Exhibit 10.284
LOAN AGREEMENT
Dated as of August 4, 2004
Between
INLAND REISTERSTOWN SPE I, L.L.C. and INLAND REISTERSTOWN SPE II, L.L.C.,
together, as Borrower
and
REITSTERSTOWN PLAZA ASSOCIATES, LLC and RRP XXXXX, LLC, together, as Grantor
and
BEAR XXXXXXX COMMERCIAL MORTGAGE, INC.,
as Lender
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS; PRINCIPLES OF CONSTRUCTION 1
Section 1.1 Definitions.....................................................................................1
Section 1.2 Principles of Construction.....................................................................20
ARTICLE II GENERAL TERMS 21
Section 2.1 Loan Commitment; Disbursement to Borrower......................................................21
Section 2.2 Interest; Loan Payments; Late Payment Charge...................................................21
Section 2.3 Prepayments....................................................................................23
Section 2.4 Intentionally Omitted..........................................................................24
Section 2.5 Release of Property............................................................................24
Section 2.6 Manner of Making Payments......................................................................25
ARTICLE III CONDITIONS PRECEDENT 26
Section 3.1 Conditions Precedent to Closing................................................................26
ARTICLE IV REPRESENTATIONS AND WARRANTIES 30
Section 4.1 Borrower Representations.......................................................................30
Section 4.2 Survival of Representations....................................................................38
ARTICLE V BORROWER COVENANTS 38
Section 5.1 Affirmative Covenants..........................................................................38
Section 5.2 Negative Covenants.............................................................................47
ARTICLE VI INSURANCE; CASUALTY; CONDEMNATION 52
Section 6.1 Insurance..........................................................,...........................52
Section 6.2 Casualty.......................................................................................56
Section 6.3 Condemnation...................................................................................56
Section 6.4 Restoration....................................................................................56
ARTICLE VII RESERVE FUNDS 59
Section 7.1 Required Repair Funds..........................................................................59
Section 7.2 Tax and Insurance Escrow Fund..................................................................59
Section 7.3 Replacements and Replacement Reserve...........................................................59
Section 7.4 Intentionally Omitted..........................................................................59
Section 7.5 Intentionally Omitted..........................................................................59
Section 7.6 Intentionally Omitted..........................................................................59
Section 7.7 Reserve Funds, Generally.......................................................................59
ARTICLE VIII DEFAULTS 59
Section 8.1 Event of Default...............................................................................59
Section 8.2 Remedies.......................................................................................59
Section 8.3 Remedies Cumulative; Waivers...................................................................59
ARTICLE IX SPECIAL PROVISIONS 59
Section 9.1 Sale of Notes and Securitization...............................................................59
Section 9.2 Securitization.................................................................................59
Section 9.3 Rating Surveillance............................................................................59
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Section 9.4 Exculpation....................................................................................59
Section 9.5 Termination of Manager.........................................................................59
Section 9.6 Servicer.......................................................................................59
Section 9.7 Splitting the Loan.............................................................................59
ARTICLE X MISCELLANEOUS 59
Section 10.1 Survival......................................................................................59
Section l0.2 Lender's Discretion...........................................................................59
Section 10.3 Governing Law.................................................................................59
Section 10.4 Modification, Waiver in Writing...............................................................59
Section 10.5 Delay Not a Waiver............................................................................59
Section 10.6 Notices.......................................................................................59
Section 10.7 Trial by Jury.................................................................................59
Section 10.8 Headings......................................................................................59
Section 10.9 Severability..................................................................................59
Section 10.10 Preferences..................................................................................59
Section 10.11 Waiver of Notice.............................................................................59
Section 10.12 Remedies of Borrower.........................................................................59
Section 10.13 Expenses; Indemnity..........................................................................59
Section 10.14 Schedules Incorporated.......................................................................59
Section 10.15 Offsets, Counterclaims and Defenses..........................................................59
Section 10.16 No Joint Venture or Partnership; No Third Party Beneficiaries................................59
Section 10.17 Publicity....................................................................................59
Section 10.18 Waiver of Marshalling of Assets..............................................................59
Section 10.19 Waiver of Counterclaim.......................................................................59
Section 10.20 Conflict; Construction of Documents; Reliance................................................59
Section 10.21 Brokers and Financial Advisors...............................................................59
Section 10.22 Prior Agreements.............................................................................59
Section 10.23 Transfer of Loan.............................................................................59
SCHEDULES
Schedule I - Tenant Direction Letter
Schedule II - Intentionally Omitted
Schedule III - Required Repairs
Schedule IV - Rent Roll
Schedule V - Home Depot Out Parcel Release Conditions
Schedule VI - Out Parcel Release Conditions
Schedule VII - Intentionally Omitted
Schedule VIII - Intentionally Omitted
Schedule IX - Intentionally Omitted
Schedule X - Other Contract Funds Agreements
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LOAN AGREEMENT
THIS
LOAN AGREEMENT, dated as of this 4th day of August, 2004 (as
amended, restated, replaced, supplemented or otherwise modified from time to
time, this "AGREEMENT"), between BEAR XXXXXXX COMMERCIAL MORTGAGE, INC., a New
York corporation, having an address at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000 ("LENDER"), and INLAND REISTERSTOWN SPE I, L.L.C. and INLAND REISTERSTOWN
SPE II, L.L.C., each a Delaware limited liability company, each having an
address at 0000 Xxxxxxxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxx 00000 (individually or
collectively, as the "BORROWER").
W I T N E S S E T H:
WHEREAS, Borrower desires to obtain the Loan (as hereinafter
defined) from Lender; and
WHEREAS, Grantor desires to guarantee Borrower's obligations with
respect to the Loan by executing the Limited Guaranty (as hereinafter defined)
and to secure the Limited Guaranty with the Mortgage (as hereinafter defined);
and
WHEREAS, Lender is willing to make the Loan to Borrower, subject
to and in accordance with the terms of this Agreement and the other Loan
Documents (as hereinafter defined).
NOW, THEREFORE, in consideration of the making of the Loan by
Lender and the covenants, agreements, representations and warranties set forth
in this Agreement, the parties hereto hereby covenant, agree, represent and
warrant as follows:
ARTICLE I
DEFINITIONS; PRINCIPLES OF CONSTRUCTION
Section 1.1 DEFINITIONS. For all purposes of this Agreement,
except as otherwise expressly required or unless the context clearly indicates a
contrary intent:
"ADDITIONAL INSOLVENCY OPINION" shall mean any subsequent
Insolvency Opinion.
"AFFILIATE" shall mean, as to any Person, any other Person that,
directly or indirectly, is in control of, is controlled by or is under common
control with such Person or is a director or officer of such Person or of an
Affiliate of such Person.
"ALTA" shall mean American Land Title Association, or any
successor thereto.
"ANCHOR TENANT" shall mean each Tenant under an Anchor Tenant
Lease.
"ANCHOR TENANT LEASE" shall mean that each lease demising not
less than 15,000 square feet of space at the Property.
"ANNUAL BUDGET" shall mean the operating budget, including all
planned capital expenditures, for the Property prepared by Grantor for the
applicable Fiscal Year or other period.
"ASSIGNMENT OF LEASES" shall mean, with respect to the Property,
that certain first priority Assignment of Leases and Rents, dated as of the
Closing Date, from Borrower, as assignor, to Lender, as assignee, assigning to
Lender all of Grantor's interest in and to the Leases and Rents of the Property
as security for the Loan, as the same may be amended, restated, replaced,
supplemented or otherwise modified from time to time.
"ASSIGNMENT OF MANAGEMENT AGREEMENT" shall mean that certain
Assignment of Management Agreement and Subordination of Management Fees dated as
of the Closing Date among Lender, Grantor and Manager, as the same may be
amended, restated, replaced, supplemented or otherwise modified from time to
time.
"AWARD" shall mean any compensation paid by any Governmental
Authority in connection with a Condemnation in respect of all or any part of the
Property.
"BASIC CARRYING COSTS" shall mean, with respect to the Property,
the sum of the following costs associated with the Property for the relevant
Fiscal Year or payment period: (i) Taxes and (ii) Insurance Premiums.
"BORROWER" shall mean the parties identified as Borrower in the
preable hereof.
"BUSINESS DAY" shall mean any day other than a Saturday, Sunday
or any other day on which national banks in New York, New York are not open for
business.
"CAPITAL EXPENDITURES" shall mean, for any period, the amount
expended for items capitalized under accounting principles reasonably acceptable
to Lender, consistently applied (including expenditures for building
improvements or major repairs, leasing commissions and tenant improvements).
"CASH EXPENSES" shall mean, for any period, the operating
expenses for the operation of the Property as set forth in an Approved Annual
Budget to the extent that such expenses are actually incurred by Grantor minus
any payments into the Tax and Insurance Escrow Fund.
"CASH MANAGEMENT AGREEMENT" shall have the meaning specified in
Section 2.6.3.
"CASH MANAGEMENT TERMINATION EVENT" shall mean the Debt Service
Coverage Ratio shall be equal to or greater than 1.35 to 1.0 for two (2)
complete, consecutive calendar quarters following the calendar quarter in which
the Cash Management Trigger caused by a Debt Service Coverage Ratio deficiency
occurred, PROVIDED, HOWEVER, there shall not be more than two (2) Cash
Management Termination Events during the term of the Loan.
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"CASH MANAGEMENT TRIGGER" shall mean (i) the existence of an
Event of Default, (ii) the bankruptcy or insolvency of Borrower, Grantor or
Manager, or (iii) Lender's determination that the Debt Service Coverage Ratio
for the preceding six (6) months annualized is less than or equal to 1.25 to
1.0.
"CASUALTY" shall have the meaning specified in Section 6.2
hereof.
"CASUALTY/CONDEMNATION PREPAYMENT" shall have the meaning
specified in Section 6.4(e) hereof.
"CASUALTY CONSULTANT" shall have the meaning set forth in Section
6.4(b)(iii) hereof.
"CASUALTY RETAINAGE" shall have the meaning set forth in Section
6.4(b)(iv) hereof.
"CLOSING DATE" shall mean the date hereof.
"CODE" shall mean the Internal Revenue Code of 1986, as amended,
as it may be further amended from time to time, and any successor statutes
thereto, and applicable U.S. Department of Treasury regulations issued pursuant
thereto in temporary or final form.
"CONDEMNATION" shall mean a temporary or permanent taking by any
Governmental Authority as the result or in lieu or in anticipation of the
exercise of the right of condemnation or eminent domain, of all or any part of
the Property, or any interest therein or right accruing thereto, including any
right of access thereto or any change of grade affecting the Property or any
part thereof.
"DEBT" shall mean the outstanding principal amount set forth in,
and evidenced by, this Agreement and the Note together with all interest accrued
and unpaid thereon and all other sums (including the Prepayment Consideration)
due to Lender in respect of the Loan under the Note, this Agreement, the
Mortgage or any other Loan Document.
"DEBT SERVICE" shall mean, with respect to any particular period
of time, scheduled interest payments under the Note.
"DEBT SERVICE COVERAGE RATIO" shall mean a ratio for the
applicable period in which:
(a) the numerator is the Net Operating Income (excluding interest
on credit accounts) for such period as set forth in the statements required
hereunder, without deduction for (i) actual management fees incurred in
connection with the operation of the Property, (ii) amounts paid to the Reserve
Funds, less (A) management fees equal to the greater of (1) assumed management
fees of four percent (4.0%) of Gross Income from Operations or (2) the actual
management fees incurred, (B) assumed Replacement Reserve Fund contributions
equal to $0.15 per square foot of gross leaseable area at the Property; and (C)
assumed reserves for tenant
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improvements and leasing commissions equal to $0.24 per square foot of gross
leaseable area at the Property; and
(b) the denominator is the aggregate amount of interest due and
payable on the Note for such applicable period.
"DEFAULT" shall mean the occurrence of any event hereunder or
under any other Loan Document which, but for the giving of notice or passage of
time, or both, would be an Event of Default.
"DEFAULT RATE" shall mean, with respect to the Loan, a rate per
annum equal to the lesser of (a) the maximum rate permitted by applicable law,
or (b) five percent (5%) above the Interest Rate.
"DISCLOSURE DOCUMENT" shall have the meaning set forth in Section
9.2 hereof.
"ELIGIBLE ACCOUNT" shall mean a separate and identifiable account
from all other funds held by the holding institution that is either (a) an
account or accounts maintained with a federal or state-chartered depository
institution or trust company which complies with the definition of Eligible
Institution or (b) a segregated trust account or accounts maintained with a
federal or state chartered depository institution or trust company acting in its
fiduciary capacity which, in the case of a state chartered depository
institution or trust company, is subject to regulations substantially similar to
12 C.F.R. Section 9.10(b), having in either case a combined capital and surplus
of at least $50,000,000 and subject to supervision or examination by federal and
state authority. An Eligible Account will not be evidenced by a certificate of
deposit, passbook or other instrument.
"ELIGIBLE INSTITUTION" shall mean a depository institution or
trust company insured by the Federal Deposit Insurance Corporation the short
term unsecured debt obligations or commercial paper of which are rated at least
A-1 by Standard & Poor's Ratings Services, P-1 by Xxxxx'x Investors Service,
Inc., and F-1+ by Fitch, Inc. in the case of accounts in which funds are held
for 30 days or less (or, in the case of accounts in which funds are held for
more than 30 days, the long term unsecured debt obligations of which are rated
at least "AA" by Fitch and S&P and "Aa" by Moody's).
"EMBARGOED PERSON" shall mean any person, entity or government
subject to trade restrictions under U.S. law, including, but not limited to, The
USA PATRIOT Act (including the anti-terrorism provisions thereof), the
International Emergency Economic Powers Act, 50 U.S.C. Sections 1701, et seq.,
The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any Executive
Orders or regulations promulgated thereunder including those related to
Specially Designated Nationals and Specially Designated Global Terrorists, with
the result that the investment in Borrower, Principal or Guarantor, as
applicable (whether directly or indirectly), is prohibited by law or the Loan
made by the Lender is in violation of law.
"ENVIRONMENTAL INDEMNITY" shall mean that certain Environmental
Indemnity Agreement executed by Grantor in connection with the Loan for the
benefit of Lender, as the
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same may be amended, restated, replaced, supplemented or otherwise modified from
time to time.
"ENVIRONMENTAL REPORT" shall have the meaning as defined in the
Environmental Indemnity executed by the Grantor.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"EVENT OF DEFAULT" shall have the meaning set forth in
Section 8.l(a) hereof.
"EXCESS CASH FLOW" shall have the meaning set forth in Section
2.6.3 hereof.
"EXCHANGE ACT" shall have the meaning set forth in Section 9.2
hereof.
"FISCAL YEAR" shall mean each twelve (12) month period commencing
on January 1 and ending on December 31 during each year of the term of the Loan.
"GOVERNMENTAL AUTHORITY" shall mean any court, board, agency,
commission, office or other authority of any nature whatsoever for any
governmental xxxx (xxxxxxx, xxxxx, xxxxxx, xxxxxxxx, xxxxxxxxx, xxxx or
otherwise) whether now or hereafter in existence.
"GROSS INCOME FROM OPERATIONS" shall mean all sustainable
income as reported on the financial statements delivered by the Grantor in
accordance with this Agreement, computed in accordance with accounting
principles reasonably acceptable to Lender, consistently applied, derived
from the ownership and operation of the Property from whatever source,
INCLUDING, but not limited to, (i) Rents from Tenants that are in occupancy,
open for business and paying unabated Rent, (ii) utility charges, (iii)
escalations, (iv) intentionally omitted; (v) service fees or charges, (vi)
license fees, (vii) parking fees, and (viii) other required pass-throughs but
EXCLUDING (i) Rents from Tenants that are subject to any bankruptcy
proceeding (unless such Tenant has affirmed its Lease or Inland Western
Retail Real Estate Trust, Inc. has master leased such Tenant's premises for
full contract rent for a period not less than three years, and the net worth
of Inland Western Retail Real Estate Trust, Inc. (as determined by Lender) is
not less than such entity's net worth as of July 31, 2004), or are not in
occupancy, open for business or paying unabated Rent, (ii) sales, use and
occupancy or other taxes on receipts required to be accounted for by Grantor
to any Governmental Authority, (iii) refunds and uncollectible accounts, (iv)
sales of furniture, fixtures and equipment, (v) Insurance Proceeds (other
than business interruption or other loss of income insurance), (vi) Awards,
(vii) unforfeited security deposits, (viii) utility and other similar
deposits and (ix) any disbursements to Grantor from the Reserve Funds. Gross
income shall not be diminished as a result of the Mortgage or the creation of
any intervening estate or interest in the Property or any part thereof.
"HOME DEPOT" shall mean Home Depot U.S.A., INC., a Delaware
Corporation.
"HOME DEPOT EXERCISE CONSIDERATION" shall mean the purchase price
payable by Home Depot pursuant to Section 16 of its Lease in the event that it
exercises the purchase option described therein.
5
"HOME DEPOT OUT PARCEL" shall mean that portion of the Property
leased to Home Depot.
"HOME DEPOT OUT PARCEL RELEASE CONDITIONS" shall have the meaning
set forth in Section 2.7 hereof.
"IMPROVEMENTS" shall have the meaning set forth in the granting
clause of the Mortgage with respect to the Property.
"INDEBTEDNESS" of a Person, at a particular date, means the sum
(without duplication) at such date of (a) indebtedness or liability for borrowed
money; (b) obligations evidenced by bonds, debentures, notes, or other similar
instruments; (c) obligations for the deferred purchase price of property or
services (including trade obligations); (d) obligations under letters of credit;
(e) obligations under acceptance facilities; (f) all guaranties, endorsements
(other than for collection or deposit in the ordinary course of business) and
other contingent obligations to purchase, to provide funds for payment, to
supply funds, to invest in any Person or entity, or otherwise to assure a
creditor against loss; and (g) obligations secured by any Liens, whether or not
the obligations have been assumed.
"INDEMNITOR" shall mean Inland Western Retail Real Estate Trust,
Inc., a Maryland corporation.
"INDEMNITY AGREEMENT" shall mean that certain Indemnity Agreement
dated as of the Closing Date by Grantor and Indemnitor in favor of Lender.
"INDEPENDENT DIRECTOR" shall mean a director of a corporation or
a limited liability company who is not at the time of initial appointment, or at
any time while serving as a director of such an entity, and has not been at any
time during the preceding five (5) years: (a) a stockholder, director (with the
exception of serving as the Independent Director), officer, employee, partner,
attorney or counsel of the Grantor or any Affiliate of either of them; (b) a
customer, supplier or other person who derives any of its purchases or revenues
from its activities with the Grantor or any Affiliate of either of them; (c) a
Person controlling or under common control with any such stockholder, director,
officer, partner, customer, supplier or other Person; or (d) a member of the
immediate family of any such stockholder, director, officer, employee, partner,
customer, supplier or other person. As used in this definition, the term
"control" means the possession, directly or indirectly, of the power to direct
or cause the direction of management, policies or activities of a Person,
whether through ownership of voting securities, by contract or otherwise.
"INDEPENDENT MANAGER" shall mean a manager of a limited liability
company who is not at the time of initial appointment, or at any time while
serving as a manager of such an entity, and has not been at any time during the
preceding five (5) years: (a) a stockholder, director (with the exception of
serving as an Independent Director), manager (with the exception of serving as
an Independent Manager), officer, employee, partner, attorney or counsel of the
Grantor or any Affiliate of either of them; (b) a customer, supplier or other
person who derives any of its purchases or revenues from its activities with the
Grantor or any Affiliate of either of
6
them; (c) a Person controlling or under common control with any such
stockholder, director, manager, officer, partner, customer, supplier or other
Person; or (d) a member of the immediate family of any such stockholder,
director, manager, officer, employee, partner, customer, supplier or other
person. As used in this definition, the term "control" means the possession,
directly or indirectly, of the power to direct or cause the direction of
management, policies or activities of a Person, whether through ownership of
voting securities, by contract or otherwise.
"INLAND WESTERN RETAIL REAL ESTATE TRUST, INC." shall mean
Inland Western Retail Real Estate Trust, Inc., a Maryland corporation.
"INSOLVENCY OPINION" shall have the meaning set forth in Section
3.1.6 hereof.
"INSURANCE PREMIUMS" shall have the meaning set forth in Section
6.l(b) hereof.
"INSURANCE PROCEEDS" shall have the meaning set forth in Section
6.4(b) hereof.
"INTEREST RATE" shall mean five and thirty hundredths percent
(5.30%) per annum.
"LEASE" shall mean any lease, sublease or subsublease, letting,
license, concession or other agreement (whether written or oral and whether now
or hereafter in effect) pursuant to which any Person is granted a possessory
interest in, or right to use or occupy all or any portion of any space in the
Property of Grantor, and every modification, amendment or other agreement
relating to such lease, sublease, subsublease, or other agreement entered into
in connection with such lease, sublease, subsublease, or other agreement and
every guarantee of the performance and observance of the covenants, conditions
and agreements to be performed and observed by the other party thereto.
"LEGAL REQUIREMENTS" shall mean, with respect to the Property,
all federal, state, county, municipal and other governmental statutes, laws,
rules, orders, regulations, ordinances, judgments, decrees and injunctions of
Governmental Authorities affecting the Property or any part thereof, or the
construction, use, alteration or operation thereof, or any part thereof, whether
now or hereafter enacted and in force, and all permits, licenses and
authorizations and regulations relating thereto, and all covenants, agreements,
restrictions and encumbrances contained in any instruments, either of record or
known to Grantor, at any time in force affecting the Property or any part
thereof, including, without limitation, any which may (a) require repairs,
modifications or alterations in or to the Property or any part thereof, or (b)
in any way limit the use and enjoyment thereof.
"LENDER" shall mean Bear Xxxxxxx Commercial Mortgage, Inc.,
together with its successors and assigns.
"LICENSES" shall have the meaning set forth in Section 4.1.22
hereof.
"LIEN" shall mean, with respect to the Property, any mortgage,
deed of trust, deed to secure debt, lien, pledge, hypothecation, assignment,
security interest, or any other encumbrance, charge or transfer of, on or
affecting Grantor, the Property, any portion thereof or
7
any interest therein, including, without limitation, any conditional sale or
other title retention agreement, any financing lease having substantially the
same economic effect as any of the foregoing, the filing of any financing
statement, and mechanic's, materialmen's and other similar liens and
encumbrances.
"LIMITED GUARANTY" shall mean that certain Limited Guaranty
Agreement dated as of the date hereof from Grantor in favor of Lender.
"LOAN" shall mean the loan made by Lender to Borrower pursuant to
this Agreement.
"LOAN DOCUMENTS" shall mean, collectively, this Agreement, the
Note, the Limited Guaranty, the Mortgage, the Assignment of Leases and Rents,
the Environmental Indemnity, the Assignment of Management Agreement, the
Indemnity Agreement, the Cash Management Agreement, and all other documents
executed and/or delivered in connection with the Loan.
"LOCKBOX ACCOUNT" shall have the meaning specified in Section
2.6.3 hereof.
"LOCKBOX BANK" shall have the meaning specified in Section 2.6.3
hereof.
"LOCKBOX TRIGGER" shall mean (i) Lender's determination that the
Debt Service Coverage Ratio for the preceding six (6) months annualized is less
than or equal to 1.75 to 1.0 or (ii) a Cash Management Trigger.
"MANAGEMENT AGREEMENT" shall mean, with respect to the Property,
the management agreement entered into by and between Grantor and the Manager,
pursuant to which the Manager is to provide management and other services with
respect to the Property.
"MANAGER" shall mean INLAND MID-ATLANTIC MANAGEMENT CORP., a
Delaware corporation.
"MATURITY DATE" shall mean September 1, 2009, or such other date
on which the final payment of principal of the Note becomes due and payable as
therein or herein provided, whether at such stated maturity date, by declaration
of acceleration, or otherwise.
"MAXIMUM LEGAL RATE" shall mean the maximum nonusurious interest
rate, if any, that at any time or from time to time may be contracted for,
taken, reserved, charged or received on the indebtedness evidenced by the Note
and as provided for herein or the other Loan Documents, under the laws of such
state or states whose laws are held by any court of competent jurisdiction to
govern the interest rate provisions of the Loan.
"MONTHLY DEBT SERVICE PAYMENT AMOUNT" shall mean an amount equal
to $219,287.50.
"MORTGAGE" shall mean, with respect to the Property, that certain
first priority Indemnity Deed of Trust and Security Agreement, dated the Closing
Date, executed and
8
delivered by Grantor as security for the Loan and encumbering the Property, as
the same may be amended, restated, replaced, supplemented or otherwise modified
from time to time.
"NET CASH FLOW" shall mean, with respect to the Property for any
period, the amount obtained by subtracting Operating Expenses and Capital
Expenditures for such period from Gross Income from Operations for such period.
"NET CASH FLOW AFTER DEBT SERVICE" shall mean, with respect to
the Property for any period, the amount obtained by subtracting Debt Service for
such period from Net Cash Flow for such period.
"NET CASH FLOW SCHEDULE" shall have the meaning set forth in
Section 5.1.1l(b) hereof.
"NET OPERATING INCOME" shall mean the amount obtained by
subtracting from Gross Income from Operations (i) Operating Expenses, and (ii)
a vacancy allowance equal to the greater of (x) market vacancy (as reasonably
determined by Lender), less actual vacancy, and (y) underwritten vacancy of five
percent (5%) less actual vacancy. Notwithstanding the foregoing, if actual
vacancy exceeds market vacancy and underwritten vacancy, then there shall be no
adjustment for a vacancy allowance.
"NET PROCEEDS" shall have the meaning set forth in Section 6.4(b)
hereof.
"NET PROCEEDS DEFICIENCY" shall have the meaning set forth in
Section 6.4(b)(vi) hereof.
"NET PROCEEDS PREPAYMENT" shall have the meaning set forth in
Section 6.4(e) hereof.
"NOTE" shall mean that certain Promissory Note of even date
herewith in the principal amount of FORTY NINE MILLION SIX HUNDRED FIFTY
THOUSAND and NO/100 Dollars ($49,650,000.00), made by Borrower in favor of
Lender, as the same may be amended, restated, replaced, supplemented or
otherwise modified from time to time.
"OFFICERS' CERTIFICATE" shall mean a certificate delivered to
Lender by Borrower or Grantor which is signed by the Indemnitor.
"OPERATING EXPENSES" shall mean the total of all expenditures,
computed in accordance with accounting principles reasonably acceptable to
Lender, consistently applied, of whatever kind relating to the operation,
maintenance and management of the Property that are incurred on a regular
monthly or other periodic basis, including without limitation, utilities,
ordinary repairs and maintenance, insurance, license fees, property taxes and
assessments, advertising expenses, management fees, payroll and related taxes,
computer processing charges, operational equipment or other lease payments as
approved by Lender, and other similar costs, but excluding depreciation, Debt
Service, Capital Expenditures and contributions to the Reserve Funds.
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"OTHER CHARGES" shall mean all ground rents, maintenance charges,
impositions other than Taxes, and any other charges, including, without
limitation, vault charges and license fees for the use of vaults, chutes and
similar areas adjoining the Property, now or hereafter levied or assessed or
imposed against the Property or any part thereof.
"OTHER CONTRACT FUNDS" shall mean any payment due to Borrower or
Grantor under any of the agreements described on SCHEDULE X.
"OUT PARCEL" shall have the meaning set forth in Section 2.7
hereof.
"OUT PARCEL RELEASE CONDITIONS" shall have the meaning set forth
in Section 2.7 hereof.
"PAYMENT DATE" shall mean the first (1st) day of each calendar
month during the term of the Loan or, if such day is not a Business Day, the
immediately succeeding Business Day.
"PERMITTED ENCUMBRANCES" shall mean, with respect to the
Property, collectively, (a) the Liens and security interests created by the Loan
Documents, (b) all Liens, encumbrances and other matters disclosed in the Title
Insurance Policy relating to the Property or any part thereof, (c) Liens, if
any, for Taxes imposed by any Governmental Authority not yet due or delinquent,
and (d) such other title and survey exceptions as Lender has approved or may
approve in writing in Lender's reasonable discretion, which Permitted
Encumbrances in the aggregate do not materially adversely affect the value or
use of the Property or Grantor's ability to fulfill its obligations under the
Limited Guaranty or the Mortgage.
"PERMITTED INVESTMENTS" shall mean any one or more of the
following obligations or securities acquired at a purchase price of not greater
than par, including those issued by Servicer, the trustee under any
Securitization or any of their respective Affiliates, payable on demand or
having a maturity date not later than the Business Day immediately prior to the
first Payment Date following the date of acquiring such investment and meeting
one of the appropriate standards set forth below:
(i) obligations of, or obligations fully guaranteed as to
payment of principal and interest by, the United States or any agency or
instrumentality thereof provided such obligations are backed by the full
faith and credit of the United States of America including, without
limitation, obligations of: the U.S. Treasury (all direct or fully
guaranteed obligations), the Farmers Home Administration (certificates
of beneficial ownership), the General Services Administration
(participation certificates), the U.S. Maritime Administration
(guaranteed Title XI financing), the Small Business Administration
(guaranteed participation certificates and guaranteed pool
certificates), the U.S. Department of Housing and Urban Development
(local authority bonds) and the Washington Metropolitan Area Transit
Authority (guaranteed transit bonds); PROVIDED, HOWEVER, that the
investments described in this clause must (A) have a predetermined fixed
dollar of principal due at maturity that cannot vary or change, (B) if
rated by S&P, must not have an "r" highlighter affixed to their rating,
(C) if such investments have a
10
variable rate of interest, such interest rate must be tied to a single
interest rate index plus a fixed spread (if any) and must move
proportionately with that index, and (D) such investments must not be
subject to liquidation prior to their maturity;
(ii) Federal Housing Administration debentures;
(iii) obligations of the following United States government
sponsored agencies: Federal Home Loan Mortgage Corp. (debt obligations),
the Farm Credit System (consolidated systemwide bonds and notes), the
Federal Home Loan Banks (consolidated debt obligations), the Federal
National Mortgage Association (debt obligations), the Student Loan
Marketing Association (debt obligations), the Financing Corp. (debt
obligations), and the Resolution Funding Corp. (debt obligations);
PROVIDED, HOWEVER, that the investments described in this clause must
(A) have a predetermined fixed dollar of principal due at maturity that
cannot vary or change, (B) if rated by S&P, must not have an "r"
highlighter affixed to their rating, (C) if such investments have a
variable rate of interest, such interest rate must be tied to a single
interest rate index plus a fixed spread (if any) and must move
proportionately with that index, and (D) such investments must not be
subject to liquidation prior to their maturity;
(iv) federal funds, unsecured certificates of deposit, time
deposits, bankers' acceptances and repurchase agreements with maturities
of not more than 365 days of any bank, the short term obligations of
which at all times are rated in the highest short term rating category
by each Rating Agency (or, if not rated by all Rating Agencies, rated by
at least one Rating Agency in the highest short term rating category and
otherwise acceptable to each other Rating Agency, as confirmed in
writing that such investment would not, in and of itself, result in a
downgrade, qualification or withdrawal of the initial, or, if higher,
then current ratings assigned to the Securities); PROVIDED, HOWEVER,
that the investments described in this clause must (A) have a
predetermined fixed dollar of principal due at maturity that cannot vary
or change, (B) if rated by S&P, must not have an "r" highlighter affixed
to their rating, (C) if such investments have a variable rate of
interest, such interest rate must be tied to a single interest rate
index plus a fixed spread (if any) and must move proportionately with
that index, and (D) such investments must not be subject to liquidation
prior to their maturity;
(v) fully Federal Deposit Insurance Corporation-insured
demand and time deposits in, or certificates of deposit of, or bankers'
acceptances issued by, any bank or trust company, savings and loan
association or savings bank, the short term obligations of which at all
times are rated in the highest short term rating category by each Rating
Agency (or, if not rated by all Rating Agencies, rated by at least one
Rating Agency in the highest short term rating category and otherwise
acceptable to each other Rating Agency, as confirmed in writing that
such investment would not, in and of itself, result in a downgrade,
qualification or withdrawal of the initial, or, if higher, then current
ratings assigned to the Securities); PROVIDED, HOWEVER, that the
investments described in this clause must (A) have a predetermined fixed
dollar of principal due at maturity that cannot vary or change, (B) if
rated by S&P, must not have an "r" highlighter affixed to their rating,
(C) if such investments have a variable rate of interest, such interest
rate must be
11
tied to a single interest rate index plus a fixed spread (if any) and
must move proportionately with that index, and (D) such investments must
not be subject to liquidation prior to their maturity;
(vi) debt obligations with maturities of not more than 365
days and at all times rated by each Rating Agency (or, if not rated by
all Rating Agencies, rated by at least one Rating Agency and otherwise
acceptable to each other Rating Agency, as confirmed in writing that
such investment would not, in and of itself, result in a downgrade,
qualification or withdrawal of the initial, or, if higher, then current
ratings assigned to the Securities) in its highest long-term unsecured
rating category; PROVIDED, HOWEVER, that the investments described in
this clause must (A) have a predetermined fixed dollar of principal due
at maturity that cannot vary or change, (B) if rated by S&P, must not
have an "r" highlighter affixed to their rating, (C) if such investments
have a variable rate of interest, such interest rate must be tied to a
single interest rate index plus a fixed spread (if any) and must move
proportionately with that index, and (D) such investments must not be
subject to liquidation prior to their maturity;
(vii) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on demand
or on a specified date not more than one year after the date or issuance
thereof) with maturities of not more than 365 days and that at all times
is rated by each Rating Agency (or, if not rated by all Rating Agencies,
rated by at least one Rating Agency and otherwise acceptable to each
other Rating Agency, as confirmed in writing that such investment would
not, in and of itself, result in a downgrade, qualification or
withdrawal of the initial, or, if higher, then current ratings assigned
to the Securities) in its highest short-term unsecured debt rating;
PROVIDED, HOWEVER, that the investments described in this clause must
(A) have a predetermined fixed dollar of principal due at maturity that
cannot vary or change, (B) if rated by S&P, must not have an "r"
highlighter affixed to their rating, (C) if such investments have a
variable rate of interest, such interest rate must be tied to a single
interest rate index plus a fixed spread (if any) and must move
proportionately with that index, and (D) such investments must not be
subject to liquidation prior to their maturity;
(viii) units of taxable money market funds, which funds are
regulated investment companies, seek to maintain a constant net asset
value per share and invest solely in obligations backed by the full
faith and credit of the United States, which funds have the highest
rating available from each Rating Agency (or, if not rated by all Rating
Agencies, rated by at least one Rating Agency and otherwise acceptable
to each other Rating Agency, as confirmed in writing that such
investment would not, in and of itself, result in a downgrade,
qualification or withdrawal of the initial, or, if higher, then current
ratings assigned to the Securities) for money market funds; and
(ix) any other security, obligation or investment which has
been approved as a Permitted Investment in writing by (a) Lender and (b)
each Rating Agency, as evidenced by a written confirmation that the
designation of such security, obligation or investment as a Permitted
Investment will not, in and of itself, result in a downgrade,
qualification or
12
withdrawal of the initial, or, if higher, then current ratings assigned
to the Securities by such Rating Agency;
PROVIDED, HOWEVER, that no obligation or security shall be a Permitted
Investment if (A) such obligation or security evidences a right to receive only
interest payments or (B) the right to receive principal and interest payments on
such obligation or security are derived from an underlying investment that
provides a yield to maturity in excess of 120% of the yield to maturity at par
of such underlying investment.
"PERMITTED PREPAYMENT DATE" shall mean the date that is three (3)
years from the first day of the calendar month immediately following the Closing
Date.
"PERSON" shall mean any individual, corporation, partnership,
joint venture, limited liability company, estate, trust, unincorporated
association, any federal, state, county or municipal government or any bureau,
department or agency thereof and any fiduciary acting in such capacity on behalf
of any of the foregoing.
"PERSONAL PROPERTY" shall have the meaning set forth in the
granting clause of the Mortgage with respect to the Property.
"PHYSICAL CONDITIONS REPORT" shall mean, with respect to the
Property, a report prepared by a company satisfactory to Lender regarding the
physical condition of the Property, satisfactory in form and substance to Lender
in its sole discretion, which report shall, among other things, (a) confirm that
the Property and its use complies, in all material respects, with all applicable
Legal Requirements (including, without limitation, zoning, subdivision and
building laws) and (b) include a copy of a final certificate of occupancy with
respect to all Improvements on the Property.
"POLICIES" shall have the meaning specified in Section 6.1(b)
hereof.
"PREPAYMENT CONSIDERATION" shall have the meaning set forth in
Section 2.3.1.
"PREPAYMENT RATE" shall mean the bond equivalent yield (in the
secondary market) on the United States Treasury Security that as of the
Prepayment Rate Determination Date has a remaining term to maturity closest to,
but not exceeding, the remaining term to the Maturity Date, as most recently
published in the "Treasury Bonds, Notes and Bills" section in The Wall Street
Journal as of the date of the related tender of the payment. If more than one
issue of United States Treasury Securities has the remaining term to the
Maturity Date referred to above, the "Prepayment Rate" shall be the yield on the
United States Treasury Security most recently issued as of such date. If the
publication of the Prepayment Rate in The Wall Street Journal is discontinued,
Lender shall determine the Prepayment Rate on the basis of "Statistical Release
H.15(519), Selected Interest Rates," or any successor publication, published by
the Board of Governors of the Federal Reserve System, or on the basis of such
other publication or statistical guide as Lender may reasonably select.
"PREPAYMENT RATE DETERMINATION DATE" shall mean the date which is
five (5) Business Days prior to the prepayment date.
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"PROPERTY" shall mean the parcel of real property, the
Improvements thereon and all personal property owned by Grantor and encumbered
by the Mortgage, together with all rights pertaining to such property and
Improvements, as more particularly described in the Granting Clauses of the
Mortgage and referred to therein as the "Property".
"PROVIDED INFORMATION" shall have the meaning set forth in
Section 9.1(a) hereof.
"QUALIFYING ENTITY" shall have the meaning set forth in Section
5.2.13(b) hereof.
"QUALIFYING MANAGER" shall mean either (a) a reputable and
experienced management organization reasonably satisfactory to Lender, which
organization or its principals possess at least ten (10) years experience in
managing properties similar in size, scope and value of the Property and which,
on the date Lender determines whether such management organization is a
Qualifying Manager, manages at least one million square feet of retail space,
provided that Grantor shall have obtained prior written confirmation from the
Rating Agency that management of the Property by such entity will not cause a
downgrading, withdrawal or qualification of the then current rating of the
securities issued pursuant to the Securitization, or (b) the fee owner of the
Property, provided that such owner possesses experience in managing and
operating properties similar in size, scope and value of the Property. Lender
acknowledges that on the Closing Date, Manager shall be deemed to be a
Qualifying Manager.
"RATING AGENCIES" shall mean each of Standard & Poor's Ratings
Services, a division of XxXxxx-Xxxx, Inc., Xxxxx'x Investors Service, Inc. and
Fitch, Inc., or any other nationally-recognized statistical rating agency which
has been approved by Lender.
"RATING SURVEILLANCE CHARGE" shall have the meaning set forth in
Section 9.3 hereof.
"RELEVANT LEASING THRESHOLD" shall mean, any Lease for an amount
of leaseable square footage equal to or greater than 10,000 square feet.
"RELEVANT RESTORATION THRESHOLD" shall mean Three Hundred Fifty
Thousand and No/100 dollars ($350,000.00).
"REMIC TRUST" shall mean a "real estate mortgage investment
conduit" within the meaning of Section 860D of the Code that holds the Note.
"RENTS" shall mean, with respect to the Property, all rents, rent
equivalents, moneys payable as damages or in lieu of rent or rent equivalents,
royalties (including, without limitation, all oil and gas or other mineral
royalties and bonuses), income, receivables, receipts, revenues, deposits
(including, without limitation, security, utility and other deposits), accounts,
cash, issues, profits, charges for services rendered, and other consideration of
whatever form or nature received by or paid to or for the account of or benefit
of Grantor or its agents or employees from any and all sources arising from or
attributable to the Property, and proceeds, if any, from business interruption
or other loss of income insurance, including the Other Contract Funds.
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"REPLACEMENT RESERVE ACCOUNT" shall have the meaning set forth in
Section 7.3.1 hereof.
"REPLACEMENT RESERVE FUND" shall have the meaning set forth in
Section 7.3.1 hereof.
"REPLACEMENT RESERVE MONTHLY DEPOSIT" shall have the meaning set
forth in Section 7.3.1 hereof.
"REPLACEMENTS" shall have the meaning set forth in Section
7.3.1(a) hereof.
"REQUIRED REPAIR ACCOUNT" shall have the meaning set forth in
Section 7.1.1 hereof.
"REQUIRED REPAIR FUND" shall have the meaning set forth in
Section 7.1.1 hereof.
"REQUIRED REPAIRS" shall have the meaning set forth in Section
7.1.1 hereof.
"RESERVE FUNDS" shall mean the Tax and Insurance Escrow Fund, the
Replacement Reserve Fund, the Required Repair Fund (if any), or any other escrow
fund established by the Loan Documents.
"RESTORATION" shall have the meaning set forth in Section 6.2
hereof.
"SECURITIES" shall have the meaning set forth in Section 9.1
hereof.
"SECURITIES ACT" shall have the meaning set forth in Section 9.2
hereof.
"SECURITIZATION" shall have the meaning set forth in Section 9.1
hereof.
"SERVICER" shall have the meaning set forth in Section 9.6
hereof.
"SERVICING AGREEMENT" shall have the meaning set forth in
Section 9.6 hereof.
"SEVERED LOAN DOCUMENTS" shall have the meaning set forth in
Section 8.2(c) hereof.
"SEVERING DOCUMENTATION" shall have the meaning set forth in
Section 9.7 hereof.
"SPECIAL PURPOSE ENTITY" means a corporation, limited
partnership, limited liability company, or Delaware statutory trust which at all
times on and after the Closing Date:
(i) is organized solely for the purpose of (A) acquiring,
developing, owning, holding, selling, leasing, transferring, exchanging,
managing and operating the Property (and guarantying the obligations of
the borrower entity and owning all of the interests in such entity, such
guaranty being secured by an indemnity deed of trust ("TDOT"),
15
entering into this Agreement with the Lender, refinancing the Property
in connection with a permitted repayment of the Loan, and transacting
lawful business that is incident, necessary and appropriate to
accomplish the foregoing; (B) acting as a general partner of the limited
partnership that owns the Property, a member of the limited liability
company that owns the Property or the beneficiary or trustee of a
Delaware business trust that owns the Property or (C) serving as the
borrower under an IDOT transaction;
(ii) is not engaged and will not engage in any business
unrelated to (A) the acquisition, development, ownership, management or
operation of the Property (and the ownership of the borrower under an
IDOT transaction), (B) acting as general partner of the limited
partnership that owns the Property, (C) acting as a member of the
limited liability company that owns the Property, (D) acting as the
beneficiary or trustee of a Delaware business trust that owns the
Property, as applicable; or (E) acting as the borrower under an IDOT
transaction;
(iii) does not have and will not have any assets other than
those related to the Property or its partnership interest in the limited
partnership, the member interest in the limited liability company or the
beneficial interest in the Delaware business trust that owns the
Property or acts as the general partner, managing member or beneficiary
or trustee thereof, as applicable, or the ownership interests in the
borrower entity under an IDOT transaction;
(iv) has not engaged, sought or consented to and will not
engage in, seek or consent to any dissolution, winding up, liquidation,
consolidation, merger, sale of all or substantially all of its assets,
transfer of partnership, membership or beneficial or trustee interests
(if such entity is a general partner in a limited partnership, a member
in a limited liability company or a beneficiary of a Delaware trust) or
amendment of its limited partnership agreement, articles of
incorporation, articles of organization, certificate of formation,
operating agreement or trust formation and governance documents (as
applicable) with respect to the matters set forth in this definition;
(v) if such entity is a limited partnership, has as its
only general partners, Special Purpose Entities that are corporations,
limited partnerships or limited liability companies;
(vi) if such entity is a corporation, has at least one (1)
Independent Director, and has not caused or allowed and will not cause
or allow the board of directors of such entity to take any action
related to a bankruptcy or insolvency proceeding or a voluntary
dissolution without the unanimous affirmative vote of 100% of the
members of its board of directors, including the Independent Director;
(vii) if such entity is a limited liability company and such
limited liability company has more than one member, such limited
liability company has as its manager a Special Purpose Entity that is a
corporation and that owns at least 1.0% (one percent) of the equity of
the limited liability company;
16
(viii) if such entity is a limited liability company and such
limited liability company has only one member, such limited liability
company (a) has been formed under Delaware law (or in the case or a
Grantor hereunder, has been formed under Maryland law) and (b) has
either a corporation or one (1) entity that shall become a member of the
limited liability company upon the dissolution or disassociation of the
member, (c) has not less than one (1) Independent Manager, and (d) will
not cause or take any action related to a bankruptcy or insolvency
proceeding or a voluntary dissolution without the affirmative vote of
the Independent Manager;
(ix) if such entity is (a) a limited liability company, has
articles of organization, a certificate of formation and/or an operating
agreement, as applicable, (b) a limited partnership, has a limited
partnership agreement, (c) a corporation, has a certificate or articles
of incorporation and bylaws, as applicable, or (d) a Delaware statutory
trust, has organizational documents that, in each case, provide that
such entity will not: (1) dissolve, merge, liquidate, consolidate; (2)
except as permitted herein, sell all or substantially all of its assets
or the assets of the Grantor (as applicable) except as permitted herein;
(3) engage in any other business activity, or amend its organizational
documents with respect to the matters set forth in this definition
without the consent of the Lender; or (4) without the affirmative vote
of (A) all directors of the corporation (that is such entity or the
general partner or managing or co-managing member or manager of such
entity) or (B) the Independent Manager of the limited liability, file a
bankruptcy or insolvency petition or otherwise institute insolvency
proceedings with respect to itself or to any other entity in which it
has a direct or indirect legal or beneficial ownership interest;
(x) has not entered into or been a party to, and will not
enter into or be a party to, any transaction with its partners, members,
beneficiaries, shareholders or Affiliates except (A) in the ordinary
course of its business and on terms which are intrinsically fair,
commercially reasonable and are no less favorable to it than would be
obtained in a comparable arm's-length transaction with an unrelated
third party and (B) in connection with this Agreement;
(xi) is solvent and pays its debts and liabilities
(including, as applicable, shared personnel and overhead expenses) from
its assets as the same become due, and is maintaining adequate capital
for the normal obligations reasonably foreseeable in a business of its
size and character and in light of its contemplated business operations;
(xii) has not failed and will not fail to correct any known
misunderstanding regarding the separate identity of such entity;
(xiii) will file its own tax returns; PROVIDED, however, that
Borrower's and/or Grantor's assets and income may be included in a
consolidated tax return of its parent companies if inclusion on such
consolidated tax return is in compliance with applicable law;
(xiv) has maintained and will maintain its own resolutions
and agreements;
17
(xv) (a) has not commingled and will not commingle its funds
or assets with those of any other Person and (b) has not participated
and will not participate in any cash management system with any other
Person, except with respect to a custodial account maintained by the
Manager on behalf of Affiliates of Grantor and, with respect to funds in
such custodial account, has separately accounted, and will continue to
separately account for, each item of income and expense applicable to
the Property and Grantor;
(xvi) has held and will hold its assets in its own name;
(xvii) has conducted and will conduct its business in its name
or in a name franchised or licensed to it by an entity other than an
Affiliate of Borrower or Grantor;
(xviii) has maintained and will maintain its balance sheets,
operating statements and other entity documents separate from any other
Person and has not permitted and will not permit its assets to be listed
as assets on the financial statement of any other entity except as
required or permitted by applicable accounting principles acceptable to
Lender, consistently applied; PROVIDED, HOWEVER, that (i) any such
consolidated financial statement shall contain a note indicating that it
maintains separate balance sheets and operating statements for the
Grantor and the Property, or (ii) if such Person is controlled by Inland
Western Retail Real Estate Trust, Inc., then such Person may be included
in the consolidated financial statement of Inland Western Retail Real
Estate Trust, Inc. provided such consolidated financial statement
contains a note indicating that it maintains separate financial records
for each Person controlled by Inland Western Retail Real Estate Trust,
Inc.;
(xix) has a sufficient number of employees in light of its
contemplated business operations, which may be none;
(xx) has observed and will observe all partnership,
corporate, limited liability company or Delaware statutory trust
formalities, as applicable;
(xxi) has and will have no Indebtedness (including loans
(whether or not such loans are evidenced by a written agreement) between
Borrower or Grantor and any Affiliates of Borrower or Grantor and
relating to the management of funds in the custodial account maintained
by the Manager) other than (i) the Loan, (ii) liabilities incurred in
the ordinary course of business relating to the ownership and operation
of the Property and the routine administration of Grantor, which
liabilities are not more than sixty (60) days past the date incurred
(unless disputed in accordance with applicable law), are not evidenced
by a note and are paid when due, and which amounts are normal and
reasonable under the circumstances, (iii) the Limited Guaranty, and (iv)
such other liabilities that are permitted pursuant to this Agreement;
(xxii) has not and will not assume or guarantee or become
obligated for the debts of any other Person or hold out its credit as
being available to satisfy the obligations of any other Person except
for the Limited Guaranty and as otherwise permitted pursuant to this
Agreement;
18
(xxiii) has not and will not acquire obligations or securities
of its partners, members, beneficiaries or shareholders or any other
Affiliate;
(xxiv) has allocated and will allocate fairly and reasonably
any overhead expenses that are shared with any Affiliate, including, but
not limited to, paying for shared office space and services performed by
any employee of an affiliate;
(xxv) has not maintained or used, and will not maintain or
use, invoices and checks bearing the name of any other Person, PROVIDED,
HOWEVER, that Manager, on behalf of such Person, may maintain and use
invoices and checks bearing Manager's name;
(xxvi) has not pledged and will not pledge its assets for the
benefit of any other Person except for the Limited Guaranty and as
otherwise permitted or required pursuant to this Agreement;
(xxvii) has held itself out and identified itself and will hold
itself out and identify itself as a separate and distinct entity under
its own name or in a name franchised or licensed to it by an entity
other than an Affiliate of Borrower or Grantor and not as a division or
part of any other Person, except for services rendered by Manager under
the Management Agreement, so long as Manager holds itself out as an
agent of the Grantor;
(xxviii) has maintained and will maintain its assets in such a
manner that it will not be costly or difficult to segregate, ascertain
or identify its individual assets from those of any other Person;
(xxix) has not made and will not make loans to any Person or
hold evidence of indebtedness issued by any other person or entity
(other than cash and investment-grade securities issued by an entity
that is not an Affiliate of or subject to common ownership with such
entity);
(xxx) has not identified and will not identify its partners,
members, beneficiaries or shareholders, or any Affiliate of any of them,
as a division or part of it, and has not identified itself and shall not
identify itself as a division of any other Person;
(xxxi) does not and will not have any of its obligations
guaranteed by any Affiliate except for the Limited Guaranty and as
otherwise required in the Loan Documents;
(xxxii) has not entered into or been a party to, and will not
enter into or be a party to, any transaction with its partners, members,
beneficiaries, shareholders or Affiliates except (A) in the ordinary
course of its business and on terms which are intrinsically fair,
commercially reasonable and are no less favorable to it than would be
obtained in a comparable arm's-length transaction with an unrelated
third party and (B) in connection with this Agreement; and
19
(xxxiii) has complied and will comply with all of the terms and
provisions contained in its organizational documents. The statement of
facts contained in its organizational documents are true and correct and
will remain true and correct.
"STATE" shall mean, with respect to the Property, the State or
Commonwealth in which the Property or any part thereof is located.
"SURVEY" shall mean a survey of the Property in question prepared
by a surveyor licensed in the State and satisfactory to Lender and the company
or companies issuing the Title Insurance Policy, and containing a certification
of such surveyor satisfactory to Lender.
"TAX AND INSURANCE ESCROW FUND" shall have the meaning set forth
in Section 7.2 hereof regardless of whether the funds held therein are held by
Lender for the payment of Taxes or Insurance Premiums or both.
"TAXES" shall mean all real estate and personal property taxes,
assessments, water rates or sewer rents, now or hereafter levied or assessed or
imposed against the Property or any part thereof.
"TENANT" shall mean any person or entity with a possessory right
to all or any part of the Property pursuant to a Lease or other written
agreement.
"TENANT DIRECTION LETTER" shall mean a letter in the form of
Schedule I attached hereto from Grantor to the tenant under each Lease with
respect to the Property (whether such Lease is presently effective or executed
after the Closing Date) directing such tenant to send directly to the Lockbox
Account all payments of Rent payable to Grantor under such Lease.
"TERRORISM INSURANCE GUARANTOR" shall have the meaning set forth
in Section 6.1 hereof.
"TITLE INSURANCE POLICY" shall mean, with respect to the
Property, an ALTA mortgagee title insurance policy in the form (acceptable to
Lender) (or, if the Property is in a State which does not permit the issuance of
such ALTA policy, such form as shall be permitted in such State and acceptable
to Lender) issued with respect to the Property and insuring the lien of the
Mortgage encumbering the Property.
"TRANSFEREE" shall have the meaning set forth in Section 5.2.13
hereof.
"UCC" or "UNIFORM COMMERCIAL CODE" shall mean the Uniform
Commercial Code as in effect in the applicable State in which the Property is
located.
"U.S. OBLIGATIONS" shall mean direct non-callable obligations of
the United States of America as defined in Section 2(a)(16) of the Investment
Company Act as amended (15 USC 80a-1) stated in REMIC Section 1.86 OG-2(a)(8).
Section 1.2 PRINCIPLES OF CONSTRUCTION. All references to
sections and schedules are to sections and schedules in or to this Agreement
unless otherwise specified. All uses of the
20
word "including" shall mean "including, without limitation" unless the context
shall indicate otherwise. Unless otherwise specified, the words "hereof,"
"herein" and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular provision of
this Agreement. Unless otherwise specified, all meanings attributed to defined
terms herein shall be equally applicable to both the singular and plural forms
of the terms so defined.
ARTICLE II
GENERAL TERMS
Section 2.1 LOAN COMMITMENT; DISBURSEMENT TO BORROWER.
2.1.1 THE LOAN. Subject to and upon the terms and conditions set
forth herein, Lender hereby agrees to make and Borrower hereby agrees to accept
the Loan on the Closing Date.
2.1.2 DISBURSEMENT TO BORROWER. Borrower may request and receive
only one borrowing hereunder in respect of the Loan and any amount borrowed and
repaid hereunder in respect of the Loan may not be reborrowed.
2.1.3 THE NOTE, MORTGAGE AND LOAN DOCUMENTS. The Loan shall be
evidenced by the Note and guarantied by the Limited Guaranty. The Limited
Guaranty shall be secured by the Mortgage, the Assignment of Leases and the
other Loan Documents.
2.1.4 USE OF PROCEEDS. Borrower shall use the proceeds of the
Loan to (a) repay and discharge any existing loans relating to the Property, (b)
pay all past-due Basic Carrying Costs, if any, in respect of the Property, (c)
make deposits into the Reserve Funds on the Closing Date in the amounts provided
herein, (d) pay costs and expenses incurred in connection with the closing of
the Loan, as approved by Lender, (c) fund any working capital requirements of
the Property, and (f) distribute the balance, if any, to Borrower.
Section 2.2 INTEREST; LOAN PAYMENTS; LATE PAYMENT CHARGE.
2.2.1 INTEREST GENERALLY. Interest on the outstanding principal
balance of the Loan shall accrue from the Closing Date to but excluding the
Maturity Date at the Interest Rate.
2.2.2 INTEREST CALCULATION. Interest on the outstanding
principal balance of the Loan shall be calculated on the basis of a three
hundred sixty (360) day year comprised of twelve (12) months of thirty (30) days
each, except that interest due and payable for a period of less than a full
month shall be calculated by multiplying the actual number of days elapsed in
the period for which the calculation is being made by a daily rate based on a
three hundred sixty (360) day year.
2.2.3 PAYMENTS GENERALLY. Borrower shall pay to Lender (a) on
the Closing Date, an amount equal to interest only on the outstanding principal
balance of the Loan from the Closing Date up to but not including the first
Payment Date following the Closing Date, and (b)
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on October 1, 2004 and each Payment Date thereafter up to but not including the
Maturity Date, an amount equal to the Monthly Debt Service Payment Amount, which
shall be applied to interest on the outstanding principal amount of the Loan for
the prior calendar month at the Interest Rate.
2.2.4 INTENTIONALLY OMITTED.
2.2.5 PAYMENT ON MATURITY DATE. Borrower shall pay to Lender on
the Maturity Date the outstanding principal balance of the Loan, all accrued and
unpaid interest and all other amounts due hereunder and under the Note, the
Mortgage and other the Loan Documents.
2.2.6 PAYMENTS AFTER DEFAULT. Upon the occurrence and during the
continuance of an Event of Default, interest on the outstanding principal
balance of the Loan and, to the extent permitted by law, overdue interest and
other amounts due in respect of the Loan, shall accrue at the Default Rate,
calculated from the date such payment was due without regard to any grace or
cure periods contained herein. Interest at the Default Rate shall be computed
from the occurrence of the Event of Default until the actual receipt and
collection of the Debt (or that portion thereof that is then due). To the extent
permitted by applicable law, interest at the Default Rate shall be added to the
Debt, shall itself accrue interest at the same rate as the Loan and shall be
guarantied by the Limited Guaranty. This paragraph shall not be construed as an
agreement or privilege to extend the date of the payment of the Debt, nor as a
waiver of any other right or remedy accruing to Lender by reason of the
occurrence of any Event of Default and Lender retains its rights under the Note
and this Agreement to accelerate and to continue to demand payment of the Debt
upon the happening and continuance of any Event of Default.
2.2.7 LATE PAYMENT CHARGE. If any principal, interest or any
other sums due under the Loan Documents is not paid by Borrower or Grantor on or
prior to the date which is five (5) days after the date on which it is due,
Borrower shall pay to Lender upon demand an amount equal to the lesser of five
percent (5%) of such unpaid sum or the maximum amount permitted by applicable
law in order to defray the expense incurred by Lender in handling and processing
such delinquent payment and to compensate Lender for the loss of the use of such
delinquent payment. Any such amount shall be guarantied by the Limited Guaranty
and secured by the Mortgage and the other Loan Documents to the extent permitted
by applicable law. The foregoing late payment charge shall not apply to the
payment of all outstanding principal, interest and other sums due on the
Maturity Date.
2.2.8 USURY SAVINGS. This Agreement and the Note are subject to
the express condition that at no time shall Borrower or Grantor be obligated or
required to pay interest on the principal balance of the Loan pursuant to the
Note or the Limited Guaranty, as applicable, at a rate which could subject
Lender to either civil or criminal liability as a result of being in excess of
the Maximum Legal Rate. If, by the terms of this Agreement or the other Loan
Documents, Borrower or Grantor is at any time required or obligated to pay
interest on the principal balance at a rate in excess of the Maximum Legal Rate,
the Interest Rate or the Default Rate, as the case may be, shall be deemed to be
immediately reduced to the Maximum Legal Rate and all previous payments in
excess of the Maximum Legal Rate shall be deemed to have been payments in
reduction of principal and not on account of the interest due hereunder. All
sums paid or agreed
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to be paid to Lender for the use, forbearance, or detention of the sums due
under the Loan, shall, to the extent permitted by applicable law, be amortized,
prorated, allocated, and spread throughout the full stated term of the Loan
until payment in full so that the rate or amount of interest on account of the
Loan does not exceed the Maximum Legal Rate of interest from time to time in
effect and applicable to the Loan for so long as the Loan is outstanding.
Section 2.3 PREPAYMENTS.
2.3.1 VOLUNTARY PREPAYMENTS.
(a) Except as otherwise provided herein, Borrower shall not have
the right to prepay the Loan in whole or in part prior to the Permitted
Prepayment Date. After the Permitted Prepayment Date, Borrower may, provided it
has given Lender prior written notice in accordance with the terms of this
Agreement, prepay the unpaid principal balance of the Loan in whole, but not in
part, by paying, together with the amount to be prepaid, (i) interest accrued
and unpaid on the outstanding principal balance of the Loan being prepaid to and
including the date of prepayment, (ii) unless prepayment is tendered on a
Payment Date, an amount equal to the interest that would have accrued on the
amount being prepaid after the date of prepayment through and including the next
Payment Date had the prepayment not been made (which amount shall constitute
additional consideration for the prepayment), (iii) all other sums then due
under this Agreement, the Note, the Mortgage and the other Loan Documents, and
(iv) if prepayment occurs prior to the Payment Date which is one month prior to
the Maturity Date, a prepayment consideration (the "PREPAYMENT CONSIDERATION")
equal to the greater of (A) one percent (1%) of the outstanding principal
balance of the Loan being prepaid or (B) the excess, if any, of (1) the sum of
the present values of all then-scheduled payments of principal and interest
under this Agreement including, but not limited to, principal and interest on
the Maturity Date (with each such payment discounted to its present value at the
date of prepayment at the rate which, when compounded monthly, is equivalent to
the Prepayment Rate), over (2) the outstanding principal amount of the Loan.
Lender shall notify Borrower of the amount and the basis of determination of the
required prepayment consideration.
(b) On the Payment Date that is one month prior to the
Maturity Date, and on each day thereafter through the Maturity Date, Borrower
may, at its option, prepay the Debt without payment of any Prepayment
Consideration or other penalty or premium; PROVIDED, HOWEVER, if such
prepayment is not paid on a regularly scheduled Payment Date, the Debt shall
include interest that would have accrued on such prepayment through and
including the day immediately preceding the Maturity Date. Borrower's right
to prepay any portion of the principal balance of the Loan shall be subject
to (i) Borrower's submission of a notice to Lender setting forth the amount
to be prepaid and the projected date of prepayment, which date shall be no
less than thirty (30) days from the date of such notice, and (ii) Borrower's
actual payment to Lender of the amount to be prepaid as set forth in such
notice on the projected date set forth in such notice or any day following
such projected date occurring in the same calendar month as such projected
date.
2.3.2 MANDATORY PREPAYMENTS. (a) On the next occurring Payment
Date following the date on which Borrower or Grantor actually receives any Net
Proceeds, if Lender
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is not obligated to make such Net Proceeds available to Borrower or Grantor
pursuant to this Agreement for the restoration of the Property, Borrower shall,
at Lender's option, prepay the outstanding principal balance of the Note in an
amount equal to one hundred percent (100%) of such Net Proceeds. No Prepayment
Consideration or other penalty or premium shall be due in connection with any
prepayment made pursuant to this Section 2.3.2. Any partial prepayment under
this Section shall be applied to the last payments of principal due under the
Loan.
(b) On the date on which Borrower tenders a
Casualty/Condemnation Prepayment pursuant to Section 6.4(e) below, such tender
shall include (a) all accrued and unpaid interest and the principal indebtedness
being prepaid, including interest on the outstanding principal amount of the
applicable Note through the last day of the month within which such tender
occurs, and (b) any other sums due hereunder relating to the applicable Note.
Except as set forth in this Section 2.3.2(b), other than following an Event of
Default, no Prepayment Consideration or other penalty or premium shall be due in
connection with any Casualty/Condemnation Prepayment.
2.3.3 PREPAYMENTS AFTER DEFAULT. Following an Event of Default,
if Borrower or anyone on Borrower's or Grantor's behalf makes a tender of
payment of all or any portion of the Debt at any time prior to a foreclosure
sale (including a sale under the power of sale under the Mortgage), or during
any redemption period after foreclosure, (i) the tender of payment shall
constitute an evasion of Borrower's obligation to pay any Prepayment
Consideration due under this Agreement and such payment shall, therefore, to the
maximum extent permitted by law, include a premium equal to the Prepayment
Consideration that would have been payable on the date of such tender had the
Loan not been so accelerated, or (ii) if at the time of such tender a prepayment
of the principal amount of the Loan would have been prohibited under this
Agreement had the principal amount of the Loan not been so accelerated, the
tender of payment shall constitute an evasion of such prepayment prohibition and
shall, therefore, to the maximum extent permitted by law, include an amount
equal to the greater of (i) 1% of the then principal amount of the Loan (or the
relevant portion thereof being prepaid) and (ii) an amount equal to the excess
of (A) the sum of the present values of a series of payments payable at the
times and in the amounts equal to the payments of principal and interest
(including, but not limited to the principal and interest payable on the
Maturity Date) which would have been scheduled to be payable after the date of
such tender under this Agreement had the Loan (or the relevant portion thereof)
not been accelerated, with each such payment discounted to its present value at
the date of such tender at the rate which when compounded monthly is equivalent
to the Prepayment Rate, over (B) the then principal amount of the Loan.
Section 2.4 INTENTIONALLY OMITTED.
Section 2.5 RELEASE OF PROPERTY. Except as set forth in this
Section 2.5, no repayment or prepayment of all or any portion of the Loan shall
cause, give rise to a right to require, or otherwise result in, the release of
any Lien of the Mortgage on the Property. If Borrower has elected to prepay the
entire amount of the Loan pursuant to Section 2.3.1 and the requirements of this
Section 2.5 have been satisfied, the Property shall be released from the Lien of
the Mortgage.
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2.5.1 RELEASE ON PAYMENT IN FULL. Lender shall, upon the written
request and at the expense of Borrower, upon payment in full of all principal
and interest on the Loan and all other amounts due and payable under the Loan
Documents in accordance with the terms and provisions of Section 2.3.1 of this
Loan Agreement, release the Lien of the Mortgage on the Property not theretofore
released.
2.5.2 INTENTIONALLY OMITTED.
Section 2.6 MANNER OF MAKING PAYMENTS.
2.6.1 MAKING OF PAYMENTS. Each payment by Borrower or Grantor
hereunder or under the Note shall be made in funds settled through the New York
Clearing House Interbank Payments System or other funds immediately available to
Lender by 1:00 p.m., New York City time, on the date such payment is due, to
Lender by deposit to such account as Lender may designate by written notice to
Borrower or Grantor. Whenever any payment hereunder or under the Note shall be
stated to be due on a day which is not a Business Day, such payment shall be
made on the next succeeding Business Day.
2.6.2 NO DEDUCTIONS, ETC. All payments made by Borrower or
Grantor hereunder or under the Note or the other Loan Documents shall be made
irrespective of, and without any deduction for, any setoff, defense or
counterclaims.
2.6.3 CASH MANAGEMENT. In connection with the Closing, Grantor
shall execute and deliver to Lender a Tenant Direction Letter for each of the
tenants at the Property, which Tenant Direction Letter instructs each such
tenant to deposit Rent and other receivables related to the Property directly
into an account (the "LOCKBOX ACCOUNT") owned and controlled by Lender at a bank
to be selected by Lender (the "LOCKBOX BANK"). Grantor covenants and agrees to
execute and deliver to Lender a Tenant Direction Letter for each new tenant at
the Property within thirty (30) days after the execution of each new Lease for
premises at the Property. Lender will hold the Tenant Direction Letters in
escrow; provided, however, upon the occurrence of a Lockbox Trigger, Lender
shall have the right to deliver a Tenant Direction Letter to each tenant at the
Property. Within five (5) Business Days after receiving notice of Lender's
determination that a Lockbox Trigger has occurred, Grantor shall enter into a
"cash management agreement" with Lender and Lockbox Bank, in form and substance
acceptable to Lender ("CASH MANAGEMENT AGREEMENT"), which shall provide, among
other things, that tenants at the Property shall deposit Rent and other
receivables related to the Property directly into the Lockbox Account. The
Lockbox Bank shall apply funds in the Lockbox Account to pay debt service and
required reserves, fees of the Lockbox Bank and budgeted operating expenses for
the Property, as to be more particularly set forth in the Cash Management
Agreement. Funds remaining in the Lockbox Account after payment of the foregoing
(the "EXCESS CASH FLOW") shall be distributed to Grantor; PROVIDED, HOWEVER,
upon the occurrence of a Cash Management Trigger and until the occurrence of a
Cash Management Termination Event, such Excess Cash Flow shall be distributed to
Grantor only to the extent of unbudgeted operating expenses approved by Lender
and any remaining funds shall remain in such Lockbox Account as additional
collateral for the Loan. Upon the occurrence of a Cash Management Termination
Event, the balance of the funds in the Lockbox Account shall be distributed to
Grantor. The
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Grantor shall be responsible for the costs associated with the Lockbox Bank and
the Lockbox Account.
Section 2.7 RELEASE OF OUT PARCELS. (a) Lender acknowledges
that Home Depot has the right to purchase the Home Depot Out Parcel pursuant to
its lease, and that Grantor shall be required to obtain a release of the Home
Depot Out Parcel in the event that Home Depot exercises that right. Lender
hereby agrees that, notwithstanding the provisions of Section 2.5 hereof,
subject to the terms and conditions set forth in this Section 2.7, Grantor may
obtain a release of the Lien of the Mortgage (and the related Loan Documents)
encumbering the Property from the Home Depot Out Parcel, provided that (a) no
Event of Default has occurred or is continuing, (b) Grantor provides Lender with
a written request for such a release, (c) Grantor delivers to Lender the Home
Depot Exercise Consideration, and (d) Grantor satisfies within thirty (30) days
of the date Lender receives such written request each of the conditions listed
on Schedule V hereof (the "Home Depot Out Parcel Release Conditions")."
(b) Lender acknowledges that Borrower has requested the
right to obtain a future release of one or more currently unimproved portions of
the Property to be delineated after the Closing Date (individually or
collectively, together with any appurtenant easements approved by Lender, the
"Out Parcel"). Lender hereby agrees that, notwithstanding the provisions of
Section 2.5 hereof, subject to the terms and conditions set forth in this
Section 2.7, Borrower may obtain a release of the Lien of the Mortgage (and the
related Loan Documents) encumbering the Property from the Out Parcel, provided
that (a) no Event of Default has occurred or is continuing, (b) Borrower
provides Lender with a written request for such a release, and (c) Borrower
satisfies within ninety (90) days of the date Lender receives such written
request each of the conditions listed on Schedule VI hereof (the "Out Parcel
Release Conditions")."
ARTICLE III
CONDITIONS PRECEDENT
Section 3.1 CONDITIONS PRECEDENT TO CLOSING. The obligation of
Lender to make the Loan hereunder is subject to the fulfillment by Borrower or
Grantor or waiver by Lender of the following conditions precedent no later than
the Closing Date:
3.1.1 REPRESENTATIONS AND WARRANTIES; COMPLIANCE WITH
CONDITIONS. The representations and warranties of Grantor contained in this
Agreement and the other Loan Documents shall be true and correct in all material
respects on and as of the Closing Date with the same effect as if made on and as
of such date, and no Default or an Event of Default shall have occurred and be
continuing; and Grantor shall be in compliance in all material respects with all
terms and conditions set forth in this Agreement and in each other Loan Document
on its part to be observed or performed.
3.1.2
LOAN AGREEMENT, NOTE AND LIMITED GUARANTY. Lender shall
have received a copy of this Agreement, the Note and the Guaranty, in each case,
duly executed and delivered on behalf of Borrower or Grantor, as applicable.
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3.1.3 DELIVERY OF LOAN DOCUMENTS; TITLE INSURANCE; REPORTS;
LEASES, ETC.
(a) MORTGAGE, ASSIGNMENT OF LEASES AND OTHER LOAN DOCUMENTS.
Lender shall have received from Grantor fully executed and acknowledged
counterparts of the Mortgage and the Assignment of Leases and evidence that
counterparts of the Mortgage and Assignment of Leases have been delivered to the
title company for recording, in the reasonable judgment of Lender, so as to
effectively create upon such recording valid and enforceable first priority
Liens upon the Property in favor of Lender (or such trustee as may be required
under local law), subject only to the Permitted Encumbrances and such other
Liens as are permitted pursuant to the Loan Documents. Lender shall have also
received from Grantor fully executed counterparts of the Assignment of
Management Agreement and the other Loan Documents.
(b) TITLE INSURANCE. Lender shall have received a Title Insurance
Policy issued by a title company acceptable to Lender and dated as of the
Closing Date. Such Title Insurance Policy shall (i) provide coverage in an
amount equal to the principal amount of the Loan together with, if applicable, a
"tie-in" or similar endorsement, (ii) insure Lender that the Mortgage creates a
valid first priority lien on the Property encumbered thereby, free and clear of
all exceptions from coverage other than Permitted Encumbrances and standard
exceptions and exclusions from coverage (as modified by the terms of any
endorsements), (iii) contain such endorsements and affirmative coverages as
Lender may reasonably request, and (iv) name Lender, its successors and assigns,
as the insured. The Title Insurance Policy shall be assignable without cost to
Lender. Lender also shall have received evidence that all premiums in respect of
such Title Insurance Policy have been paid.
(c) SURVEY. Lender shall have received a title survey for the
Property, certified to the title company and Lender and their successors and
assigns, in form and content satisfactory to Lender and prepared by a
professional and properly licensed land surveyor satisfactory to Lender in
accordance with the most recent Minimum Standard Detail Requirements for
ALTA/ACSML and Title Surveys. The following additional items from the list of
"Optional Survey Responsibilities and Specifications" (Table A) should be added
to each survey: 2, 3, 4, 6, 8, 9, 10, 11 and 13. The survey shall reflect the
same legal description contained in the Title Insurance Policy relating to the
Property referred to in clause (ii) above and shall include, among other things,
a legal description of the real property comprising part of such Property
reasonably satisfactory to Lender. The surveyor's seal shall be affixed to each
survey and the surveyor shall provide a certification for each survey in form
and substance acceptable to Lender.
(d) INSURANCE. Lender shall have received valid certificates of
insurance for the policies of insurance required hereunder, satisfactory to
Lender in its sole discretion, and evidence of the payment of all premiums
payable for the existing policy period.
(e) ENVIRONMENTAL REPORTS. Lender shall have received an
environmental report in respect of the Property, in each case reasonably
satisfactory to Lender.
(f) ZONING. With respect to the Property, Lender shall have
received, at Lender's option, (i) letters or other evidence with respect to the
Property from the appropriate municipal authorities (or other Persons)
concerning applicable zoning and building laws, (ii) an ALTA 3.1
27
zoning endorsement to the Title Insurance Policy or (iii) other evidence of
zoning compliance, in each case in substance reasonably satisfactory to Lender.
(g) ENCUMBRANCES. Grantor shall have taken or caused to be taken
such actions in such a manner so that Lender has a valid and perfected first
Lien on the Property as of the Closing Date with respect to the Mortgage,
subject only to applicable Permitted Encumbrances and such other Liens as are
permitted pursuant to the Loan Documents, and Lender shall have received
satisfactory evidence thereof.
3.1.4 RELATED DOCUMENTS. Each additional document not
specifically referenced herein, but relating to the transactions contemplated
herein, shall have been duly authorized, executed and delivered by all parties
thereto and Lender shall have received and approved certified copies thereof.
3.1.5 DELIVERY OF ORGANIZATIONAL DOCUMENTS. On or before the
Closing Date, Borrower or Grantor, as applicable, shall deliver or cause to be
delivered to Lender copies certified by Borrower or Grantor, as applicable, of
all organizational documentation related to Borrower or Grantor and/or the
formation, structure, existence, good standing and/or qualification to do
business, as Lender may request in its sole discretion, including, without
limitation, good standing certificates, qualifications to do business in the
appropriate jurisdictions, resolutions authorizing the entering into of the Loan
and incumbency certificates as may be requested by Lender.
3.1.6 OPINIONS OF COUNSEL. Lender shall have received opinions
of Borrower's or Grantor's counsel (and if applicable, Borrower's or Grantor's
local counsel) (a) with respect to non-consolidation issues (an "INSOLVENCY
OPINION") and (b) with respect to due execution, authority, enforceability of
the Loan Documents and such other matters as Lender may reasonably require, all
such opinions in form, scope and substance reasonably satisfactory to Lender and
Lender's counsel in their reasonable discretion.
3.1.7 BUDGETS. Grantor shall have delivered, and Lender shall
have approved, the Annual Budget for the current Fiscal Year.
3.1.8 BASIC CARRYING COSTS. Grantor shall have paid all Basic
Carrying Costs relating to the Property which are in arrears, including without
limitation, (a) accrued but unpaid insurance premiums relating to the Property,
(b) currently due and payable Taxes (including any in arrears) relating to the
Property, and (c) currently due Other Charges relating to the Property, which
amounts shall be funded with proceeds of the Loan.
3.1.9 COMPLETION OF PROCEEDINGS. All organizational proceedings
taken or to be taken in connection with the transactions contemplated by this
Agreement and other Loan Documents and all documents incidental thereto shall be
reasonably satisfactory in form and substance to Lender, and Lender shall have
received all such counterpart originals or certified copies of such documents as
Lender may reasonably request.
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3.1.10 PAYMENTS. All payments, deposits or escrows required to be
made or established by Borrower or Grantor under this Agreement, the Note and
the other Loan Documents on or before the Closing Date shall have been paid.
3.1.11 TENANT ESTOPPELS. Grantor shall exercise reasonable
commercial efforts to deliver estoppel letters from Tenants occupying not less
than eighty percent (80%) of the gross leasable area of the Property; provided,
however, that, in the event that Grantor is unable to deliver some or all of the
estoppels described above in this Section 3.1.11, Lender agrees that the
requirement to deliver such letters to Lender shall be waived by Lender as a
condition precedent to the closing of the Loan so long as Grantor delivers on or
before the Closing Date, a certificate executed by Grantor with respect to all
applicable leases which shall be in substantially the same form and contain the
same terms as set forth in Lender's standard form of estoppel certificate.
Grantor shall deliver to Lender an estoppel letter executed by Anchor Tenant in
form reasonably acceptable to Lender.
3.1.12 TRANSACTION COSTS. Borrower or Grantor shall have paid or
reimbursed Lender for all title insurance premiums, recording and filing fees or
taxes, costs of environmental reports, Physical Conditions Reports, appraisals
and other reports, the fees and costs of Lender's counsel and all other third
party out-of-pocket expenses incurred in connection with the origination of the
Loan.
3.1.13 MATERIAL ADVERSE CHANGE. There shall have been no material
adverse change in the financial condition or business condition of Borrower,
Grantor or the Property since the date of the most recent financial statements
delivered to Lender. The income and expenses of the Property, the occupancy
leases thereof, and all other features of the transaction shall be as
represented to Lender without material adverse change. Neither Borrower or
Grantor, any of their respective constituent Persons, shall be the subject of
any bankruptcy, reorganization, or insolvency proceeding.
3.1.14 LEASES AND RENT ROLL. Lender shall have received copies of
all tenant leases, certified copies of any tenant leases as requested by Lender
and certified copies of all ground leases affecting the Property. Lender shall
have received a current certified rent roll of the Property, reasonably
satisfactory in form and substance to Lender.
3.1.15 SUBORDINATION AND ATTORNMENT. Lender shall have received
appropriate instruments acceptable to Lender in its commercially reasonable
discretion subordinating any Leases of record prior to the Mortgage and
including an agreement by such Tenants to attorn to Lender in the event of a
foreclosure or delivery of a deed in lieu thereof.
3.1.16 TAX LOT. Lender shall have received evidence that the
Property constitutes one (1) or more separate tax lots, which evidence shall be
reasonably satisfactory in form and substance to Lender.
3.1.17 PHYSICAL CONDITIONS REPORTS. Lender shall have received
Physical Conditions Reports with respect to the Property, which reports shall be
reasonably satisfactory in form and substance to Lender.
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3.1.18 MANAGEMENT AGREEMENT. Lender shall have received a
certified copy of the Management Agreement with respect to the Property which
shall be satisfactory in form and substance to Lender. Lender acknowledges that
it has reviewed the Management Agreement, and as drafted, such Management
Agreement does not violate Grantor's covenant that affiliated agreements be on
terms which are intrinsically fair, commercially reasonable and are no less
favorable to it than would be obtained in a comparable arm's length transaction
with an unrelated third party.
3.1.19 APPRAISAL. Lender shall have received an appraisal of the
Property, which shall be satisfactory in form and substance to Lender.
3.1.20 FINANCIAL STATEMENTS. Lender shall have received (a) a
balance sheet with respect to the Property for the two most recent Fiscal Years
and statements of income and statements of cash flows with respect to the
Property for the three most recent Fiscal Years, each in form and substance
reasonably satisfactory to Lender or (b) such other financial statements
relating to the ownership and operation of the Property, in form and substance
reasonably satisfactory to Lender.
3.1.21 FURTHER DOCUMENTS. Lender or its counsel shall have
received such other and further approvals, opinions, documents and information
as Lender or its counsel may have reasonably requested including the Loan
Documents in form and substance reasonably satisfactory to Lender and its
counsel.
3.1.22 ENVIRONMENTAL INSURANCE. If required by Lender, Grantor
shall have obtained a secured creditor environmental insurance policy with
respect to the Property, which shall be in form and substance satisfactory to
Lender. Any such policy shall have a term not less than the term of the Loan.
Grantor shall have provided to Lender evidence that the premiums for such policy
has been paid in full.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 BORROWER AND GRANTOR REPRESENTATIONS. Each of
Borrower and Grantor, as applicable, represents and warrants as of the date
hereof and as of the Closing Date that:
4.1.1 ORGANIZATION. Each of Borrower and Grantor has been duly
organized and is validly existing and in good standing, and in the case of
Grantor, has the requisite power and authority to own the Property and to
transact the businesses in which it is now engaged. Each of Borrower and Grantor
is duly qualified to do business and is in good standing in each jurisdiction
where it is required to be so qualified in connection with the Loan, its
Property, businesses and operations. Grantor possesses all rights, licenses,
permits and authorizations, governmental or otherwise, necessary to entitle it
to own the Property and to transact the businesses in which it is now engaged,
and the sole business of Grantor is the ownership, management and operation of
the Property.
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4.1.2 PROCEEDINGS. Each of Borrower and Grantor has taken all
necessary action to authorize the execution, delivery and performance of this
Agreement and the other Loan Documents. This Agreement and such other Loan
Documents have been duly executed and delivered by or on behalf of Borrower
and/or Grantor and constitute legal, valid and binding obligations of Borrower
and/or Grantor enforceable against such party in accordance with their
respective terms, subject only to applicable bankruptcy, insolvency and similar
laws affecting rights of creditors generally, and subject, as to enforceability,
to general principles of equity (regardless of whether enforcement is sought in
a proceeding in equity or at law).
4.1.3 NO CONFLICTS. The execution, delivery and performance of
this Agreement and the other Loan Documents by Borrower or Grantor will not
conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any lien,
charge or encumbrance (other than pursuant to the Loan Documents) upon any of
the property or assets of Borrower or Grantor pursuant to the terms of any
indenture, mortgage, deed of trust,
loan agreement, partnership agreement or
other agreement or instrument to which Borrower or Grantor is a party or by
which any of Borrower's or Grantor's property or assets is subject, nor will
such action result in any violation of the provisions of any statute or any
order, rule or regulation of any court or governmental agency or body having
jurisdiction over Borrower or Grantor or any of Borrower's or Grantor's
properties or assets, and any consent, approval, authorization, order,
registration or qualification of or with any court or any such regulatory
authority or other governmental agency or body required for the execution,
delivery and performance by Borrower or Grantor of this Agreement or any other
Loan Documents has been obtained and is in full force and effect.
4.1.4 LITIGATION. To Borrower's and Grantor's knowledge, there
are no actions, suits or proceedings at law or in equity by or before any
Governmental Authority or other agency now pending or threatened against or
affecting Borrower, Grantor or the Property, which actions, suits or
proceedings, if determined against Borrower, Grantor or the Property, might
materially adversely affect the condition (financial or otherwise) or business
of Borrower or Grantor or the condition or ownership of the Property.
4.1.5 AGREEMENTS. Except such instruments and agreements set
forth as Permitted Exceptions in the Title Insurance Policy, neither Borrower
nor Grantor is a party to any agreement or instrument or subject to any
restriction which might materially and adversely affect Borrower, Grantor or the
Property, or Borrower's or Grantor's business, properties or assets, operations
or condition, financial or otherwise. To Borrower's and Grantor's knowledge,
neither Borrower nor Grantor is in default in any material respect in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any agreement or instrument to which it is a party or by
which Borrower, Grantor or the Property are bound. Neither Borrower nor Grantor
has a material financial obligation under any indenture, mortgage, deed of
trust,
loan agreement or other agreement or instrument to which Borrower or
Grantor is a party or by which Borrower, Grantor or the Property is otherwise
bound, other than (a) obligations incurred in the ordinary course of the
operation of the Property and (b) obligations under the Loan Documents.
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4.1.6 TITLE. Grantor has good and indefeasible fee simple title
to the real property comprising part of the Property and good title to the
balance of the Property, free and clear of all Liens whatsoever except the
Permitted Encumbrances, such other Liens as are permitted pursuant to the Loan
Documents and the Liens created by the Loan Documents. The Mortgage, when
properly recorded in the appropriate records, together with any Uniform
Commercial Code financing statements required to be filed in connection
therewith, will create (a) a valid, perfected lien on the Property, subject only
to Permitted Encumbrances and the Liens created by the Loan Documents and (b)
perfected security interests in and to, and perfected collateral assignment of,
all personalty (including the Leases), all in accordance with the terms thereof,
in each case subject only to any applicable Permitted Encumbrances, such other
Liens as are permitted pursuant to the Loan Documents and the Liens created by
the Loan Documents. There are no claims for payment for work, labor or materials
affecting the Property which are due and unpaid under the contracts pursuant to
which such work or labor was performed or materials provided which are or may
become a lien prior to, or of equal priority with, the Liens created by the Loan
Documents.
4.1.7 SOLVENCY; NO BANKRUPCY FILING. Neither Borrower nor
Grantor (a) has entered into the transaction or executed the Note, this
Agreement or any other Loan Documents with the actual intent to hinder, delay or
defraud any creditor and (b) has not received reasonably equivalent value in
exchange for its obligations under the applicable Loan Documents. The fair
saleable value of Grantor's assets exceeds and will, immediately following the
execution and delivery of the Limited Guaranty, exceed Grantor's total
liabilities, including, without limitation, subordinated, unliquidated, disputed
and contingent liabilities. The fair saleable value of Grantor's assets is and
will, immediately following the execution and delivery of the Limited Guaranty,
be greater than Grantor's probable liabilities, including the maximum amount of
its contingent liabilities on its debts as such debts become absolute and
matured. Neither Borrower's nor Grantor's assets now and immediately following
the making of the Loan, will constitute unreasonably small capital to carry out
its business as conducted or as proposed to be conducted. Neither Borrower nor
Grantor intends to, and does not believe that it will, incur debt and
liabilities (including contingent liabilities and other commitments) beyond its
ability to pay such debt and liabilities as they mature (taking into account the
timing and amounts of cash to be received by Borrower and the amounts to be
payable on or in respect of obligations of Borrower). No petition in bankruptcy
has been filed against Borrower or Grantor, or to the best of each such party's
knowledge, any constituent Person in the last seven (7) years, and neither
Borrower, Grantor, nor to the best of such party's knowledge, any constituent
Person in the last seven (7) years has made an assignment for the benefit of
creditors or taken advantage of any insolvency act for the benefit of debtors.
Neither Borrower, Grantor nor any of such party's constituent Persons are
contemplating either the filing of a petition by it under any state or federal
bankruptcy or insolvency laws or the liquidation of all or a major portion of
any such party's assets or property, and no such party has no knowledge of any
Person contemplating the filing of any such petition against it or such
constituent Persons. With respect to any bankruptcy filed by a Grantor or any
predecessor entity more than seven (7) years ago, to the best of such Grantor's
knowledge after due inquiry, there are no remaining liabilities with respect to
any such filing.
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4.1.8 FULL AND ACCURATE DISCLOSURE. To Borrower's and Grantor's
knowledge, no statement of fact made by Borrower or Grantor in this Agreement or
in any of the other Loan Documents contains any untrue statement of a material
fact or omits to state any material fact necessary to make statements contained
herein or therein not misleading. There is no material fact presently known to
Borrower or Grantor which has not been disclosed to Lender which adversely
affects, nor as far as Borrower or Grantor can foresee, might adversely affect,
the Property or the business, operations or condition (financial or otherwise)
of Borrower or Grantor.
4.1.9 MO PLAN ASSETS. Neither Borrower nor Grantor is an
"employee benefit plan," as defined in Section 3(3) of ERISA, subject to Title I
of ERISA, and none of the assets of Borrower or Grantor constitutes or will
constitute "plan assets" of one or more such plans within the meaning of 29
C.F.R. Section 2510.3-101. In addition, (a) neither Borrower nor Grantor is a
"governmental plan" within the meaning of Section 3(32) of ERISA and (b)
transactions by or with Borrower or Grantor are not subject to state statutes
regulating investment of, and fiduciary obligations with respect to,
governmental plans similar to the provisions of Section 406 of ERISA or Section
4975 of the Code currently in effect, which prohibit or otherwise restrict the
transactions contemplated by this
Loan Agreement.
4.1.10 COMPLIANCE. To Grantor's knowledge, Grantor and the
Property and the use thereof comply in all material respects with all applicable
Legal Requirements, including, without limitation, building and zoning
ordinances and codes. Grantor is not in default or violation of any order, writ,
injunction, decree or demand of any Governmental Authority. There has not been
committed by Grantor or, to Grantor's knowledge, any other Person in occupancy
of or involved with the operation or use of the Property any act or omission
affording the federal government or any other Governmental Authority the right
of forfeiture as against the Property or any part thereof or any monies paid in
performance of Grantor's obligations under any of the Loan Documents.
4.1.11 FINANCIAL INFORMATION. All financial data, including,
without limitation, the statements of cash flow and income and operating
expense, that have been delivered to Lender in respect of the Property (i) are
true, complete and correct in all material respects, (ii) accurately represent
the financial condition of the Property as of the date of such reports, and
(iii) to the extent prepared or audited by an independent certified public
accounting firm, have been prepared in accordance with accounting principles
reasonably acceptable to Lender, consistently applied throughout the periods
covered, except as disclosed therein; provided, however, that if any financial
data is delivered to Lender by any Person other than Borrower, Grantor,
Indemnitor or any of their Affiliates, or if such financial data has been
prepared by or at the direction of any Person other than Borrower, Grantor,
Indemnitor or any of their Affiliates, then the foregoing representations with
respect to such financial data shall be to the best of Borrower's and Grantor's
knowledge, after due inquiry. Neither Borrower nor Grantor has any contingent
liabilities, liabilities for taxes, unusual forward or long-term commitments or
unrealized or anticipated losses from any unfavorable commitments that are known
to Borrower or Grantor and reasonably likely to have a materially adverse effect
on the Property or the operation thereof as a retail shopping center, except as
referred to or reflected in said financial statements. Since the date of such
financial statements, there has been no materially adverse change in the
financial
33
condition, operations or business of Borrower or Grantor from that set forth in
said financial statements.
4.1.12 CONDEMNATION. No Condemnation or other proceeding has been
commenced or, to Grantor's knowledge, is contemplated with respect to all or any
portion of the Property or for the relocation of roadways providing access to
the Property.
4.1.13 FEDERAL RESERVE REGULATIONS. No part of the proceeds of
the Loan will be used for the purpose of purchasing or acquiring any "margin
stock" within the meaning of Regulation U of the Board of Governors of the
Federal Reserve System or for any other purpose which would be inconsistent with
such Regulation U or any other Regulations of such Board of Governors, or for
any purposes prohibited by Legal Requirements or by the terms and conditions of
this Agreement or the other Loan Documents.
4.1.14 UTILITIES AND PUBLIC ACCESS. The Property has rights of
access to public ways and is served by water, sewer, sanitary sewer and storm
drain facilities adequate to service the Property for its respective intended
uses. All public utilities necessary or convenient to the full use and enjoyment
of the Property are located either in the public right-of-way abutting the
Property (which are connected so as to serve the Property without passing over
other property) or in recorded easements serving the Property and such easements
are set forth in and insured by the Title Insurance Policy. All roads necessary
for the use of the Property for their current respective purposes have been
completed and dedicated to public use and accepted by all Governmental
Authorities.
4.1.15 NOT A FOREIGN PERSON. Neither Borrower nor Grantor is a
"foreign person" within the meaning of Section 1445(f)(3) of the Code.
4.1.16 SEPARATE LOTS. The Property is comprised of one (1) or
more parcels which constitute a separate tax lot or lots and does not constitute
a portion of any other tax lot not a part of the Property.
4.1.17 ASSESSMENTS. There are no pending, or to Grantor's
knowledge, proposed special or other assessments for public improvements or
otherwise affecting the Property, nor are there any contemplated improvements to
the Property that may result in such special or other assessments.
4.1.18 ENFORCEABILITY. The Loan Documents are not subject to any
right of rescission, set-off, counterclaim or defense by Borrower or Grantor,
including the defense of usury, nor would the operation of any of the terms of
the Loan Documents, or the exercise of any right thereunder, render the Loan
Documents unenforceable, and neither Borrower nor Grantor has asserted any right
of rescission, set-off, counterclaim or defense with respect thereto.
4.1.19 NO PRIOR ASSIGNMENT. There is no prior assignment of the
Leases or any portion of the Rents by Grantor or any of its predecessors in
interest, given as collateral security which are presently outstanding.
34
4.1.20 INSURANCE. Grantor has obtained and has delivered to
Lender certified copies of all insurance policies reflecting the insurance
coverages, amounts and other requirements set forth in this Agreement. To the
best of Grantor's knowledge, no claims have been made under any such policy, and
no Person, including Grantor, has done, by act or omission, anything which would
impair the coverage of any such policy.
4.1.21 USE OF PROPERTY. The Property is used exclusively for
retail purposes and other appurtenant and related uses.
4.1.22 CERTIFICATE OF OCCUPANCY; LICENSES. All certifications,
permits, licenses and approvals, including without 1imitation, certificates of
completion and occupancy permits required to be obtained by Grantor for the
legal use, occupancy and operation of the Property as a retail shopping center
have been obtained and are in full force and effect, and to the best of
Grantor's knowledge, after due inquiry, all certifications, permits, licenses
and approvals, including without limitation, certificates of completion and
occupancy permits required to be obtained by any Person other than Grantor for
the legal use, occupancy and operation of the Property as a retail shopping
center, have been obtained and are in full force and effect (all of the
foregoing certifications, permits, licenses and approvals are collectively
referred to as the "LICENSES"). Grantor shall and shall cause all other Persons
to, keep and maintain all licenses necessary for the operation of the Property
as a retail shopping center. To Grantor's knowledge, the use being made of the
Property is in conformity with all certificates of occupancy issued for the
Property.
4.1.23 FLOOD ZONE. To the best of Grantor's knowledge, after due
inquiry, no Improvements on the Property are located in an area identified by
the Federal Emergency Management Agency as an area having special flood hazards.
4.1.24 PHYSICAL CONDITION. Except as disclosed in the Physical
Conditions Reports delivered to Lender in connecting with this Loan, to
Grantor's knowledge, the Property, including, without limitation, all
buildings, improvements, parking facilities, sidewalks, storm drainage systems,
roofs, plumbing systems, HVAC systems, fire protection systems, electrical
systems, equipment, elevators, exterior sidings and doors, landscaping,
irrigation systems and all structural components, are in good condition, order
and repair in all material respects; there exists no structural or other
material defects or damages in the Property, whether latent or otherwise, and
Grantor has not received notice from any insurance company or bonding company of
any defects or inadequacies in the Property, or any part thereof, which would
adversely affect the insurability of the same or cause the imposition of
extraordinary premiums or charges thereon or of any termination or threatened
termination of any policy of insurance or bond.
4.1.25 BOUNDARIES. To the best of Grantor's knowledge, after due
inquiry, all of the improvements which were included in determining the
appraised value of the Property lie wholly within the boundaries and building
restriction lines of the Property, and no improvements on adjoining properties
encroach upon the Property, and no easements or other encumbrances upon the
Property encroach upon any of the improvements, so as to affect the value or
marketability of the Property except those which are insured against by title
insurance.
35
4.1.26 LEASES. The Property is not subject to any Leases other
than the Leases described on the Rent Roll attached as SCHEDULE IV hereto and
made a part hereof (and subleases permitted under the Anchor Lease). No Person
has any possessory interest in the Property or right to occupy the same except
under and pursuant to the provisions of the Leases. The current Leases are in
full force and effect and to Grantor's knowledge after inquiry, there are no
defaults thereunder by either party and there are no conditions that, with the
passage of time or the giving of notice, or both, would constitute defaults
thereunder. No Rent (including security deposits) has been paid more than one
(1) month in advance of its due date. All work to be performed by Grantor under
each Lease has been performed as required and has been accepted by the
applicable tenant, and any payments, free rent, partial rent, rebate of rent or
other payments, credits, allowances or abatements required to be given by
Grantor to any tenant has already been received by such tenant. There has been
no prior sale, transfer or assignment, hypothecation or pledge of any Lease or
of the Rents received therein which is outstanding. To Grantor's knowledge after
inquiry, except as set forth on SCHEDULE IV, no tenant listed on SCHEDULE IV has
assigned its Lease or sublet all or any portion of the premises demised thereby,
no such tenant holds its leased premises under assignment or sublease, nor does
anyone except such tenant and its employees occupy such leased premises. No
tenant under any Lease has a right or option pursuant to such Lease or otherwise
to purchase all or any part of the leased premises or the building of which the
leased premises are a part. Except as set forth in SCHEDULE IV, no tenant under
any Lease has any right or option for additional space in the Improvements
except as set forth in SCHEDULE IV. To Grantor's actual knowledge based on the
Environmental Report delivered to Lender in connection herewith, no hazardous
wastes or toxic substances, as defined by applicable federal, state or local
statutes, rules and regulations, have been disposed, stored or treated by any
tenant under any Lease on or about the leased premises nor does Grantor have any
knowledge of any tenant's intention to use its leased premises for any activity
which, directly or indirectly, involves the use, generation, treatment, storage,
disposal or transportation of any petroleum product or any toxic or hazardous
chemical, material, substance or waste, except in either event, in compliance
with applicable federal, state or local statues, rules and regulations.
4.1.27 SURVEY. The Survey for the Property delivered to Lender in
connection with this Agreement has been prepared in accordance with the
provisions of Section 3.1.3(c) hereof, and does not fail to reflect any material
matter affecting the Property or the title thereto.
4.1.28 LOAN TO VALUE. The maximum principal amount of the Note
does not exceed one hundred twenty-five percent (125%) of the fair market value
of the Property as set forth on the appraisal of the Property delivered to
Lender.
4.1.29 FILING AND RECORDING TAXES. All transfer taxes, deed
stamps, intangible taxes or other amounts in the nature of transfer taxes
required to be paid by any Person under applicable Legal Requirements currently
in effect in connection with the acquisition of the Property by Grantor have
been paid or are simultaneously being paid. All mortgage, mortgage recording,
stamp, intangible or other similar tax required to be paid by any Person under
applicable Legal Requirements currently in effect in connection with the
execution, delivery, recordation, filing, registration, perfection or
enforcement of any of the Loan Documents, including, without limitation, the
Mortgage, have been paid, and, under current Legal
36
Requirements, the Mortgage is enforceable in accordance with its terms by Lender
(or any subsequent holder thereof).
4.1.30 SPECIAL PURPOSE ENTITY/SEPARATENESS. (a) Until the Debt
has been paid in full, each of Borrower and Grantor hereby represents, warrants
and covenants that each of Borrower and Grantor is, shall be and shall continue
to be a Special Purpose Entity.
(b) The representations, warranties and covenants set forth in
Section 4.l.30(a) shall survive for so long as any amount remains payable to
Lender under this Agreement or any other Loan Document.
(c) Any and all of the assumptions made in any Insolvency
Opinion, including, but not limited to, any exhibits attached thereto, will have
been and shall be true and correct in all respects, and Borrower and/or Grantor
will have complied and will comply with all of the assumptions made with respect
to it in any Insolvency Opinion. Each entity other than Borrower or Grantor with
respect to which an assumption is made in any Insolvency Opinion will have
complied and will comply with all of the assumptions made with respect to it in
any such Insolvency Opinion.
4.1.31 MANAGEMENT AGREEMENT. The Management Agreement is in full
force and effect and, to Grantor's knowledge, there is no default thereunder by
any party thereto and no event has occurred that, with the passage of time
and/or the giving of notice would constitute a default thereunder.
4.1.32 ILLEGAL ACTIVITY. To Grantor's knowledge, no portion of
the Property has been or will be purchased with proceeds of any illegal
activity.
4.1.33 NO CHANGE IN FACTS OR CIRCUMSTANCES; DISCLOSURE. All
information submitted by Borrower and/or Grantor to Lender and in all financial
statements, rent rolls, reports, certificates and other documents submitted in
connection with the Loan or in satisfaction of the terms thereof and all
statements of fact made by Borrower and/or Grantor in this Agreement or in any
other Loan Document, are accurate, complete and correct in all material
respects, provided, however, that if such information was provided to Borrower
and/or Grantor by non-affiliated third parties, Borrower and Grantor each
represent that such information is, to the best of its knowledge after due
inquiry, accurate, complete and correct in all material respects. There has been
no material adverse change in any condition, fact, circumstance or event that
would make any such information inaccurate, incomplete or otherwise misleading
in any material respect or that otherwise materially and adversely affects or
might materially and adversely affect the Property or the business operations or
the financial condition of Borrower and/or Grantor. Borrower and Grantor have
disclosed to Lender all material facts and has not failed to disclose any
material fact that could cause any representation or warranty made herein to be
materially misleading.
4.1.34 INVESTMENT COMPANY ACT. Neither Borrower nor Grantor 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;
(b) a "holding company" or a
37
"subsidiary company" of a "holding company" or an "affiliate" of either a
"holding company" or a "subsidiary company" within the meaning of the Public
Utility Holding Company Act of 1935, as amended; or (c) subject to any other
federal or state law or regulation which purports to restrict or regulate its
ability to borrow money.
4.1.35 PRINCIPAL PLACE OF BUSINESS AND ORGANIZATION. Neither
Borrower nor Grantor shall change its principal place of business set forth in
the introductory paragraph of this Agreement without first giving Lender thirty
(30) days prior written notice. Neither Borrower nor Grantor shall change the
place of its organization as set forth in the introductory paragraph of this
Agreement without the consent of Lender, which consent shall not be unreasonably
withheld, conditioned or delayed. Upon Lender's request, Borrower and Grantor
shall execute and deliver additional financing statements, security agreements
and other instruments which may be necessary to effectively evidence or perfect
Lender's security interest in the Property as a result of such change of
principal place of business or place of organization.
4.1.36 ACQUISITION COSTS. Grantor represents and warrants that
all consideration payable to the seller of the Property to Grantor has been, or
shall be in connection with the funding of the loan, paid in full, and that no
further obligation to any such seller, contingent or otherwise, shall remain
outstanding after the date hereof.
4.1.37 EMBARGOED PERSON. As of the Closing Date, to the best of
Borrower's and/or Grantor's knowledge, (a) none of the funds or other assets of
Borrower or Grantor constitute property of, or are beneficially owned, directly
or indirectly, by any Embargoed Person; (b) no Embargoed Person has any interest
of any nature whatsoever in Borrower or Grantor with the result that the
investment in Borrower or Grantor (whether directly or indirectly), is
prohibited by law or the Loan is in violation of law; and (c) none of the funds
of Borrower or Grantor have been derived from any unlawful activity with the
result that the investment in Borrower or Grantor (whether directly or
indirectly), is prohibited by law or the Loan is in violation of law.
Section 4.2 SURVIVAL OF REPRESENTATIONS. Borrower and Grantor
agree that all of the representations and warranties of Borrower and Grantor,
respectively, set forth in Section 4.1 and elsewhere in this Agreement and in
the other Loan Documents shall survive for so long as any amount remains owing
to Lender under this Agreement or any of the other Loan Documents by Borrower or
Grantor. All representations, warranties, covenants and agreements made in this
Agreement or in the other Loan Documents by Borrower or Grantor shall be deemed
to have been relied upon by Lender notwithstanding any investigation heretofore
or hereafter made by Lender or on its behalf.
ARTICLE V
BORROWER AND GRANTOR COVENANTS
Section 5.1 AFFIRMATIVE COVENANTS. From the Closing Date and
until payment and performance in full of all obligations of Borrower and Grantor
under the Loan Documents or the earlier release of the Lien of the Mortgage
encumbering the Property (and all related obligations)
38
in accordance with the terms of this Agreement and the other Loan Documents,
Borrower and Grantor hereby covenant and agree with Lender that:
5.1.1 EXISTENCE; COMPLIANCE WITH LEGAL REQUIREMENTS; INSURANCE.
Grantor shall do or cause to be done all things necessary to preserve, renew and
keep in full force and effect its existence, rights, licenses, permits and
franchises and comply with all Legal Requirements applicable to it and the
Property. Grantor shall not commit, nor shall Grantor permit any other Person in
occupancy of or involved with the operation or use of the Property to commit,
any act or omission affording the federal government or any state or local
government the right of forfeiture as against the Property or any part thereof
or any monies paid in performance of Borrower's or Grantor's obligations under
any of the Loan Documents. Borrower and Grantor hereby covenant and agree not to
commit, permit or suffer to exist any act or omission affording such right of
forfeiture. Grantor shall at all times maintain, preserve and protect all its
franchises and trade names and preserve all the remainder of its property used
or useful in the conduct of its business and shall keep the Property in good
working order and repair, and from time to time make, or cause to be made, all
reasonably necessary repairs, renewals, replacements, betterments and
improvements thereto, all as more fully provided in the Mortgage. Grantor shall
keep the Property insured at all times by financially sound and reputable
insurers, to such extent and against such risks, and maintain liability and such
other insurance, as is more fully provided in this Agreement. Grantor shall
operate, or cause the tenant to operate, any Property that is the subject of an
O&M Agreement (if any) in accordance with the terms and provisions thereof in
all material respects. After prior written notice to Lender, Grantor, at its own
expense, may contest by appropriate legal proceeding promptly initiated and
conducted in good faith and with due diligence, the validity of any Legal
Requirement, the applicability of any Legal Requirement to Grantor or the
Property or any alleged violation of any Legal Requirement, provided that (i) no
Event of Default has occurred and remains uncured; (ii) intentionally omitted;
(iii) such proceeding shall be permitted under and be conducted in accordance
with the provisions of any instrument to which Grantor is subject and shall not
constitute a default thereunder and such proceeding shall be conducted in
accordance with all applicable statutes, laws and ordinances; (iv) the Property
or any part thereof or interest therein will not be in danger of being sold,
forfeited, terminated, cancelled or lost; (v) Grantor shall promptly upon final
determination thereof comply with any such Legal Requirement determined to be
valid or applicable or cure any violation of any Legal Requirement; (vi) such
proceeding shall suspend the enforcement of the contested Legal Requirement
against Grantor or the Property; and (vii) Grantor shall furnish such security
as may be required in the proceeding, or as may be requested by Lender, to
insure compliance with such Legal Requirement, together with all interest and
penalties payable in connection therewith. Lender may apply any such security,
as necessary to cause compliance with such Legal Requirement at any time when,
in the reasonable judgment of Lender, the validity, applicability or violation
of such Legal Requirement is finally established or the Property (or any part
thereof or interest therein) shall be in danger of being sold, forfeited,
terminated, cancelled or lost.
5.1.2 TAXES AND OTHER CHARGES. Grantor shall pay or cause to be
paid all Taxes and Other Charges now or hereafter levied or assessed or imposed
against the Property or any part thereof as the same become due and payable;
PROVIDED, HOWEVER, Grantor's obligation to directly pay to the appropriate
taxing authority Taxes shall be suspended for so long as Grantor
39
complies with the terms and provisions of Section 7.2 hereof. Grantor will
deliver to Lender receipts for payment or other evidence satisfactory to Lender
that the Taxes and Other Charges have been so paid or are not then delinquent no
later than ten (10) days prior to the date on which the Taxes and/or Other
Charges would otherwise be delinquent if not paid (PROVIDED, HOWEVER, that
Grantor is not required to furnish such receipts for payment of Taxes in the
event that such Taxes have been paid by Lender pursuant to Section 7.2 hereof).
If Grantor pays or causes to be paid all Taxes and Other Charges and provides a
copy of the receipt evidencing the payment thereof to Lender, then Lender shall
reimburse Grantor, provided that there are then sufficient proceeds in the Tax
and Insurance Escrow Fund and provided that the Taxes are being paid pursuant to
Section 7.2. Upon written request of Grantor, if Lender has paid such Taxes
pursuant to Section 7.2 hereof, Lender shall provide Grantor with evidence that
such Taxes have been paid. Grantor shall not suffer and shall promptly cause to
be paid and discharged any Lien or charge whatsoever which may be or become a
Lien or charge against the Property, and shall promptly pay for all utility
services provided to the Property. After prior written notice to Lender,
Grantor, at its own expense, may contest by appropriate legal proceeding,
promptly initiated and conducted in good faith and with due diligence, the
amount or validity or application in whole or in part of any Taxes or Other
Charges, provided that (i) Grantor is permitted to do so under the provisions of
any mortgage or deed of trust superior in lien to the Mortgage; (ii) such
proceeding shall be permitted under and be conducted in accordance with the
provisions of any other instrument to which Grantor is subject and shall not
constitute a default thereunder and such proceeding shall be conducted in
accordance with all applicable statutes, laws and ordinances; (iii) the Property
nor any part thereof or interest therein will be in danger of being sold,
forfeited, terminated, cancelled or lost; (iv) Grantor shall promptly upon final
determination thereof pay the amount of any such Taxes or Other Charges,
together with all costs, interest and penalties which may be payable in
connection therewith; (v) such proceeding shall suspend the collection of such
contested Taxes or Other Charges from the Property; and (vi) Grantor shall
furnish such security as may be required in the proceeding, or as may be
reasonably requested by Lender, to insure the payment of any such Taxes or Other
Charges, together with all interest and penalties thereon. Lender may pay over
any such cash deposit or part thereof held by Lender to the claimant entitled
thereto at any time when, in the reasonable judgment of Lender, the entitlement
of such claimant is established.
5.1.3 LITIGATION. Borrower and Grantor shall give prompt written
notice to Lender of any litigation or governmental proceedings pending or
threatened against Borrower or Grantor which might materially adversely affect
such party's condition (financial or otherwise) or business or the Property.
5.1.4 ACCESS TO PROPERTY. Grantor shall permit agents,
representatives and employees of Lender to inspect the Property or any part
thereof at reasonable hours upon reasonable advance notice, subject to the
rights of Tenants under their respective Leases.
5.1.5 NOTICE OF DEFAULT. Borrower and Grantor shall promptly
advise Lender of any material adverse change in Borrower's or Grantor's
condition, financial or otherwise, or of the occurrence of any Default or Event
of Default of which Borrower or Grantor has knowledge.
40
5.1.6 COOPERATE IN LEGAL PROCEEDINGS. Borrower and Grantor shall
cooperate fully with Lender with respect to any proceedings before any court,
board or other Governmental Authority which may in any way affect the rights of
Lender hereunder or any rights obtained by Lender under any of the other Loan
Documents and, in connection therewith, permit Lender, at its election, to
participate in any such proceedings.
5.1.7 PERFORM LOAN DOCUMENTS. Borrower and Grantor shall
observe, perform and satisfy all the terms, provisions, covenants and conditions
of, and shall pay when due all costs, fees and expenses to the extent required
under the Loan Documents executed and delivered by, or applicable to, Borrower
or Grantor.
5.1.8 INSURANCE BENEFITS. Grantor shall cooperate with Lender in
obtaining for Lender the benefits of any Insurance Proceeds lawfully or
equitably payable in connection with the Property, and Lender shall be
reimbursed for any expenses incurred in connection therewith (including
reasonable attorneys' fees and disbursements, and the payment by Grantor of the
expense of an appraisal on behalf of Lender in case of a fire or other casualty
affecting the Property or any part thereof) out of such Insurance Proceeds.
5.1.9 FURTHER ASSURANCES. Borrower or Grantor shall, at
Borrower's or Grantor's sole cost and expense:
(a) (a) furnish to Lender all instruments, documents, boundary
surveys, footing or foundation surveys, certificates, plans and specifications,
appraisals, title and other insurance reports and agreements, and each and every
other document, certificate, agreement and instrument required to be furnished
by Borrower or Grantor pursuant to the terms of the Loan Documents or reasonably
requested by Lender in connection therewith;
(b) (b) execute and deliver to Lender such documents,
instruments, certificates, assignments and other writings, and do such other
acts necessary or desirable, to evidence, preserve and/or protect the collateral
at any time securing or intended to secure the obligations of Borrower or
Grantor under the Loan Documents, as Lender may reasonably require; and
(c) (c) do and execute all and such further lawful and reasonable
acts, conveyances and assurances for the better and more effective carrying out
of the intents and purposes of this Agreement and the other Loan Documents, as
Lender shall reasonably require from time to time.
5.1.10 INTENTIONALLY OMITTED.
5.1.11 FINANCIAL REPORTING. (a) Borrower and Grantor will keep
and maintain or will cause to be kept and maintained on a Fiscal Year basis, in
accordance with the requirements for a Special Purpose Entity set forth above,
proper and accurate books, records and accounts reflecting all of the financial
affairs of Borrower or Grantor and all items of income and expense in connection
with the operation on an individual basis of the Property. Lender shall have the
right from time to time at all times during normal business hours upon
reasonable notice to examine such books, records and accounts at the office of
Borrower, Grantor or other Person
41
maintaining such books, records and accounts and to make such copies or extracts
thereof as Lender shall desire. After the occurrence and during the continuance
of an Event of Default, Grantor shall pay any costs and expenses incurred by
Lender to examine Grantor's accounting records with respect to the Property, as
Lender shall reasonably determine to be necessary or appropriate in the
protection of Lender's interest.
(b) Grantor will furnish to Lender annually, within ninety (90)
days following the end of each Fiscal Year of Grantor, either (i) a complete
copy of Borrower's or Grantor's annual financial statements audited by an
accounting firm or other independent certified public accountant reasonably
acceptable to Lender in accordance with the requirements for a Special Purpose
Entity set forth above, or (ii) a consolidated and annotated financial statement
of Borrower and Grantor (as applicable), audited by an accounting firm or other
independent certified public accountant reasonably acceptable to Lender in
accordance with the requirements for a Special Purpose Entity set forth above,
together with unaudited financial statements relating to the Borrower, Grantor
and the Property. Such financial statements for the Property for such Fiscal
Year and shall contain statements of profit and loss for Borrower Grantor and
the Property and a balance sheet for Grantor. Such statements shall set forth
the financial condition and the results of operations for the Property for such
Fiscal Year, and shall include, but not be limited to, amounts representing
annual Net Cash Flow, Net Operating Income, Gross Income from Operations and
Operating Expenses. Such annual financial statements shall be accompanied by (i)
a comparison of the budgeted income and expenses and the actual income and
expenses for the prior Fiscal Year, (ii) a certificate executed by the chief
financial officer of Grantor or Indemnitor, as applicable, stating that each
such annual financial statement presents fairly the financial condition and the
results of operations of Borrower, Grantor and the Property being reported upon
and has been prepared in accordance with accounting principles reasonably
acceptable to Lender, consistently applied, (iii) an unqualified opinion of an
accounting firm or other independent certified public accountant reasonably
acceptable to Lender, (iv) a certified rent roll containing current rent, lease
expiration dates and the square footage occupied by each tenant; (v) a schedule
audited by such independent certified public accountant reconciling Net
Operating Income to Net Cash Flow (the "NET CASH FLOW SCHEDULE"), which shall
itemize all adjustments made to Net Operating Income to arrive at Net Cash Flow
deemed material by such independent certified public accountant. Together with
Borrower's and Grantor's annual financial statements, Grantor shall furnish to
Lender an Officer's Certificate certifying as of the date thereof whether there
exists an event or circumstance which constitutes a Default or Event of Default
under the Loan Documents executed and delivered by, or applicable to, Borrower
or Grantor, and if such Default or Event of Default exists, the nature thereof,
the period of time it has existed and the action then being taken to remedy the
same.
(c) Grantor will furnish, or cause to be furnished, to Lender on
or before forty five (45) days after the end of each calendar quarter the
following items, accompanied by a certificate of the chief financial officer of
Grantor or Indemnitor, as applicable, stating that such items are true, correct,
accurate, and complete and fairly present the financial condition and results of
the operations of Grantor and the Property (subject to normal year-end
adjustments) as applicable: (i) a rent roll for the subject month accompanied by
an Officer's Certificate with respect thereto; (ii) quarterly and year-to-date
operating statements (including Capital Expenditures) prepared for each calendar
quarter, noting Net Operating Income, Gross Income
42
from Operations, and Operating Expenses (not including any contributions to the
Replacement Reserve Fund, and other information necessary and sufficient to
fairly represent the financial position and results of operation of the Property
during such calendar month, and containing a comparison of budgeted income and
expenses and the actual income and expenses together with a detailed explanation
of any variances of five percent (5%) or more between budgeted and actual
amounts for such periods, all in form satisfactory to Lender; (iii) a
calculation reflecting the annual Debt Service Coverage Ratio for the
immediately preceding twelve (12) month period as of the last day of such month
accompanied by an Officer's Certificate with respect thereto; and (iv) a Net
Cash Flow Schedule (such Net Cash Flow for the Grantor may be unaudited if it is
certified by an officer of the Grantor). In addition, such certificate shall
also be accompanied by a certificate of the chief financial officer of Grantor
or Indemnitor stating that the representations and warranties of Grantor set
forth in Section 4.1.30(a) are true and correct as of the date of such
certificate.
(d) For the partial year period commencing on the Closing Date,
and for each Fiscal Year thereafter, Grantor shall submit to Lender an Annual
Budget not later than thirty (30) days after the commencement of such period or
Fiscal Year in form reasonably satisfactory to Lender.
(e) Borrower or Grantor shall furnish to Lender, within ten (10)
Business Days after request (or as soon thereafter as may be reasonably
possible), such further detailed information with respect to the operation of
the Property and the financial affairs of Borrower or Grantor as may be
reasonably requested by Lender.
(f) Grantor shall furnish to Lender, within ten (10) Business
Days after Lender's request (or as soon thereafter as may be reasonably
possible), financial and sales information from any Tenant designated by Lender
(to the extent such financial and sales information is required to be provided
under the applicable Lease and same is received by Grantor after request
therefor).
(g) Borrower or Grantor will cause Indemnitor to furnish to
Lender annually, within one hundred twenty (120) days following the end of each
Fiscal Year of Indemnitor, financial statements audited by an independent
certified public accountant, which shall include an annual balance sheet and
profit and loss statement of Indemnitor, in the form reasonably required by
Lender.
(h) Any reports, statements or other information required to be
delivered under this Agreement shall be delivered (i) in paper form, (ii) on a
diskette, and (iii) if requested by Lender and within the capabilities of
Borrower's or Grantor's data systems without change or modification thereto, in
electronic form and prepared using a Microsoft Word for Windows or WordPerfect
for Windows files (which files may be prepared using a spreadsheet program and
saved as word processing files).
5.1.12 BUSINESS AND OPERATIONS. Grantor will continue to engage
in the businesses presently conducted by it as and to the extent the same are
necessary for the ownership, maintenance, management and operation of the
Property. Borrower and Grantor will
43
qualify to do business and will remain in good standing under the laws of each
jurisdiction as and to the extent the same are required for the ownership,
maintenance, management and operation of the Property.
5.1.13 TITLE TO THE PROPERTY. Grantor will warrant and defend (a)
the title to the Property and every part thereof, subject only to Liens
permitted hereunder (including Permitted Encumbrances) and (b) the validity and
priority of the Liens of the Mortgage and the Assignment of Leases on the
Property, subject only to Liens permitted hereunder (including Permitted
Encumbrances), in each case against the claims of all Persons whomsoever.
Grantor shall reimburse Lender for any losses, costs, damages or expenses
(including reasonable attorneys' fees and court costs) incurred by Lender if an
interest in the Property, other than as permitted hereunder, is claimed by
another Person.
5.1.14 COSTS OF ENFORCEMENT. In the event (a) that the Mortgage
encumbering the Property is foreclosed in whole or in part or that the Mortgage
is put into the hands of an attorney for collection, suit, action or
foreclosure, (b) of the foreclosure of any mortgage prior to or subsequent to
the Mortgage encumbering the Property in which proceeding Lender is made a
party, or (c) of the bankruptcy, insolvency, rehabilitation or other similar
proceeding in respect of Borrower or Grantor or any of their respective
constituent Persons or an assignment by Borrower or Grantor or any of their
respective constituent Persons for the benefit of its creditors, Borrower or
Grantor, its successors or assigns, shall be chargeable with and agrees to pay
all costs of collection and defense, including reasonable attorneys' fees and
costs, incurred by Lender, Grantor or Borrower in connection therewith and in
connection with any appellate proceeding or post-judgment action involved
therein, together with all required service or use taxes.
5.1.15 ESTOPPEL STATEMENT. (a) After request by Lender, Borrower
and/or Grantor shall within ten (10) days furnish Lender with a statement, duly
acknowledged and certified, setting forth (i) the amount of the original
principal amount of the Note, (ii) the unpaid principal amount of the Note,
(iii) the applicable interest rate of the Note, (iv) the date installments of
interest and/or principal were last paid, (v) any offsets or defenses to the
payment of the Debt, if any, and (vi) that the Note, this Agreement, the
Mortgage and the other Loan Documents are valid, legal and binding obligations
and have not been modified or if modified, giving particulars of such
modification.
(b) Grantor shall use commercially reasonable efforts to deliver
to Lender upon request, tenant estoppel certificates from each commercial tenant
leasing space at the Property in form and substance reasonably satisfactory to
Lender provided that Grantor shall not be required to deliver such certificates
more frequently than one (1) time in any calendar year.
(c) Within thirty (30) days of request by Borrower and/or
Grantor, Lender shall deliver to such party a statement setting forth the items
described at (a)(i), (ii), (iii) and (iv) of this Section 5.1.15.
5.1.16 LOAN PROCEEDS. Borrower shall use the proceeds of the Loan
received by it on the Closing Date only for the purposes set forth in
Section 2.1.4.
44
5.1.17 PERFORMANCE BY BORROWER. Borrower and Grantor shall in a
timely manner observe, perform and fulfill each and every covenant, term and
provision of each Loan Document executed and delivered by, or applicable to,
Borrower or Grantor, and shall not enter into or otherwise suffer or permit any
amendment, waiver, supplement, termination or other modification of any Loan
Document executed and delivered by, or applicable to, Borrower or Grantor
without the prior written consent of Lender.
5.1.18 CONFIRMATION OF REPRESENTATIONS. Borrower and Grantor
shall deliver, in connection with any Securitization, (a) one or more Officer's
Certificates certifying as to the accuracy of all representations made by
Borrower and/or Grantor in the Loan Documents as of the date of the closing of
such Securitization, and (b) certificates of the relevant Governmental
Authorities in all relevant jurisdictions indicating the good standing and
qualification of Borrower and/or Grantor and their respective members as of the
date of the Securitization.
5.1.19 NO JOINT ASSESSMENT. Grantor shall not suffer, permit or
initiate the joint assessment of the Property (a) with any other real property
constituting a tax lot separate from the Property, and (b) which constitutes
real property with any portion of the Property which may be deemed to constitute
personal property, or any other procedure whereby the lien of any taxes which
may be levied against such personal property shall be assessed or levied or
charged to such real property portion of the Property.
5.1.20 LEASING MATTERS. Any Leases with respect to the Property
written after the Closing Date for more than the Relevant Leasing Threshold
square footage shall be subject to the prior written approval of Lender, which
approval may be given or withheld in the sole discretion of Lender. Lender shall
approve or disapprove any such Lease within ten (10) Business Days of Lender's
receipt of a final execution draft of such Lease (including all exhibits,
schedules, supplements, addenda or other agreements relating thereto) and a
written notice from Grantor requesting Lender's approval to such Lease, and such
Lease shall be deemed approved, if Lender does not disapprove such Lease within
said ten (10) Business Day period PROVIDED such written notice conspicuously
states, in large bold type, that "PURSUANT TO SECTION 5.1.20 OF THE
LOAN
AGREEMENT, THE LEASE SHALL BE DEEMED APPROVED IF LENDER DOES NOT RESPOND TO THE
CONTRARY WITHIN TEN (10) BUSINESS DAYS OF LENDER'S RECEIPT OF SUCH LEASE AND
WRITTEN NOTICE". Grantor shall furnish Lender with executed copies of all
Leases. All renewals of Leases and all proposed Leases shall provide for rental
rates comparable to existing local market rates (unless such rental rates are
otherwise set forth in the Leases executed prior to the Closing Date). All
proposed Leases shall be on commercially reasonable terms and shall not contain
any terms which would materially affect Lender's rights under the Loan
Documents. All Leases executed after the Closing Date shall provide that they
are subordinate to the Mortgage encumbering the Property and that the tenant
thereunder agrees to attorn to Lender or any purchaser at a sale by foreclosure
or power of sale. Grantor (i) shall observe and perform the obligations imposed
upon the lessor under the Leases in a commercially reasonable manner; (ii) shall
enforce the terms, covenants and conditions contained in the Leases upon the
part of the tenant thereunder to be observed or performed in a commercially
reasonable manner and in a manner not to impair the value of the Property
involved except that no termination by Grantor or acceptance of surrender by a
tenant of any Lease shall be permitted unless by reason of a tenant default and
then only in a
45
commercially reasonable manner to preserve and protect the Property PROVIDED,
HOWEVER, that no such termination or surrender of any Lease covering more than
the Relevant Leasing Threshold will be permitted without the written consent of
Lender which consent may be withheld in the sole discretion of Lender; (iii)
shall not collect any of the rents more than one (1) month in advance (other
than security deposits); (iv) shall not execute any other assignment of lessor's
interest in the Leases or the Rents (except as contemplated by the Loan
Documents); (v) shall not alter, modify or change the terms of the Leases in a
manner inconsistent with the provisions of the Loan Documents without the prior
written consent of Lender, which consent may be withheld in the sole discretion
of Lender; and (vi) shall execute and deliver at the request of Lender all such
further assurances, confirmations and assignment in connection with the Leases
as Lender shall from time to time reasonably require. Notwithstanding the
foregoing, Grantor may, without the prior written consent of Lender, terminate
any Lease which demises less than the Relevant Leasing Threshold under any of
the following circumstances: (i) the tenant under said Lease is in default
beyond any applicable grace and cure period, and Grantor has the right to
terminate such Lease; (ii) such termination is permitted by the terms of the
Lease in question and Grantor has secured an obligation from a third party to
lease the space under the Lease to be terminated at a rental equal to or higher
than the rental due under the Lease to be terminated; and (iii) if the tenant
under the Lease to be terminated, has executed a right under said Lease to
terminate its lease upon payment of a termination fee to Grantor, and has in
fact terminated its lease and paid said fee, Grantor may accept said
termination.
5.1.21 ALTERATIONS. Subject to the rights of tenants to make
alterations pursuant to the terms of their respective Leases, Grantor shall
obtain Lender's prior written consent to any alterations to any Improvements,
which consent shall not be unreasonably withheld or delayed except with respect
to alterations that may have a material adverse effect on Grantor's financial
condition, the value of the Property or the Net Operating Income.
Notwithstanding the foregoing, Lender's consent shall not be required in
connection with any alterations that will not have a material adverse effect on
Grantor's financial condition, the value of the Property or the Net Operating
Income, provided that such alterations are made in connection with (a) tenant
improvement work performed pursuant to the terms of any Lease executed on or
before the Closing Date, (b) tenant improvement work performed pursuant to the
terms and provisions of a Lease and not adversely affecting any structural
component of any Improvements, any utility or HVAC system contained in any
Improvements or the exterior of any building constituting a part of any
Improvements, (c) alterations performed in connection with the restoration of
the Property after the occurrence of a casualty in accordance with the terms and
provisions of this Agreement or (d) any structural alteration which costs less
than $50,000.00 in the aggregate for all components thereof which constitute
such alteration or any non-structural alteration which costs less than
$100,000.00 in the aggregate for all components thereof which constitute such
alteration. If the total unpaid amounts due and payable with respect to
alterations to the Improvements at the Property (other than such amounts to be
paid or reimbursed by tenants under the Leases) shall at any time equal or
exceed $350,000.00 (the "THRESHOLD AMOUNT"), Grantor, upon Lender's request,
shall promptly deliver to Lender as security for the payment of such amounts and
as additional security for Grantor's obligations under the Loan Documents any of
the following: (A) cash, (B) U.S. Obligations, (C) other securities having a
rating acceptable to Lender and that the applicable Rating Agencies have
confirmed in writing will not, in and of itself, result in a downgrade,
withdrawal or qualification of the initial, or, if higher, then current
46
ratings assigned in connection with any Securitization, or (D) a completion bond
or letter of credit issued by a financial institution having a rating by
Standard & Poor's Ratings Group of not less than A-1+ if the term of such bond
or letter of credit is no longer than three (3) months or, if such term is in
excess of three (3) months, issued by a financial institution having a rating
that is acceptable to Lender and that the applicable Rating Agencies have
confirmed in writing will not, in and of itself, result in a downgrade,
withdrawal or qualification of the initial, or, if higher, then current ratings
assigned in connection with any Securitization. Such security shall be in an
amount equal to the excess of the total unpaid amounts with respect to
alterations to the Improvements on the Property (other than such amounts to be
paid or reimbursed by tenants under the Leases) over the Threshold Amount and,
if cash, may be applied from time to time, at the option of Grantor, to pay for
such alterations. At the option of Lender, following the occurrence and during
the continuance of an Event of Default, Lender may terminate any of the
alterations and use the deposit to restore the Property to the extent necessary
to prevent any material adverse effect on the value of the Property.
5.1.22 INTENTIONALLY OMITTED.
5.1.23 INTENTIONALLY OMITTED.
Section 5.2 NEGATIVE COVENANTS. From the Closing Date until
payment and performance in full of all obligations of Borrower and/or Grantor
under the Loan Documents or the earlier release of the Lien of the Mortgage
encumbering the Property in accordance with the terms of this Agreement and the
other Loan Documents, Borrower and Grantor each covenants and agrees with Lender
that it will not do, directly or indirectly, any of the following:
5.2.1 OPERATION OF PROPERTY. Grantor shall not, without the
prior consent of Lender, terminate the Management Agreement or otherwise replace
the Manager or enter into any other management agreement with respect to the
Property unless the Manager is in default thereunder beyond any applicable grace
or cure period, in which event no consent by Lender shall be required. Lender
agrees that its consent will not be unreasonably withheld, delayed or
conditioned provided that the Person chosen by Grantor as the replacement
Manager is a Qualifying Manager and provided further that Grantor shall deliver
an acceptable non-consolidation opinion covering such replacement Manager if
such Person was not covered by such opinion delivered at the closing of the
Loan.
5.2.2 LIENS. Grantor shall not, without the prior written
consent of Lender, create, incur, assume or suffer to exist any Lien on any
portion of the Property or permit any such action to be taken, except:
(i) Permitted Encumbrances;
(ii) Liens created by or related to Indebtedness permitted
pursuant to the Loan Documents; and
(iii) Liens for Taxes or Other Charges not yet due (or that
Grantor is contesting in accordance with the terms of Section 5.1.2
hereof).
47
5.2.3 DISSOLUTION. Neither Borrower nor Grantor shall (a) engage
in any dissolution, liquidation or consolidation or merger with or into any
other business entity, (b) in the case of Grantor, engage in any business
activity not related to the ownership and operation of the Property, (c)
transfer, lease or sell, in one transaction or any combination of transactions,
the assets or all or substantially all of the properties or assets of Grantor
except to the extent permitted by the Loan Documents, (d) modify, amend, waive
or terminate its organizational documents or its qualification and good standing
in any jurisdiction or (e) cause the Indemnitor to (i) dissolve, wind up or
liquidate or take any action, or omit to take an action, as a result of which
the Indemnitor would be dissolved, wound up or liquidated in whole or in part,
or (ii) amend, modify, waive or terminate the formation documents of the
Indemnitor, in each case, without obtaining the prior written consent of Lender
or Lender's designee.
5.2.4 CHANGE IN BUSINESS. Borrower shall not enter into any line
of business other than the ownership and operation of the Property, or make any
material change in the scope or nature of its business objectives, purposes or
operations, or undertake or participate in activities other than the continuance
of its present business.
5.2.5 DEBT CANCELLATION. Neither Borrower nor Grantor shall
cancel or otherwise forgive or release any claim or debt (other than termination
of Leases in accordance herewith) owed to Borrower or Grantor by any Person,
except for adequate consideration and in the ordinary course of Borrower's or
Grantor's business.
5.2.6 AFFILIATE TRANSACTIONS. Neither Borrower nor Grantor shall
enter into, or be a party to, any transaction with an Affiliate of Borrower or
Grantor or any of the partners of Borrower or Grantor except in the ordinary
course of business and on terms which are fully disclosed to Lender in advance
and are no less favorable to Borrower or Grantor or such Affiliate than would be
obtained in a comparable arm's-length transaction with an unrelated third party.
5.2.7 ZONING. Grantor shall not initiate or consent to any
zoning reclassification of any portion of the Property or seek any variance
under any existing zoning ordinance or use or permit the use of any portion of
the Property in any manner that could result in such use becoming a
non-conforming use under any zoning ordinance or any other applicable land use
law, rule or regulation, without the prior consent of Lender.
5.2.8 ASSETS. Grantor shall not purchase or own any properties
other than the Property owned by Grantor as of the Closing Date as reflected in
the applicable Title Insurance Policy.
5.2.9 DEBT. Neither Borrower nor Grantor shall create, incur or
assume any Indebtedness other than the Debt or the guaranteed obligations under
the Limited Guaranty except to the extent expressly permitted hereby.
5.2.10 NO JOINT ASSESSMENT. Grantor shall not suffer, permit or
initiate the joint assessment of the Property with (a) any other real property
constituting a tax lot separate from the Property, or (b) any portion of the
Property which may be deemed to constitute personal
48
property, or any other procedure whereby the Lien of any taxes which may be
levied against such personal property shall be assessed or levied or charged to
the Property.
5.2.11 INTENTIONALLY OMITTED.
5.2.12 ERISA. (a) Neither Borrower nor Grantor shall engage in
any transaction which would cause any obligation, or action taken or to be
taken, hereunder (or the exercise by Lender of any of its rights under the Note,
the Limited Guaranty, this Agreement or the other Loan Documents) to be a
non-exempt (under a statutory or administrative class exemption) prohibited
transaction underERISA.
(b) Each of Borrower and Grantor further covenants and agrees to
deliver to Lender such certifications or other evidence from time to time
throughout the term of the Loan, as requested by Lender in its sole discretion,
that (A) Borrower or Grantor is not and does not maintain an "employee benefit
plan" as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA,
or a "governmental plan" within the meaning of Section 3(3) of ERISA; (B)
Borrower or Grantor is not subject to state statutes regulating investments and
fiduciary obligations with respect to governmental plans; and (C) one or more of
the following circumstances is true:
(i) Equity interests in Borrower or Grantor are publicly
offered securities, within the meaning of 29 C.F.R. Section
2510.3-101(b)(2);
(ii) Less than twenty-five percent (25%) of each outstanding
class of equity interests in Borrow Borrower or Grantor er are held by
"benefit plan investors" within the meaning of 29 C.F.R. Section
25l0.3-101(f)(2); or
(iii) Borrower or Grantor qualifies as an "operating company"
or a "real estate operating company" within the meaning of 29 C.F.R.
Section 2510.3-101(c) or (e).
5.2.13 TRANSFERS. Unless such action is permitted by the
provisions of this Section 5.2.13, neither Borrower nor Grantor will (i) sell,
assign, convey, transfer or otherwise dispose of its interests in the Property
or any part thereof, (ii) permit any owner, directly or indirectly, of an
ownership interest in the Property, to transfer such interest, whether by
transfer of stock or other interest in Grantor or any entity, or otherwise,
(iii) incur Indebtedness, (iv) mortgage, hypothecate or otherwise encumber or
grant a security interest in the Property or any part thereof, (v) sell, assign,
convey, transfer, mortgage, encumber, grant a security interest in, or otherwise
dispose of any direct or indirect ownership interest in Borrower or Grantor, or
permit any owner of an interest in Borrower or Grantor to do the same, or (vi)
file a declaration of condominium with respect to the Property (any of the
foregoing transactions, a "TRANSFER"). For purposes hereof, a "Transfer" shall
not include (A) any issuance, sale or transfer of interests in Inland Western
Retail Real Estate Trust, Inc., (B) transfer by devise or descent or by
operation of law upon the death of a member of Borrower or Grantor, and (C) a
sale, transfer or hypothecation of a membership interest in Borrower or Grantor,
whichever the case may be, by the current member(s), as applicable, to an
immediate family member (i.e., parents, spouses,
49
siblings, children or grandchildren) of such member (or a trust for the benefit
of any such persons).
(a) On and after the date that is twelve (12) months following
the Closing Date, Lender shall not withhold its consent to a Transfer of the
Property, provided that the following conditions are satisfied:
(1) the transferree of the Property shall be a Special
Purpose Entity (the "TRANSFEREE") which at the time of
such transfer will be in compliance with the covenants
contained in Section 5.1.1 and the representations
contained in 4.1.30 hereof and which shall have assumed
in writing (subject to the terms of Section 9.4 hereof)
and agreed to comply with all the terms, covenants and
conditions set forth in this
Loan Agreement and the
other Loan Documents, expressly including the covenants
contained in Section 5.1.1 and the representations
contained in 4.1.30 hereof;
(2) if requested by Lender, Grantor shall deliver
confirmation in writing from the Rating Agencies that
such proposed Transfer will not cause a downgrading,
withdrawal or qualification of the then current rating
of any securities issued pursuant to such
Securitization;
(3) if Manager does not act as manager of the transferred
Property then the manager of the Property must be a
Qualifying Manager;
(4) no Event of Default shall have occurred and be
continuing;
(5) if required or requested by any of the Rating Agencies,
Grantor shall deliver a substantive non-consolidation
opinion with respect to Transferee, which opinion shall
be acceptable to Lender in its reasonable discretion;;
(6) Grantor shall have paid (A) an assumption fee equal to
one percent (1.0%) of the then outstanding principal
balance of the Loan, and (B) the reasonable and
customary third-party expenses (including reasonable
attorneys' fees and disbursements) actually incurred by
Lender in connection with such Transfer; PROVIDED,
HOWEVER, no assumption fee shall be required for a
Transfer of the Property to a Transferee acceptable to
Lender in connection with a joint venture between
Inland Western Retail Real Estate Trust, Inc. and an
institution acceptable to Lender provided Inland
Western Retail Real Estate Trust, Inc., or an Affiliate
wholly-owned (directly or indirectly) by Inland Western
Retail Real Estate Trust, Inc., owns at least twenty
percent (20%) of the ownership interests in such
Transferee and for which Inland Western Retail Real
Estate Trust, Inc., or an Affiliate wholly-owned
(directly or indirectly) by Inland Western Retail Real
Estate Trust, Inc., is the managing entity and
otherwise maintains operational and managerial control
of such Transferee, provided that Grantor shall pay all
of Lender's reasonable and
50
customary third-party expenses (including reasonable
attorneys' fees and disbursements) actually incurred by
Lender in connection with such Transfer and a
processing fee of $5,000.
Lender shall approve or disapprove any proposed Transfer governed by this
Section 5.2.13(a) within thirty (30) days of Lender's receipt of a written
notice from Grantor requesting Lender's approval, provided such notice includes
all information necessary to make such decision, and further provided that such
written notice from Grantor shall conspicuously state, in large bold type, that
"PURSUANT TO SECTION 5.2.13 OF THE LOAN AGREEMENT, A RESPONSE IS REQUIRED WITHIN
THIRTY (30) DAYS OF LENDER'S RECEIPT OF THIS WRITTEN NOTICE". If Lender fails to
disapprove any such matter within such period, Grantor shall provide a second
written notice requesting approval, which written notice shall conspicuously
state, in large bold type, that "PURSUANT TO SECTION 5.2.13 OF THE LOAN
AGREEMENT, THE MATTER DESCRIBED HEREIN SHALL BE DEEMED APPROVED IF LENDER DOES
NOT RESPOND TO THE CONTRARY WITHIN TEN (10) DAYS OF LENDER'S RECEIPT OF THIS
WRITTEN NOTICE". Thereafter, if Lender does not disapprove such matter within
said ten (10) day period such matter shall be deemed approved.
(b) On and after the date that is twelve (12) months following
the Closing Date, Lender shall not withhold its consent to, and shall not charge
an assumption fee in connection with, (1) a Transfer of up to, in the aggregate,
forty-nine percent (49%) of the direct or indirect ownership interests in
Grantor, or (2) a Transfer of greater than forty-nine percent (49%) of the
direct or indirect ownership interest in Grantor, PROVIDED that (A) such
transfer is to a Qualified Entity (as defined below), and (B) Grantor shall pay
all of Lender's reasonable and customary third-party expenses (including
reasonable attorneys' fees and disbursements) actually incurred by Lender in
connection with such Transfer and a processing fee of $5,000. For purposes of
this Agreement, a "QUALIFIED ENTITY" shall mean an entity (x) with a net worth
of $200,000,000 or more, (y) with sufficient experience (determined by Lender in
its reasonable discretion) in the ownership and management of properties similar
to the Property, and (z) which owns or manages retail properties containing at
least 1,000,000 square feet of gross leasable area. If required or requested by
any of the Rating Agencies, Grantor shall deliver a substantive
non-consolidation opinion with respect to any party not now owning more than 49%
of the ownership interests in Grantor acquiring more than 49% of the ownership
interests in Grantor.
(c) Notwithstanding anything in this Section 5.2.13 to the
contrary, on or after the date that is twelve (12) months after the Closing
Date, Grantor shall be permitted to Transfer the entire Property in a single
transaction to one newly-formed Special Purpose Entity which shall be
wholly-owned subsidiary of Inland Western Retail Real Estate Trust, Inc.
("PERMITTED AFFILIATE TRANSFEREE") which shall be approved by Lender in its
reasonable discretion ("PERMITTED AFFILIATE TRANSFER"), provided (1) no Event of
Default shall have occurred and be continuing, (2) the creditworthiness of
Inland Western Retail Real Estate Trust, Inc., as applicable, has not
deteriorated, in the sole discretion of Lender, from the Closing Date to the
date of the proposed Transfer, and (3) Grantor shall have paid all reasonable
and customary third party expenses (including reasonable attorneys' fees and
disbursements) actually incurred by Lender in connection with such Transfer (but
not any assumption or processing fee).
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(d) Grantor, without the consent of Lender, may grant easements,
restrictions, covenants, reservations and rights of way in the ordinary course
of business for access, parking, water and sewer lines, telephone and telegraph
lines, electric lines and other utilities or for other similar purposes,
provided that no transfer, conveyance or encumbrance shall materially impair the
utility and operation of the Property or materially adversely affect the value
of the Property or the Net Operating Income of the Property. If Grantor shall
receive any consideration in connection with any of said described transfers or
conveyances, Grantor shall have the right to use any such proceeds in connection
with any alterations performed in connection therewith, or required thereby. In
connection with any transfer, conveyance or encumbrance permitted above, the
Lender shall execute and deliver any instrument reasonably necessary or
appropriate to evidence its consent to said action or to subordinate the Lien of
the Mortgage to such easements, restrictions, covenants, reservations and rights
of way or other similar grants upon receipt by the Lender of: (A) a copy of the
instrument of transfer; and (B) an Officer's Certificate stating with respect to
any transfer described above, that such transfer does not materially impair the
utility and operation of the Property or materially reduce the value of the
Property or the Net Operating Income of the Property.
ARTICLE VI
INSURANCE; CASUALTY; CONDEMNATION
Section 6.1 INSURANCE. (a) Grantor shall obtain and maintain, or
shall cause Anchor Tenant to maintain, insurance for Grantor and the Property
providing at least the following coverages:
(i) comprehensive all risk insurance on the Improvements
and the Personal Property, 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 one hundred percent
(100%) of the "Full Replacement Cost," which for purposes of this
Agreement shall mean actual replacement value (exclusive of costs of
excavations, foundations, underground utilities and footings) with a
waiver of depreciation; (B) containing an agreed amount endorsement with
respect to the Improvements and Personal Property waiving all
co-insurance provisions; (C) providing for no deductible in excess of
Ten Thousand and No/100 Dollars ($10,000) for all such insurance
coverage; and (D) containing an "Ordinance or Law Coverage" or
"Enforcement" endorsement if any of the Improvements or the use of the
Property shall at any time constitute legal non-conforming structures or
uses. In addition, Grantor shall obtain: (y) if any portion of the
Improvements is currently or at any time in the future located in a
federally designated "special flood hazard area", flood hazard insurance
in an amount equal to the lesser of (1) the outstanding principal
balance of the Note or (2) the maximum amount of such insurance
available under the National Flood Insurance Act of 1968, the Flood
Disaster Protection Act of 1973 or the National Flood Insurance Reform
Act of 1994, as each may be amended or such greater amount as Lender
shall require; and (z) earthquake insurance in amounts and in form and
substance satisfactory to Lender in the event the Property is located in
an area with a high degree of seismic activity, provided that the
insurance
52
pursuant to clauses (y) and (z) hereof shall be on terms consistent with
the comprehensive all risk insurance policy required under this
subsection (i).
(ii) commercial general liability insurance against claims
for personal injury, bodily injury, death or property damage occurring
upon, in or about the Property, such insurance (A) to be on the
so-called "occurrence" form with a combined limit, including umbrella
coverage, of not less than Five Million and No/100 Dollars
($5,000,000.00); (B) to 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) to cover
at least the following hazards: (1) premises and operations; (2)
products and completed operations on an "if any" basis; (3) independent
contractors; (4) blanket contractual liability for all legal contracts;
and (5) contractual liability covering the indemnities contained in
Article 9 of the Mortgage to the extent the same is available;
(iii) business income insurance (A) with loss payable to
Lender; (B) covering all risks required to be covered by the insurance
provided for in subsection (i) above; (C) covering rental losses or
business interruption, as may be applicable, for a period of at least
eighteen (18) months after the date of the casualty; and (D) in an
annual amount equal to (100%) of the rents or estimated gross revenues
from the operation of the Property (as reduced to reflect expenses not
incurred during a period of Restoration). The amount of such business
income insurance shall be determined prior to the date hereof and at
least once each year thereafter based on Grantor's reasonable estimate
of the gross income from the Property for the succeeding twelve (12)
month period. All proceeds payable to Lender pursuant to this subsection
shall be held by Lender and shall be applied to the obligations secured
by the Loan Documents from time to time due and payable hereunder and
under the Note or the Limited Guaranty; PROVIDED, HOWEVER, that nothing
herein contained shall be deemed to relieve Grantor of its obligations
to pay the obligations guarantied by the Limited Guaranty on the
respective dates of payment provided for in the Note and the other Loan
Documents except to the extent such amounts are actually paid out of the
proceeds of such business income insurance;
(iv) at all times during which structural construction,
repairs or alterations are being made with respect to the Improvements,
and only if the Property coverage form does not otherwise apply, (A)
owner's contingent or protective liability insurance covering claims not
covered by or under the terms or provisions of the above mentioned
commercial general liability insurance policy; and (B) the insurance
provided for in subsection (i) above written in a so-called builder's
risk completed value form (1) on a non-reporting basis, (2) against all
risks insured against pursuant to subsection (i) above, (3) including
permission to occupy the Property, and (4) with an agreed amount
endorsement waiving co-insurance provisions;
(v) workers' compensation, subject to the statutory limits
of the State;
(vi) comprehensive boiler and machinery insurance, if
applicable, in amounts as shall be reasonably required by Lender on
terms consistent with the commercial property insurance policy required
under subsection (i) above;
53
(vii) umbrella liability insurance in an amount not less than
Twenty Five Million and No/100 Dollars ($25,000,000.00) per occurrence
on terms consistent with the commercial general liability insurance
policy required under subsection (ii) above;
(viii) if any of the policies of insurance covering the risks
required to be covered under subsections (i) through (vii) above
contains an exclusion from coverage for acts of terrorism, Grantor shall
obtain and maintain a separate policy providing such coverages in the
event of any act of terrorism, provided such coverage is commercially
available for properties similar to the Property and located in or
around the region in which the Property is located. Notwithstanding the
foregoing, Grantor shall not be required to obtain such a policy,
provided (1) Grantor confirms to Lender, in writing, that it shall
protect and hold Lender harmless from any losses associated with such
risks by, among other things, either (A) depositing with Lender sums
sufficient to pay for all uninsured costs related to a Restoration of
the Property following any act of terrorism (which sum shall be treated
as a Net Proceeds Deficiency), or (B) provided such act of terrorism
occurs on or after the Permitted Prepayment Date, prepaying the Loan in
accordance with the terms hereof; (II) Inland Western Retail Real Estate
Trust, Inc. ("TERRORISM INSURANCE GUARANTOR") executes a guaranty, in
form and substance satisfactory to Lender, guaranteeing in the event of
any act of terrorism, payment to Lender of any sums that Grantor is
obligated to pay to Lender under clause (I) above (which shall be
applied in accordance with Section 6.4 hereof) and (III) Terrorism
Insurance Guarantor maintains a net worth of at least $300,000,000 (as
determined by such entity's most recent audited financial statements),
such entity maintains a direct or indirect ownership interest in
Grantor, and the aggregate loan-to-value ratio (as determined by Lender)
("LTV") for all properties on which such entity has a direct or indirect
ownership interest shall not exceed 55%, however, Terrorism Insurance
Guarantor may exceed the 55% LTV for a period not to exceed six (6)
months out of any twelve (12) month period either 1) during the time
period when Terrorism Insurance Guarantor is offering securities to the
public, or 2) when in the business judgement of Terrorism Insurance
Guarantor, exceeding an LTV of 55% is necessary given existing
circumstances of the credit environment, but in no event shall the LTV
exceed 65% if Terrorism Insurance Guarantor maintains a net worth
greater than or equal to $300,000,000, but less than $400,000,000, or
70% if Terrorism Insurance Guarantor maintains a net worth of at least
$400,000,000.
(ix) upon sixty (60) days' written notice, such other
reasonable insurance and in such reasonable amounts as Lender from time
to time may reasonably request against such other insurable hazards
which at the time are commonly insured against for property similar to
the Property located in or around the region in which the Property is
located.
(b) All insurance provided for in Section 6.1(a) shall be
obtained under valid and enforceable policies (collectively, the "POLICIES" or
in the singular, the "POLICY"), and shall be subject to the approval of Lender
as to insurance companies, amounts, deductibles, loss payees and insureds. The
Policies shall be issued by financially sound and responsible insurance
companies authorized to do business in the State and having a rating of "A:X" or
better in the current Best's Insurance Reports and a claims paying ability
rating of "AA" or better by at least two (2) of the Rating Agencies including,
(i) Standard & Poor's Ratings Group, and (ii) Moody's
54
Investors Services, Inc. if Xxxxx'x Investors Service, Inc. is rating the
Securities. The Policies described in Section 6.1 (other than those strictly
limited to liability protection) shall designate Lender as loss payee. Not less
than thirty (30) days prior to the expiration dates of the Policies theretofore
furnished to Lender, certificates of insurance evidencing the Policies
accompanied by evidence satisfactory to Lender of payment of the premiums due
thereunder (the "INSURANCE PREMIUMS"), shall be delivered by Grantor to Lender.
(c) Any blanket insurance Policy shall specifically allocate to
the Property the amount of coverage from time to time required hereunder and
shall otherwise provide the same protection as would a separate Policy insuring
only the Property in compliance with the provisions of Section 6.1(a).
(d) All Policies of insurance provided for or contemplated by
Section 6.1(a), except for the Policy referenced in Section 6.1(a)(v), shall
name Grantor, or the Tenant, as the insured and Lender as the additional
insured, as its interests may appear, and in the case of property damage, boiler
and machinery, flood and earthquake insurance, shall contain a so-called New
York standard non-contributing mortgagee clause in favor of Lender providing
that the loss thereunder shall be payable to Lender.
(e) All Policies of insurance provided for in Section 6.1 (a)
shall contain clauses or endorsements to the effect that:
(i) no act or negligence of Grantor, or anyone acting for
Grantor, or of any Tenant or other occupant, or failure to comply with
the provisions of any Policy, which might otherwise result in a
forfeiture of the insurance or any part thereof, shall in any way affect
the validity or enforceability of the insurance insofar as Lender is
concerned;
(ii) the Policy shall not be materially changed (other than
to increase the coverage provided thereby) or canceled without at least
thirty (30) days' written notice to Lender and any other party named
therein as an additional insured;
(iii) the issuers thereof shall give written notice to Lender
if the Policy has not been renewed fifteen (15) days prior to its
expiration; and
(iv) Lender shall not be liable for any Insurance Premiums
thereon or subject to any assessments thereunder.
(f) If at any time Lender is not in receipt of written evidence
that all insurance required hereunder is in full force and effect, Lender shall
have the right, after ten (10) Business Days written notice to Grantor, to take
such action as Lender deems necessary to protect its interest in the Property,
including, without limitation, the obtaining of such insurance coverage as
Lender in its sole discretion deems appropriate. All premiums incurred by Lender
in connection with such action or in obtaining such insurance and keeping it in
effect shall be paid by Grantor to Lender upon demand and, until paid, shall be
secured by the Mortgage and shall bear interest at the Default Rate. If Grantor
fails in so insuring the Property or in so assigning and delivering the
Policies, Lender may, at its option, obtain such insurance using such carriers
55
and agencies as Lender shall elect from year to year and pay the premiums
therefor, and Grantor will reimburse Lender for any premium so paid, with
interest thereon as stated in the Note from the time of payment, on demand, and
the amount so owning to Lender shall be secured by the Mortgage. The insurance
obtained by Lender may, but need not, protect Grantor's interest and the
coverage that Lender purchases may not pay any claim that Grantor makes or any
claim that is made against Grantor in connection with the Property.
Section 6.2 CASUALTY. If the Property shall be damaged or
destroyed, in whole or in part, by fire or other casualty (a "CASUALTY"),
Grantor (a) shall give to Lender prompt notice of such damage reasonably
estimated by Grantor to cost more than One Hundred Thousand Dollars
($100,000.00) to repair, and (b) shall promptly commence and diligently
prosecute the completion of the repair and restoration of the Property as nearly
as possible to the condition the Property was in immediately prior to such fire
or other casualty, with such alterations as may be reasonably approved by Lender
(a "RESTORATION") and otherwise in accordance with Section 6.4. Grantor shall
pay all costs of such Restoration whether or not such costs are covered by
insurance. Lender may, but shall not be obligated to make proof of loss if not
made promptly by Grantor.
Section 6.3 CONDEMNATION. Grantor shall promptly give Lender
notice of the actual or threatened commencement of any proceeding for the
Condemnation of the Property and shall deliver to Lender copies of any and all
papers served in connection with such proceedings. Lender may participate in any
such proceedings, and Grantor shall from time to time deliver to Lender all
instruments requested by it to permit such participation. Grantor shall, at its
expense, diligently prosecute any such proceedings, and shall consult with
Lender, its attorneys and experts, and cooperate with them in the carrying on or
defense of any such proceedings. Notwithstanding any taking by any public or
quasi-public authority through Condemnation or otherwise (including but not
limited to any transfer made in lieu of or in anticipation of the exercise of
such taking), Grantor shall continue to pay the Debt at the time and in the
manner provided for its payment in the Note and in this Agreement and the Debt
shall not be reduced until any Award shall have been actually received and
applied by Lender, after the deduction of expenses of collection, to the
reduction or discharge of the Debt. Lender shall not be limited to the interest
paid on the Award by the condemning authority but shall be entitled to receive
out of the Award interest at the rate or rates provided herein or in the Note.
If the Property or any portion thereof is taken by a condemning authority,
Grantor shall promptly commence and diligently prosecute the Restoration of the
Property and otherwise comply with the provisions of Section 6.4. If the
Property is sold, through foreclosure or otherwise, prior to the receipt by
Lender of the Award, Lender shall have the right, whether or not a deficiency
judgment on the Note shall have been sought, recovered or denied, to receive the
Award, or a portion thereof sufficient to pay the Debt.
Section 6.4 RESTORATION. The following provisions shall apply in
connection with the Restoration of the Property:
(a) If the Net Proceeds shall be less than Relevant Restoration
Threshold and the costs of completing the Restoration shall be less than the
Relevant Restoration Threshold, the Net Proceeds will be disbursed by Lender to
Grantor upon receipt, provided that all of the
56
conditions set forth in clauses (A), (E), (F), (G), (H), (J) and (L) of Section
6.4(b)(i) below are met and Grantor delivers to Lender a written undertaking to
expeditiously commence and to satisfactorily complete with due diligence the
Restoration in accordance with the terms of this Agreement.
(b) If the Net Proceeds are equal to or greater than the Relevant
Restoration Threshold or the costs of completing the Restoration is equal to or
greater than the Relevant Restoration Threshold, then in either case, Lender
shall make the Net Proceeds available for the Restoration in accordance with the
provisions of this Section 6.4(b). The term "NET PROCEEDS" for purposes of this
Section 6.4 shall mean: (x) the net amount of all insurance proceeds received by
Lender pursuant to Section 6.1 (a)(i), (iv), (vi) and (viii) as a result of such
damage or destruction, after deduction of its reasonable costs and expenses
(including, but not limited to, reasonable counsel fees), if any, in collecting
same ("INSURANCE PROCEEDS"), or (y) the net amount of the Award, after deduction
of its reasonable costs and expenses (including, but not limited to, reasonable
counsel fees), if any, in collecting same ("CONDEMNATION PROCEEDS"). whichever
the case may be.
(i) The Net Proceeds shall be made available to Grantor for
Restoration provided that each of the following conditions are met:
(A) no Event of Default shall have occurred and be
continuing;
(B)(1) in the event the Net Proceeds are Insurance
Proceeds, and (x) less than twenty-five percent (25%)
of the total floor area of the Improvements on the
Property has been damaged, destroyed or rendered
unusable as a result of such fire or other casualty, or
(y) Grantor is required under a Lease exceeding the
Relevant Leasing Threshold to use the Net Proceeds for
the restoration of the Property, or (2) in the event
the Net Proceeds are Condemnation Proceeds, and (x)
1ess than ten percent (10%) of the land constituting
the Property is taken, and such land is located along
the perimeter or periphery of the Property, and no
portion of the Improvements is located on such land, or
(y) Grantor is required under a Lease exceeding the
Relevant Leasing Threshold to use the Net Proceeds for
the restoration of the Property;
(C) Leases demising in the aggregate a percentage
amount equal to or greater than the Rentable Space
Percentage of the total rentable space in the Property
which has been demised under executed and delivered
Leases in effect as of the date of the occurrence of
such fire or other casualty or taking, whichever the
case may be, shall remain in full force and effect
during and after the completion of the Restoration,
notwithstanding the occurrence of any such fire or
other casualty or taking, whichever the case may be,
and will make all necessary repairs and restorations
thereto at their sole cost and expense. The term
"RENTABLE SPACE PERCENTAGE" shall mean (x) in the event
the Net Proceeds are Insurance Proceeds, a percentage
amount equal to fifty percent (50%) and (y) in the
event the
57
Net Proceeds are Condemnation Proceeds, a percentage
amount equal to fifty percent (50%);
(D) Grantor shall commence the Restoration as soon
as reasonably practicable (but in no event later than
ninety (90) days after such damage or destruction or
taking, whichever the case may be, occurs) and shall
diligently pursue the same to satisfactory completion;
(E) Lender shall be satisfied that any operating
deficits, including all scheduled payments of principal
and interest under the Note, which will be incurred
with respect to the Property as a result of the
occurrence of any such fire or other casualty or
taking, whichever the case may be, will be covered out
of (1) the Net Proceeds, (2) the insurance coverage
referred to in Section 6.1(a)(iii), if applicable, or
(3) by other funds of Grantor;
(F) Lender shall be satisfied that the Restoration
will be completed on or before the earliest to occur of
(1) the Maturity Date, (2) the earliest date required
for such completion under the terms of any Leases, (3)
such time as may be required under applicable zoning
law, ordinance, rule or regulation in order to repair
and restore the Property to the condition it was in
immediately prior to such fire or other casualty or to
as nearly as possible the condition it was in
immediately prior to such taking, as applicable or (4)
the expiration of the insurance coverage referred to
in Section 6.l(a)(iii);
(G) the Property and the use thereof after the
Restoration will be in compliance with and permitted
under all applicable zoning laws, ordinances, rules and
regulations provided, however, that compliance with
such zoning laws, ordinances, rules and regulations
(including, without limitation, parking requirements)
will not require restoration of the Improvements or the
Property to a size, condition, or configuration
materially different than that which existed
immediately prior to such Casualty or taking;
(H) the Restoration shall be done and completed by
Grantor in an expeditious and diligent fashion and in
compliance with all applicable governmental laws, rules
and regulations (including, without limitation, all
applicable environmental laws);
(I) such fire or other casualty or taking, as
applicable, does not result in the loss of access to
the Property or the related Improvements;
(J) the Debt Service Coverage Ratio, after giving
effect to the Restoration, shall be equal to or greater
than 2.35:1.0;
58
(K) Grantor shall deliver or cause to be delivered
to Lender a signed detailed budget approved in writing
by Grantor's architect or engineer stating the entire
cost of completing the Restoration, which budget should
be consistent with restoration budgets of similar
retail properties then owned and operated by nationally
recognized owners and operators of retail properties
located in the areas in which the Property is located;
and
(L) the Net Proceeds together with any cash or
cash equivalent deposited by Grantor with Lender are
sufficient in Lender's discretion to cover the cost of
the Restoration.
(ii) The Net Proceeds shall be held by Lender in an interest
bearing account and, until disbursed in accordance with the provisions
of this Section 6.4(b), shall constitute additional security for the
Debt and other obligations under the Loan Documents. The Net Proceeds
shall be disbursed by Lender to, or as directed by, Grantor from time to
time during the course of the Restoration, upon receipt of evidence
satisfactory to Lender that (A) all materials installed and work and
labor performed to be paid for out of the requested disbursement in
connection with the Restoration have been performed, and (B) there exist
no notices of pendency, stop orders, mechanic's or materialman's liens
or notices of intention to file same, or any other liens or encumbrances
of any nature whatsoever on the Property which have not either been
fully bonded to the satisfaction of Lender and discharged of record or
in the alternative fully insured to the satisfaction of Lender by the
title company issuing the Title Insurance Policy.
(iii) All plans and specifications required in connection
with the Restoration shall be subject to prior review and acceptance in
all respects by Lender and by an independent consulting engineer
selected by Lender (the "CASUALTY CONSULTANT"), such review and
acceptance not to be unreasonably withheld or delayed. Lender shall have
the use of the plans and specifications and all permits, 1icenses and
approvals required or obtained in connection with the Restoration. The
identity of the contractors, subcontractors and materialmen engaged in
the Restoration, as well as the contracts under which they have been
engaged, shall be subject to prior review and acceptance by Lender and
the Casualty Consultant, such review and acceptance not to be
unreasonably withheld or delayed. All costs and expenses incurred by
Lender in connection with making the Net Proceeds available for the
Restoration including, without limitation, reasonable counsel fees and
disbursements and the Casualty Consultant's fees, shall be paid by
Grantor.
(iv) In no event shall Lender be obligated to make
disbursements of the Net Proceeds in excess of an amount equal to the
costs actually incurred from time to time for work in place as part of
the Restoration, as certified by the Casualty Consultant, MINUS the
Casualty Retainage. The term "CASUALTY RETAINAGE" shall mean an amount
equal to ten percent (10%) of the costs actually incurred for work in
place as part of the Restoration, as certified by the Casualty
Consultant, until the Restoration has been
59
completed. The Casualty Retainage shall in no event, and notwithstanding
anything to the contrary set forth above in this Section 6.4(b), be less
than the amount actually held back by Grantor from contractors,
subcontractors and materialmen engaged in the Restoration. The Casualty
Retainage shall not be released until the Casualty Consultant certifies
to Lender that the Restoration has been completed in accordance with the
provisions of this Section 6.4(b) and that all approvals necessary for
the re-occupancy and use of the Property have been obtained from all
appropriate governmental and quasi-governmental authorities, and Lender
receives evidence satisfactory to Lender that the costs of the
Restoration have been paid in full or will be paid in full out of the
Casualty Retainage; PROVIDED, HOWEVER, that Lender will release the
portion of the Casualty Retainage being held with respect to any
contractor, subcontractor or materialman engaged in the Restoration as
of the date upon which the Casualty Consultant certifies to Lender that
the contractor, subcontractor or materialman has satisfactorily
completed all work and has supplied all materials in accordance with the
provisions of the contractor's, subcontractor's or materialman's
contract, the contractor, subcontractor or materialman delivers the lien
waivers and evidence of payment in full of all sums due to the
contractor, subcontractor or materialman as may be reasonably requested
by Lender or by the title company issuing the Title Insurance Policy,
and Lender receives an endorsement to the Title Insurance Policy
insuring the continued priority of the lien of the Mortgage and evidence
of payment of any premium payable for such endorsement. If required by
Lender, the release of any such portion of the Casualty Retainage shall
be approved by the surety company, if any, which has issued a payment or
performance bond with respect to the contractor, subcontractor or
materialman.
(v) Lender shall not be obligated to make disbursements of
the Net Proceeds more frequently than once every calendar month.
(vi) If at any time the Net Proceeds or the undisbursed
balance thereof shall not, in the reasonable opinion of Lender in
consultation with the Casualty Consultant, be sufficient to pay in full
the balance of the costs which are estimated by the Casualty Consultant
to be incurred in connection with the completion of the Restoration,
Grantor shall deposit the deficiency (the "NET PROCEEDS DEFICIENCY")
with Lender before any further disbursement of the Net Proceeds shall be
made. The Net Proceeds Deficiency deposited with Lender shall be held by
Lender and shall be disbursed for costs actually incurred in connection
with the Restoration on the same conditions applicable to the
disbursement of the Net Proceeds, and until so disbursed pursuant to
this Section 6.4(b) shall constitute additional security for the Debt
and other obligations under the Loan Documents.
(vii) The excess, if any, of the Net Proceeds and the
remaining balance, if any, of the Net Proceeds Deficiency deposited with
Lender after the Casualty Consultant certifies to Lender that the
Restoration has been completed in accordance with the provisions of this
Section 6.4(b), and the receipt by Lender of evidence satisfactory to
Lender that all costs incurred in connection with the Restoration have
been paid in full, shall be remitted by Lender to Grantor, provided no
Event of Default shall have occurred
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and shall be continuing under the Note, this Agreement or any of the
other Loan Documents.
(c) All Net Proceeds not required (i) to be made available for
the Restoration or (ii) to be returned to Grantor as excess Net Proceeds
pursuant to Section 6.4(b)(vii) may be retained and applied by Lender toward the
payment of the Debt whether or not then due and payable in such order, priority
and proportions as Lender in its sole discretion shall deem proper (provided no
Event of Default exists, such Grantor shall not be required to pay any
Prepayment Consideration in connection with such payment), or, at the discretion
of Lender, the same may be paid, either in whole or in part, to Grantor for such
purposes as Lender shall designate, in its discretion.
(d) In the event of foreclosure of the Mortgage with respect to
the Property, or other transfer of title to the Property in extinguishment in
whole or in part of the Debt all right, title and interest of Grantor in and to
the Policies that are not blanket Policies then in force concerning the Property
and all proceeds payable thereunder shall thereupon vest in the purchaser at
such foreclosure or Lender or other transferee in the event of such other
transfer of title.
(e) Lender shall with reasonable promptness following any
Casualty or Condemnation notify Grantor whether or not Net Proceeds are required
to be made available to Grantor for restoration pursuant to this Section 6.4.
All Net Proceeds not required to be made available for Restoration shall be
retained and applied by Lender in accordance with SECTION 2.3.2(a) hereof (a
"NET PROCEEDS PREPAYMENT"). If such Net Proceeds Prepayment shall be equal to or
greater than THIRTY MILLION and 00/100 Dollars ($30,000,000.00), Borrower shall
have the right to elect to prepay the remaining outstanding principal balance of
the Note (a "CASUALTY/CONDEMNATION PREPAYMENT") in accordance with SECTION
2.3.2(b) hereof upon satisfaction of the following conditions: (i) within thirty
(30) days following the date of the Net Proceeds Prepayment, Borrower shall
provide Lender with written notice of Borrower's intention to pay the Note in
full, (ii) Borrower shall prepay the Note in accordance with Section 2.3.2(b)
hereof on or before the second Payment Date occurring following the date of the
Net Proceeds Prepayment, and (iii) no Event of Default shall exist on the date
of such Casualty/Condemnation Prepayment. Notwithstanding anything in Section
6.2 or Section 6.3 to the contrary, Borrower shall have no obligation to
commence Restoration of the Property upon delivery of the written notice set
forth in clause (i) of the preceding sentence (unless Borrower subsequently
shall fail to satisfy the requirement of clause (ii) of the preceding sentence).
ARTICLE VII
RESERVE FUNDS
Section 7.1 REQUIRED REPAIR FUNDS.
7.1.1 DEPOSITS. Grantor shall perform the repairs at the
Property, if any, as more particularly set forth on SCHEDULE III hereto (such
repairs hereinafter referred to as "REQUIRED REPAIRS") within nine (9) months
from the Closing Date, or such earlier time as specified on
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SCHEDULE III. If Grantor has not delivered to Lender evidence reasonably
satisfactory to Lender that it has completed all Required Repairs on or before
the date that is nine (9) months from the Closing Date, or such earlier time as
specified on SCHEDULE III, Grantor shall deposit with Lender the amount for the
Property set forth on such SCHEDULE III hereto, if any (less the amount
allocated to the performance of Required Repairs for which evidence of
completion has been delivered to Lender), to perform the Required Repairs for
the Property. Amounts so deposited with Lender, if any, shall be held by Lender
in an interest bearing account. Amounts so deposited, if any, shall hereinafter
be referred to as Grantor's "REQUIRED REPAIR FUND" and the account, if any, in
which such amounts are held shall hereinafter be referred to as Grantor's
"REQUIRED REPAIR ACCOUNT". It shall be an Event of Default under this Agreement
if Grantor does not either (i) does not deposit with Lender the Required Repair
Fund as set forth above, or (ii) complete the Required Repairs at the Property
within twelve (12) months from the Closing Date. Upon the occurrence of such an
Event of Default, Lender, at its option, may withdraw all Required Repair Funds
from the Required Repair Account and Lender may apply such funds either to
completion of the Required Repairs at the Property or toward payment of the Debt
in such order, proportion and priority as Lender may determine in its sole
discretion. Lender's right to withdraw and apply Required Repair Funds shall be
in addition to all other rights and remedies provided to Lender under this
Agreement and the other Loan Documents.
7.1.2 RELEASE OF REQUIRED REPAIR FUNDS. Lender shall disburse to
Grantor the Required Repair Funds from the Required Repair Account from time to
time upon satisfaction by Grantor of each of the following conditions: (i)
Grantor shall submit a written request for payment to Lender at least fifteen
(15) days prior to the date on which Grantor requests such payment be made and
specifies the Required Repairs to be paid, (ii) on the date such request is
received by Lender and on the date such payment is to be made, no Default or
Event of Default shall exist and remain uncured, (iii) Lender shall have
received a certificate from Grantor (A) stating that all Required Repairs at the
Property to be funded by the requested disbursement have been completed in good
and workmanlike manner and in accordance with all applicable federal, state and
local laws, rules and regulations, such certificate to be accompanied by a copy
of any license, permit or other approval by any Governmental Authority required
to commence and/or complete the Required Repairs, (B) identifying each Person
that supplied materials or labor in connection with the Required Repairs
performed at the Property to be funded by the requested disbursement under a
contract in excess of $50,000, and (C) stating that each Person who has supplied
materials or labor in connection with the Required Repairs to be funded by the
requested disbursement has been paid in full or will be paid in full upon such
disbursement, such certificate to be accompanied by lien waivers or other
evidence of payment satisfactory to Lender, (iv) at Lender's option, a title
search for the Property indicating that the Property is free from all liens,
claims and other encumbrances not previously approved by Lender, and (v) Lender
shall have received such other evidence as Lender shall reasonably request that
the Required Repairs at the Property to be funded by the requested disbursement
have been completed and are paid for or will be paid upon such disbursement to
Grantor. Lender shall not be required to make disbursements from the Required
Repair Account with respect to the Property more than once each calendar month
and such disbursement shall be made only upon satisfaction of each condition
contained in this Section 7.1.2.
Section 7.2 TAX AND INSURANCE ESCROW FUND.
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Borrower or Grantor shall pay to Lender on each Payment Date (a)
one-twelfth of the Taxes that Lender estimates will be payable during the next
ensuing twelve (12) months in order to accumulate with Lender sufficient funds
to pay all such Taxes at least thirty (30) days prior to their respective due
dates and (b) one-twelfth of the Insurance Premiums that Lender estimates will
be payable for the renewal of the coverage afforded by the Policies upon the
expiration thereof in order to accumulate with Lender sufficient funds to pay
all such Insurance Premiums at least thirty (30) days prior to the expiration of
the Policies, (said amounts in (a) and (b) above are hereinafter called the "TAX
AND INSURANCE ESCROW FUND"). The Tax and Insurance Escrow Fund and the payments
of interest or principal or both, payable pursuant to the Note, shall be added
together and shall be paid as an aggregate sum by Borrower or Grantor to Lender.
Lender will apply the Tax and Insurance Escrow Fund to payments of Taxes and
Insurance Premiums required to be made by Grantor pursuant to this Agreement and
under the Mortgage. In making any payment relating to the Tax and Insurance
Escrow Fund, Lender may do so according to any xxxx, statement or estimate
procured from the appropriate public office (with respect to Taxes) or insurer
or agent (with respect to Insurance Premiums) or from Grantor without inquiry
into the accuracy of such xxxx, statement or estimate or into the validity of
any tax, assessment, sale, forfeiture, tax lien or title or claim thereof,
provided, however, Lender shall use reasonable efforts to pay such real property
taxes sufficiently early to obtain the benefit of any available discounts of
which it has knowledge. If the amount of the Tax and Insurance Escrow Fund shall
exceed the amounts due for Taxes and Insurance Premiums, Lender shall, in its
sole discretion, return any excess to Grantor or credit such excess against
future payments to be made to the Tax and Insurance Escrow Fund. The Tax and
Insurance Escrow Fund shall be held by Lender in an interest-bearing account and
shall at Lender's option be held in Eligible Account at an Eligible Institution.
Any interest earned on said account shall accrue in said account for the benefit
of Grantor, but shall remain in and constitute part of the Tax and Insurance
Escrow Fund, and shall be disbursed in accordance with the terms hereof. Any
amount remaining in the Tax and Insurance Escrow Fund after the Debt has been
paid in full shall be returned to Grantor. In allocating such excess, Lender may
deal with the Person shown on the records of Lender to be the owner of the
Property. If at any time Lender reasonably determines that the Tax and Insurance
Escrow Fund is not or will not be sufficient to pay Taxes or Insurance Premiums
by the dates set forth above, Lender shall notify Grantor of such determination
and Borrower or Grantor shall increase its monthly payments to Lender by the
amount that Lender estimates is sufficient to make up the deficiency at least
thirty (30) days prior to delinquency of the Taxes or Insurance Premiums.
Notwithstanding anything to the contrary hereinbefore contained, in the
event that Grantor provides (1) evidence satisfactory to Lender that the
Property is insured in accordance with SECTION 6.1 of this Agreement and (2)
evidence satisfactory to Lender that the Taxes for the Property have been paid
in accordance with the requirements set forth in this Agreement, Lender will
waive the requirement set forth herein for Borrower or Grantor to make deposits
into the Tax and Insurance Escrow Fund for the payment of Insurance Premiums and
for payment of such Taxes, provided, however, Lender expressly reserves the
right to require Borrower or Grantor to make deposits to the Tax and Insurance
Escrow Fund for the payment of Insurance Premiums if at any time the Property is
not insured in accordance with SECTION 6.1 of this Agreement or Taxes are not
paid in accordance with the requirements of this Agreement.
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Section 7.3 REPLACEMENTS AND REPLACEMENT RESERVE.
Section 7.3.1 REPLACEMENT RESERVE FUND. Borrower or Grantor shall
pay to Lender on the Closing Date and on each Payment Date one twelfth of the
amount (the "REPLACEMENT RESERVE MONTHLY DEPOSIT") reasonably estimated by
Lender in its sole discretion to be due for replacements and repairs required to
be made to the Property during the calendar year (collectively, the
"REPLACEMENTS"), which Replacement Reserve Monthly Deposit shall be in an amount
equal to no less than $0.15 per year per square foot of gross leasable area.
Amounts so deposited shall hereinafter be referred to as Borrower's "REPLACEMENT
RESERVE FUND" and the account in which such amounts are held shall hereinafter
be referred to as Borrower's "REPLACEMENT RESERVE ACCOUNT". Lender may reassess
its estimate of the amount necessary for the Replacement Reserve Fund from time
to time, and may increase the monthly amounts required to be deposited into the
Replacement Reserve Fund upon thirty (30) days notice to Borrower if Lender
determines in its reasonable discretion that an increase is necessary to
maintain the proper maintenance and operation of the Property. Any amount held
in the Replacement Reserve Account and allocated for the Property shall be
retained by Lender in an interest bearing account, or, at the option of Lender,
in an Eligible Account at an Eligible Institution; PROVIDED, HOWEVER, that, any
interest earned on said account shall accrue in said account for the benefit of
Borrower, but shall remain in and constitute part of the Replacement Reserve
Fund, and shall be disbursed in accordance with the terms hereof.
Notwithstanding anything to the contrary in this Section 7.3,
Borrower shall not be required to make Replacement Reserve Monthly Deposits,
provided that: (i) no Event of Default shall have occurred; and (ii) Borrower
makes all necessary Replacements and otherwise maintains the Property to
Lender's satisfaction. Upon notice from Lender following: (a) an Event of
Default; or (b) the failure of Borrower to make necessary Replacements or
otherwise maintain the Property to Lender's satisfaction, Borrower or Grantor
shall begin to deposit the Replacement Reserve Monthly Deposit into the
Replacement Reserve Fund beginning on the Payment Date (as defined herein)
immediately following the date of such notice.
Section 7.3.2 DISBURSEMENTS FROM REPLACEMENT RESERVE ACCOUNT.
(a) Lender shall make disbursements from the Replacement Reserve
Account to pay Grantor only for the costs of the Replacements. Lender shall not
be obligated to make disbursements from the Replacement Reserve Account to
reimburse Grantor for the costs of routine maintenance to the Property or for
costs which are to be reimbursed from the Required Repair Fund (if any).
(b) Lender shall, upon written request from Grantor and
satisfaction of the requirements set forth in this Section 7.3.2, disburse to
Grantor amounts from the Replacement Reserve Account necessary to pay for the
actual approved costs of Replacements or to reimburse Grantor therefor, upon
completion of such Replacements (or, upon partial completion in the case of
Replacements made pursuant to Section 7.3.2(f)) as determined by Lender. In no
event shall Lender be obligated to disburse funds from the Replacement Reserve
Account if a Default or an Event of Default exists.
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(c) Each request for disbursement from the Replacement Reserve
Account shall be in a form specified or approved by Lender and shall specify (i)
the specific Replacements for which the disbursement is requested, (ii) the
quantity and price of each item purchased, if the Replacement includes the
purchase or replacement of specific items, (iii) the price of all materials
(grouped by type or category) used in any Replacement other than the purchase or
replacement of specific items, and (iv) the cost of all contracted labor or
other services applicable to each Replacement for which such request for
disbursement is made. With each request Grantor shall certify that all
Replacements have been made in accordance with all applicable Legal Requirements
of any Governmental Authority having jurisdiction over the Property to which the
Replacements are being provided and, unless Lender has agreed to issue joint
checks as described below, each request shall include evidence of payment of all
such amounts. Each request for disbursement shall include copies of invoices for
all items or materials purchased and all contracted labor or services provided.
Except as provided in Section 7.3.2(e), each request for disbursement from the
Replacement Reserve Account shall be made only after completion of the
Replacement for which disbursement is requested. Grantor shall provide Lender
evidence of completion satisfactory to Lender in its reasonable judgment.
(d) Grantor shall pay all invoices in connection with the
Replacements with respect to which a disbursement is requested prior to
submitting such request for disbursement from the Replacement Reserve Account
or, at the request of Grantor, Lender will issue joint checks, payable to
Grantor and the contractor, supplier, materialman, mechanic, subcontractor or
other party to whom payment is due in connection with a Replacement. In the case
of payments made by joint check, Lender may require a waiver of lien from each
Person receiving payment prior to Lender's disbursement from the Replacement
Reserve Account. In addition, as a condition to any disbursement, Lender may
require Grantor to obtain lien waivers from each contractor, supplier,
materialman, mechanic or subcontractor who receives payment in an amount equal
to or greater than $100,000 for completion of its work or delivery of its
materials. Any lien waiver delivered hereunder shall conform to the requirements
of applicable law and shall cover all work performed and materials supplied
(including equipment and fixtures) for the Property by that contractor,
supplier, subcontractor, mechanic or materialman through the date covered by the
current reimbursement request (or, in the event that payment to such contractor,
supplier, subcontractor, mechanic or materialmen is to be made by a joint check,
the release of lien shall be effective through the date covered by the previous
release of funds request).
(e) If (i) the cost of a Replacement exceeds $100,000, (ii) the
contractor performing such Replacement requires periodic payments pursuant to
terms of a written contract, and (iii) Lender has approved in writing in advance
such periodic payments, a request for reimbursement from the Replacement Reserve
Account may be made after completion of a portion of the work under such
contract, provided (A) such contract requires payment upon completion of such
portion of the work, (B) the materials for which the request is made are on
site at the Property and are properly secured or have been installed in the
Property, (C) all other conditions in this Agreement for disbursement have been
satisfied, (D) funds remaining in the Replacement Reserve Account are, in
Lender's judgment, sufficient to complete such Replacement and other
Replacements when required, and (E) if required by Lender, each contractor or
subcontractor receiving payments under such contract shall provide a waiver of
lien with respect to amounts which have been paid to that contractor or
subcontractor.
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(f) Grantor shall not make a request for disbursement from the
Replacement Reserve Account more frequently than once in any calendar month and
(except in connection with the final disbursement) the total cost of all
Replacements in any request shall not be less than $5,000.00.
Section 7.3.3 PERFORMANCE OF REPLACEMENTS.
(g) Grantor shall make Replacements when required in order to
keep the Property in condition and repair consistent with other first class,
full service retail properties in the same market segment in the metropolitan
area in which the Property is located, and to keep the Property or any portion
thereof from deteriorating. Grantor shall complete all Replacements in a good
and workmanlike manner as soon as practicable following the commencement of
making each such Replacement.
(h) Lender reserves the right, at its option, to approve all
contracts or work orders with materialmen, mechanics, suppliers, subcontractors,
contractors or other parties providing labor or materials under contracts for an
amount in excess of $100,000 in connection with the Replacements performed by
Grantor. Upon Lender's request, Grantor shall assign any contract or subcontract
to Lender.
(i) In the event Lender determines in its reasonable discretion
that any Replacement is not being performed in a workmanlike or timely manner or
that any Replacement has not been completed in a workmanlike or timely manner,
and such failure continues to exist for more than thirty (30) days after notice
from Lender to Grantor, Lender shall have the option to withhold disbursement
for such unsatisfactory Replacement and to proceed under existing contracts or
to contract with third parties to complete such Replacement and to apply the
Replacement Reserve Fund toward the labor and materials necessary to complete
such Replacement, without providing any prior notice to Grantor and to exercise
any and all other remedies available to Lender upon an Event of Default
hereunder.
(j) In order to facilitate Lender's completion or making of the
Replacements pursuant to Section 7.3.3(c) above, Grantor grants Lender the right
to enter onto the Property and perform any and all work and labor necessary to
complete or make the Replacements and/or employ watchmen to protect the Property
from damage, subject to the rights of Tenants. All sums so expended by Lender,
to the extent not from the Replacement Reserve Fund, shall be deemed to have
been advanced under the Loan and guarantied by the Limited Guaranty. For this
purpose Grantor constitutes and appoints Lender its true and lawful
attorney-in-fact with full power of substitution to complete or undertake the
Replacements in the name of Grantor. Such power of attorney shall be deemed to
be a power coupled with an interest and cannot be revoked but shall only be
effective following an Event of Default. Grantor empowers said attorney-in-fact
as follows: (i) to use any funds in the Replacement Reserve Account for the
purpose of making or completing the Replacements; (ii) to make such additions,
changes and corrections to the Replacements as shall be necessary or desirable
to complete the Replacements; (iii) to employ such contractors, subcontractors,
agents, architects and inspectors as shall be required for such purposes; (iv)
to pay, settle or compromise all existing bills and claims which are or may
become Liens against the Property, or as may be necessary or desirable for the
completion of the
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Replacements, or for clearance of title; (v) to execute all applications and
certificates in the name of Grantor which may be required by any of the contract
documents; (vi) to prosecute and defend all actions or proceedings in connection
with the Property or the rehabilitation and repair of the Property; and (vii) to
do any and every act which Grantor might do in its own behalf to fulfill the
terms of this Agreement.
(k) Nothing in this Section 7.3.3 shall: (i) make Lender
responsible for making or completing the Replacements; (ii) require Lender to
expend funds in addition to the Replacement Reserve Fund to make or complete any
Replacement; (iii) obligate Lender to proceed with the Replacements; or (iv)
obligate Lender to demand from Grantor additional sums to make or complete any
Replacement.
(1) Grantor shall permit Lender and Lender's agents and
representatives (including, without limitation, Lender's engineer, architect, or
inspector) or third parties making Replacements pursuant to this Section 7.3.3
to enter onto the Property during normal business hours (subject to the rights
of tenants under their Leases) to inspect the progress of any Replacements and
all materials being used in connection therewith, to examine all plans and shop
drawings relating to such Replacements which are or may be kept at the Property,
and to complete any Replacements made pursuant to this Section 7.3.3. Grantor
shall cause all contractors and subcontractors to cooperate with Lender or
Lender's representatives or such other persons described above in connection
with inspections described in this Section 7.3.3(f) or the completion of
Replacements pursuant to this Section 7.3.3.
(m) Lender may require an inspection of the Property at Grantor's
expense prior to making a monthly disbursement in excess of $10,000 from the
Replacement Reserve Account in order to verify completion of the Replacements
for which reimbursement is sought. Lender may require that such inspection be
conducted by an appropriate independent qualified professional selected by
Lender and/or may require a copy of a certificate of completion by an
independent qualified professional acceptable to Lender prior to the
disbursement of any amounts from the Replacement Reserve Account. Grantor shall
pay the expense of the inspection as required hereunder, whether such inspection
is conducted by Lender or by an independent qualified professional.
(n) The Replacements and all materials, equipment, fixtures, or
any other item comprising a part of any Replacement shall be constructed,
installed or completed, as applicable, free and clear of all mechanic's,
materialman's or other liens (except for those Liens existing on the date of
this Agreement which have been approved in writing by Lender).
(o) Before each disbursement from the Replacement Reserve
Account, Lender may require Grantor to provide Lender with a search of title to
the Property effective to the date of the disbursement, which search shows that
no mechanic's or materialmen's liens or other liens of any nature have been
placed against the Property since the date of recordation of the Mortgage and
that title to the Property is free and clear of all Liens (other than the lien
of the Mortgage and any other Liens previously approved in writing by Lender, if
any).
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(p) All Replacements shall comply with all applicable Legal
Requirements of all Governmental Authorities having jurisdiction over the
Property and applicable insurance requirements including, without limitation,
applicable building codes, special use permits, environmental regulations, and
requirements of insurance underwriters.
(q) In addition to any insurance required under the Loan
Documents, Grantor shall provide or cause to be provided workmen's compensation
insurance, builder's risk, and public liability insurance and other insurance to
the extent required under applicable law in connection with a particular
Replacement. All such policies shall be in form and amount reasonably
satisfactory to Lender. All such policies which can be endorsed with standard
mortgagee clauses making loss payable to Lender or its assigns shall be so
endorsed. Certified copies of such policies shall be delivered to Lender.
Section 7.3.4 FAILURE TO MAKE REPLACEMENTS. (a) It shall be an Event of
Default under this Agreement if Grantor fails to comply with any provision of
this Section 7.3 and such failure is not cured within thirty (30) days after
notice from Lender; PROVIDED, HOWEVER, if such failure is not capable of being
cured within said thirty (30) day period, then provided that Grantor commences
action to complete such cure and thereafter diligently proceeds to complete such
cure, such thirty (30) day period shall be extended for such time as is
reasonably necessary for Grantor, in the exercise of due diligence, to cure such
failure, but such additional period of time shall not exceed sixty (60) days.
Upon the occurrence of such an Event of Default, Lender may use the Replacement
Reserve Fund (or any portion thereof) for any purpose, including but not limited
to completion of the Replacements as provided in Section 7.3.3, or for any other
repair or replacement to the Property or toward payment of the Debt in such
order, proportion and priority as Lender may determine in its sole discretion.
Lender's right to withdraw and apply the Replacement Reserve Funds shall be in
addition to all other rights and remedies provided to Lender under this
Agreement and the other Loan Documents.
(s) Nothing in this Agreement shall obligate Lender to apply all
or any portion of the Replacement Reserve Fund on account of an Event of Default
to payment of the Debt or in any specific order or priority.
Section 7.3.5 BALANCE IN THE REPLACEMENT RESERVE ACCOUNT. The
insufficiency of any balance in the Replacement Reserve Account shall not
relieve Grantor from its obligation to fulfill all preservation and maintenance
covenants in the Loan Documents.
Section 7.3.6 INDEMNIFICATION. Grantor shall indemnify Lender and hold
Lender harmless from and against any and all actions, suits, claims, demands,
liabilities, losses, damages, obligations and costs and expenses (including
litigation costs and reasonable attorneys fees and expenses) arising from or in
any way connected with the performance of the Replacements unless the same are
solely due to gross negligence or willful misconduct of Lender. Grantor shall
assign to Lender all rights and claims Grantor may have against all persons or
entities supplying labor or materials in connection with the Replacements;
PROVIDED, HOWEVER, that Lender may not pursue any such right or claim unless an
Event of Default has occurred and remains uncured.
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Section 7.4 HOME DEPOT EXERCISE CONSIDERATION RESERVE. In the
event Lender receives the Home Depot Exercise Consideration pursuant to Section
2.7 hereof, Lender shall hold such amount in an escrow account as additional
collateral for the Grantor's obligations under the Limited Guaranty (the "Home
Depot Exercise Consideration Reserve"). Amounts so deposited with Lender, if
any, shall be held by Lender in an interest bearing account, and interest
thereon shall accrue for the benefit of Grantor, but shall remain in, and
constitute part of, the Home Depot Exercise Consideration Reserve.
Section 7.5 INTENTIONALLY OMITTED.
Section 7.6 INTENTIONALLY OMITTED.
Section 7.7 RESERVE FUNDS, GENERALLY.
7.7.1 Borrower and Grantor grant to Lender a first-priority
perfected security interest in each of the Reserve Funds and any and all monies
now or hereafter deposited in each Reserve Fund as additional security for
payment of the Debt. Until expended or applied in accordance herewith, the
Reserve Funds shall constitute additional security for the Debt.
7.7.2 Upon the occurrence of an Event of Default, Lender may, in
addition to any and all other rights and remedies available to Lender, apply any
sums then present in any or all of the Reserve Funds to the payment of the Debt
in any order in its sole discretion.
7.7.3 The Reserve Funds shall not constitute trust funds and may
be commingled with other monies held by Lender.
7.7.4 Intentionally omitted.
7.7.5 Neither Borrower nor Grantor shall, without obtaining the
prior written consent of Lender, further pledge, assign or grant any security
interest in any Reserve Fund or the monies deposited therein or permit any lien
or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1
Financing Statements, except those naming Lender as the secured party, to be
filed with respect thereto.
7.7.6 Lender shall not be liable for any loss sustained on the
investment of any funds constituting the Reserve Funds unless occasioned by the
gross negligence or willful misconduct of Lender.
7.7.7 Upon payment in full of the Debt and performance of all
other obligations under this Agreement and the other Loan Documents, Lender
shall disburse to Grantor all remaining Reserve Funds.
ARTICLE VIII
DEFAULTS
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Section 8.1 EVENT OF DEFAULT. (a) Each of the following events
shall constitute an event of default hereunder (an "EVENT OF DEFAULT"):
(i) if any portion of the Debt is not paid within five (5)
days of the applicable due date;
(ii) if any of the Taxes or Other Charges are not paid prior
to the date when the same become delinquent, except to the extent that
Grantor is contesting same in accordance with the terms of Section 5.1.2
hereof, or there are sufficient funds in the Tax and Insurance Escrow
Fund to pay such Taxes or Other Charges and Lender fails to or refuses
to release the same from the Tax and Insurance Escrow Fund;
(iii) if the Policies are not kept in full force and effect,
or if certified copies of the Policies are not delivered to Lender
within ten (10) days of request;
(iv) if Grantor transfers or encumbers any portion of the
Property without Lender's prior written consent (to extent such consent
is required) or otherwise violates the provisions of Section 5.2.13 of
this Loan Agreement;
(v) if any material representation or warranty made by
Borrower or Grantor herein or in any other Loan Document, or in any
report, certificate, financial statement or other instrument, agreement
or document furnished to Lender shall have been false or misleading in
any material respect as of the date the representation or warranty was
made;
(vi) if Borrower or Grantor or indemnitor or any guarantor
under any guaranty or indemnity issued in connection with the Loan shall
make an assignment for the benefit of creditors;
(vii) if a receiver, liquidator or trustee shall be appointed
for Borrower or Grantor or any guarantor or indemnitor under any
guarantee or indemnity issued in connection with the Loan or if Borrower
or Grantor or such guarantor or indemnitor shall be adjudicated a
bankrupt or insolvent, or if any petition for bankruptcy, reorganization
or arrangement pursuant to federal bankruptcy law, or any similar
federal or state law, shall be filed by or against, consented to, or
acquiesced in by, Borrower or Grantor or such guarantor or indemnitor,
or if any proceeding for the dissolution or liquidation of Borrower or
Grantor or such guarantor or indemnitor shall be instituted; PROVIDED,
HOWEVER, if such appointment, adjudication, petition or proceeding was
involuntary and not consented to by Borrower or Grantor or such
guarantor or indemnitor, upon the same not being discharged, stayed or
dismissed within one hundred eighty (180) days;
(viii) if Borrower or Grantor attempts to assign its rights
under this Agreement or any of the other Loan Documents or any interest
herein or therein in contravention of the Loan Documents;
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(ix) if Borrower or Grantor breaches any of its respective
negative covenants contained in Section 5.2 or any covenant contained in
Section 4.1.30 hereof;
(x) with respect to any term, covenant or provision set
forth herein which specifically contains a notice requirement or grace
period, if Borrower or Grantor shall be in default under such term,
covenant or condition after the giving of such notice or the expiration
of such grace period;
(xi) if any of the assumptions contained in any Insolvency
Opinion or Additional Insolvency Opinion are or shall become untrue in
any material respect;
(xii) if Borrower or Grantor shall continue to be in Default
under any of the other terms, covenants or conditions of this Agreement
not specified in subsections (i) to (xi) above, for ten (10) days after
notice to Borrower or Grantor from Lender, in the case of any Default
which can be cured by the payment of a sum of money, or for thirty (30)
days after notice from Lender in the case of any other Default;
PROVIDED, HOWEVER, that if such non-monetary Default is susceptible of
cure but cannot reasonably be cured within such 30-day period and
provided further that Borrower or Grantor shall have commenced to cure
such Default within such 30-day period and thereafter diligently and
expeditiously proceeds to cure the same, such 30-day period shall be
extended for such time as is reasonably necessary for Borrower or
Grantor in the exercise of due diligence to cure such Default, such
additional period not to exceed one hundred eighty (180) days; or
(xiii) if there shall be default under any of the other Loan
Documents beyond any applicable cure periods contained in such
documents, whether as to Borrower or Grantor or the Property, or if any
other such event shall occur or condition shall exist, if the effect of
such event or condition is to accelerate the maturity of any portion of
the Debt or to permit Lender to accelerate the maturity of all or any
portion of the Debt.
(b) Upon the occurrence of an Event of Default (other than an
Event of Default described in clauses (vi), (vii) or (viii) above) and at any
time thereafter Lender may, in addition to any other rights or remedies
available to it pursuant to this Agreement and the other Loan Documents or at
law or in equity, Lender may take such action, without notice or demand, that
Lender deems advisable to protect and enforce its rights against Borrower or
Grantor and in the Property, including, without limitation, declaring the Debt
to be immediately due and payable, and Lender may enforce or avail itself of
any or a11 rights or remedies provided in the Loan Documents against Borrower or
Grantor and the Property, including, without limitation, all rights or remedies
available at law or in equity; and upon any Event of Default described in
clauses (vi), (vii) or (viii) above, the Debt and all other obligations of
Borrower or Grantor hereunder and under the other Loan Documents shall
immediately and automatically become due and payable, without notice or demand,
and Borrower and Grantor each hereby expressly waives any such notice or demand,
anything contained herein or in any other Loan Document to the contrary
notwithstanding.
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Section 8.2 REMEDIES. (a) Upon the occurrence of an Event of
Default, all or any one or more of the rights, powers, privileges and other
remedies available to Lender against Borrower or Grantor under this Agreement or
any of the other Loan Documents executed and delivered by, or applicable to,
Borrower or Grantor or at law or in equity may be exercised by Lender at any
time and from time to time, whether or not all or any of the Debt shall be
declared due and payable, and whether or not Lender shall have commenced any
foreclosure proceeding or other action for the enforcement of its rights and
remedies under any of the Loan Documents with respect to the Property. Any such
actions taken by Lender shall be cumulative and concurrent and may be pursued
independently, singly, successively, together or otherwise, at such time and in
such order as Lender may determine in its sole discretion, to the fullest extent
permitted by law, without impairing or otherwise affecting the other rights and
remedies of Lender permitted by law, equity or contract or as set forth herein
or in the other Loan Documents. Without limiting the generality of the
foregoing, Borrower and Grantor each agrees that if an Event of Default is
continuing (i) Lender is not subject to any "one action" or "election of
remedies" law or rule, and (ii) all liens and other rights, remedies or
privileges provided to Lender shall remain in full force and effect until Lender
has exhausted all of its remedies against the Property and the Mortgage has been
foreclosed, sold and/or otherwise realized upon in satisfaction of the Debt or
the Debt has been paid in full.
(b) Lender shall have the right from time to time to partially
foreclose the Mortgage in any manner and for any amounts secured by the Mortgage
then due and payable as determined by Lender in its sole discretion including,
without limitation, the following circumstances: (i) in the event Borrower
defaults beyond any applicable grace period in the payment of one or more
scheduled payments of principal and interest, Lender may make demand under the
Limited Guaranty and foreclose the Mortgage to recover such delinquent payments,
or (ii) in the event Lender elects to accelerate less than the entire
outstanding principal balance of the Loan, Lender may make demand under the
Limited Guaranty and foreclose the Mortgage to recover so much of the
obligations guarantied thereby as Lender may accelerate and such other sums
guarantied by the Limited Guaranty and secured by the Mortgage as Lender may
elect. Notwithstanding one or more partial foreclosures, the Property shall
remain subject to the Mortgage to secure payment of sums secured by the Mortgage
and not previously recovered.
(c) Lender shall have the right from time to time to sever the
Note and the other Loan Documents into one or more separate notes, mortgages and
other security documents (the "SEVERED LOAN DOCUMENTS") in such denominations as
Lender shall determine in its sole discretion for purposes of evidencing and
enforcing its rights and remedies provided hereunder. Borrower and/or Grantor
shall execute and deliver to Lender from time to time, promptly after the
request of Lender, a severance agreement and such other documents as Lender
shall request in order to effect the severance described in the preceding
sentence, all in form and substance reasonably satisfactory to Lender. Borrower
and Grantor each hereby absolutely and irrevocably appoints Lender following the
occurrence of an Event of Default as its true and lawful attorney, coupled with
an interest, in its name and stead to make and execute all documents necessary
or desirable to effect the aforesaid severance, Borrower and Grantor ratifying
all that its said attorney shall do by virtue thereof; PROVIDED, HOWEVER, Lender
shall not make or execute any such documents under such power until three (3)
days after notice has been given to Borrower or Grantor by Lender of Lender's
intent to exercise its rights under such power. Borrower or
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Grantor shall not be obligated to pay any costs or expenses incurred in
connection with the preparation, execution, recording or filing of the Severed
Loan Documents, and the Severed Loan Documents shall not contain any
representations, warranties or covenants not contained in the Loan Documents and
any such representations and warranties contained in the Severed Loan Documents
will be given by Borrower and Grantor only as of the Closing Date.
(d) As used in this Section 8.2, a "foreclosure" shall include
any sale by power of sale.
Section 8.3 REMEDIES CUMULATIVE; WAIVERS. The rights, powers and
remedies of Lender under this Agreement shall be cumulative and not exclusive of
any other right, power or remedy which Lender may have against Borrower or
Grantor pursuant to this Agreement or the other Loan Documents, or existing at
law or in equity or otherwise. Lender's rights, powers and remedies may be
pursued singly, concurrently or otherwise, at such time and in such order as
Lender may determine in Lender's sole discretion. No delay or omission to
exercise any remedy, right or power accruing upon an Event of Default shall
impair any such remedy, right or power or shall be construed as a waiver
thereof, but any such remedy, right or power may be exercised from time to time
and as often as may be deemed expedient. A waiver of one Default or Event of
Default with respect to Borrower or Grantor shall not be construed to be a
waiver of any subsequent Default or Event of Default by Borrower or Grantor or
to impair any remedy, right or power consequent thereon.
ARTICLE IX
SPECIAL PROVISIONS
Section 9.1 SALE OF NOTES AND SECURITIZATION. At the request of
the holder of the Note and, to the extent not already required to be provided by
Borrower or Grantor under this Agreement, Borrower and Grantor shall cooperate
with Lender to allow Lender to satisfy the market standards to which the holder
of the Note customarily adheres or which may be reasonably required in the
marketplace or by the Rating Agencies in connection with the sale of the Note or
participations therein or the first successful securitization (such sale and/or
securitization, the "SECURITIZATION") of rated single or multi-class securities
(the "SECURITIES") secured by or evidencing ownership interests in the Note and
the Mortgage. In this regard Borrower and Grantor shall:
(a) (i) provide such financial and other information with respect
to the Property, Borrower, Grantor and the Manager, (ii) provide budgets
relating to the Property and (iii) to perform or permit or cause to be performed
or permitted such site inspection, appraisals, market studies, environmental
reviews and reports (Phase I's and, if appropriate, Phase II's), engineering
reports and other due diligence investigations of the Property, as may be
reasonably requested by the holder of the Note or the Rating Agencies or as may
be necessary or appropriate in connection with the Securitization (the "PROVIDED
INFORMATION"), together, if customary, with appropriate verification and/or
consents of the Provided Information through letters of auditors or opinions of
counsel of independent attorneys acceptable to Lender and the Rating Agencies;
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(b) cause counsel to render opinions, which may be relied upon by
the holder of the Note, the Rating Agencies and their respective counsel, agents
and representatives, as to non-consolidation, fraudulent conveyance, and true
sale and/or lease or any other opinion customary in securitization transactions,
which counsel and opinions shall be reasonably satisfactory to the holder of the
Note and the Rating Agencies;
(c) make such representations and warranties as of the closing
date of the Securitization with respect to the Property, Borrower, Grantor, and
the Loan Documents as are consistent with the representations and warranties
made in the Loan Documents; and
(d) execute such amendments to the Loan Documents and
organizational documents as may be reasonably requested by the holder of the
Note or the Rating Agencies or otherwise to effect the Securitization; PROVIDED,
HOWEVER, that Borrower or Grantor shall not be required to modify or amend any
Loan Document if such modification or amendment would (i) change the interest
rate, the stated maturity or the amortization of principal set forth in the
Note, or (ii) modify or amend any other material economic term of the Loan.
All material out-of-pocket third party costs and expenses
incurred by Borrower or Grantor in connection with complying with requests made
under this Section 9.1 shall be paid by Lender.
Section 9.2 SECURITIZATION. Each of Borrower and Grantor
understands that certain of the Provided Information may be included in
disclosure documents in connection with the Securitization, including, without
limitation, a prospectus, prospectus supplement or private placement memorandum
(each, a "DISCLOSURE DOCUMENT") and may also be included in filings with the
Securities and Exchange Commission pursuant to the Securities Act of 1933, as
amended (the "SECURITIES ACT"), or the Securities and Exchange Act of 1934, as
amended (the "EXCHANGE ACT"), or provided or made available to investors or
prospective investors in the Securities, the Rating Agencies, and service
providers relating to the Securitization. In the event that the Disclosure
Document is required to be revised prior to the sale of all Securities, Borrower
and Grantor will cooperate with the holder of the Note in updating the
Disclosure Document by providing all current information necessary to keep the
Disclosure Document accurate and complete in all material respects.
Section 9.3 RATING SURVEILLANCE. Lender, at its option, may
retain the Rating Agencies to provide rating surveillance services on any
certificates issued in a Securitization. Such rating surveillance will be at the
expense of Lender (the "RATING SURVEILLANCE CHARGE").
Section 9.4 EXCULPATION. Subject to the qualifications below,
Lender shall not enforce the liability and obligation of Borrower or Grantor to
perform and observe the obligations contained in the Note, this Agreement, the
Limited Guaranty, the Mortgage or the other Loan Documents by any action or
proceeding wherein a money judgment shall be sought against Borrower or Grantor,
except that Lender or Trustee may bring a foreclosure action, an action for
specific performance or any other appropriate action or proceeding to enable
Lender or Trustee to enforce and realize upon its interest under the Note, this
Agreement, the Limited Guaranty, the Mortgage and the other Loan Documents, or
in the Property, the Rents following
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an Event of Default, or any other collateral given to Lender or Trustee pursuant
to the Loan Documents; provided, however, that, except as specifically provided
herein, any judgment in any such action or proceeding shall be enforceable
against Borrower or Grantor only to the extent of Grantor's interest in the
Property, in the Rents following an Event of Default and in any other collateral
given to Lender or Trustee, and Lender or Trustee, by accepting the Note, this
Agreement, the Limited Guaranty, the Mortgage and the other Loan Documents,
agree that it shall not xxx for, seek or demand any deficiency judgment against
Borrower or Grantor in any such action or proceeding under or by reason of or
under or in connection with the Note, this Agreement, the Limited Guaranty, the
Mortgage or the other Loan Documents. The provisions of this section shall not,
however, (a) constitute a waiver, release or impairment of any obligation
evidenced or secured by any of the Loan Documents; (b) impair the right of
Lender or Trustee to name Borrower or Grantor as a party defendant in any action
or suit for foreclosure and sale under any of the Mortgage; (c) affect the
validity or enforceability of the Limited Guaranty or any other guaranty made in
connection with the Loan or any of the rights and remedies of Lender or Trustee
thereunder; (d) impair the right of Lender or Trustee to obtain the appointment
of a receiver; (e) impair the enforcement of any of the Assignment of Leases
following an Event of Default; (f) constitute a prohibition against Lender or
Trustee commencing any other appropriate action or proceeding in order for
Lender or Trustee to exercise its remedies against the Property; or (g)
constitute a waiver of the right of Lender or Trustee to enforce the liability
and obligation of Borrower or Grantor, by money judgment or otherwise, to the
extent of any loss, damage, cost, expense, liability, claim or other obligation
incurred by Lender or Trustee (including attorneys' fees and costs reasonably
incurred) arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower or
Grantor or any guarantor in connection with the Loan;
(ii) the gross negligence or willful misconduct of Borrower
or Grantor;
(iii) material physical waste of the Property;
(iv) the breach of any representation, warranty, covenant or
indemnification provision in the Environmental Indemnity or in the
Mortgage concerning environmental laws, hazardous substances and
asbestos and any indemnification of Lender with respect thereto in
either document;
(v) the removal or disposal of any portion of the Property
after an Event of Default;
(vi) the misapplication or conversion by Borrower or Grantor
of (A) any insurance proceeds paid by reason of any loss, damage or
destruction to the Property which are not applied by Borrower or Grantor
in accordance with this Agreement, (B) any awards or other amounts
received in connection with the condemnation of all or a portion of the
Property which are not applied by Borrower or Grantor in accordance with
this Agreement, or (C) any Rents following an Event of Default;
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(vii) failure to pay charges for labor or materials or other
charges that can create liens on any portion of the Property; or
(viii) any security deposits, advance deposits or any other
deposits collected with respect to the Property which are not delivered
to Lender upon a foreclosure of the Property or action in lieu thereof,
except to the extent any such security deposits were applied in
accordance with the terms and conditions of any of the Leases prior to
the occurrence of the Event of Default that gave rise to such
foreclosure or action in lieu thereof.
Notwithstanding anything to the contrary in this Agreement, the
Note, the Limited Guaranty or any of the Loan Documents, (A) the Debt shall be
fully recourse to Borrower and the Limited Guaranty shall be fully recourse to
Grantor and (B) Lender shall not be deemed to have waived any right which Lender
may have under Section 506(a), 506(b), 1111(b) or any other provisions of the
U.S. Bankruptcy Code to file a claim for the full amount of the Debt or the full
amount of the obligations secured by the Mortgage or to require that all
collateral shall continue to secure all of the Debt or the guaranteed
obligations owing to Lender in accordance with the Loan Documents in the event
that the (I) first full monthly payment under the Note is not paid within five
(5) days of notice that such payment is late (provided, however, that such grace
period relates only to the recourse trigger described in this paragraph), or
(II) failure of Borrower or Grantor to permit on-site inspections of the
Property subject to the rights of Tenants and any applicable cure period set
forth in the Loan Documents, to provide financial information as required under
the Loan Documents subject to any applicable cure period (except for financial
information required to be delivered by a Tenant pursuant to its Lease that has
not been delivered to Grantor, provided Grantor has requested such financial
information from such Tenant), or to comply with Section 4.1.30 hereof, or (III)
failure of Borrower or Grantor to obtain Lender's prior written consent to any
subordinate financing or other voluntary lien encumbering the Property, or (IV)
failure of Borrower or Grantor to obtain Lender's prior written consent to any
assignment, transfer or conveyance of the Property, or any portion thereof, or
any interest therein as required by this Agreement. Notwithstanding the
provision set forth in clause (III) of this paragraph, a voluntary lien OTHER
THAN a lien securing an extension of credit filed against the Property shall not
constitute a recourse trigger for purposes of this paragraph provided such lien
(A) is fully bonded to the satisfaction of Lender and discharged of record
within ninety (90) days of filing, or (B) within such ninety (90) day period,
Lender receives affirmative title insurance from the title insurance company
insuring the lien of the Mortgage that such lien is subject and subordinate to
the lien of the Mortgage and no enforcement action is commenced by the
applicable lien holder.
Section 9.5 TERMINATION OF MANAGER. If (a) the amounts evidenced
by the Note have been accelerated pursuant to Section 8.1(b) hereof, (b) the
Manager shall become insolvent, (c) the Manager is in default under the terms of
the Management Agreement beyond any applicable grace or cure period, (d) the
Debt Service Coverage Ratio for any Property for the preceding twelve month
period is less than or equal to 1.15 to 1.0, or (e) Lender determines that
Manager is not managing the Property in accordance with the management practices
of nationally recognized management companies managing similar properties in
locations comparable to those of the Property, then, in the case of (a), (b),
(c), (d) or (e), Grantor shall, at
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the request of Lender, terminate the Management Agreement and replace the
Manager with a manager reasonably approved by Lender on terms and conditions
reasonably satisfactory to Lender, it being understood and agreed that the
management fee for such replacement manager shall not exceed then prevailing
market rates. In addition and without limiting the rights of Lender hereunder or
under any of the other Loan Documents, in the event that (i) the Management
Agreement is terminated, (ii) the Manager no longer manages the Property, or
(iii) a receiver, liquidator or trustee shall be appointed for Manager or if
Manager shall be adjudicated a bankrupt or insolvent, or if any petition for
bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or
any similar federal or state law, shall be filed by or against, consented to, or
acquiesced in by, Manager, or if any proceeding for the dissolution or
liquidation of Manager shall be instituted, then Grantor (at Grantor's sole cost
and expense) shall immediately, in its name, establish new deposit accounts
separate from any other Person with a depository satisfactory to Lender into
which all Rents and other income from the Property shall be deposited and shall
grant Lender a first priority security interest in such account pursuant to
documentation satisfactory in form and substance to Lender.
Section 9.6 SERVICER. At the option of Lender, the Loan may be
serviced by a servicer/trustee (the "SERVICER") selected by Lender and Lender
may delegate all or any portion of its responsibilities under this Agreement and
the other Loan Documents to the Servicer pursuant to a servicing agreement (the
"SERVICING AGREEMENT") between Lender and Servicer. Lender shall be responsible
for any set-up fees or any other costs relating to or arising under the
Servicing Agreement.
Section 9.7 SPLITTING THE LOAN. At the election of Lender in its
sole discretion, the Loan or any individual Note making up the Loan shall be
split and severed into two or more loans which, at Lender's election, shall not
be cross-collateralized or cross-defaulted with each other. Borrower and Grantor
each hereby agrees to deliver to Lender to effectuate such severing of the Loan
or any individual Note, as the case may be, as reasonably requested by Lender,
(a) additional executed documents, or amendments and modifications to the
applicable Loan Documents, (b) new opinions or updates to the opinions delivered
to Lender in connection with the closing of the Loan, (c) endorsements and/or
updates to the title insurance policies delivered to Lender in connection with
the closing of the Loan, and (d) any other certificates, instruments and
documentation reasonably determined by Lender as necessary or appropriate to
such severance (the items described in subsections (a) through (d) collectively
hereinafter shall be referred to as "Severing Documentation"), which Severing
Documentation shall be acceptable to Lender in form and substance in its
reasonable discretion. Lender hereby agrees to be responsible for all reasonable
third-party expenses incurred in connection with the preparation and delivery of
the Severing Documentation and the effectuation of the uncrossing of the Loan
from the additional Loans. Borrower and Grantor each hereby acknowledges and
agrees that upon such severing of the Loan, Lender may effect, in its sole
discretion, one or more Securitizations of which the severed loans may be a
part.
ARTICLE X
MISCELLANEOUS
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Section 10.1 SURVIVAL. This Agreement and all covenants,
agreements, representations and warranties made herein and in the certificates
delivered pursuant hereto shall survive the making by Lender of the Loan and the
execution and delivery to Lender of the Note, and shall continue in full force
and effect so long as all or any of the Debt is outstanding and unpaid unless a
longer period is expressly set forth herein or in the other Loan Documents,
Whenever in this Agreement any of the parties hereto is referred to, such
reference shall be deemed to include the legal representatives, successors and
assigns of such party. All covenants, promises and agreements in this Agreement,
by or on behalf of Borrower and/or Grantor, shall inure to the benefit of the
legal representatives, successors and assigns of Lender.
Section 10.2 LENDER'S DISCRETION. Whenever pursuant to this
Agreement, Lender exercises any right given to it to approve or disapprove, or
any arrangement or term is to be satisfactory to Lender, the decision of Lender
to approve or disapprove or to decide whether arrangements or terms are
satisfactory or not satisfactory shall (except as is otherwise specifically
herein provided) be in the sole discretion of Lender and shall be final and
conclusive.
Section 10.3 GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO BE
A CONTRACT ENTERED INTO PURSUANT TO THE LAWS OF THE STATE IN WHICH THE PROPERTY
IS LOCATED AND SHALL IN ALL RESPECTS BE GOVERNED, CONSTRUED, APPLIED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE IN WHICH THE PROPERTY IS
LOCATED AND APPLICABLE FEDERAL LAWS.
Section 10.4 MODIFICATION, WAIVER IN WRITING. No modification,
amendment, extension, discharge, termination or waiver of any provision of this
Agreement, or of the Note, or of any other Loan Document, nor consent to any
departure by Borrower or Grantor therefrom, shall in any event be effective
unless the same shall be in a writing signed by the party against whom
enforcement is sought, and then such waiver or consent shall be effective only
in the specific instance, and for the purpose, for which given. Except as
otherwise expressly provided herein, no notice to, or demand on Borrower or
Grantor, shall entitle Borrower or Grantor to any other or future notice or
demand in the same, similar or other circumstances.
Section 10.5 DELAY NOT A WAIVER. Neither any failure nor any
delay on the part of Lender in insisting upon strict performance of any term,
condition, covenant or agreement, or exercising any right, power, remedy or
privilege hereunder, or under the Note or under any other Loan Document, or any
other instrument given as security therefor, shall operate as or constitute a
waiver thereof, nor shall a single or partial exercise thereof preclude any
other future exercise, or the exercise of any other right, power, remedy or
privilege. In particular, and not by way of limitation, by accepting payment
after the due date of any amount payable under this Agreement, the Note or any
other Loan Document, Lender shall not be deemed to have waived any right either
to require prompt payment when due of all other amounts due under this
Agreement, the Note or the other Loan Documents, or to declare a default for
failure to effect prompt payment of any such other amount.
Section 10.6 NOTICES. All notices, consents, approvals and
requests required or permitted hereunder or under any other Loan Document shall
be given in writing and shall be
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effective for all purposes if hand delivered or sent by (a) certified or
registered United States mail, postage prepaid, return receipt requested or (b)
expedited prepaid delivery service, either commercial or United States Postal
Service, with proof of attempted delivery, and by telecopier (with answer back
acknowledged), addressed as follows (or at such other address and Person as
shall be designated from time to time by any party hereto, as the case may be,
in a written notice to the other parties hereto in the manner provided for in
this Section):
If to Lender:
Bear Xxxxxxx Commercial Mortgage, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: J. Xxxxxxxxxxx Xxxxxxx
with a copy to:
Xxxxxx Xxxxxx Xxxxx Xxxxxxxx
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
if to Trustee:
Xxxxxx X. Xxxxxxxx, Esq.
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 28202-1935
If to Borrower or Grantor:
[NAME OF ENTITY]
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
with a copy to:
Inland Western Retail Real Estate Trust, Inc.
0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxx, Esq.
and with a copy to:
Inland Western Retail Real Estate Trust, Inc.
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0000 Xxxxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
A notice shall be deemed to have been given: in the case of hand
delivery, at the time of delivery; in the case of registered or certified mail,
when delivered or the first attempted delivery on a Business Day; or in the case
of expedited prepaid delivery and telecopy, upon the first attempted delivery on
a Business Day.
Section 10.7 TRIAL BY JURY. BORROWER AND LENDER HEREBY AGREE NOT
TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY
RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR
HEREAFTER EXIST WITH REGARD TO THE LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR
OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY
JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY BORROWER AND LENDER, AND IS INTENDED
TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO
A TRIAL BY JURY WOULD OTHERWISE ACCRUE. LENDER IS HEREBY AUTHORIZED TO FILE A
COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER
BY BORROWER AND LENDER.
Section 10.8 HEADINGS. The Article and/or Section headings and
the Table of Contents in this Agreement are included herein for convenience of
reference only and shall not constitute a part of this Agreement for any other
purpose.
Section 10.9 SEVERABILITY. Wherever possible, each provision of
this Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be prohibited
by or invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions of this Agreement.
Section 10.10 PREFERENCES.
Lender shall have the continuing and exclusive right to apply or
reverse and reapply any and all payments by Borrower or Grantor to any portion
of the obligations of Borrower or Grantor hereunder. To the extent Borrower or
Grantor makes a payment or payments to Lender, which payment or proceeds or any
part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside or required to be repaid to a trustee, receiver or any
other party under any bankruptcy law, state or federal law, common law or
equitable cause, then, to the extent of such payment or proceeds received, the
obligations 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 by Lender.
Section 10.11 WAIVER OF NOTICE. Neither Borrower nor Grantor
shall be entitled to any notices of any nature whatsoever from Lender except
with respect to matters for which
80
this Agreement or the other Loan Documents specifically and expressly provide
for the giving of notice by Lender to Borrower or Grantor and except with
respect to matters for which Borrower or Grantor is not, pursuant to applicable
Legal Requirements, permitted to waive the giving of notice. Borrower and
Grantor hereby expressly waive the right to receive any notice from Lender with
respect to any matter for which this Agreement or the other Loan Documents do
not specifically and expressly provide for the giving of notice by Lender to
Borrower or Grantor.
Section 10.12 REMEDIES OF BORROWER. In the event that a claim or
adjudication is made that Lender or its agents have acted unreasonably or
unreasonably delayed acting in any case where by law or under this Agreement or
the other Loan Documents, Lender or such agent, as the case may be, has an
obligation to act reasonably or promptly, Borrower and Grantor each agrees that
neither Lender nor its agents shall be liable for any monetary damages, and
Borrower's and/or Grantor's sole remedies shall be limited to commencing an
action seeking injunctive relief or declaratory judgment. The parties hereto
agree that any action or proceeding to determine whether Lender has acted
reasonably shall be determined by an action seeking declaratory judgment.
Section 10.13 EXPENSES; INDEMNITY. (a) Borrower and Grantor each
covenants and agrees to pay or, if Borrower or Grantor fails to pay, to
reimburse, Lender upon receipt of written notice from Lender for all
reasonable costs and expenses (including reasonable attorneys' fees and
disbursements) incurred by Lender in connection with (i) the preparation,
negotiation, execution and delivery of this Agreement and the other Loan
Documents and the consummation of the transactions contemplated hereby and
thereby and all the costs of furnishing all opinions by counsel (including
without limitation any opinions requested by Lender as to any legal matters
arising under this Agreement or the other Loan Documents with respect to the
Property); (ii) Borrower's and/or Grantor's ongoing performance of and
compliance with Borrower's and/or Grantor's respective agreements and
covenants contained in this Agreement and the other Loan Documents on its
part to be performed or complied with after the Closing Date, including,
without limitation, confirming compliance with environmental and insurance
requirements; (iii) Lender's ongoing performance and compliance with all
agreements and conditions contained in this Agreement and the other Loan
Documents on its part to be performed or complied with after the Closing
Date; (iv) except as otherwise provided in this Agreement, the negotiation,
preparation, execution, delivery and administration of any consents,
amendments, waivers or other modifications to this Agreement and the other
Loan Documents and any other documents or matters reasonably requested by
Lender; (v) securing Borrower's and/or Grantor's compliance with any requests
made pursuant to the provisions of this Agreement; (vi) the filing and
recording fees and expenses, title insurance and reasonable fees and expenses
of counsel for providing to Lender all required legal opinions, and other
similar expenses incurred in creating and perfecting the Liens in favor of
Lender pursuant to this Agreement and the other Loan Documents; (vii)
enforcing or preserving any rights, in response to third party claims or the
prosecuting or defending of any action or proceeding or other litigation, in
each case against, under or affecting Borrower, Grantor, this Agreement, the
other Loan Documents, the Property, or any other security given for the Loan;
and (viii) enforcing any obligations of or collecting any payments due from
Borrower and/or Grantor under this Agreement, the other Loan Documents
81
or with respect to the Property or in connection with any refinancing or
restructuring of the credit arrangements provided under this Agreement in the
nature of a "work-out" or of any insolvency or bankruptcy proceedings; provided,
however, that Borrower and/or Grantor shall not be liable for the payment of any
such costs and expenses to the extent the same arise by reason of the gross
negligence, illegal acts, Fraud or willful misconduct of Lender.
(b) Borrower and Grantor each shall indemnify, defend and hold
harmless Lender from and against any and all other liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, claims, costs, expenses
and disbursements of any kind or nature whatsoever (including, without
limitation, the reasonable fees and disbursements of counsel for Lender in
connection with any investigative, administrative or judicial proceeding
commenced or threatened, whether or not Lender shall be designated a party
thereto), that may be imposed on, incurred by, or asserted against Lender in any
manner relating to or arising out of (i) any breach by Borrower or Grantor of
its obligations under, or any material misrepresentation by Borrower or Grantor
contained in, this Agreement or the other Loan Documents, or (ii) the use or
intended use of the proceeds of the Loan (collectively, the "INDEMNIFIED
LIABILITIES"); PROVIDED, HOWEVER, that Borrower or Grantor shall not have any
obligation to Lender hereunder to the extent that such Indemnified Liabilities
arise from the gross negligence, illegal acts, fraud or willful misconduct of
Lender. To the extent that the undertaking to indemnify, defend and hold
harmless set forth in the preceding sentence may be unenforceable because it
violates any law or public policy, Borrower and/or Grantor shall pay the maximum
portion that it is permitted to pay and satisfy under applicable law to the
payment and satisfaction of all Indemnified Liabilities incurred by Lender.
Section 10.14 SCHEDULES INCORPORATED. The Schedules annexed
hereto are hereby incorporated herein as a part of this Agreement with the same
effect as if set forth in the body hereof.
Section 10.15 OFFSETS, COUNTERCLAIMS AND DEFENSES. Any assignee
of Lender's interest in and to this Agreement, the Note, the Limited Guaranty
and the other Loan Documents shall take the same free and clear of all offsets,
counterclaims or defenses which are unrelated to such documents which Borrower
and/or Grantor may otherwise have against any assignor of such documents, and no
such unrelated counterclaim or defense shall be interposed or asserted by
Borrower or Grantor in any action or proceeding brought by any such assignee
upon such documents and any such right to interpose or assert any such unrelated
offset, counterclaim or defense in any such action or proceeding is hereby
expressly waived by Borrower and Grantor.
Section 10.16 NO JOINT VENTURE OR PARTNERSHIP; NO THIRD PARTY
BENEFICIARIES.
(a) Borrower, Grantor and Lender intend that the relationships
created hereunder and under the other Loan Documents be solely that of borrower,
guarantor and lender. Nothing herein or therein is intended to create a joint
venture, partnership, tenancy-in-common, or joint tenancy relationship between
Borrower, Grantor and Lender nor to grant Lender any interest in the Property
other than that of mortgagee, beneficiary or lender.
82
(b) This Agreement and the other Loan Documents are solely for
the benefit of Lender, Grantor and Borrower and nothing contained in this
Agreement or the other Loan Documents shall be deemed to confer upon anyone
other than Lender, Grantor and Borrower any right to insist upon or to enforce
the performance or observance of any of the obligations contained herein or
therein. All conditions to the obligations of Lender to make the Loan hereunder
are imposed solely and exclusively for the benefit of Lender and no other Person
shall have standing to require satisfaction of such conditions in accordance
with their terms or be entitled to assume that Lender will refuse to make the
Loan in the absence of strict compliance with any or all thereof and no other
Person shall under any circumstances be deemed to be a beneficiary of such
conditions, any or all of which may be freely waived in whole or in part by
Lender if, in Lender's sole discretion, Lender deems it advisable or desirable
to do so.
Section 10.17 PUBLICITY. All news releases, publicity or
advertising by Borrower or their Affiliates through any media intended to reach
the general public which refers to the Loan Documents or the financing evidenced
by the Loan Documents, to Lender, Bear Xxxxxxx, or any of their Affiliates shall
be subject to the prior written approval of Lender. All news releases, publicity
or advertising by Lender through any media intended to reach the general public
which refers solely to the Borrower, Grantor or to the Loan made by the Lender
to the Borrower shall be subject to the prior written approval of Borrower,
provided however, the foregoing shall not apply to Provided Information included
in disclosure documents in connection with a Securitization.
Section 10.18 WAIVER OF MARSHALLING OF ASSETS. To the fullest
extent permitted by law, Grantor, for itself and its successors and assigns,
waives all rights to a marshalling of the assets of Grantor, Grantor's partners
and others with interests in Grantor, and of the Property, or to a sale in
inverse order of alienation in the event of foreclosure of the Mortgage or sale
of the Property by power of sale, and agrees not to assert any right under any
laws pertaining to the marshalling of assets, the sale in inverse order of
alienation, homestead exemption, the administration of estates of decedents, or
any other matters whatsoever to defeat, reduce or affect the right of Lender
under the Loan Documents to a sale of the Property for the collection of the
Debt without any prior or different resort for collection or of the right of
Lender to the payment of the Debt out of the net proceeds of the Property in
preference to every other claimant whatsoever.
Section 10.19 WAIVER OF COUNTERCLAIM. Borrower and Grantor each
hereby waives the right to assert a counterclaim, other than a compulsory
counterclaim, in any action or proceeding brought against it by Lender or its
agents.
Section 10.20 CONFLICT; CONSTRUCTION OF DOCUMENTS; RELIANCE. In
the event of any conflict between the provisions of this Loan Agreement and any
of the other Loan Documents, the provisions of this Loan Agreement shall
control. The parties hereto acknowledge that they were represented by competent
counsel in connection with the negotiation, drafting and execution of the Loan
Documents and that such Loan Documents shall not be subject to the principle of
construing their meaning against the party which drafted same. Borrower
acknowledges that, with respect to the Loan, Borrower shall rely solely on its
own judgment and advisors in entering into the Loan without relying in any
manner on any
83
statements, representations or recommendations of Lender or any parent,
subsidiary or Affiliate of Lender. Lender shall not be subject to any limitation
whatsoever in the exercise of any rights or remedies available to it under any
of the Loan Documents or any other agreements or instruments which govern the
Loan by virtue of the ownership by it or any parent, subsidiary or Affiliate of
Lender of any equity interest any of them may acquire in Borrower or Grantor,
and Borrower and Grantor each hereby irrevocably waives the right to raise any
defense or take any action on the basis of the foregoing with respect to
Lender's exercise of any such rights or remedies. Borrower and Grantor each
acknowledges that Lender engages in the business of real estate financings and
other real estate transactions and investments which may be viewed as adverse to
or competitive with the business of Borrower, Grantor or their Affiliates.
Section 10.21 BROKERS AND FINANCIAL ADVISORS. Borrower and
Grantor hereby represent that they have dealt with no financial advisors,
brokers, underwriters, placement agents, agents or finders in connection with
the transactions contemplated by this Agreement other than Inland Mortgage Corp.
Borrower and Grantor hereby agree to indemnify, defend and hold Lender harmless
from and against any and all claims, liabilities, costs and expenses of any kind
(including Lender's reasonable attorneys' fees and expenses) in any way relating
to or arising from a claim by any Person that such Person acted on behalf of
Borrower or Grantor or Lender in connection with the transactions contemplated
herein. The provisions of this Section 10.21 shall survive the expiration and
termination of this Agreement and the payment of the Debt.
Section 10.22 PRIOR AGREEMENTS. This Agreement and the other Loan
Documents contain the entire agreement of the parties hereto and thereto in
respect of the transactions contemplated hereby and thereby, and all prior
agreements or understandings among or between such parties, whether oral or
written, are superseded by the terms of this Agreement and the other Loan
Documents and unless specifically set forth in a writing contemporaneous
herewith the terms, conditions and provisions of such prior agreement do not
survive execution of this Agreement.
Section 10.23 TRANSFER OF LOAN. In the event that Lender
transfers the Loan, Borrower shall continue to make payments at the place set
forth in the Note until such time that Borrower is notified in writing by Lender
that payments are to be made at another place.
Section 10.24 JOINT AND SEVERAL LIABILITY. If Borrower consists
of more than one person or party, the obligations and liabilities of each person
or party shall be joint and several
(THE BALANCE OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK)
84
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed by their duly authorized representatives, all as of the day
and year first above written.
BORROWER:
INLAND REISTERSTOWN SPE I, A Delaware
limited liability company
By: Reisterstown Plaza Associates, LLC, a
Maryland limited liability company, its sole
member
By: Reisterstown Plaza Holdings, LLC, a
Maryland limited liability company, its
sole member
By: Inland Reisterstown HC, L.L.C., a
Delaware limited liability company, its
sole manager
By: Inland Western Retail Real Estate
Trust, Inc., a Maryland corporation,
its sole member
By: /s/ Xxxxx X Xxxxxx
--------------------------
Name: Xxxxx X Xxxxxx
Title: Assistant Secretary
[Borrower signature continued on next page]
INLAND REISTERSTOWN SPE II, a Delaware
limited liability company
By: RRP Xxxxx, LLC, a Maryland limited
liability company, its sole member
By: Reisterstown Plaza Holdings, LLC, a
Maryland limited liability company, its
sole member
By: Inland Reisterstown HC, L.L.C., a
Delaware limited liability company, its
sole manager
By: Inland Western Retail Real Estate
Trust, Inc., a Maryland corporation,
its sole member
By: /s/ Xxxxx X Xxxxxx
--------------------------
Name: Xxxxx X Xxxxxx
Title: Assistant Secretary
[Grantor signature on next page]
2
GRANTOR:
REISTERSTOWN PLAZA ASSOCIATES,
LLC, a Maryland limited liability company,
By: Reisterstown Plaza Holdings, LLC, a
Maryland limited liability company, its
sole member
By: Inland Reisterstown HC, L.L.C., a
Delaware limited liability company, its
sole manager
By: Inland Western Retail Real Estate
Trust, Inc., a Maryland corporation,
its sole member
By: /s/ Xxxxx X Xxxxxx
--------------------------
Name: Xxxxx X Xxxxxx
Title: Assistant Secretary
RRP XXXXX, LLC, a Maryland limited liability
company,
By: Reisterstown Plaza Holdings, LLC, a
Maryland limited liability company, its
sole member
By: Inland Reisterstown HC, L.L.C., a
Delaware limited liability company, its
sole manager
By: Inland Western Retail Real Estate
Trust, Inc., a Maryland corporation,
its sole member
By: /s/ Xxxxx X Xxxxxx
--------------------------
Name: Xxxxx X Xxxxxx
Title: Assistant Secretary
[Lender signature on next page]
3
LENDER:
BEAR XXXXXXX COMMERCIAL
MORTGAGE, INC., a New York corporation
By: /s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxxxxx
Managing Director
SCHEDULE I
TENANT DIRECTION LETTER
_______________________, L.L.C.
________ ___, 200_
(Tenant's name and address)
__________________________
__________________________
Re: Lease, dated _______________, by and between _________________,
as original landlord and predecessor-in-interest to Inland
______________, L.L.C., as landlord, and _____________________
as tenant as the same has been amended, concerning premises at
_______________________
Ladies and Gentlemen:
The undersigned hereby requests that, commencing with the first Rent
payment date occurring after the date hereof, you deliver all Rent to the
following address:
__________________
__________________
__________________
Account Name: __________________________
Account No. __________________
Attention: __________________
ABA# __________________
________________________, L.L.C., a Delaware
limited liability company
By: ___________________________, a
______________________________, its
___________________________
By: ___________________________, a
______________________________, its
___________________________
By:
--------------------------------
Name:
Title:
2
SCHEDULE II
Intentionally Omitted
X-3
SCHEDULE III
REQUIRED REPAIRS
None.
X-4
SCHEDULE IV
RENT ROLL
X-5
Database: CRC_PROD Rent Roll Page: 0
XXXXXXXXXXXX XXXXX ASSOCIATES LLC Date: 7/29/2004
REISTERSTOWN ROAD PLAZA, LLC Time: 10:36
Project # 685
As of: 7/29/2004
Base Rent Cost Recovery
------------------ ------------------- Lease Dates
GLA Sq Monthly Rate Monthly Cost Rate % Rent -----------------------------------
Suite Id Tenant Name Footage Base Rent PSF Recovery PSF Rate Occupancy Start Expire
------------------------------------------------------------------------------------------------------------------------------------
NEW LEASES
6532 HOUSEHOLD FINANCE 2,476 12/1/2004 9/30/2011
6618B CAJUN GRILL 429 12/1/2004 12/31/2004
6776-204 PUBLIC SAFETY 20,680 9/1/2004 9/30/2004
VACANT SUITES
6512C Vacant 3,010
6532 Vacant 2,476
6542 Vacant 4,000
6544 Vacant 1,467
6550D Vacant 8,107
6566 Vacant 817
6612 Vacant 1,065
6618B Vacant 429
6776-204 Vacant 20,680
6776-206 Vacant 4,612
6796 Vacant 1,329
CART1 Vacant 0
CART2 Vacant 0
CART6 Xxxxxx 0
XXX00 Xxxxxx 0
XXX0 Xxxxxx 0
XXX0 Xxxxxx 0
OCCUPIED SUITES
RMU6 9 O CLOCK 0 750.00 10.00 10/10/2003 6/1/2003 M-T-M
Options Increases
-------------------------------------- * Option Period
Eff Notice --------------------------------------
Suite Id Tenant Name Type Date Term Date Cat Date Amount PSF
------------------------------------------------------------------------------------------------------------------------
NEW LEASES
6532 HOUSEHOLD FINANCE
6618B CAJUN GRILL
6776-204 PUBLIC SAFETY
VACANT SUITES
6512C Vacant
6532 Vacant
6542 Vacant
6544 Vacant
6550D Vacant
6566 Vacant
6612 Vacant
6618B Vacant
6776-204 Vacant
6776-206 Vacant
6796 Vacant
CART1 Vacant
CART2 Vacant
CART6 Xxxxxx
XXX00 Xxxxxx
XXX0 Xxxxxx
XXX0 Vacant
OCCUPIED SUITES
RMU6 9 O CLOCK
Database: CRC_PROD Rent Roll Page: 0
XXXXXXXXXXXX XXXXX ASSOCIATES LLC Date: 7/29/2004
REISTERSTOWN ROAD PLAZA, LLC Time: 10:36
Project # 685
As of: 7/29/2004
Base Rent Cost Recovery
------------------ ------------------- Lease Dates
GLA Sq Monthly Rate Monthly Cost Rate % Rent -----------------------------------
Suite Id Tenant Name Footage Base Rent PSF Recovery PSF Rate Occupancy Start Expire
------------------------------------------------------------------------------------------------------------------------------------
6582 AFRICAN ART AND CRAFT 222 900.00 48.65 9/1/2002 9/1/2002 M-T-M
6562 ALL EYES 1,857 2,390.89 15.45 1,511.91 9.77 6.00 7/15/2002 7/15/2002 7/31/2012
6610 AN ANGELS TOUCH, INC. 1,598 1,845.94 12.36 1,235.80 9.28 9.00 3/1/2003 3/1/2003 2/28/2009
8798 APPLEBEES 6,000 7,333.33 14.67 2,060.00 4.12 2/25/2003 2/25/2003 2/28/2018
0000 XXXXXX #000 5,000 5,937.50 14.25 3,787.50 9.09 4.00 5/24/1984 11/1/1994 1/31/2007
CA26 BALTIMORE CITY
COMMUNITY COL 0 4/15/2002 2/2/2002 M-T-M
6764A BALTIMORE CITY
COMMUNITY COL 14,620 15,777.42 12.95 5/15/2001 5/15/2001 5/14/2006
0000 XXXX XX XXXXXXX 5,250 6,498.01 14.85 3,955.01 9.04 1/18/1962 2/1/1997 1/31/2007
6776-202 BCCC WBJC RADIO STATION 5,010 5,385.75 12.90 7/1/2004 7/1/2004 6/30/2014
6552 BLACKSTONE MEN'S WEAR 3,540 3,835.00 13.00 2,737.80 9.28 7.00 7/26/2003 7/26/2003 7/31/2013
0000X XXXXXXXX XXXX SEAFOOD 544 2,176.00 48.00 420.69 9.28 10.00 7/15/2003 7/14/2003 7/31/2013
RMU2 CELL GEAR 0 600.00 7/7/2003 7/7/2003 M-T-M
Options Increases
-------------------------------------- * Option Period
Eff Notice --------------------------------------
Suite Id Tenant Name Type Date Term Date Cat Date Amount PSF
------------------------------------------------------------------------------------------------------------------------
6582 AFRICAN ART AND CRAFT
6562 ALL EYES BSR 8/1/2004 2,462.07 15.91
BSR 8/1/2005 2,538.35 16.39
BSR 8/1/2006 2,612.18 16.88
BSR 8/1/2007 2,691.10 17.39
BSR 8/1/2008 2,771.57 17.91
BSR 8/1/2009 2,855.14 18.45
BSR 8/1/2010 2,940.25 19.00
BSR 8/1/2011 3,028.48 19.57
6610 AN ANGELS TOUCH, INC. BSR 3/1/2005 1,695.21 12.73
BSR 3/1/2006 1,745.82 13.11
BSR 3/1/2007 1,797.75 13.50
BSR 3/1/2008 1,852.35 13.91
8798 APPLEBEES REN 3/1/2018 60 3/1/2017 BSR 3/1/2008 8,250.00 16.50
REN 3/1/2023 60 3/1/2022 BSR 3/1/2013 9,281.25 18.58
REN 3/1/2028 60 3/1/2027 * BSR 3/1/2018 10,441.42 20.88
* BSR 3/1/2023 11,746.58 23.49
* BSR 3/1/2028 13,214.92 26.43
0000 XXXXXX #000 XXX 2/1/2007 60 8/1/2006 * BSR 2/1/2007 7,083.33 17.00
CA26 XXXXXXXXX XXXX
XXXXXXXXX XXX
0000X XXXXXXXXX XXXX
COMMUNITY COL REN 5/15/2006 60 11/15/2005 * BSR 5/15/2006 17,865.83 14.50
0000 XXXX XX XXXXXXX BSR 2/1/2005 8,692.95 15.30
BSR 2/1/2006 6,893.74 15.76
6776-202 BCCC WBJC RADIO STATION REN 7/1/2014 60 12/31/2012 BSO 7/1/2009 6,053.75 14.50
6552 BLACKSTONE MEN'S WEAR BSR 8/1/2005 3,982.50 13.50
BSR 8/1/2007 4,130.00 14.00
BSR 8/1/2009 4,277.50 14.50
BSR 8/1/2011 4,425.00 15.00
0000X XXXXXXXX XXXX SEAFOOD BSR 8/1/2004 2,241.28 49.44
BSR 8/1/2005 2,308.37 50.92
BSR 8/1/2006 2,377.73 52.45
BSR 8/1/2007 2,448.91 54.02
BSR 8/1/2008 2,522.35 55.64
BSR 8/1/2009 2,598.05 57.31
BSR 8/1/2010 2,676.03 59.03
BSR 8/1/2011 2,756.27 60.80
BSR 8/1/2012 2,838.77 62.62
RMU2 CELL GEAR
Database: CRC_PROD Rent Roll Page: 0
XXXXXXXXXXXX XXXXX ASSOCIATES LLC Date: 7/29/2004
REISTERSTOWN ROAD PLAZA, LLC Time: 10:36
Project # 685
As of: 7/29/2004
Base Rent Cost Recovery
------------------ ------------------- Lease Dates
GLA Sq Monthly Rate Monthly Cost Rate % Rent -----------------------------------
Suite Id Tenant Name Footage Base Rent PSF Recovery PSF Rate Occupancy Start Expire
------------------------------------------------------------------------------------------------------------------------------------
6526 CHANGES 4,500 2,310.00 6.16 3,682.50 9.52 5.00 9/3/1996 9/3/1996 9/30/2008
6788 CITIC NAILS 839 1,480.84 21.18 686.58 9.82 6.00 9/1/1999 9/1/1999 8/31/2009
6568 COBBLERS AND CLEANERS 1,374 2,290.00 20.00 598.84 5.23 8.00 4/19/2003 4/19/2003 4/30/2013
6546 CURVES FOR WOMEN 1,600 1,886.67 14.00 514.67 3.86 6/7/2004 6/4/2004 6/30/2009
6550C DOLLAR CITY 5,181 4,317.50 10.00 1,688.56 3.86 6.00 4/8/2004 4/8/2004 4/30/2009
6540 ECONOMY SHOES 3,293 2,744.17 10.00 2,799.05 10.20 5.00 9/21/1998 9/21/1998 9/30/2008
CA31 EMPOWERMENT TEMPLE INC. 0 3,000.00 2/13/2004 2/13/2004 M-T-M
6618C EVERGREEN CAFE 835 2,087.50 30.00 645.73 9.28 10.00 7/15/2003 7/14/2003 7/31/2013
6528 FOOTLOCKER #6169 3,000 4,500.00 18.00 2,445.00 9.78 6.00 2/16/1989 2/16/1989 3/31/2013
XXX0 XXXXXXXXX XXXXXX XXX0 0 850.00 6/20/1995 6/20/1995 M-T-M
6516 XXXXX 5,143 3,565.81 8.32 3,977.25 9.28 5.00 2/4/2003 2/4/2003 4/30/2008
Options Increases
-------------------------------------- * Option Period
Eff Notice --------------------------------------
Suite Id Tenant Name Type Date Term Date Cat Date Amount PSF
------------------------------------------------------------------------------------------------------------------------
6526 CHANGES
6788 CITIC NAILS BSR 9/1/2004 1,555.65 22.25
BSR 9/1/2005 1,601.79 22.91
BSR 9/1/2006 1,650.03 23.60
BSR 9/1/2007 1,699.67 24.31
BSR 9/1/2008 1,750.71 25.04
6568 COBBLERS AND CLEANERS BSR 5/1/2005 2,358.70 20.60
BSR 5/1/2006 2,429.69 21.22
BSR 5/1/2007 2,502.97 21.86
BSR 5/1/2008 2,578.54 22.52
BSR 5/1/2009 2,656.40 23.20
BSR 5/1/2010 2,736.55 23.90
BSR 5/1/2011 2,818.99 24.62
BSR 5/1/2012 2,903.72 25.36
6546 CURVES FOR WOMEN BSR 7/1/2005 1,941.33 14.56
BSR 7/1/2006 2,018.67 15.14
BSR 7/1/2007 2,100.00 15.75
BSR 7/1/2008 2,184.00 16.38
6550C DOLLAR CITY BSR 5/1/2005 4,749.25 11.00
BSR 5/1/2006 4,891.73 11.33
BSR 5/1/2007 5,038.52 11.67
BSR 5/1/2008 5,189.64 12.02
6540 ECONOMY SHOES
CA31 EMPOWERMENT TEMPLE INC.
6618C EVERGREEN CAFE LKO 12/31/2004 90 6/30/2005 BSR 8/1/2004 2,171.00 31.20
LKO 12/31/2005 90 6/30/2006 BSR 8/1/2005 2,257.98 32.45
LKO 12/31/2006 90 6/30/2007 BSR 8/1/2006 2,348.44 33.75
BSR 8/1/2007 2,442.38 35.10
BSR 8/1/2008 2,539.79 36.50
BSR 8/1/2009 2,641.38 37.96
BSR 8/1/2010 2,747.15 39.48
BSR 8/1/2011 2,857.09 41.06
BSR 8/1/2012 2,971.21 42.70
6528 FOOTLOCKER #6169 BSR 4/1/2006 5,250.00 21.00
BSR 4/1/2010 6,000.00 24.00
XXX0 XXXXXXXXX XXXXXX XXX0
0000 XXXXX TKO 9/30/2005 90 12/31/2005 BSR 5/1/2005 3,707.25 8.65
BSR 5/1/2006 3,857.25 9.00
BSR 5/1/2007 4,011.54 9.36
Database: CRC_PROD Rent Roll Page: 0
XXXXXXXXXXXX XXXXX ASSOCIATES LLC Date: 7/29/2004
REISTERSTOWN ROAD PLAZA, LLC Time: 10:36
Project # 685
As of: 7/29/2004
Base Rent Cost Recovery
------------------ ------------------- Lease Dates
GLA Sq Monthly Rate Monthly Cost Rate % Rent -----------------------------------
Suite Id Tenant Name Footage Base Rent PSF Recovery PSF Rate Occupancy Start Expire
------------------------------------------------------------------------------------------------------------------------------------
6780 GIANT 59,064 83,674.00 17.00 12,568.74 2.55 1.50 7/29/2004 7/29/2004 7/31/2029
6586 GIFTS AND BALLOONS 238 1,000.00 50.42 7.00 1/1/2004 1/1/2004 12/31/2008
6786 GOLD LAGOON 839 1,152.23 16.48 648.83 9.28 6.00 3/21/2003 3/21/2003 3/31/2010
6740A GREAT COOKIE, THE 751 1,195.10 19.10 577.65 9.23 8.00 7/23/1999 6/15/1999 6/30/2009
CA16 GTI 0 50.00 1/1/1997 M-T-M
6614 HARBOR CITY BAKE SHOP 1,061 2,122.00 24.00 692.30 7.83 6.00 5/21/2004 5/21/2004 5/31/2014
6564 HIP HOP ONE STOP 238 900.04 45.38 1/1/2004 1/1/2004 6/30/2005
6530 HIS AND HERS 3,478 6,376.00 22.00 5.00 3/20/2004 3/20/2004 6/30/2009
4200 HOME DEPOT 115,289 50,000.00 5.20 11/21/2002 11/21/2002 1/31/2033
Options Increases
-------------------------------------- *Option Period
Eff Notice --------------------------------------
Suite Id Tenant Name Type Date Term Date Cat Date Amount PSF
------------------------------------------------------------------------------------------------------------------------
6780 GIANT REN 8/1/2029 7/31/2028 BSR 8/1/2009 86,135.00 17.50
REN 8/1/2034 7/31/2033 BSR 8/1/2014 88,596.00 18.00
REN 8/1/2039 7/31/2038 BSR 8/1/2019 91,057.00 18.50
REN 8/1/2044 7/31/2043 BSR 8/1/2024 93,518.00 19.00
REN 8/1/2049 7/31/2048 * BSR 8/1/2029 95,979.00 19.50
REN 8/1/2054 7/31/2053 * BSR 8/1/2034 98,440.00 20.00
* BSR 8/1/2039 100,901.00 20.50
* BSR 8/1/2044 103,362.00 21.00
* BSR 8/1/2049 105,823.00 21.50
* BSR 8/1/2054 108,284.00 22.00
6586 GIFTS AND BALLOONS BSR 1/1/2005 1,049.98 52.94
BSR 1/1/2006 1,102.54 55.59
6786 GOLD LAGOON BSR 4/1/2005 1,186.49 16.97
BSR 4/1/2006 1,222.14 17.48
BSR 4/1/2007 1,258.50 18.00
BSR 4/1/2008 1,296.26 18.54
BSR 4/1/2009 1,335.41 19.10
6740A GREAT COOKIE, THE REN 7/1/2009 60 12/31/2008
CA16 GTI
6614 HARBOR CITY BAKE SHOP BSR 6/1/2005 2,206.88 24.96
BSR 6/1/2006 2,295.30 25.96
BSR 6/1/2007 2,387.25 27.00
BSR 6/1/2008 2,482.74 28.08
BSR 6/1/2009 2,581.77 29.20
BSR 6/1/2010 2,685.21 30.37
BSR 6/1/2011 2,792.20 31.58
BSR 6/1/2012 2,903.60 32.84
BSR 6/1/2013 3,019.43 34.15
6564 HIP HOP ONE STOP BSR 1/1/2005 945.06 47.65
6530 HIS AND HERS REN 7/1/2009 60 12/31/2008 BSR 4/1/2005 6,587.62 22.66
BSR 4/1/2006 6,764.71 23.34
BSR 4/1/2007 6,967.59 24.04
BSR 4/1/2008 7,176.27 24.76
* BSR 7/1/2009 7,535.67 26.00
* BSR 7/1/2010 7,761.74 26.78
* BSR 7/1/2011 7,993.60 27.58
* BSR 7/1/2012 8,234.17 28.41
* BSR 7/1/2013 8,480.52 29.26
4200 HOME DEPOT REN 2/1/2033 60 8/5/2032 BSR 2/1/2013 56,000.00 5.83
REN 2/1/2038 60 8/5/2037 BSR 2/1/2023 62,720.00 6.53
REN 2/1/2043 60 8/5/2042 * BSR 2/1/2033 66,483.17 6.92
Database: CRC_PROD Rent Roll Page: 0
XXXXXXXXXXXX XXXXX ASSOCIATES LLC Date: 7/29/2004
REISTERSTOWN ROAD PLAZA, LLC Time: 10:36
Project # 685
As of: 7/29/2004
Base Rent Cost Recovery
------------------ ------------------- Lease Dates
GLA Sq Monthly Rate Monthly Cost Rate % Rent -----------------------------------
Suite Id Tenant Name Footage Base Rent PSF Recovery PSF Rate Occupancy Start Expire
------------------------------------------------------------------------------------------------------------------------------------
CA30 HUD KIOSK 0 300.00 4/7/2003 4/7/2003 4/6/2007
6556 INJURY TREATMENT
CENTER OF ? 3,501 4,221.62 14.47 1,584.20 5.43 4/20/2000 12/1/1999 3/31/2005
6518B XXXXXXX XXXXXX
TAX SERVICE 1,217 2,535.42 25.00 550.69 5.43 1/1/2003 1/1/2003 4/30/2008
8608 KS ALTERATIONS 500 1,312.50 31.50 386.67 9.28 10.00 3/7/2003 3/7/2003 3/31/2013
RMU7 LEATHER AND MORE 0 650.00 10.00 10/15/2003 9/8/2003 M-T-M
6550A/B LOT STORES 5,335 2,889.79 6.50 4,281.34 9.63 5.00 7/1/2003 7/28/2003 7/31/2013
RMU3 LUCKY VIDEO IMAGES 0 600.00 7/7/2003 7/7/2003 M-T-M
6630 MALL SPIRITS 2,236 2,303.08 12.36 1,850.29 9.93 6.00 1/21/2003 1/21/2003 1/31/2013
Options Increases
-------------------------------------- * Option Period
Eff Notice --------------------------------------
Suite Id Tenant Name Type Date Term Date Cat Date Amount PSF
------------------------------------------------------------------------------------------------------------------------
* BSR 2/1/2038 70,472.17 7.34
* BSR 2/1/2043 74,700.50 7.78
* BSR 2/1/2048 79,182.50 8.24
* BSR 2/1/2053 83,933.50 8.74
* BSR 2/1/2058 88,969.50 9.26
REN 2/1/2048 60 8/5/2047
REN 2/1/2053 60 8/5/2052
REN 2/1/2058 60 8/5/2005
CA30 HUD KIOSK
6556 INJURY TREATMENT
CENTER OF ?
6518B XXXXXXX XXXXXX
TAX SERVICE REN 5/1/2008 60 10/31/2007 BSR 4/1/2005 2,586.13 25.50
BSR 4/1/2006 2,637.85 26.01
BSR 4/1/2007 2,690.58 26.53
* BSR 5/1/2008 2,857.47 28.18
* BSR 5/1/2009 2,882.26 28.42
* BSR 5/1/2010 2,940.07 28.99
* BSR 5/1/2011 2,998.89 29.57
* BSR 5/1/2012 3,058.73 30.16
6608 KS ALTERATIONS BSR 4/1/2005 1,378.33 33.08
BSR 4/1/2006 1,447.08 34.73
BSR 4/1/2007 1,519.58 36.47
BSR 4/1/2008 1,595.42 38.29
BSR 4/1/2009 1,675.00 40.20
BSR 4/1/2010 1,758.75 42.21
BSR 4/1/2011 1,846.67 44.32
BSR 4/1/2012 1,939.17 46.54
RMU7 LEATHER AND MORE
6550A/B LOT STORES REN 8/1/2013 60 1/31/2013 BSR 8/19/2008 3,428.33 7.71
REN 8/1/2018 60 1/31/2018 * BSR 8/1/2013 3,941.57 8.87
* BSR 8/1/2018 4,532.92 10.20
RMU3 LUCKY VIDEO IMAGES
6630 MALL SPIRITS BSR 2/1/2005 2,372.02 12.73
BSR 2/1/2006 2,442.83 13.11
BSR 2/1/2007 2,515.50 13.50
BSR 2/1/2008 2,591.90 13.91
BSR 2/1/2009 2,670.16 14.33
BSR 2/1/2010 2,750.28 14.76
BSR 2/1/2011 2,832.27 15.20
BSR 2/1/2012 2,917.98 15.66
Database: CRC_PROD Rent Roll Page: 0
XXXXXXXXXXXX XXXXX ASSOCIATES LLC Date: 7/29/2004
REISTERSTOWN ROAD PLAZA, LLC Time: 10:36
Project # 685
As of: 7/29/2004
Base Rent Cost Recovery
------------------ ------------------- Lease Dates
GLA Sq Monthly Rate Monthly Cost Rate % Rent -----------------------------------
Suite Id Tenant Name Footage Base Rent PSF Recovery PSF Rate Occupancy Start Expire
------------------------------------------------------------------------------------------------------------------------------------
6700 MARSHALLS 28,500 24,934.50 10.50 4,037.50 1.70 2.00 4/4/2004 4/4/2004 4/30/2014
CA11 MEPA 0 800.00 6/1/2002 6/1/2002 8/11/2004
6590 METRO II 1,453 2,058.42 17.00 1,123.65 9.28 8.00 7/14/2003 7/14/2003 10/31/2013
6790 NATIONAL WHOLESALE
LIQUIDATOR 91,129 30,376.33 4.00 5/9/2000 5/9/2000 1/31/2011
6632A NEW DIRECTION XXXXXX SHOP 1,086 1,864.30 20.60 884.19 9.77 7.00 9/18/2002 9/18/2002 12/31/2009
6540 NUVO 2,017 2,101.04 12.50 1,559.81 9.28 7.00 9/2/2003 9/2/2003 12/31/2007
6604 ORIGINAL MAMMA LUCIA 1,695 4,943.75 35.00 5.00 6/1/2004 8/1/2004 5/31/2014
6548 PAYLESS SHOES #2577 4,985 3,627.67 8.73 4,222.32 10.16 6.00 10/20/1984 7/29/1994 7/31/2007
CA25 PEPSI 0 35.00 7/1/2001 7/1/2001 M-T-M
6564/K3 PERFUMERY INTERNATIONAL
INC. 200 1,333.33 80.00 11/15/1989 12/1/1994 1/31/2005
CA32 PHOTO ME 0 300.00 8/1/2004 8/1/2003 7/31/2004
6618A PICK-A-PRETZEL 318 662.50 25.00 245.93 9.28 10.00 7/14/2003 7/14/2003 7/31/2013
Options Increases
----------------------------------------- * Option Period
Eff Notice --------------------------------------
Suite Id Tenant Name Type Date Term Date Cat Date Amount PSF
------------------------------------------------------------------------------------------------------------------------
6700 MARSHALLS REN 5/1/2014 60 10/31/2018 * BSR 5/1/2014 26,125.00 11.00
REN 5/1/2019 60 10/31/2023 * BSR 5/1/2019 27,312.50 11.50
REN 5/1/2024 60 10/31/2028 * BSR 5/1/2024 28,500.00 12.00
CA11 MEPA
6590 METRO II BSR 8/1/2006 2,300.58 19.00
BSR 8/1/2010 2,542.75 21.00
6790 NATIONAL WHOLESALE
LIQUIDATOR REN 2/1/2011 60 7/31/2010 BSR 6/1/2005 33,413.97 4.40
REN 2/1/2016 60 7/31/2015 * BSR 2/1/2011 36,755.36 4.84
REN 2/1/2021 60 7/31/2020 * BSR 2/1/2016 40,400.52 5.32
REN 2/1/2026 60 7/31/2025 * BSR 2/1/2021 44,425.39 5.85
REN 2/1/2031 60 7/31/2030 * BSR 2/1/2026 48,905.90 6.44
REN 2/1/2036 60 7/31/2035 * BSR 2/1/2031 53,766.11 7.08
* BSR 2/1/2036 59,157.91 7.79
6632A NEW DIRECTION XXXXXX SHOP BSR 10/1/2004 1,920.41 21.22
BSR 10/1/2005 1,978.33 21.86
BSR 10/1/2006 2,038.06 22.52
BSR 10/1/2007 2,099.60 23.20
BSR 10/1/2008 2,162.95 23.90
6540 NUVO BSR 1/1/2005 2,185.08 13.00
BSR 1/1/2006 2,269.13 13.50
BSR 1/1/2007 2,353.17 14.00
6604 ORIGINAL MAMMA LUCIA BSR 6/1/2005 5,092.06 38.05
BSR 6/1/2006 5,244.61 37.13
BSR 6/1/2007 5,401.40 38.24
BSR 6/1/2008 5,563.84 39.39
BSR 6/1/2009 5,730.51 40.57
BSR 6/1/2010 5,902.84 41.79
BSR 6/1/2011 6,079.40 43.04
BSR 6/1/2012 6,261.61 44.33
BSR 6/1/2013 6,449.48 45.66
6548 PAYLESS SHOES #2577
CA25 PEPSI KIC 6/30/2004 30 4/30/2004
KIC 6/30/2005 30 4/30/2005
KIC 6/30/2006 30 4/30/2006
KIC 6/30/2007 30 4/30/2007
6564/K3 PERFUMERY INTERNATIONAL,
INC.
CA32 PHOTO ME
6618A PICK-A-PRETZEL LKO 12/31/2004 90 6/30/2005 BSR 8/1/2004 689.00 26.00
LKO 12/31/2005 90 6/30/2006 BSR 8/1/2005 716.58 27.04
Database: CRC_PROD Rent Roll Page: 0
XXXXXXXXXXXX XXXXX ASSOCIATES LLC Date: 7/29/2004
REISTERSTOWN ROAD PLAZA, LLC Time: 10:36
Project # 685
As of: 7/29/2004
Base Rent Cost Recovery
------------------ ------------------- Lease Dates
GLA Sq Monthly Rate Monthly Cost Rate % Rent -----------------------------------
Suite Id Tenant Name Footage Base Rent PSF Recovery PSF Rate Occupancy Start Expire
------------------------------------------------------------------------------------------------------------------------------------
5512A POPEYES 3,523 4,990.92 17.00 2,157.38 7.35 6.00 1/29/1992 1/29/1992 1/31/2007
6606 POWER GAMER 1,902 2,662.80 16.80 1,548.55 9.77 10/13/2002 10/13/2002 12/31/2007
6632 PROVIDENT BANK 2,593 4,753.83 22.00 2,048.48 9.48 12/1/1980 12/1/1995 11/30/2010
6776-300 PUBLIC SAFETY & CORR.
SERVICE 107,705 107,700.00 12.00 1/1/1988 2/1/1996 4/30/2011
6512B RENT-A-CENTER #1580 4,300 6,091.67 17.00 1,949.33 5.44 1/15/2003 1/15/2003 1/31/2008
6792 REVELATIONS SHOE SHOP 845 942.88 13.39 653.47 9.28 6.00 4/1/2003 4/1/2003 3/31/2008
6580 ROYAL GEMS & JEWELRY 330 1,127.50 41.00 270.06 9.82 5/1/2001 5/1/2001 9/30/2006
6520A XXXXX BEAUTY #2154 1,500 2,250.00 18.00 702.50 5.62 4.00 9/30/1996 9/30/1996 11/30/2007
6618E SAUSAGE PLUS 386 707.67 22.00 298.52 9.28 10.00 7/14/2003 7/14/2003 7/31/2013
6638 SEPIA SAND AND SABLE 1,267 1,689.33 16.00 989.81 9.37 5.00 12/4/2003 12/4/2003 12/31/2008
Options Increases
----------------------------------------- * Option Period
Eff Notice --------------------------------------
Suite Id Tenant Name Type Date Term Date Cat Date Amount PSF
------------------------------------------------------------------------------------------------------------------------
BSR 8/1/2006 745.18 28.12
BSR 8/1/2007 774.86 29.24
BSR 8/1/2008 805.87 30.41
BSR 8/1/2009 838.20 31.63
BSR 8/1/2010 871.85 32.90
BSR 8/1/2011 906.83 34.22
BSR 8/1/2012 943.14 35.59
LKO 12/31/2006 90 6/30/2007
5512A POPEYES REN 2/1/2007 60 7/31/2006 * BSR 2/1/2007 5,871.67 20.00
6606 POWER GAMER BSR 1/1/2005 2,795.95 17.64
BSR 1/1/2006 2,935.42 18.52
BSR 1/1/2007 3,082.83 19.45
6632 PROVIDENT BANK TKO 11/30/2005 6 6/1/2005 BSR 12/1/2005 5,402.08 25.00
6776-300 PUBLIC SAFETY & CORR.
SERVICE BSO 5/1/2005 109,948.85 12.25
BSO 5/1/2007 112,192.37 12.50
BSO 5/1/2009 116,231.65 12.95
6512B RENT-A-CENTER #1580 REN 2/1/2008 60 7/31/2007 BSR 2/1/2006 6,274.42 17.51
* BSR 2/1/2008 6,808.33 19.00
* BSR 2/1/2011 7,156.67 20.00
5792 REVELATIONS SHOE SHOP BSR 4/1/2005 971.05 13.79
BSR 4/1/2006 999.92 14.20
BSR 4/1/2007 1,030.20 14.63
6580 ROYAL GEMS & JEWELRY BSR 10/1/2004 1,182.50 43.00
BSR 10/1/2005 1,237.50 45.00
6520A XXXXX BEAUTY #2154
6618E SAUSAGE PLUS LKO 12/31/2004 90 6/30/2005 BSR 8/1/2004 728.90 22.66
LKO 12/31/2005 90 6/30/2006 BSR 8/1/2005 750.77 23.34
LKO 12/31/2006 90 6/30/2007 BSR 8/1/2006 773.29 24.04
BSR 8/1/2007 796.45 24.76
BSR 8/7/2008 820.25 25.50
BSR 8/1/2009 845.02 26.27
BSR 8/1/2010 870.43 27.06
BSR 8/1/2011 896.49 27.67
BSR 8/1/2012 923.51 28.71
6638 SEPIA SAND AND SABLE REN 1/1/2009 12 6/30/2008 BSR 1/1/2005 1,740.01 16.48
BSR 1/1/2006 1,791.75 16.97
BSR 1/1/2007 1,845.60 17.48
BSR 1/1/2008 1,900.50 18.00
* BSR 1/1/2009 1,957.52 18.54
Database: CRC_PROD Rent Roll Page: 0
XXXXXXXXXXXX XXXXX ASSOCIATES LLC Date: 7/29/2004
REISTERSTOWN ROAD PLAZA, LLC Time: 10:36
Project # 685
As of: 7/29/2004
Base Rent Cost Recovery
------------------ ------------------- Lease Dates
GLA Sq Monthly Rate Monthly Cost Rate % Rent -----------------------------------
Suite Id Tenant Name Footage Base Rent PSF Recovery PSF Rate Occupancy Start Expire
------------------------------------------------------------------------------------------------------------------------------------
6518A SHINGAR 2,250 3,445.00 18.37 6.00 9/30/1991 9/30/1991 9/30/2004
6740C SHOE CITY 6,740 7,500.00 13.35 6.00 1/28/2004 1/28/2004 1/31/2014
6522 SHOE CRAZY 4,655 7,758.33 20.00 6.00 11/1/2003 11/1/2003 2/28/2009
6564/K2 SILVER PALACE 0 900.00 6/1/2003 6/1/2003 M-T-M
6764B SOCIAL SECURITY ADMIN. 14,885 12,156.08 9.80 8,298.39 6.69 7/2/2003 7/2/2003 7/1/2013
0000 XXXXXX XXXXXX 651 868.00 16.00 503.44 9.28 10.00 3/7/2003 3/13/2003 3/31/2013
6618G STEAK BUSTERS 855 2,850.00 40.00 661.50 9.28 10.00 7/15/2003 7/13/2003 7/31/2013
0000/X00 XXXXXX #0000 250 2,250.00 108.00 296.25 14.22 8.00 5/7/1990 5/7/1990 5/31/2012
6818F THI DELIGHT 588 1,470.00 30.00 454.72 9.28 8.00 6/29/2003 8/27/2003 8/31/2008
6784 TIME & MORE 787 1,112.95 16.97 644.03 9.82 6.00 9/2/1998 5/1/2001 9/30/2006
Options Increases
----------------------------------------- * Option Period
Eff Notice --------------------------------------
Suite Id Tenant Name Type Date Term Date Cat Date Amount PSF
------------------------------------------------------------------------------------------------------------------------
6518A SHINGAR
6740C SHOE CITY REN 2/1/2014 60 6/31/2013 BSR 2/1/2009 8,625.00 15.36
REN 2/1/2019 60 6/31/2018 * BSR 2/1/2014 9,918.75 17.66
TKO 5/31/2009 60 3/31/2008 * BSR 2/1/2019 11,406.58 20.31
6522 SHOE CRAZY BSR 3/1/2007 7,991.08 20.60
BSR 3/1/2008 8,231.59 21.22
6564/K2 SILVER PALACE
67648 SOCIAL SECURITY ADMIN. BSR 7/2/2008 14,885.00 12.00
0000 XXXXXX XXXXXX BSR 4/1/2005 902.72 16.64
BSR 4/1/2006 939.07 17.31
BSR 4/1/2007 976.50 18.00
BSR 4/1/2008 1,015.56 18.72
BSR 4/1/2009 1,056.25 19.47
BSR 4/1/2010 1,098.56 20.25
BSR 4/1/2011 1,142.51 21.08
BSR 4/1/2012 1,188.08 21.90
6618G STEAK BUSTERS LKO 12/31/2004 90 6/30/2005 BSR 8/1/2004 2,935.50 41.20
LKO 12/31/2005 90 6/30/2006 BSR 8/1/2005 3,023.85 42.44
LKO 12/31/2006 90 6/30/2007 BSR 8/1/2006 3,114.34 43.71
BSR 8/1/2007 3,207.68 45.02
BSR 8/1/2008 3,302.44 46.35
BSR 8/1/2009 3,401.48 47.74
BSR 8/1/2010 3,503.36 49.17
BSR 8/1/2011 3,608.81 50.85
BSR 8/1/2012 3,717.11 52.17
0000/X00 XXXXXX #0000 BSR 6/1/2005 2,333.33 112.00
BSR 6/1/2006 2,437.50 117.00
BSR 6/1/2007 2,541.67 122.00
BSR 6/1/2008 2,645.83 127.00
BSR 6/1/2009 2,791.67 134.00
BSR 6/1/2010 2,937.60 141.00
BSR 6/1/2011 3,083.33 148.00
6818F THI DELIGHT REN 9/1/2008 24 2/28/2008 BSR 9/1/2004 1,528.80 31.20
BSR 9/1/2005 1,590.05 32.45
BSR 9/1/2006 1,653.75 33.75
BSR 9/1/2007 1,719.90 35.10
* BSR 9/1/2008 1,788.50 36.50
* BSR 9/1/2009 1,860.04 37.96
6784 TIME & MORE BSR 10/1/2004 1,146.40 17.48
BSR 10/1/2005 1,181.16 18.01
Database: CRC_PROD Rent Roll Page: 0
XXXXXXXXXXXX XXXXX ASSOCIATES LLC Date: 7/29/2004
REISTERSTOWN ROAD PLAZA, LLC Time: 10:36
Project # 685
As of: 7/29/2004
Base Rent Cost Recovery
------------------ ------------------- Lease Dates
GLA Sq Monthly Rate Monthly Cost Rate % Rent ----------------------------------
Suite Id Tenant Name Footage Base Rent PSF Recovery PSF Rate Occupancy Start Expire
------------------------------------------------------------------------------------------------------------------------------------
6776 TOP DRIVER 0 458.33 207.92 1/1/2003 1/1/2003 11/30/2004
6640 TOTAL HEALTH CTR 1,050 1,312.50 15.00 312.01 9.28 8.00 9/15/2003 9/15/2003 9/30/2013
6554 VISION BEAUTY OUTLET 2,832 3,658.00 15.50 2,305.72 9.77 7.00 8/16/2002 8/16/2002 7/31/2012
6550 VITAL RECORDS 11,500 12,689.58 13.45 11/23/1998 11/23/1998 11/22/2008
6642 VOGUE HAIR SUPPLY 1,050 1,672.13 19.11 859.26 9.82 5.00 3/2/1995 4/1/1997 5/31/2008
Options Increases
----------------------------------------- * Option Period
Eff Notice --------------------------------------
Suite Id Tenant Name Type Date Term Date Cat Date Amount PSF
------------------------------------------------------------------------------------------------------------------------
6776 TOP DRIVER
6640 TOTAL HEALTH CTR BSR 10/1/2004 1,365.00 15.60
BSR 10/1/2005 1,419.25 16.22
BSR 10/1/2006 1,476.13 16.87
BSR 10/1/2007 1,534.75 17.54
BSR 10/1/2008 1,596.00 18.24
BSR 10/1/2009 1,659.88 18.97
BSR 10/1/2010 1,726.38 19.73
BSR 10/1/2011 1,795.50 20.52
BSR 10/1/2012 1,867.25 21.34
6554 VISION BEAUTY OUTLET BSR 4/1/2006 3,776.00 16.00
BSR 4/1/2008 3,894.00 16.50
BSR 4/1/2010 4,012.00 17.00
6550 VITAL RECORDS REN 11/23/2008 60 * BSR 11/23/2008 13,647.92 14.45
6642 VOGUE HAIR SUPPLY BSR 6/1/2005 1,759.63 20.11
BSR 6/1/2006 1,847.13 21.11
BSR 6/1/2007 1,943.63 22.11
Totals:
Occupied Sqft: 92.20% 566,980 ( 70 Units) 509,493.45 93,600.14
Vacant Sqft: 7.80% 47,992 ( 17 Units)
Subtotal Sqft: 614,972 ( 87 Units)
Leased/Unoccp Sqft: 0.00% 0 0.00 0.00
Total Sqft: 614,972
Database: CRC_PROD Rent Roll Page: 1
RRP XXXXX, LLC Date: 7/29/2004
RRP XXXXX, LLC Time: 11:13
Project # 690
As of: 7/29/2004
Base Rent Cost Recovery
------------------ ------------------- Lease Dates
GLA Sq Monthly Rate Monthly Cost Rate % Rent -----------------------------------
Suite Id Tenant Name Footage Base Rent PSF Recovery PSF Rate Occupancy Start Expire
------------------------------------------------------------------------------------------------------------------------------------
NEW LEASES
4130C PACK AND POST PLUS 1,048 12/1/2004 12/31/2004
4130 SPRINT SPECTRUM 2,924 11/1/2004 11/30/2004
VACANT SUITES
4130 Vacant 2,924
4130C Vacant 1,048
OCCUPIED SUITES
6508 ACCENT HAIR SALON 1,590 2,929.33 20.80 285.89 2.03 9/10/2002 10/7/2002 1/31/2008
4140P BOARD OF NURSING 15,232 15,310.93 12.85 10/28/1993 3/1/1999 10/31/2008
6500B BURLINGTON COAT FACTORY 60,000 28,500.00 5.70 1,650.00 0.93 2.00 8/1/1989 10/6/1986 10/5/2006
4106 DHMH 23,250 24,218.75 12.50 10/15/2002 10/15/2002 10/14/2012
6500A FURNITURE PALACE 39,243 20,600.00 6.30 981.08 0.30 1/1/2003 1/1/2003 12/31/2007
5502 JUVENILE JUSTICE 7,291 8,202.38 13.50 1/7/1997 2/25/1997 1/31/2008
6504 MATTRESS WAREHOUSE 4,000 6,333.33 19.00 580.00 1.74 12/21/2002 11/10/2002 11/30/2012
0000X XXXX XXXX XXXXXXX XXXXXX 7,783 7,685.71 11.85 259.44 0.40 7/1/2003 7/1/2003 6/30/2008
6506 PLAZA PODIATRY 1,964 3,273.33 20.00 332.24 2.03 9/3/2002 9/1/2002 8/31/2012
Options Increases
----------------------------------------- * Option Period
Eff Notice --------------------------------------
Suite Id Tenant Name Type Date Term Date Cat Date Amount PSF
------------------------------------------------------------------------------------------------------------------------
NEW LEASES
4130C PACK AND POST PLUS
4130 SPRINT SPECTRUM
VACANT SUITES
4130 Vacant
4130C Vacant
OCCUPIED SUITES
6508 ACCENT HAIR SALON BSR 11/1/2004 3,046.51 21.63
BSR 11/1/2005 3,158.75 22.50
BSR 11/1/2006 3,295.50 23.40
4140P BOARD OF NURSING REN 11/1/2008 60 10/31/2007
6500B BURLINGTON COAT FACTORY
4106 DHMH REN 10/1/2012 60 3/31/2011 * BSO 10/15/2012 0.00
6500A FURNITURE PALACE LKO 1/1/2004 90 9/30/2003 BSR 1/1/2005 21,233.92 6.49
BSR 1/1/2006 21,845.27 6.68
BSR 1/1/2007 22,499.32 6.88
5502 JUVENILE JUSTICE
6504 MATTRESS WAREHOUSE REN 11/1/2012 60 4/30/2012 BSR 11/1/2007 7,283.33 21.85
REN 11/1/2017 60 4/30/2017 * BSR 11/1/2012 8,376.67 25.13
* BSR 11/1/2017 9,633.33 28.90
0000X XXXX XXXX XXXXXXX XXXXXX REN 7/1/2008 60 12/31/2007 BSO 7/1/2005 7,919.20 12.21
BSO 7/1/2006 8,159.18 12.58
BSO 7/1/2007 8,405.64 12.96
* BSO 7/1/2008 8,658.59 13.35
* BSO 7/1/2009 8,918.02 13.75
* BSO 7/1/2010 9,183.94 14.16
* BSO 7/1/2011 9,456.35 14.58
* BSO 7/1/2012 9,741.72 15.02
6506 PLAZA PODIATRY BSR 9/1/2007 3,764.33 23.00
TOTALS:
Occupied Sqft: 97.58% 160,453 ( 9 Units) 118,053.76 4,088.65
Vacant Sqft: 2.42% 3,972 ( 2 Units)
Database: CRC_PROD Rent Roll Page: 2
RRP XXXXX, LLC Date: 7/29/2004
RRP XXXXX, LLC Time: 11:13
Project # 690
As of: 7/29/2004
Base Rent Cost Recovery
------------------ ------------------- Lease Dates
GLA Sq Monthly Rate Monthly Cost Rate % Rent -----------------------------------
Suite Id Tenant Name Footage Base Rent PSF Recovery PSF Rate Occupancy Start Expire
------------------------------------------------------------------------------------------------------------------------------------
Options Increases
----------------------------------------- * Option Period
Eff Notice --------------------------------------
Suite Id Tenant Name Type Date Term Date Cat Date Amount PSF
------------------------------------------------------------------------------------------------------------------------
Subtotal Sqft: 164,425 ( 11 Units)
Leased/Unoccp Sqft: 0.00% 0 0.00 0.00
Total Sqft: 164,425
SCHEDULE V
HOME DEPOT OUT PARCEL RELEASE CONDITIONS
1. Lender shall have received, together with the request for
release, a current survey in form acceptable to Lender in its reasonable
discretion depicting the Out Parcel to be released and the Remaining Property
(as defined below) and any appurtenant easements;
2. Lender shall have received evidence satisfactory to Lender
that there are no subordinate liens, mortgages, deeds of trust or other security
instruments, as the case may be, encumbering the Property remaining encumbered
by the lien of the Mortgage (the "Remaining Property"), including without
limitation a "bring down" or "date down" of the title insurance policies
insuring the lien of the Mortgage on such Property and an endorsement reflecting
the Property remaining encumbered by the lien of the Mortgage includes the
Remaining Property and any necessary easements or agreements in connection with
the release of the Out Parcel;
3. Lender shall have received from Grantor payment of a $1,000.00
fee in addition to payment of all Lender's costs and expenses, including
reasonable counsel fees and disbursements incurred in connection with the
release of the Out Parcel from the lien of the Mortgage and the review and
approval of the documents and information required to be delivered in connection
therewith ("RELEASE EXPENSES");
4. Lender shall have approved the deed and the legal description
by which the Out Parcel shall be conveyed, including any appurtenant easements
for access, parking or drainage comprising part of the Out Parcel, which
approval shall not unreasonably be withheld or delayed;
5. Lender shall have received evidence reasonably satisfactory to
Lender that title to the Out Parcel shall be transferred to Home Depot or an
entity designated by Home Depot in accordance with a valid exercise of the
purchase option set forth in Home Depot's lease;
6. Lender shall have received evidence reasonably satisfactory to
Lender that the Remaining Property is or shall be (upon the completion of
nondiscretionary acts of the relevant municipality) comprised of one or more
legally created, subdivided and wholly independent tax lots and zoning lots,
separate from any adjoining land or improvements not constituting a part of such
lot or lots, and no other land or improvements is assessed and taxed together
with the Remaining Property or any portion thereof;
7. Lender shall have received evidence satisfactory to Lender in
its sole and absolute discretion that the Remaining Property has adequate access
to a public road (a) for the use of the Remaining Property in connection with
its Permitted Use, and (b) in accordance with applicable zoning laws, ordinances
and regulations. A date down endorsement to the title policy delivered at the
closing, which included endorsements for access and zoning, without exception
for such matters, shall satisfy the foregoing.
X-6
SCHEDULE VI
OUT PARCEL RELEASE CONDITIONS
1. Lender shall have received, together with the request for release, a current
survey in form acceptable to Lender in its reasonable discretion depicting the
Out Parcel to be released and the Remaining Property (as defined below) and any
appurtenant easements;
2. Lender shall have received evidence satisfactory to Lender that there are no
subordinate liens, mortgages, deeds of trust or other security instruments, as
the case may be, encumbering the Property remaining encumbered by the lien of
the Mortgage (the "Remaining Property"), including without limitation a "bring
down" or "date down" of the title insurance policies insuring the lien of the
Mortgage on such Property and an endorsement reflecting the Property remaining
encumbered by the lien of the Mortgage includes the Remaining Property and any
necessary easements or agreements in connection with the release of the Out
Parcel;
3. Lender shall have received from Borrower payment of a $1,000.00 fee in
addition to payment of all Lender's costs and expenses, including reasonable
counsel fees and disbursements incurred in connection with the release of the
Out Parcel from the lien of the Mortgage and the review and approval of the
documents and information required to be delivered in connection therewith
("Release Expenses");
4. Lender shall have approved the deed and the legal description by which the
Out Parcel shall be conveyed, including any appurtenant easements for access,
parking or drainage comprising part of the Out Parcel, which approval shall not
unreasonably be withheld or delayed;
5. Lender shall have received evidence reasonably satisfactory to Lender that
title to the Out Parcel shall be transferred to an entity other than a Borrower;
6. Lender shall have received evidence reasonably satisfactory to Lender that
the Remaining Property is or shall be (upon the completion of nondiscretionary
acts of the relevant municipality) comprised of one or more legally created,
subdivided and wholly independent tax lots and zoning lots, separate from any
adjoining land or improvements not constituting a part of such lot or lots, and
no other land or improvements is assessed and taxed together with the Remaining
Property or any portion thereof;
7. Lender shall have received evidence satisfactory to Lender in its sole and
absolute discretion that the Remaining Property has adequate access to a public
road (a) for the use of the Remaining Property in connection with its Permitted
Use, and (b) in accordance with applicable zoning laws, ordinances and
regulations. A date down endorsement to the title policy delivered at the
closing, which included endorsements for access and zoning, without exception
for such matters, shall satisfy the foregoing; and
8. Lender shall have received evidence satisfactory to Lender in its sole and
absolute discretion that the proposed use of the Out Parcel will be
complementary to the use of the Remaining Property.
X-7
SCHEDULE VII
PROPERTY AFFECTED BY SECTION 4.1.22
Not Applicable.
8
SCHEDULE VIII
Intentionally Omitted.
X-9
SCHEDULE IX
Intentionally Omitted.
X-10
SCHEDULE X
OTHER CONTRACT FUNDS AGREEMENTS
None.
11
