeding, to be
adjudicated a bankrupt or insolvent, (b) the consent by Borrower, any other
Significant Party or any Borrower Affiliate (i) to the entry of a decree or
order for relief in respect of Borrower, such other Significant Party or any
Borrower Affiliate in an involuntary case or proceeding under any applicable
federal or state bankruptcy, insolvency, reorganization or other similar law, or
(ii) to the commencement of any bankruptcy or insolvency case or proceeding
against Borrower, such other Significant Party or such Borrower Affiliate, (c)
the filing by Borrower, any other Significant Party or any Borrower Affiliate of
a petition or answer or consent seeking reorganization or relief under any
applicable federal or state bankruptcy, insolvency, reorganization or other
similar law, (d) the consent by any Borrower, any other Significant Party or any
Borrower Affiliate to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of Borrower, any other Significant Party or any
Borrower Affiliate, or of any substantial part of any property of any Borrower,
any other Significant Party or any Borrower Affiliate, (e) the making by any
Borrower, any other Significant Party or any Borrower Affiliate of an assignment
for the benefit of creditors or (f) the admission by any Borrower, any other
Significant Party or any Borrower Affiliate in writing of its inability to pay
its debts generally as they become due.
6.1.14 Judgments. If, at any time, a judgment shall be
rendered against any Borrower, any other Significant Party or any Borrower
Affiliate which, in Lender's good faith determination, could adversely affect
the ability of any Borrower, any other Significant Party or any Borrower
Affiliate to perform any of its obligations, if any, under this Agreement, the
Note, any other Loan Document or any Mortgage Loan Document, as applicable.
6.1.15 Leasing Breach. Except as otherwise expressly permitted
under Section 4.6 hereof, if any Lease shall be entered into, amended, modified,
cancelled or terminated without the prior written consent of Lender. Except as
otherwise expressly permitted under Section 4.6 hereof, if any Lease shall be
entered into, amended, modified, cancelled or terminated without the prior
written consent of Lender.
6.1.16 Organizational Documents. If at any time any
Organizational Document of any Borrower Entity or Guarantor is modified in any
material respect without Lender's prior written consent.
6.1.17 Delivery of Financial Statements; Annual Operating
Budget. If Borrower or Guarantor shall fail to deliver to Lender any Financial
Statement or other report required by Section 4.11 hereof within the time period
provided therein and shall fail to cure such default within ten (10) days after
notice from Lender.
6.1.18 ERISA. If there shall occur a breach of any of the
provisions of Section 4.7 hereof.
6.1.19 Termination of Management Agreement, Etc. If, without
Lender's prior written consent, (a) any Manager resigns or is removed or any
Management Agreement terminates unless, in the case of a Management Agreement
53
with an entity which is not an Affiliate of Borrower, such Management Agreement
is replaced within ten (10) Business Days after notice of such resignation,
removal or termination with a replacement Management Agreement and Manager
satisfying the provisions of Section 4.10 hereof, (b) there is any material
change in any Management Agreement without Lender's prior written consent or (c)
with respect to any Manager which is an Affiliate of Borrower, the ownership,
management or control of such Manager is transferred to a Person which is not an
Affiliate of Borrower.
6.1.20 Other Conditions for Acceleration. If there shall occur
any condition set forth herein, in the Note or in any other Loan Document
permitting Lender to accelerate the Loan.
6.1.21 Prohibited Assignment. If Borrower attempts to delegate
its obligations or assign its rights under this Agreement or any of the other
Loan Documents, or any interest herein or therein.
6.1.22 Holdings Agreement. If Borrower shall be in default of
or violate any of its obligations under the Holdings Agreement.
6.1.23 Mortgage Loan Documents. If an "Event of Default" (or
any other term(s) of similar import) shall occur under any of the Mortgage Loan
Documents, or any other default shall occur and continue beyond any notice and
cure periods applicable thereto under any of the Mortgage Loan Documents.
6.2 Rights upon Event of Default. Upon the occurrence and during the
continuance of any Event of Default, Lender shall, in addition to all other
remedies conferred upon Lender at law or in equity or by the terms of the Note
and the other Loan Documents, have the right, but not the obligation, to pursue
any one or more of the following remedies, concurrently or successively, it
being the intent hereof that all such remedies shall be cumulative and that no
such remedy shall be to the exclusion of any other:
(a) take any action which, in Lender's sole judgment, is
necessary or appropriate to effect observance and performance of the covenants,
agreements and obligations (under this Agreement and the other Loan Documents)
of Borrower or any other Person providing Collateral pursuant to, or obligated
to perform any of the terms and provisions of, this Agreement or the other Loan
Documents (each, an "Obligated Party");
(b) take any action which, in Lender's sole judgment, is
necessary or appropriate to effect observance and performance of the covenants,
agreements and obligations under this Agreement and the other Loan Documents;
(c) declare the Note to be immediately due and payable;
provided, however, that upon the occurrence of any event specified in Section
6.1.12 or Section 6.1.13 hereof, the Note shall automatically become immediately
due and payable, both as to principal and all interest and other amounts due
thereunder, without presentment, demand, protest or notice of any kind, all of
which are hereby expressly waived, notwithstanding anything contained herein or
in the Note to the contrary;
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(d) use and apply any and all monies deposited by Borrower
with Lender, regardless of the purpose for which the same were deposited, to
cure any Default or Event of Default, or to apply such monies on account of any
Obligations in such manner or order of priority as Lender may determine in its
sole and absolute discretion or for any other purposes described herein or in
any other Loan Document;
(e) take such actions as Lender shall deem necessary to
realize upon any or all of the Collateral, including, without limitation, the
institution of foreclosure actions and/or Uniform Commercial Code sales;
(f) institute one or more actions, suits or proceedings at law
or in equity for the specific performance of any covenant, condition or
agreement contained herein or in the Note or any other Loan Document or for the
enforcement of any other appropriate legal or equitable remedy; and/or
(g) setoff against the obligations to Lender of Borrower or
any other Obligated Party, any sum owed by Lender or any Affiliate of Lender in
any capacity to Borrower or such other Obligated Party, or any property of any
of them in the possession of Lender or any Affiliate of Lender.
6.3 Waiver of Stay, Extension and Moratorium Laws, Appraisal and
Valuation, Redemption and Marshalling.
(a) Borrower shall not at any time insist upon, or plead, or
in any manner whatsoever claim or take any benefit or advantage of any stay or
extension or moratorium law, any exemption from execution or sale of any
Collateral, or any part of any thereof, wherever enacted, which may affect the
covenants and terms of performance of the Loan Documents, nor claim, take or
insist upon any benefit or advantage of any law now or hereafter in force
providing for the valuation or appraisal of any of the Collateral, or any part
of any thereof, prior to any sale or sales thereof which may be made pursuant to
any provision of any Loan Document, or pursuant to the decree, judgment or order
of any court of competent jurisdiction; nor, after any such sale or sales, claim
or exercise any right under any statute to redeem the property so sold, or any
part thereof, and Borrower hereby expressly waives all benefit or advantage of
any such law or laws, and covenants not to hinder, delay or impede the execution
of any power herein granted or delegated to Lender, but to suffer and permit the
execution of every power as though no such law or laws had been made or enacted.
(b) In the event that any bankruptcy or insolvency proceeding
under any federal, state or local law is filed by or against Borrower, or its
assignees or designees at any time prior to payment in full of the Obligations,
Lender shall, to the extent permitted by law, be absolutely and unconditionally
entitled to relief from any automatic stay imposed with respect to Borrower or
its assignees or designees and/or the Collateral by the filing of such
55
bankruptcy or insolvency proceeding, including, without limitation, the stay
imposed pursuant to Section 362(a) of the Bankruptcy Code, 11 U.S.C. ss. 362(a),
effective as of any such filing, without further action by Lender or order of
any court, and Lender shall be authorized to exercise all of its rights and
remedies with respect to the Collateral, including, but not limited to,
commencing one or more foreclosure actions, seeking the appointment of a
receiver therein and selling the Collateral, and Borrower hereby irrevocably
consents to the foregoing. Without limiting the previous sentence, Borrower
hereby irrevocably consents to, shall not oppose or contest, and shall not
request or cause any creditors' committee or any party in interest to oppose or
contest, any application for relief from the automatic stay or for "adequate
protection," as that term is defined in the Bankruptcy Code, which may be filed
by Lender in any future bankruptcy or insolvency proceeding with respect to
Borrower and/or the Collateral. No other action, inaction or agreement by Lender
in any future bankruptcy or insolvency proceeding shall be deemed to be a waiver
of the rights given to Lender hereby.
6.4 Preferences; Revival. Lender shall have no obligation to marshal
any assets in favor of Borrower or any other Person or against or in payment of
the Loan. To the extent Borrower, or any of them, makes a payment to Lender,
which payment or the proceeds or any part thereof are subsequently invalidated,
declared to be fraudulent, preferential or avoidable, set aside or required to
be repaid to a trustee, receiver or any other party having requisite authority
under any bankruptcy law, state or federal law, common law or equitable cause,
then, to the extent of such payment or proceeds received, the obligation
hereunder or part thereof intended to be satisfied shall be revived and continue
in full force and effect, as if such payment or proceeds had not been received.
ARTICLE 7
GENERAL PROVISIONS
------------------
7.1 Rights Cumulative; Waivers.
(a) Each right, power and remedy herein conferred upon Lender
herein or in any of the other Loan Documents is cumulative and in addition to
every other right, power or remedy, express or implied, now or hereafter
provided by law or in equity, and each and every right, power and remedy herein
set forth or otherwise so existing may be exercised, concurrently or
independently, from time to time as often and in such order as may be deemed
expedient to Lender. The exercise of one right, power or remedy shall not be a
waiver of the right to exercise at the same time or thereafter any other right,
power or remedy, and no delay or omission of Lender in the exercise of any
right, power or remedy accruing hereunder or arising otherwise shall impair any
such right, power or remedy, or be construed to be a waiver of any Default or
acquiescence therein. No act of Lender shall be construed as an election to
proceed under any provision herein or in any other Loan Document to the
exclusion of any other provision herein. Except as otherwise specifically
required herein, notice of the exercise of any right, remedy or power granted to
Lender by this Agreement or any other Loan Document is not required to be given.
Lender shall be entitled to enforce payment of the Loan and any other amount
56
payable under the Loan Documents, and performance of this Agreement and the
other Loan Documents, and to exercise all rights and remedies under this
Agreement or the other Loan Documents or otherwise at law or in equity,
notwithstanding that some or all of the indebtedness secured thereby may now or
hereafter be otherwise secured, whether by security agreement, pledge, lien,
assignment or otherwise. Neither the acceptance of this Agreement nor its
enforcement shall prejudice or in any manner affect Lender's right to realize
upon or enforce any other security now or hereafter held by Lender, it being
agreed that Lender shall be entitled to enforce this Agreement and any other
security now or hereafter held by Lender hereunder, under any of the other Loan
Documents or otherwise, in such order and manner as Lender may determine in its
absolute discretion.
(b) Lender may, by written notice to Borrower, at any time and
from time to time, waive in whole or in part, absolutely or conditionally, any
Default or Event of Default hereunder. Any such waiver shall be subject to such
conditions or limitations as shall be specified in any such notice. In the case
of any such waiver, the rights of Borrower shall be otherwise unaffected, and
any Default or Event of Default so waived shall be deemed to be cured and not
continuing only to the extent, and only on the conditions or limitations, set
forth in such waiver, but no such waiver shall extend to any subsequent or other
Default or Event of Default, or impair any right, remedy or power consequent
thereupon.
7.2 Lender's Action for its Own Protection Only. The authority herein
conferred upon Lender, and any action taken by Lender, to inspect the
Properties, to review and/or approve all documents and instruments submitted to
Lender, or otherwise, will be exercised and taken by Lender and by Lender's
employees, agents, consultants and representatives for their own protection only
and may not be relied upon by Borrower or any other Person for any purposes
whatsoever; and neither Lender nor Lender's employees, agents, consultants and
representatives shall be deemed to have assumed any responsibility to Borrower
or any other Person with respect to any such action herein or under any of the
other Loan Documents authorized to be taken by Lender or Lender's employees,
agents and representatives. Any review, investigation or inspection conducted by
Lender, any architect, engineer or other consultant retained by Lender, or any
agent or representative of Lender, in order to verify independently Borrower's
satisfaction of the covenants, agreements and obligations thereof under this
Agreement or under any of the other Loan Documents, or the validity of any
representations and warranties made by Borrower or any other Person (regardless
of whether or not the Person conducting such review, investigation or inspection
should have discovered that any of such conditions precedent were not satisfied
or that any such covenants, agreements or obligations were not performed or that
any such representations or warranties were not true) shall not affect (or
constitute, except as may specifically be provided in this Agreement or in the
other Loan Documents to the contrary, a waiver by Lender of) (a) any
representations and warranties under this Agreement or the other Loan Documents
or Lender's reliance thereon or (b) Lender's reliance upon any certifications of
Borrower or any other Person in connection with the Loan, or any other facts,
information or reports furnished to Lender by Borrower or any other party in
connection with the Loan. Lender neither undertakes nor assumes any
57
responsibility or duty to Borrower to select, review, inspect, supervise, pass
judgment upon or inform Borrower of any matter in connection with any of the
Properties, and Borrower shall rely entirely upon its own judgment with respect
to such matters, and any review, inspection, supervision, exercise of judgment
or supply of information to Borrower by Lender in connection with such matters
is for the protection of Lender only and neither Borrower nor any other Person
is entitled to rely thereon.
7.3 No Third Party Beneficiaries. All conditions to the obligations of
Lender hereunder and under the other Loan Documents are imposed solely and
exclusively for the benefit of Lender and its Assignees and Participants, if
any, and its or their successors and assigns, and no other Person (other than
Servicer) shall have standing to require satisfaction of such conditions in
accordance with their terms, or be entitled to assume that Lender will refuse to
advance proceeds of the Loan or refuse to agree or consent to any matter in the
absence of compliance with any or all thereof, and no other Person (other than
Servicer) shall, under any circumstances, be deemed to be the beneficiary of
such conditions, any or all of which may be freely waived in whole or in part by
Lender at any time if, in its sole discretion, it deems it advisable to do so,
it being further understood that Lender and its Assignees and Participants, if
any, and its or their successors and assigns shall have no obligation to assure
that the Approved Tenant Improvements, Approved Base Building Work or any other
work required or contemplated hereby or by the other Loan Documents are properly
and/or timely completed.
7.4 Payment of Expenses, etc.
7.4.1 Payment of Expenses. Borrower shall, on the Effective
Date and at all times thereafter, pay all costs and fees incurred by Lender in
connection with the preparation, negotiation, consummation, execution,
administration, repayment, collection and enforcement of the Loan, the Loan
Documents and any approval, consent, amendment, modification or waiver related
thereto. Without limiting the generality of the foregoing, Borrower shall pay:
(a) Lender's Counsel Fees in connection with the
foregoing;
(b) all taxes and recording fees and expenses,
including, without limitation, stamp and/or mortgage taxes and transfer taxes,
if any;
(c) all fees and out-of-pocket expenses incurred by
Lender, including all expenses of Lender and its respective agents and
representatives, in connection with any Default hereunder, under the Note or
under any other Loan Document or the collection or enforcement thereof;
(d) all fees and expenses of any environmental,
engineering, appraisal, construction, insurance or other consultants retained by
Lender in connection with the Loan or the administration, enforcement or
collection thereof; and
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(e) all brokers' fees and commissions in connection
with the Loan and any Lease or purchase agreement in respect of any Property.
Without limiting the generality of the foregoing, to the
extent that Lender, after the Effective Date, deems it necessary to employ
counsel and/or any other consultant for any purpose in connection with the Loan
or Lender's interest in the Properties and/or the Collateral, including, without
limitation, all future amendments, supplements, notices, recordings, approvals,
consents and waivers with respect to the Loan Documents (or any proposal by
Borrower therefor), whether or not consummated, the reasonable fees and
disbursements of such counsel and/or consultants shall be paid by Borrower. All
such fees and expenses shall be paid by Borrower within ten (10) days after
demand is made by Lender therefor. Borrower hereby indemnifies, defends and
holds Lender harmless from and against any loss, cost (including, without
limitation, reasonable attorneys' fees and disbursements) or damage whatsoever
incurred by Lender as a result of Borrower's failure to pay any cost or expense
contemplated hereby. The provisions of this Section 7.4.1 are not intended to
limit any other obligation of Borrower to pay fees and expenses of Lender or
other Persons contained herein or in any other Loan Document.
7.4.2 Advances Secured. All costs and expenses incurred and
payments made by Lender under this Agreement or any of the other Loan Documents
from time to time, which are to be paid or reimbursed by Borrower as described
herein or in any of the other Loan Documents shall, as and when advanced or
incurred by Lender, constitute protective advances evidenced by the Note and
secured by the Pledge and the other Loan Documents to the same extent and with
the same effect as if the terms and provisions of this Agreement were set forth
therein, whether or not the Outstanding Principal Balance of the applicable Loan
plus such protective advances shall exceed the Loan Amount. If Borrower shall
fail to reimburse or pay to Lender the amount of such protective advances by the
applicable due date therefor, interest at the Default Rate shall accrue on such
protective advances from the date such protective advances were made by Lender
to and including the date that such protective advances are reimbursed or paid
to Lender in full, together with all such accrued interest thereon.
7.5 Indemnification.
(a) In addition to any other indemnifications provided herein
or in the other Loan Documents, Borrower shall protect, defend, indemnify and
save harmless the Indemnified Parties from and against all liabilities,
obligations, claims, demands, damages, penalties, causes of action, losses,
fines, costs, expenses (including, without limitation, reasonable attorneys'
fees and disbursements) imposed upon or incurred by or asserted against any
Indemnified Party (other than by reason of such Indemnified Party's gross
negligence or willful misconduct, as determined to have occurred pursuant to the
final nonappealable decision of a court of competent jurisdiction) by reason of
(i) ownership or holding of the Pledge, this Agreement, the other Loan Documents
or any interest therein or any of the Collateral, including any funds deposited
with Lender, (ii) any accident, injury to or death of Persons or loss of or
damage to property occurring on or about any of the Properties or any part
59
thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent
parking areas, streets or ways, (iii) any design, construction, alteration,
operation, maintenance, use, nonuse or condition of the Properties or any part
thereof or on adjoining sidewalks, curbs, adjacent property or adjacent parking
areas, streets or ways, (iv) any failure on the part of Borrower or any other
Significant Party to perform or comply with any of the terms of this Agreement
or any other Loan Document, (v) performance of any labor or services or the
furnishing of any materials or other property in respect of any of the
Properties or any part thereof, (vi) any failure of any of the Properties to
comply with any Legal Requirements, (vii) the presence in, at or under any of
the Properties of any Hazardous Substances, or any release or discharge on or
from any of the Properties of any Hazardous Substances, (viii) any
representation or warranty made in the Note, the Pledge, this Agreement or any
of the other Loan Documents being false or misleading in any material respect as
of the date such representation or warranty was made, (ix) except to the extent
any such claims are made solely as a result of any dealings between Lender and
any broker, finder or similar person claiming to be entitled to a commission in
connection with the Loan, and with whom Borrower has had no dealings with in
connection with the Loan, any claim by brokers, finders or similar Persons
claiming to be entitled to a commission in connection with any Lease, or other
action involving any of the Properties or any part thereof, (x) the claims of
any lessee of any portion of any of the Properties or any person acting through
or out of any lessee or otherwise arising out of or as a consequence of any
Lease, (xi) any claim that the relationship of Lender and Borrower is other than
that of lender and borrower, or (xii) the execution and delivery of this
Agreement, and the other Loan Documents, the transactions contemplated hereby or
thereby and the performance of the parties hereto of their respective
obligations hereunder or thereunder. Any amounts payable to any Indemnified
Party by reason of the application of this Section 7.5 shall become immediately
due and payable and shall bear interest at the Default Rate from the date loss
or damage is sustained by any Indemnified Party until paid. The obligations and
liabilities of Borrower under this Section 7.5 shall survive any termination,
satisfaction, or assignment of this Agreement and the exercise by Lender of any
of its rights or remedies hereunder, including, without limitation, the
acquisition of the Collateral by foreclosure or a conveyance in lieu of
foreclosure, or otherwise.
(b) In case any claim, action or proceeding (a "Claim") is
brought against any Indemnified Party in respect of which indemnification may be
sought by such Indemnified Party pursuant to this Section 7.5, such Indemnified
Party shall give notice thereof to Borrower; provided, however, that the failure
of such Indemnified Party to so notify Borrower shall not limit or affect such
Indemnified Party's rights to be indemnified pursuant to this Section 7.5,
except to the extent such delay shall materially and adversely prejudice
Borrower's defense of such Claim. Upon receipt of such notice of Claim, Borrower
shall, at its sole cost and expense, diligently defend any such Claim with
counsel reasonably satisfactory to such Indemnified Party, which counsel may,
without limiting the rights of Indemnified Party pursuant to the next succeeding
sentence, also represent Borrower in such Claim. In the alternative, the
Indemnified Parties may elect to conduct their own defense through counsel of
their own choosing, and at the expense of Borrower, if (i) the Indemnified
Parties reasonably determine that the conduct of its defense by Borrower
60
presents a conflict or potential conflict between Borrower and Lender that would
make separate representation advisable or otherwise could be prejudicial to its
interests, (ii) Borrower refuses to defend or (iii) Borrower shall have failed,
in Lender's reasonable judgment, to diligently defend the Claim. Borrower may
settle any Claim against Indemnified Parties without such Indemnified Parties'
consent, provided that (A) such settlement is without any liability, cost or
expense whatsoever to such Indemnified Parties, (B) the settlement does not
include or require any admission of liability or culpability by such Indemnified
Parties under any Legal Requirement, whether criminal or civil in nature, and
(C) Borrower obtains an effective written release of liability for such
Indemnified Parties from the party to the Claim with whom such settlement is
being made, which release must be reasonably acceptable to such Indemnified
Parties, and a dismissal with prejudice with respect to all claims made by the
party with whom such settlement is being made, with respect to any pending legal
action against such Indemnified Parties in connection with such Claim. If the
Indemnified Parties are conducting their own defense as provided above, Borrower
shall be responsible for any good faith settlement of such Claim entered into by
such Indemnified Parties, and such Indemnified Parties shall not be required to
obtain the Borrower's consent to any such settlement. Indemnified Parties shall
endeavor to keep Borrower reasonably informed as to the status of any Claim and
any settlement discussions related thereto; provided, however, the failure to
keep Borrower so informed shall not limit or otherwise affect Borrower's
liability or the Indemnified Parties' rights hereunder. Nothing contained herein
shall be construed as requiring any Indemnified Parties to expend funds or incur
costs to defend any Claim in connection with the matters for which such
Indemnified Parties are entitled to indemnification pursuant to this Section
7.5.
7.6 Notices. All notices, reports, demands and other communications
permitted or required to be given or furnished hereunder ("Notices") shall be in
writing and shall be given: (a) by hand delivery; (b) by deposit in the United
States mail as first class certified mail, return receipt requested, postage
paid; (c) by overnight nationwide commercial courier service; or (d) by
facsimile transmission with a confirmation copy to be delivered by duplicate
notice in accordance with any of clauses (a) through (c) immediately above,
inclusive, in each case, to the Person intended to receive the same at the
following address(es):
Lender:
SWH Funding Corp.
Xxx Xxxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
61
with a copy to:
Solomon and Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxx, Esq.
Facsimile: (000) 000-0000
Borrower:
Cedar Income Fund Partnership, L.P.
c/o Cedar Bay Realty Advisors, Inc.
00 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
with a copy to:
Cedar Bay Realty Advisors, Inc.
00 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
Any Person may change the address to which any such Notice is to be
delivered by furnishing ten (10) Business Days written notice of such change to
the other parties in accordance with the provisions of this Section 7.6. Notices
shall be deemed to have been given on the date they are actually received;
provided, however, that the inability to deliver Notices because of a changed
address of which no Notice was given, or rejection or refusal to accept any
Notice offered for delivery shall be deemed to be receipt of the Notice as of
the date of such inability to deliver or rejection or refusal to accept
delivery. Notice for either party may be given by its respective counsel.
7.7 No Oral Modification. In order to protect Lender from allegations
in connection with the transactions contemplated by this Agreement that some
loan officer or administrator of Lender made an oral modification of the Loan or
a statement which was interpreted as an extension or modification or amendment
of one or more of the Loan Documents, and that Borrower relied to its detriment
thereon, Borrower acknowledges that this Agreement, the Note and the other Loan
Documents can be extended, modified or amended only in writing executed by
Lender and Borrower and that none of the rights or benefits of Lender can be
waived permanently except in a written document executed by Lender. Borrower
further acknowledges its understanding that no officer, administrator or agent
of Lender has the power or the authority from Lender to orally extend, modify or
amend the Loan on any Loan Document on behalf of Lender.
62
7.8 Assignment by Lender; Participations.
7.8.1 Assignment and Participations. Lender may on or after
the Effective Date sell and assign all or any portion of the Loan, to or with
one or more Persons as may be selected by Lender in its sole and absolute
discretion and on terms and conditions satisfactory to Lender in its sole and
absolute discretion ("Assignees"), and/or pledge, hypothecate or encumber all or
any portion of the Loan to one or more Persons as may be selected by Lender in
its sole and absolute discretion and on terms satisfactory to Lender in its sole
and absolute discretion, and/or sell one or more participation interests in the
Loan to one or more Persons as may be selected by Lender in its sole and
absolute discretion and on terms satisfactory to Lender in its sole and absolute
discretion ("Participants"). Borrower and all other Persons associated or
connected with the Loan, the Collateral or any Property shall cooperate in all
reasonable respects with Lender in connection with the sale of participation
interests in, or the pledge, hypothecation or encumbrance or sale of all or any
portion of, the Loan, and shall, in connection therewith, execute and deliver
such estoppels, certificates, instruments and documents as may be reasonably
requested by Lender. Borrower grants to Lender the right to distribute financial
and other information concerning Borrower, any other Significant Party, the
Borrower Affiliates, the Properties, the Collateral and all other pertinent
information with respect to the Loan to any Person who has purchased a
participation interest in the Loan, or who has purchased the Loan, or who has
made a loan to Lender secured by the Loan or who has expressed an interest in
purchasing a participation interest in the Loan, or expressed an interest in
purchasing the Loan or the making of a loan to Lender secured by the Loan. If
requested by Lender, Borrower shall execute and deliver, and shall cause each
other Person associated or connected with the Loan, the Collateral or any
Property to execute and deliver, at no cost or expense to Borrower, such
documents and instruments as may be necessary to split the Loan into two or more
loans evidenced by separate sets of notes and secured by separate sets of other
related Loan Documents to the full extent required by Lender to facilitate the
sale of participation interests in the Loan or the sale of the Loan or the
making of a loan to Lender secured by the Loan, it being agreed that (a) any
such splitting of the Loan will not adversely affect or diminish the rights of
Borrower as presently set forth herein and in the other Loan Documents and will
not increase the respective obligations and liabilities of Borrower or any other
Person associated or connected with the Loan or the Collateral, (b) the Loan
Documents securing the Loan as so split will have such priority of lien as may
be specified by Lender and (c) the retained interest of Lender in the Loan as so
split, if any, shall be allocated to or among one or more of such separate loans
in a manner specified by Lender in its sole and absolute discretion.
7.8.2 Assignment and Acceptance. From and after the effective
date of any assignment to an Assignee, (a) such Assignee shall be a party hereto
and to each of the other Loan Documents to the extent of the applicable
percentage or percentages assigned to such Assignee and, except as otherwise
specified herein, shall succeed to the rights and obligations of Lender
hereunder in respect of such applicable percentage or percentages and (b) Lender
shall relinquish its rights and be released from its obligations hereunder and
under the Loan Documents to the extent of such applicable percentage or
percentages. The liabilities of Lender and each of the other Assignees shall be
separate and not joint and several. Neither Lender nor any Assignee shall be
responsible for the obligations of any other Assignee.
63
7.8.3 Other Business. Lender, each Assignee and each
Participant and their respective Affiliates may accept deposits from, lend money
to, act as trustee under indentures of, and generally engage in any kind of
business with, Borrower, any Affiliate of Borrower, and any Person who may do
business with or own interests in or securities of Borrower or any such
Affiliate, without any duty to account therefor.
7.8.4 Privity of Contract. This Agreement is being entered
into by Lender individually and as agent for all present and future Assignees,
and privity of contract is hereby created among Lender and all present and
future Assignees, on the one hand, and Borrower, on the other hand.
7.9 Severability. In the event that any of the covenants, agreements,
terms or provisions contained in the Note, this Agreement, the Pledge or in any
other Loan Document shall be invalid, illegal or unenforceable in any respect,
the validity of the remaining covenants, agreements, terms or provisions
contained herein or in the Note, the Pledge, or in any other Loan Document shall
be in no way affected, prejudiced or disbursed thereby.
7.10 No Assignment by Borrower. Borrower shall not assign or transfer
any of its rights hereunder without the prior written consent of Lender which
may be granted or withheld in Lender's sole discretion. Any assignment made
without Lender's prior written consent shall be void.
7.11 Governing Law. This Agreement and the other Loan Documents shall
be governed by and construed and enforced in accordance with the laws of the
State of New York from time to time in effect, (a) without giving effect to the
State of New York's principles of conflicts of law except that it is the intent
and purpose of Lender and Borrower that Section 5-1401 of the General
Obligations Law of the State of New York shall apply to this Agreement and the
other Loan Documents and (b) except to the extent of the procedural and
substantive matters relating only to the creation, perfection or foreclosure of
liens and enforcement of rights and remedies against the Collateral, or any part
thereof, and the establishment of and defense in an action for a deficiency,
which matters shall be governed by the laws of the State in which the Collateral
is located.
7.12 Successors and/or Assigns. Subject to the restrictions on transfer
and assignment contained in this Agreement and the other Loan Documents,
whenever in this Agreement any of the parties hereto is referred to, such
reference shall be deemed to include the permitted successors and/or assigns of
such party, and this Agreement shall inure to the benefit of and shall be
binding on the parties hereto and the successors and/or assigns of such party.
7.13 Entire Contract. This Agreement and the other Loan Documents,
including all annexes, schedules and exhibits hereto and thereto, and all other
documents furnished to Lender in connection with this Agreement, constitutes the
entire agreement between the parties hereto with respect to the subject matter
64
hereof and thereof and shall supersede and take the place of any other
instruments purporting to be an agreement of the parties hereto relating to the
transactions contemplated hereby, including, without limitation, any term sheet,
letter of intent or loan commitment letter.
7.14 Liability. If Borrower hereunder is more than one Person, the
obligations and liabilities of Borrower hereunder and under the other Loan
Documents shall be joint and several.
7.15 Counterparts; Headings. This Agreement may be executed in
counterparts, each of which shall constitute an original, and which, when taken
together, shall constitute but one instrument. The captions and headings of the
various sections of this Agreement are for purposes of reference only and are
not to be construed as confining or limiting in any way the scope or intent of
the provisions hereof. Whenever the context requires or permits, the singular
shall include the plural, the plural shall include the singular, and the
masculine, feminine and neuter shall be freely interchangeable.
7.16 Time of the Essence. Time is of the essence as to Borrower's
obligations under this Agreement and the other Loan Documents.
7.17 Consents.
7.17.1 No Subsequent Consent. Any consent or approval by
Lender in any single instance shall not be deemed or construed to be Lender's
consent or approval in any like matter arising at a subsequent date. Any consent
or approval requested of and granted by Lender pursuant hereto or to any of the
other Loan Documents shall be narrowly construed to be applicable only to
Borrower and the matter identified in such consent or approval and no third
party shall claim any benefit by reason thereof. Wherever this Agreement, the
Pledge or any other Loan Document refers to the consent or approval of Lender,
or provides that any document or Person will be satisfactory or acceptable to
Lender or words of similar import, (a) such consent or approval may be given or
withheld by Lender, and such document or Person must be satisfactory or
acceptable to Lender, in its sole and absolute discretion, unless otherwise
expressly provided herein or therein, and (b) such consent or approval shall not
be effective unless given in writing. Wherever this Agreement, the Pledge or any
other Loan Document refers to the provision of documents or other items being as
Lender may require, provides for the selection by Lender of any Person to
provide reports or other items hereunder or thereunder or for the selection by
Lender of any means of determining any matter, or otherwise refers to terms and
conditions hereof being as Lender deems appropriate, any such requirement,
selection or determination of appropriateness shall be made by Lender in its
sole and absolute discretion, unless expressly provided otherwise herein or
therein. The foregoing provisions are intended to be effective whether or not
the applicable provision hereof or of any other Loan Document specifies that the
applicable consent, approval or other matter is to be determined by Lender in
its "sole and absolute discretion" or words of similar import.
65
7.17.2 Withholding of Consent. Wherever in this Agreement, the
Pledge or any other Loan Document, reference is made to any consent or approval
not being "unreasonably withheld" or words of similar import, the same shall be
deemed to include within its meaning (unless expressly provided otherwise) that
if such consent or approval is to be granted, the same will occur within a
commercially reasonable period of time. If Borrower believes that Lender has
improperly failed to grant its consent or approval (or otherwise improperly
failed to act as requested by Borrower as described in Section 7.17.1 hereof
(e.g., determined that a document is not acceptable to Lender) hereunder or
under the Pledge or any other Loan Document (including, without limitation, by
failing to respond within a commercially reasonable period of time) where such
consent or approval is required to be given by (or such action which was not
taken is in breach of) the terms of this Agreement or such other Loan Document,
Borrower's sole remedy shall be to obtain declaratory relief in a final,
nonappealable judgment determining such withholding to have been improper,
whereupon such consent or approval shall be deemed given (or such other action
described in Section 7.17.1 hereof shall be deemed taken), and Borrower hereby
waives all claims for damages or set-off resulting from any withholding of
consent or approval (or failure to take any other action described in Section
7.17.1 hereof) by Lender.
7.18 No Partnership. Nothing contained in this Agreement or the other
Loan Documents shall be deemed to create an equity investment on the part of
Lender or a joint venture or partnership between Lender and Borrower, it being
the intent of the parties hereto that only the relationship of lender and
borrower shall exist with respect to the Collateral. Borrower agrees that it
shall report this transaction for income tax purposes, and file all related tax
returns, in a manner consistent with the form of this transaction as a loan.
7.19 WAIVER OF JURY TRIAL. BORROWER HEREBY KNOWINGLY, VOLUNTARILY,
INTENTIONALLY AND UNCONDITIONALLY WAIVES IN RESPECT OF ANY LITIGATION BASED ON,
OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN), OR ACTIONS OF BORROWER, ANY OTHER SIGNIFICANT PARTY OR
LENDER RELATING TO THE LOAN, AND THE LENDING RELATIONSHIP WHICH IS THE SUBJECT
OF THIS AGREEMENT ANY AND EVERY RIGHT BORROWER MAY HAVE TO (I) A TRIAL BY JURY,
(II) INTERPOSE ANY COUNTERCLAIM THEREIN (EXCEPT FOR ANY COMPULSORY COUNTERCLAIM
WHICH, IF NOT ASSERTED IN SUCH SUIT, ACTION OR PROCEEDING, WOULD BE WAIVED) AND
(III) HAVE THE SAME CONSOLIDATED WITH ANY OTHER OR SEPARATE SUIT, ACTION OR
PROCEEDING. THIS PROVISION IS A MATERIAL INDUCEMENT FOR LENDER ENTERING INTO
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
7.20 Construction of Provisions. The following rules of construction
shall be applicable for all purposes of this Agreement and all documents or
instruments supplemental hereto, unless the context otherwise requires:
66
(a) All references herein to numbered Articles or Sections or
to lettered Exhibits are references to the Articles and Sections hereof and the
Exhibits attached to this Agreement, unless expressly otherwise designated in
context.
(b) The terms "include," "including" and similar terms shall
be construed as if followed by the phrase "without limitation,."
(c) The terms "Properties" and "Collateral" shall be construed
as if followed by the phrase "or any part thereof."
(d) The term "Obligations" or "obligations" shall be construed
as if followed by the phrase "or any other sums secured hereby or by the other
Loan Documents, or any part thereof."
(e) Words of masculine, feminine or neuter gender shall mean
and include the correlative words of the other genders, and words importing the
singular number shall mean and include the plural number, and vice versa.
(f) The term "provisions," when used with respect hereto or to
any other document or instrument, shall be construed as if preceded by the
phrase "terms, covenants, agreements, requirements, conditions and/or."
(g) All Article, Section and Exhibit captions herein are used
for convenience of reference only and in no way define, limit or describe the
scope or intent of, or in any way affect, this Agreement.
(h) No inference in favor of, or against, any party shall be
drawn from the fact that such party has drafted any portion hereof.
(i) The cover page of, and all recitals set forth in, and all
Exhibits to, this Agreement are hereby incorporated in this Agreement.
(j) All obligations of Borrower hereunder shall be performed
and satisfied by or on behalf of Borrower at Borrower's sole cost and expense.
7.21 Limitation on Liability. In no event shall Lender be liable to
Borrower or any Related Party for consequential or other damages, whatever the
nature of a breach by Lender of its obligations under this Agreement or any of
the other Loan Documents and Borrower for itself and all Related Parties hereby
waives all claims for consequential or other damages.
7.22 Jurisdiction, Venue, Service of Process. ALL ACTIONS OR
PROCEEDINGS ARISING IN CONNECTION WITH THIS AGREEMENT, THE NOTE OR ANY OTHER
LOAN DOCUMENT SHALL BE TRIED AND LITIGATED, AT LENDER'S OPTION, IN STATE OR
FEDERAL COURTS LOCATED IN THE STATE OF NEW YORK UNLESS SUCH ACTIONS OR
PROCEEDINGS ARE REQUIRED TO BE BROUGHT IN ANOTHER COURT TO OBTAIN SUBJECT MATTER
67
JURISDICTION OVER THE MATTER IN CONTROVERSY. BORROWER WAIVES ANY RIGHT IT MAY
HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS, TO ASSERT THAT IT IS NOT
SUBJECT TO THE JURISDICTION OF SUCH COURTS OR TO OBJECT TO VENUE TO THE EXTENT
ANY PROCEEDING IS BROUGHT IN ACCORDANCE HEREWITH. IN ANY ACTION AGAINST
BORROWER, SERVICE OF PROCESS MAY BE MADE THEREUPON BY REGISTERED OR CERTIFIED
MAIL, RETURN RECEIPT REQUESTED, TO THE ADDRESS(ES) ABOVE SET FORTH, WHICH
SERVICE SHALL BE DEEMED SUFFICIENT FOR PERSONAL JURISDICTION AND SHALL BE DEEMED
EFFECTIVE SEVEN (7) BUSINESS DAYS AFTER MAILING. NOTHING CONTAINED HEREIN SHALL
AFFECT THE RIGHT OF LENDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW
OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST BORROWER IN ANY
OTHER JURISDICTION.
7.23 Rule of Construction. This Agreement and the other Loan Documents
shall not be construed more strictly against a party solely because this
Agreement or such Loan Documents may have been prepared by counsel for such
party, it being agreed that each of Lender and Borrower have contributed
substantially and materially to the preparation of this Agreement and the other
Loan Documents.
7.24 Further Assurances.
(a) Borrower shall, at its sole cost and expense, do, execute,
acknowledge and deliver or cause to be done, executed, acknowledged and
delivered all such further acts, conveyances, notes, mortgages, assignments,
security agreements, financing statements and assurances as Lender shall from
time to time reasonably require or reasonably deem advisable (i) to effectuate
the intent and purposes of this Agreement and the other Loan Documents, (ii) for
the better assuring, conveying, mortgaging, assigning and confirming unto Lender
of all property and rights mortgaged, granted, bargained, alienated, confirmed,
pledged, hypothecated, conveyed or assigned by this Agreement or any of the
other Loan Documents or which Borrower may be or may hereafter become bound to
convey or assign to Lender, (iii) for the perfection of any such lien or
security interest granted herein or in the other Loan Documents and (iv) for the
better assuring and confirming of all of Lender's rights, powers and remedies
hereunder. Borrower, on demand, shall execute and deliver, and hereby authorizes
Lender to execute in the name of Borrower or without the signature of Borrower
to the extent Lender may lawfully do so, one or more financing statements,
chattel mortgages or other instruments to evidence more effectively the security
interest of Lender in the Collateral.
(b) Borrower forthwith upon the execution and delivery of this
Agreement and thereafter, from time to time, shall cause the financing
statements evidencing the liens and security interests created by and pursuant
to the Pledge and the other applicable Loan Documents upon the Collateral and
each instrument of further assurance to be filed in such manner and in such
places as may be required by any present or future Legal Requirement in order to
68
publish notice of and fully to protect the Lien created pursuant to the Pledge
and the other Loan Documents upon, and the interest of Lender in, the
Collateral. Borrower will pay all filing fees and all expenses incident to the
foregoing and all taxes, duties, assessments and charges of any Governmental
Authority arising out of or in connection with the execution and delivery of the
Pledge, any other security instrument, any instrument of further assurance or
any other Loan Document. Upon Lender's request, Borrower shall, from time to
time, furnish Lender with evidence reasonably satisfactory to Lender that the
Collateral is free of Liens and security interests (except as expressly
permitted hereunder), including, without limitation, searches of applicable
public records.
(c) Upon any failure by Borrower, to do so, Lender may make,
execute, record, file, re-record or refile any and all such instruments,
certificates and documents for and in the name of Borrower, and Borrower hereby
irrevocably appoints (which appointment is coupled with an interest and with
full power of substitution) Lender the agent and attorney-in-fact of Borrower to
do so, and Borrower shall reimburse Lender, on demand, for all costs and
expenses (including reasonable attorneys' fees and disbursements) incurred by
Lender in connection therewith.
7.25 Recitals. The Recitals set forth at the beginning of this
Agreement are hereby incorporated into the substantive provisions of this
Agreement.
7.26 Effect of Environmental Representations and Covenants and
Indemnities. The Environmental Representations and the Environmental Covenants
and Indemnities are continuing representations, warranties, covenants and
indemnities for the benefit of Lender and any successors and assigns of Lender,
including, without limitation, any purchaser at a foreclosure sale, any
transferee of the title of Lender or any other purchaser at a foreclosure sale,
and any subsequent owner of the Collateral, and shall survive the termination of
this Agreement, and/or any acquisition of title to the Collateral or any part
thereof by Lender, or anyone claiming by, through or under Lender, by deed in
lieu of foreclosure or otherwise.
[SIGNATURE PAGE FOLLOWS]
69
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
LENDER:
SWH FUNDING CORP.,
a New Jersey corporation
By:
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
BORROWER:
CEDAR INCOME FUND PARTNERSHIP, L.P.,
a Delaware limited partnership
By: Cedar Income Fund, Ltd.,
a Maryland corporation,
General Partner
By:
---------------------------
Name: Xxx X. Xxxxxx
Title: President
70
ACKNOWLEDGMENTS
---------------
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ___ day of November in the year 2002, before me, the
undersigned, a Notary Public in and for said State, personally appeared Xxxxxxx
X. Xxxxxxx, personally known to me or proved to me on the basis of satisfactory
evidence to be the individual whose name is subscribed to the within instrument
and acknowledged to me that he executed the same in his capacity, and that by
his signature on the instrument, the individual, or the person upon behalf of
which the individual acted, executed the instrument.
------------------------------
Notary Public (SEAL)
STATE OF ____________ )
) ss.:
COUNTY OF ___________ )
On the ___ day of November in the year 2002, before me, the
undersigned, a Notary Public in and for said State, personally appeared Xxxxxxx
X. Xxxxxxx, personally known to me or proved to me on the basis of satisfactory
evidence to be the individual whose name is subscribed to the within instrument
and acknowledged to me that he executed the same in his capacity, and that by
his signature on the instrument, the individual, or the person upon behalf of
which the individual acted, executed the instrument, and that such individual
made such appearance before the undersigned in the ____________________________.
------------------------------
Notary Public (SEAL)
ACKNOWLEDGMENTS
---------------
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ___ day of November in the year 2002, before me, the
undersigned, a Notary Public in and for said State, personally appeared Xxx X.
Xxxxxx, personally known to me or proved to me on the basis of satisfactory
evidence to be the individual whose name is subscribed to the within instrument
and acknowledged to me that he executed the same in his capacity, and that by
his signature on the instrument, the individual, or the person upon behalf of
which the individual acted, executed the instrument.
-------------------------------
Notary Public (SEAL)
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On the ___ day of November in the year 2002, before me, the
undersigned, a Notary Public in and for said State, personally appeared
[______________], personally known to me or proved to me on the basis of
satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that she/he executed the same in
her/his capacity, and that by her/his signature on the instrument, the
individual, or the person upon behalf of which the individual acted, executed
the instrument, and that such individual made such appearance before the
undersigned in the _________________________________.
-------------------------------
Notary Public (SEAL)
2
EXHIBIT A-1
-----------
LEGAL DESCRIPTION - CAMP HILL PROPERTY
ALL THAT CERTAIN tract of ground situate in the Borough of Camp Hill
and the Township of East Pennsboro, County of Cumberland and Commonwealth of
Pennsylvania, bounded and described as follows, to wit:
BEGINNING at a point, said point being the right-of-way intersection of
the southern right-of-way line of Xxxxxxx Road and the western
right-of-way line of Xxxxx 00xx Xxxxxx; thence along the western
right-of-way line of South 32nd Street, South 40 degrees 33 minutes 00
seconds East, a distance of 134.51 feet to a point; thence along the
same, South 10 degrees 26 minutes 00 seconds East, a distance of 461.34
feet to a point; thence along the same, South 11 degrees 48 minutes 00
seconds East, a distance of 870.92 feet to a point; thence along land
of Commonwealth of Pennsylvania, Ramp "H" Harrisburg Expressway the
following seven (7) courses: (1) South 78 degrees 12 minutes 00 seconds
West, a distance of 14.00 feet to a point; thence (2) on an arc of a
curve curving to the right having a radius of 394.00 feet, an arc
length of 368.30 feet to a point; thence (3) South 41 degrees 45
minutes 28 seconds West, a distance of 511.18 feet to a point; thence
(4) South 56 degrees 19 minutes 00 seconds West, a distance of 198.36
feet to a point; thence (5) along an arc of a curve curving to the
right having a radius of 364.00 feet, an arc length of 247.77 feet to a
point; thence (6) South 05 degrees 19 minutes 00 seconds West, a
distance of 16.00 feet to a point; thence (7) North 84 degrees 41
minutes 00 seconds West, a distance of 86.77 feet to a point; thence
along land now or late of Pennsylvania Real Estate Investment Trust the
following four (4) courses: (1) North 24 degrees 49 minutes 00 seconds
West, a distance of 99.92 feet to a point; (2) thence North 65 degrees
11 minutes 00 seconds East, a distance of 15.00 feet to a point; (3)
thence North 24 degrees 49 minutes 00 seconds West, a distance of
120.00 feet to a point; (4) thence North 64 degrees 26 minutes 00
seconds East, a distance of 303.09 feet to a point; thence along the
same, land now or late of Hampden Industrial Development Authority and
land now or late of Xxxxxxx Xxxxx & Sons, Inc., North 24 degrees 49
minutes 00 seconds West, a distance of 1,633.31 feet to a point on the
Southern right-of-way line of Xxxxxxx Road; thence along said
right-of-way line, North 65 degrees 21 minutes 00 seconds East, a
distance of 1,184.06 feet to a point the point of BEGINNING.
BEING THE SAME PREMISES which Mid-Island Properties, Inc., a
Pennsylvania Corporation, conveyed unto Connecticut General Life Insurance
Company, a Connecticut Corporation, by deed dated November 10, 2000 and recorded
November 15, 2000 in Record Book 233, Page 1140.
EXHIBIT A-2
-----------
LEGAL DESCRIPTION OF WASHINGTON CENTER
ALL that certain tract or parcel of land and premises, situate, lying and being
in the Township of Washington, in the County of Gloucester, and State of New
Jersey, more particularly described as follows:
PARCEL 1
BEGINNING as a monumented point for corner in the division line of lands N/F
Getty Oil Company, Xxx 0-X, Xxxxx 000, and lands N/F R and J Xxxxxxxxx Brothers,
Xxx 0-X, Xxxxx 000, xxxx xxxxx being the southwesterly right-of-way line of Egg
Harbor Road (70 feet wide) (County Route #40), said point being located the
following two courses from the centerline intersection of Egg Harbor Road and
Greentree Road (70 feet wide) (County Route #113):
A) Proceeding from said intersection, South 25 degrees 04 minutes 16
seconds East, along the centerline of Egg Harbor Road, a distance
of 198.86 feet to a point in Egg Harbor Road; thence
B) Along the division line of 5-A and 5-B extended, South 56 degrees
24 minutes 00 seconds West, a distance of 35.39 feet to a concrete
monument in the southwesterly right-of-way line of Egg Harbor Road
and the place of beginning, and extending from said point of
beginning; thence
1) Along the southwesterly right-of-way line of Egg Harbor Road, South 25
degrees 04 minutes 16 seconds East, a distance of 972.77 feet to a point;
thence
2) South 64 degrees 55 minutes 00 seconds West, a distance of 619.97 feet to a
point; thence
3) North 25 degrees 05 minutes 00 seconds West, a distance of 400.00 feet to a
point; thence
4) North 64 degrees 55 minutes 00 seconds East, a distance of 130.00 feet to a
point of curvature; thence
5) Along said curve turning to the left, along a radius of 30.00 feet, an arc
distance of 47.12 feet to a point of tangency; thence
6) North 25 degrees 05 minutes 00 seconds West, 258.34 feet to a point for
angle; thence
1) South 25 degrees 04 minutes 16 seconds East, along the centerline of said
Egg Harbor Road, a distance of 1172.50 feet to a point in the extended
division line between lands N/F of American Stores Realty Corp. and lands
N/F of Xxxxxx Xxxxxx; thence
2) South 50 degrees 00 minutes 14 seconds West, along said division line of
lands, a distance of 753.47 feet to a point in the division line between
lands N/F of Xxxxxx Xxxxxx, lands N/F of Washington Township Board of
Education, and lands N/F of American Stores Realty Corp.; thence
3) North 45 degrees 15 minutes 46 seconds West, along the division line
between lands N/F of Washington Township Board of Education, lands N/F of
Bunker Hill Presbyterian Church, and lands N/F of American Stores Realty
Corp., a distance of 1442.45 feet to a point in the centerline of Greentree
Road; thence
4) North 51 degrees 58 minutes 15 seconds East, along the centerline of
Greentree Road, a distance of 368.97 feet to an angle point in same; thence
5) North 56 degrees 28 minutes 00 seconds East, still along the centerline of
Greentree Road, a distance of 509.60 feet to a point in the extended
division line between lands N/F of Xxxxxx Xxxxxxxx and lands N/F of
American Stores Realty Corp.; thence
6) South 33 degrees 36 minutes 00 seconds East, along said division line, a
distance of 221.82 feet to a point in same; thence
7) North 56 degrees 24 minutes 00 seconds East, still along said division
line, a distance of 180.00 feet to a point in same; thence
8) North 25 degrees 09 minutes 00 seconds West, still along said division
line, a distance of 25.00 feet to a point in the division line between
lands N/F of Xxxxxx Xxxxxxxx, lands N/F of Getty Oil Co., and lands N/F of
American Stores Realty Corp.; thence
9) North 56 degrees 24 minutes 00 seconds East, along the division line of
lands N/F of Getty Oil Co., and lands N/F of American Stores Realty Corp.,
a distance of 153.12 feet to a point in the centerline of Egg Harbor Road,
being the point and place of BEGINNING.
EXCEPTING and reserving therefrom and thereout, the following described parcel
of land:
BEGINNING at a point in the centerline of Egg Harbor Road, County Road #40
(70.00 feet wide), said point being the following courses from the intersecting
centerlines of said Egg Xxxxxx Xxxx xxx Xxxxxxxxx Xxxx, Xxxxxx Xxxxx #000 (70.00
feet wide); thence
A) Along said centerline of Egg Harbor Road, South 25 degrees 04
minutes 16 seconds East, 198.86 feet to a point in same and said
point of beginning; thence
2
1) Still along centerline, South 25 degrees 04 minutes 16 seconds East, 978.00
feet to a point; thence
2) Leaving said centerline, South 64 degrees 55 minutes 00 seconds West,
654.67 feet to a point for corner; thence
3) North 25 degrees 05 minutes 00 seconds West, a distance of 400.00 feet to a
point; thence
4) North 64 degrees 55 minutes 00 seconds East, a distance of 130.00 feet to a
point of curvature; thence
5) Along said curve turning to the left; along a radius of 30.00 feet, an arc
distance of 47.12 feet to a point of tangency; thence
6) North 25 degrees 05 minutes 00 seconds West, 258.34 feet to a point for
angle; thence
7) North 69 degrees 55 minutes 22 seconds West, 100.00 feet to a point for
angle; thence
8) North 33 degrees 32 minutes 00 seconds West, 330.00 feet to the centerline
of Greentree Road, aforementioned; thence
9) Along said centerline, North 56 degrees 28 minutes 00 seconds East, 254.38
feet to a point; thence
10) Leaving said centerline, South 33 degrees 36 minutes 00 seconds East and
passing over a concrete monument set 0.74 feet North of the southerly
right-of-way of Greentree Road, 221.82 feet to a monumented point for
corner in the division line of lands N/F Xxxxxxx Xxxxxx, Xxx 0, Xxxxx 000;
thence
11) Still along lands of aforesaid Xxxxxxx Xxxxxx, North 56 degrees 24 minutes
00 seconds East, 180.00 feet to a monumented point for corner in same;
thence
12) Along lands N/F Xxxxxxx Xxxxxx, North 25 degrees 09 minutes 00 seconds
West, 25.00 feet to a monumented point for corner in the division line of
lands N/F Getty Oil Company, Xxx 0X, Xxxxx 000; thence
13) North 56 degrees 24 minutes 00 seconds East, and passing over a monumented
point set 3.12 feet West of the southwesterly right-of-way line of Egg
Harbor Road, 153.12 feet to a point in the centerline of Egg Harbor Road,
said point being the point and place of BEGINNING.
Being known as Lot 6 in Block 193 on the Official Tax Map of the Township of
Washington in the County of Gloucester and State of New Jersey.
3
Excluding from the above two parcels premises as set forth in Notice of Lis
Pendens in Book 19, page 347; Declaration of Taking in Deed Book 2816, page 25;
Notice of Lis Pendens in Book 20, page 65; and Declaration of Taking in Deed
Book 2915, page 253.
The above two parcels are described pursuant to a survey drawn by Xxxxxx X.
Xxxxx and Son, Land Surveyors, dated October 28, 1996, and last revised June 8,
2001, as follows:
BEGINNING at a point in the new right-of-way of Egg Harbor Road (County Route
630) variable width, in the division line between Lot 5.01 and Lot 5.02 (lands
N/F Power Test Realty Co., Ltd. Partnership), Block 193 on the official tax map,
said point being the following two courses from a point in the centerline of
Greentree Road (County Route 651) 70 feet wide; thence:
A) South 25 degrees 04 minutes 16 seconds East along the centerline
of Egg Harbor Road, a distance of 198.86 feet to a point and
corner; thence
B) South 56 degrees 24 minutes West along the division line between
Lot 5.01 and Lot 5.02, Block 193, on the official tax map, a
distance of 50.56 feet to the point and place of beginning; thence
1) South 25 degrees 04 minutes 16 seconds East along said right-of-way line of
Egg Harbor Road, a distance of 677.00 feet to a point and corner in same;
thence
2) North 64 degrees 55 minutes 44 seconds East along same, a distance of 10.00
feet to a point and corner; thence
3) South 25 degrees 04 minutes 16 seconds East along same, a distance of
293.52 feet to a point and corner; thence
4) South 64 degrees 55 minutes 00 seconds West, a distance of 4.00 feet to a
point and corner; thence
5) South 25 degrees 04 minutes 16 seconds East along the said right-of-way
line of Egg Harbor Road, a distance of 206.22 feet to a point in the
division line between Lot 6.01 (lands N/F/ X. X. Xxxxxx) and Xxx 0, Xxxxx
000; thence
6) South 50 degrees 00 minutes 14 seconds West along last-mentioned division
line, a distance of 707.93 feet to a point in the division line between Xxx
0 xxx Xxx 0.00 (xxxxx X/X Xxxxxxxxxx Township Board of Education), Block
193; thence
7) North 45 degrees 15 minutes 45 seconds West along the division line between
Xxx 0 xxx Xxx Xxx. 0.00 (xxxxx X/X Xxxxxxxxxx Township Board of Education),
2.06 (lands N/F M.U.A.), 2.07 (aforementioned), and Lots 2.05 and 4.06
(lands N/F Bunker Hill Presbyterian Church, Block 193, a distance of
1398.10 feet to a point in the new right-of-way line of Greentree Road;
thence
4
8) North 53 degrees 06 minutes 23 seconds East along the new right-of-way line
of Greentree Road, a distance of 483.63 feet to an angle point in same;
thence
9) South 33 degrees 32 minutes 00 seconds East, a distance of 6.0 feet to a
point in the new right-of-way line of Greentree Road; thence
10) North 56 degrees 28 minutes East along said right-of-way line, a distance
of 320.06 feet to a point in the division line between Lot 5.01 and Xxx 0
(xxxxx X/X Xxxxxxxxx Xxxx Xxxx, Xxx.), Xxxxx 193; thence
11) South 33 degrees 36 minutes East along last-mentioned division line, a
distance of 171.02 feet to a point and corner in same; thence
12) North 56 degrees 24 minutes East continuing along same, a distance of
180.00 feet to a point and corner; thence
13) North 25 degrees 09 minutes West continuing along same, a distance of 25.00
feet to a point and corner; thence
14) North 56 degrees 24 minutes East along the division line between Lot 5.01
and Lot 5.02 (lands N/F Power Test Realty Co., Ltd. Partnership), Block
193, a distance of 102.56 feet to the point and place of BEGINNING.
5
EXHIBIT A-3
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LEGAL DESCRIPTION OF ACADEMY PLAZA
ALL THAT CERTAIN lot or piece of ground, Hereditaments and Appurtenances,
Situated in the City of Philadelphia, Commonwealth of Pennsylvania, in
accordance with a Plan entitled "ALTA/ACSM (1992) Land title Survey proposed by
Taylor Wiscman & Xxxxxx, dated February 4, 1998 as follows, to wit:
BEGINNING at a point on the Southwesterly line of Red Lion Road (64 feet wide)
said point being the intersection of the Southwesterly line of Red Lion Road
with the common boundary line of Parcel 499 and Parcel 498; thence, (1)
Southeasterly along said line of Red Lion Road, South 43 degrees 50 minutes 13
seconds East, a distance of 873.42 feet to the beginning of a curve tangent to
said line; thence (2) Southeasterly, on a curve to the right, having a radius of
20.05 feet and an arc length of 34.12 feet to a point of tangency, said point
being on the Westerly line of Calera Road (64 feet wide); thence (3)
Southwesterly along said line of Calera Road, South 53 degrees 39 minutes 47
seconds West, a distance of 438.90 feet to the beginning of a curve tangent to
said line; thence (4) Northwesterly, on a curve to the right having a radius of
20.05 feet and an arc length of 30.87 feet to a point of tangency; said point
being on the Northwesterly line of Xxxxxxxx Road (64 feet wide); thence (5)
Northwesterly along said line of Xxxxxxxx Xxxx, Xxxxx 00 degrees 6 minutes 44
seconds West, a distance of 358.44 feet to a point; thence (6) continuing along
said line, North 43 degrees 50 minutes 13 seconds West, a distance of 601.50
feet to the beginning of a curve tangent to said line; thence (7) Northeasterly,
on a curve to the right having a radius of 20.05 feet and an arc length of 33.35
feet to a point of tangency, said point being on the Easterly line of Academy
Road (100 feet wide); thence (8) Northeasterly along said line of Xxxxxxx Xxxx,
Xxxxx 00 degrees 27 minutes 22 seconds East, a distance of 28.35 feet to a
point, said point being the common boundary line of Parcel 482 and 498; thence
(9) leaving the Easterly line of Academy Road along the common boundary line,
South 43 degrees 50 minutes 13 seconds East, a distance of 78.50 feet to a
point; thence (10) North 46 degrees 9 minutes 47 seconds East, a distance of
89.82 feet to a point; thence (11) North 43 degrees 50 minutes 13 seconds West,
a distance of 70.18 feet to a point on the Easterly line of Academy Road; thence
(12) Xxxxxxxxxxxxx xxxxx xxxx xxxx xx Xxxxxxx Xxxx, Xxxxx 00 degrees 27 minutes
22 seconds East, a distance of 175.41 feet to a point, said point being the
common boundary line of Parcel 499 and Parcel 498; thence (13) leaving said line
of Academy Road, South 43 degrees 50 minutes 13 seconds East, a distance of
125.31 feet to a point; thence (14) North 51 degrees 27 minutes 22 seconds East,
a distance of 125.31 feet to the point and place of beginning.
BEING known as 3200 and 0000 X Xxx Xxxx Xxxx.
BEING the same premises with R.L.R. Associates Limited (a New Jersey Limited
Partnership), by Indenture dated 12/14/1994 and recorded in the Recorder of
Deeds, in and for the County of Philadelphia, aforesaid, in Deed Book VCS 790
page 67 &c., granted and conveyed unto Academy Store L.P., (a Delaware Limited
Partnership), in fee.
AND ALSO BEING the same premises which Philadelphia Authority for Industrial
Development (a Body Politic and Corporate, existing under the Laws of The
Commonwealth of Pennsylvania, by Indenture dated 2/6/1998 and recorded in the
Recorder of Deeds, in and for the County of Philadelphia, aforesaid, in Deed
Book JTD 598 page 372 &c., granted and conveyed unto Academy Store, L.P. (a
Delaware Limited Partnership), in fee.
EXHIBIT A-4
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LEGAL DESCRIPTION - PORT RICHMOND VILLAGE
ALL THAT CERTAIN parcel of land, Hereditaments and Appurtenances, Situate in the
31st Xxxx of the City of Philadelphia and Commonwealth of Pennsylvania as shown
on Plan prepared by Xxxxxx X. Xxxxxxx & Associates entitled "Existing Conditions
Plan", dated July 25, 1989, last revised May 31, 1990 and being more
particularly described as follows:
BEGINNING at a point of intersection between the Westerly line of Cumberland
Street (60 feet wide) and the Northerly line of Xxxxxx Xxxxxx 00 feet wide;
thence (1) along said line of Salmon Street South 41 degrees 29 minutes 3
seconds West a distance of 340.80 feet to a point on the Westerly line of York
Street (50 feet wide); thence (2) North 48 degrees 30 minutes 57 seconds West a
distance of 7.11 feet to a point; thence (3) along a curve to the right having a
radius of 2267.257 feet for an arc distance of 50.237 feet to a point; thence
(4) South 67 degrees 33 minutes 34 seconds West a distance of 577.172 feet to a
point; thence (5) North 48 degrees 30 minutes 57 seconds West a distance of
73.395 feet to a point; thence (6) North 0 degrees 28 minutes 43 seconds West a
distance of 201.406 feet to a point of curvature; thence (7) along a curve to
the right having a radius of 324.125 feet for an arc distance of 223.36 feet to
a point of tangency; thence (8) North 50 degrees 59 minutes 43 seconds West a
distance of 17.952 feet to a point on the southerly line of Aramingo Avenue
(variable width); thence (9) along said line of Aramingo Avenue North 39 degrees
0 minutes 17 seconds East a distance of 221.195 feet to a point within a 50 feet
wide drainage right-of-way; thence (10) still along line of Aramingo Avenue
North 57 degrees 35 minutes 34 seconds East a distance of 470.577 feet to a
point of curvature; thence (11) along a curve to the right having a radius of 15
feet for an arc distance of 23.562 feet to a point on the aforementioned line of
Cumberland Street; thence (12) along said line of Cumberland Street South 32
degrees 24 minutes 25 seconds East a distance of 470.088 feet to a point on the
aforementioned line of Salmon Street and the first mentioned point and place of
beginning.
BEING 0000 Xxxxxxxx Xxxxxx, 0000 Xxxxxxxx Xxxxxx (Xxxx X), 0000 Xxxxxxxx Xxxxxx
(Xxxx X) and 0000 Xxxxxxxx Xxxxxx (Xxxx B).
BEING the same premises which The Equitable Life Assurance Society of the United
States, a New York Corporation, by Indenture dated 03/31/1998 and recorded in
the Recorder of Deeds, in and for the County of Philadelphia, aforesaid, in Deed
Book JTD 639 page 188 &c., granted and conveyed unto Port Richmond and
Associates LLC, (a New York limited Liability Company), in fee.
EXHIBIT B
---------
APPROVED CONTRACTS
[Attached Hereto]
EXHIBIT C
---------
APPROVED LEASES
EXHIBIT D-1
-----------
STRUCTURE OF BORROWER
EXHIBIT D-2
-----------
STRUCTURE OF CEDAR-CAMP HILL LLC
EXHIBIT D-3
-----------
STRUCTURE OF WASHINGTON CENTER 2 L.L.C.
EXHIBIT D-4
-----------
STRUCTURE OF XXXXXXX XXXXX 0 X.X.X.
XXXXXXX X-0
-----------
STRUCTURE OF PORT RICHMOND VILLAGE 2 L.L.C.
EXHIBIT E-1
-----------
RENT ROLL - CAMP HILL
EXHIBIT E-2
-----------
RENT ROLL - WASHINGTON CENTER
EXHIBIT E-3
-----------
RENT ROLL - ACADEMY PLAZA
EXHIBIT E-4
-----------
RENT ROLL - PORT RICHMOND VILLAGE
EXHIBIT F
---------
TENANTS WHO ARE AFFILIATES OF BORROWER
OR ANY BORROWER AFFILIATE
None.
EXHIBIT G-1
-----------
APPROVED OPERATING BUDGET FOR 0000
XXXXX-XXXX XXXX LLC
[Attached Hereto]
EXHIBIT G-2
-----------
APPROVED OPERATING BUDGET FOR 0000
XXXXXXXXXX XXXXXX 2 L.L.C.
[Attached Hereto]
EXHIBIT G-3
-----------
APPROVED OPERATING BUDGET FOR 0000
XXXXXXX XXXXX 2 L.L.C.
[Attached Hereto]
EXHIBIT G-4
APPROVED OPERATING BUDGET FOR 2002
PORT RICHMOND VILLAGE 2 L.L.C.
[Attached Hereto]
