Exhibit 10.16
LOAN AGREEMENT
Between
XXXXX XXXXXXXXXXXX, Lender
and
PRC MEMBER LLC, Borrower
Martinsburg Mall
Martinsburg, West Virginia
Dated as of September 27, 2004
TABLE OF CONTENT
ARTICLE ONE
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DEFINITIONS
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1.1 Definitions
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1.2 Accounting Terms and Determinations
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ARTICLE TWO
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THE LOAN
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2.1 The Loan
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2.2 Conditions to Advances of the Loan
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ARTICLE THREE
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INTEREST
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3.1 Calculation
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3.2 Payments
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ARTICLE FOUR
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TERM; PAYMENT; PREPAYMENT;
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EXIT FEE; PROPERTY SALES
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4.1 Term
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4.2 Repayment at End of Term
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4.3 Prepayment
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4.4 Acceleration Upon Invalidity of Interest
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ARTICLE FIVE
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SECURITY
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5.1 Loan Documents
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ARTICLE SIX
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REPRESENTATIONS AND WARRANTIES OF BORROWER
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ARTICLE SEVEN
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ADDITIONAL COVENANTS; COVENANT BY LENDER
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7.1 Additional Covenants by Borrower
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7.2 Covenant by Lender
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ARTICLE EIGHT
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EXPENSES
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8.1 Closing Costs
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ARTICLE EIGHT-A
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BROKERAGE
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8-A.1 Mutual Representations
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8-A.2 Indemnities
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ARTICLE NINE
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SURVIVAL OF REPRESENTATIONS AND
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WARRANTIES; BINDING EFFECT; INDEMNITY
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9.1 Survival of Representations and Warranties; Binding Effect; Indemnity
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ARTICLE TEN
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DEFAULTS
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10.1 Event of Default
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10.2 Costs; Right to Cure
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10.3 Cross-Default
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ARTICLE ELEVEN
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BOOKS; RECORDS; STATEMENTS AND AUDITS
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11.1 Books and Records
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11.2 Statements
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11.3 Lender's Right to Audit
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ARTICLE TWELVE
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MANAGEMENT OF THE PROPERTIES
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12.1 Management
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12.2 Service Agreements
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12.3 Occupancy Leases
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ARTICLE THIRTEEN
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TRANSFER OF INTERESTS; NO FURTHER FINANCING
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13.1 Transfers
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13.2 No Financing
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ARTICLE FOURTEEN
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MISCELLANEOUS
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14.1 Notices
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14.2 Entire Agreement; No Oral Changes
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14.3 Captions
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14.4 Governing Law
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14.5 Further Assurances
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14.6 Interest Limitation
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14.7 Estoppel Certificates
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14.8 Interpretation
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14.9 Non-Recourse
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14.10 Counterparts
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14.11 No Partnership
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14.12 Resolution of Drafting Ambiguities
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14.13 No Waiver; Cumulative Remedies and Rights
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14.14 Certain Consents
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14.15 Payment Days
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14.16 Severability
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14.17 Consent to Jurisdiction
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14.18 Waiver of Jury Trial
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LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Loan Agreement" or "Agreement") dated as of
the 27 day of September, 2004, by and between XXXXX XXXXXXXXXXXX ("Lender"),
having an address at 000 Xxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxxxx 00000 ("Lender's
Address"), and PRC MEMBER LLC, a Delaware limited liability company having an
address at 000 Xxxxx Xxxxxxxx, Xxxxx Xxxxxx, Xxx Xxxx 00000 ("Borrower");
W I T N E S S E T H:
WHEREAS Lender and Presidential Realty Corporation ("Presidential"), a
Delaware corporation, are the sole members of Borrower, and Presidential is the
managing member; and
WHEREAS Lightstone Real Estate Partners, LLC (hereinafter referred to
as "Contract Vendee"), an Affiliate (capitalized terms not defined in these
recitals are defined in Article 1) of Lender has entered into a contract dated
May 14, 2004, as amended, with PREIT Associates, L.P. ("PREIT") for the purchase
of certain properties including Martinsburg Mall at 000 Xxxxxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxx Xxxxxxxx (the "Martinsburg Property"); and
WHEREAS the parties contemplate that Contract Vendee shall assign and
delegate to Martinsburg Mall LLC (the "Martinsburg Property Owner"), a Delaware
limited liability company in which Borrower is the sole member, the right and
obligation to purchase the Martinsburg Property; and
WHEREAS as part of the series of transactions of which this Agreement
is a part, Wachovia Bank, National Association ("Wachovia") is lending One
Hundred Five Million Dollars ($105,000,000) to certain Affiliates of Lender and
to the Martinsburg Property Owner secured by a first mortgage lien upon, among
other properties, the Martinsburg Property; and
WHEREAS Presidential is the managing member of Borrower, and Borrower
is the sole member of the Martinsburg Property Owner; and
WHEREAS Borrower has applied to Lender for a loan in the amount of Two
Million Six Hundred Thousand Dollars ($2,600,000) to be used, along with other
funds, in connection with ownership of the Martinsburg Property; and
WHEREAS Lender is willing to lend Borrower Two Million Six Hundred
Thousand Dollars ($2,600,000), but only upon the terms and conditions set forth
in this Loan Agreement and in the other Loan Documents;
NOW, THEREFORE, in consideration of Ten Dollars ($10.00) in hand paid,
the mutual covenants contained herein, and other good and valuable
consideration, the receipt and sufficiency of which hereby are mutually
acknowledged, and intending to be legally bound hereby, Lender and Borrower
hereby agree as follows:
ARTICLE ONE
DEFINITIONS
1.1 Definitions. The following terms, as used in this
Loan Agreement, have the following meanings:
Affiliate: Any Person that controls, is controlled by, or is under
common control with any other Person is an Affiliate of such Person; any Person
that is a shareholder of, partner in, member of, or other beneficial owner
(directly or indirectly) of an interest in any other Person is an Affiliate of
such Person; any direct or collateral relative by blood or marriage of any
Person is an Affiliate of such Person; any Person who is a direct or collateral
relative by blood or marriage of any Person who is a shareholder of or partner
in, member of, or other beneficial owner (directly or indirectly) of an interest
in any entity that controls, is controlled by, or is under common control with
any other entity is an Affiliate of all such Persons. For purposes of this
definition "control" of an entity shall mean an ownership interest of fifty
percent (50%) or more, or the right or power, by contract or otherwise, directly
or indirectly, to make, or cause to be made, the decisions of such entity.
Auditor: As defined in Section 11.3 hereof.
Bankruptcy Event: With respect to any Person, a court having
jurisdiction shall have entered a decree or order for relief in respect of such
Person in an involuntary case or cases under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or shall have
appointed one or more receivers, liquidators, assignees, custodians, trustees,
sequestrators or other similar officials (hereinafter collectively referred to
as "receiver or trustee") of such Person, or for any substantial part of such
Person's property, or shall have ordered the winding up or liquidation of such
Person's affairs, and such decree or order shall remain unstayed and in effect
for a period of sixty (60) consecutive days; or such Person shall have commenced
a voluntary case or cases under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or shall have consented to the entry of
an order for relief in any involuntary case or cases under any such law, or
shall have consented to the appointment of or taking possession by one or more
receivers or trustees of such Person or for any substantial part of such
Person's property, or shall have made a general assignment for the benefit of
its creditors, or shall have failed generally to pay its debts as they become
due, or shall have taken any action in furtherance of any of the foregoing.
Certificate of Occupancy: One or more certificates of use and
occupancy, or similar permit or approval, required by law to be issued in
connection with the use, occupancy or operation of the Martinsburg Property by
its owner or by any tenant under an Occupancy Lease.
Contract Vendee: As defined in the second "WHEREAS" clause hereof.
Default: An event or condition which with the passage of time or upon
notice, or both, will result in an Event of Default.
Default Collateral: As defined in Section 14.9 hereof.
Environmental Indemnity Agreement: That certain Environmental Indemnity
Agreement, dated as of the date hereof, made by the Martinsburg Property Owner,
as indemnitor, in favor of Lender and Borrower, as indemnitee, and all
amendments thereof and supplements thereto.
Environmental Laws: All federal, state and local laws, rules and
regulations, whether now existing or hereafter enacted or promulgated,
regulating, relating to or imposing liability or standards of conduct concerning
any hazardous, toxic, petroleum or dangerous waste, substance or material or the
protection of health or the environment, including, without limitation (i)
Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42
U.S.C. Section 9601 et seq. (known as CERCLA or Superfund) as amended by the
Superfund Amendments and Reauthorization Act of 1986 (known as XXXX); (ii) Solid
Waste Disposal Act, 42 U.S.C. Section 6901 et seq. (known as SWDA) as amended by
Resource Conservation and Recovery Act (known as RCRA); (iii) National
Environmental Policy Act, 42 U.S.C. Section 4321 et seq. (known as NEPA); (iv)
Toxic Substances Control Act, 15 U.S.C., Section 2601 et seq. (known as TSCA);
(v) Safe Drinking Water Act, 42 U.S.C. Section 300(f) et seq., (known as Public
Health Service Act, PHSA); (vi) Refuse Act, 33 U.S.C. Section 407 et seq.; (vii)
Clean Water Act, 33 U.S.C. Section 1251 et seq. (known as Federal Water
Pollution Control Act FWPCA); (viii) Clean Air Act, 42 U.S.C. Section 7401 et
seq. (known as CAA); (ix) The Emergency Planning and Community Right-to-Know Act
of 1986, 42 U.S.C. Section 11001 et seq. (known as EPCRTKA); and (x) the
Occupational Safety and Health Act, 29 U.S.C. Section 651 et seq. (known as
OSHA).
Event of Default: As defined in Section 10.1 hereof.
Exit Fee: As defined in Section 4.3 hereof.
First Mortgage: See definition of Permitted Exceptions.
Fiscal Years: The fiscal years of Borrower and the Martinsburg
Property Owner, both of which shall be the calendar year.
Guarantor: Presidential.
Guaranty: A certain Guaranty of even date herewith made by
Presidential, as Guarantor, for the benefit of Lender.
Imposition: Any real estate tax, sewer rent, water charge, or other
municipal or governmental assessment, rate, charge, imposition or lien upon the
Martinsburg Property.
Improvements: All buildings, structures and other improvements of every
kind and description on the Martinsburg Property.
Indebtedness: The amount of Principal, Interest and all other sums
payable by Borrower to Lender under this Loan Agreement, the Note and the other
Loan Documents.
Interest: As defined in Section 3.1 hereof.
Interest Rate: As defined in Section 3.1 hereof.
Legal Requirements: All laws, statutes, codes, acts, ordinances,
orders, judgments, decrees, injunctions, rules, regulations, permits, licenses,
authorizations, variances, consents, approvals, directions and requirements of,
and agreements with, all governments, departments, commissions, boards, courts,
authorities, agencies, officials and officers, foreseen or unforeseen, ordinary
or extraordinary, which now or at any time hereafter may be applicable to the
Martinsburg Property, or to any of the adjoining vaults, sidewalks, streets or
ways, or to any use or condition of the Martinsburg Property, including, without
limitation, Environmental Laws.
Lender's Address: As defined in the first paragraph of this Loan
Agreement.
Lender's Property Management Office: 000 Xxxxx Xxxxxx, Xxxxxxxx, Xxx
Xxxxxx, or such other location in New Jersey or New York as Lender shall
determine, provided that Lender timely shall notify Borrower of any change in
the location of Lender's Property Management Office.
Loan: The loan to be made by Lender to Borrower as provided in this
Loan Agreement and as evidenced by the Note.
Loan Agreement: This Loan Agreement between Borrower and Lender, and
all amendments and supplements hereto.
Loan Closing Date: September 27, 2004.
Loan Documents: Without limitation, this Loan Agreement, the Note, the
Guaranty, the Environmental Indemnity Agreement, the Security Instruments and
any other agreements or instruments executed or to be executed hereunder or in
connection herewith or to evidence or to secure the Indebtedness and all
amendments thereof and thereto.
Martinsburg Property: As defined in the second "WHEREAS" clause
hereof.
Martinsburg Property Owner: As defined in the third "WHEREAS" clause
hereof.
Martinsburg Property Sale and similar phrases: Any Transfer of the
Martinsburg Property or any part thereof other than a Refinancing Event, an
Occupancy Lease, or a Taking.
Maturity Date: The tenth (10th) anniversary of the Loan Closing Date,
or any earlier date to which said date shall be accelerated pursuant to any
right or option of Lender hereunder or under any of the other Loan Documents.
Note: A promissory note in the amount of Two Million Six Hundred
Thousand Dollars ($2,600,000), or so much thereof as may be advanced, of even
date herewith made by Borrower to the order of Lender.
Occupancy Lease: Any written or oral lease, sublease, license,
franchise, concession or other occupancy agreement now or hereafter in effect,
whether or not of record, for the use or occupancy of any portion of the
Improvements on the Martinsburg Property, together with all amendments thereof
and supplements thereto, including oral lettings and tenancies following
attornment.
Omnibus Agreement: That certain Omnibus Agreement of even date herewith
executed by the Martinsburg Property Owner and all amendments thereof and
supplements thereto.
Permitted Exceptions: A first mortgage or deed of trust ("First
Mortgage") held by Wachovia. In addition, the following shall be Permitted
Encumbrances: (i) liens for unpaid real estate taxes not yet due, (ii) Occupancy
Leases, and (iii) and any other condition of title subject to which Borrower
shall accept title to the Martinsburg Property.
Person: An individual, corporation, partnership, association, trust or
other entity or organization, including a governmental or political subdivision
or agency or instrumentality thereof.
Pledge Agreement: That certain Security and Pledge Agreement of even
date herewith, executed and delivered by Borrower to Lender and all amendments
thereof and supplements thereto.
Pledged Collateral: All of Borrower's right, title and interest in and
to the following property, whether now owned by Borrower or hereafter acquired
and whether now existing or hereafter coming into existence, and wherever
located:
(i) all of Borrower's membership interest in the Martinsburg
Property Owner, which constitutes one hundred percent (100%) of the membership
interest in the Martinsburg Property Owner, together with all of Borrower's
interest as a member of the Martinsburg Property Owner;
(ii) all right, title and interest of Borrower in the
Martinsburg Property Owner relating to Borrower's membership interest in the
Martinsburg Property Owner, including, without limitation, all of Borrower's
rights, powers and remedies under the Company Agreement with respect to
Borrower's membership interests; and
(iii) all present and future payments, distributions,
proceeds, profits, income, compensation, property, capital assets, interests and
rights due or to become due and payable to Borrower in connection with
Borrower's membership interest in the Martinsburg Property Owner (including,
without limitation, all proceeds of dissolution or liquidation or winding up of
the affairs of the Martinsburg Property Owner), all repayments of any and all
loans made by Borrower to the Martinsburg Property Owner and all rights of
Borrower to receive any and all of the foregoing, whether or not any or all of
the foregoing shall constitute accounts or general intangibles under the Uniform
Commercial Code.
PREIT: As defined in the second "WHEREAS" clause hereof.
Presidential: As defined in the first "WHEREAS" clause hereof.
Principal: At any time of reference, the aggregate total of all money
advanced by Lender to Borrower pursuant to Article 2 hereof, less any repayment
or prepayment of a portion thereof in accordance with the terms hereof, except
as the context otherwise shall require.
Recourse Distributions: As defined in Section 14.9 hereof.
Refinancing Event: The creation, financing, refinancing or
restructuring of any debt (but only with Lender's prior approval) upon or
related to the Martinsburg Property, including, without limitation, any lease
and leaseback or other form of financing.
Sale of the Martinsburg Property and similar phrases: See definition
of "Martinsburg Property Sale."
Security Instruments: The Pledge Agreement, the Omnibus Agreement,
financing statements under the Uniform Commercial Code, and any other agreements
or instruments executed or to be executed pursuant to the terms of this Loan
Agreement and the other Loan Documents to secure and/or assure the repayment of
the Principal and Interest and all other Indebtedness under the Note and all
other Loan Documents and all amendments thereof and supplements thereto.
Taking and similar words such as "Taken": A taking for any public or
quasi-public purpose by any lawful power or authority by the exercise of the
right of condemnation or eminent domain of all or any portion of the Martinsburg
Property or the temporary use thereof.
Term: The period of time beginning on the date hereof and ending on
the Maturity Date.
Transfer and similar words such as Transferred: A sale, assignment,
gift, mortgage, pledge, hypothecation, encumbrance, lease or any other
conveyance or transfer.
Wachovia: As defined in the third "WHEREAS" clause hereof.
1.2 Accounting Terms and Determinations. Unless otherwise specified
herein (i) all accounting terms used herein shall be interpreted, (ii) all
accounting determinations hereunder shall be made and (iii) all books, records
and financial statements required to be kept or delivered hereunder shall be
prepared in accordance with generally accepted accounting principles as in
effect from time to time, consistently applied, except for changes reasonably
approved in writing by Lender.
ARTICLE TWO
THE LOAN
2.1 The Loan. Lender hereby agrees to make the Loan to Borrower, and
Borrower hereby agrees to take the Loan from Lender, on the first business day
after acquisition of the Martinsburg Property by the Martinsburg Property Owner
and on the terms and subject to the conditions set forth herein, each of which
shall be a condition precedent to Lender's obligation to make the Loan, each of
which Borrower shall use its best efforts to satisfy, and each of which Lender
may waive.
2.2 Conditions to Advances of the Loan. Lender's obligation to
advance the Loan shall be subject to the following conditions:
(i) In no event shall the Loan exceed Two Million Six Hundred
Thousand Dollars ($2,600,000); and
(ii) Borrower shall acquire the Martinsburg Property at or prior to
the advance of the Loan; and
(iii) All of Borrower's representations set forth in this Loan
Agreement and the other Loan Documents shall be true, accurate
and complete in all material respects, and there shall not
exist any Default or Event of Default under any of the terms
and provisions of this Loan Agreement or any of the other Loan
Documents, and all of Borrower's representations made in this
Loan Agreement and any of the other Loan Documents shall be
true in all material respects; and
(iv) Borrower shall have furnished to Lender copies of the First
Mortgage and of all related documents, all of which must be
satisfactory to Lender, acting reasonably, in all respects;
and
(v) Lender shall have received original or certified copies of
policies of insurance satisfactory to Lender insuring the
Improvements on the Martinsburg Property against loss or
damage by fire and the other risks insured against by extended
coverage insurance; Lender will accept as to form policies of
insurance (and the companies writing them) which are
acceptable to Wachovia provided that the insurance limits set
forth in such insurance policies are not less than the full
insurable value of the Improvements on the insured Martinsburg
Property; and
(vi) The Loan Documents listed in Section 5.1 and such other
agreements and instruments as Lender reasonably shall require
shall be executed and/or delivered to Lender; and
(vii) No casualty shall have occurred or Taking have occurred or be
threatened as to the Martinsburg Property; provided, however,
that this condition (vii) shall be deemed satisfied in the
event that despite a minor casualty partially damaging the
Improvements on the Martinsburg Property, or the occurrence or
threatened occurrence of a partial Taking of the Martinsburg
Property, which partial Taking is or would be of little or no
practical significance, Wachovia nevertheless shall fund its
loan in the full originally committed amount thereof.
ARTICLE THREE
INTEREST
3.1 Calculation. For each Fiscal Year (or any portion thereof) during
the Term, Borrower shall pay Lender interest (calculated on the basis of actual
days elapsed and a year of three hundred and sixty (360) days) on the Principal
of the Loan outstanding from time to time, to the extent and from the date(s)
advanced, at the rate of eleven percent (11%) (the "Interest Rate"). Said
interest is referred to herein as "Interest."
3.2 Payments. Borrower shall make payments of Interest with
respect to the Loan as follows:
(a) Interest shall be payable in monthly installments, in arrears, on
the first day of the month following the month for which such Interest is due.
(b) All payments of Interest and Principal pursuant to this Loan
Agreement, the Note and the other Loan Documents shall be made in lawful
currency of the United States of America at Lender's address set forth in the
first paragraph of this Loan Agreement or at such other address as Lender shall
from time to time designate.
3.3 Interest Rate after Default; Late Payment Fee. If any payment
becoming due to Lender under the Note or this Loan Agreement is not paid when
due and shall continue unpaid for a period of ninety (90) days, then (without
prejudice to any other rights and remedies available to Lender as a result of
such nonpayment) beginning on the ninety-first (91st) day after such payment
first was due and continuing until the first anniversary of the date upon which
the Event of Default shall have been cured, the Interest Rate shall be fourteen
percent (14%) per annum. In addition, if any payment of Interest or Principal
shall not be made within fifteen (15) days of the date the same becomes due,
Borrower shall pay to Lender a late payment charge in an amount equal to four
(4%) percent of the amount past due upon demand made by Lender at any time after
such fifteen (15) day period. All such late payment charges shall be liquidated
damages for Borrower's failure to make prompt payment.
ARTICLE FOUR
TERM; PAYMENT; PREPAYMENT;
EXIT FEE; PROPERTY SALES
4.1 Term. The Term of the Loan shall continue until the Maturity Date,
unless sooner terminated as provided in the Note or this Loan Agreement or any
other Loan Document.
4.2 Repayment at End of Term. On the Maturity Date, or upon the earlier
termination of the Term as provided in the Note or this Loan Agreement or any
other Loan Document, Borrower shall pay to Lender, in respect of the Loan, the
sum of:
(a) any accrued but unpaid Interest; plus
(b) any Indebtedness (other than Principal and Interest) due and
payable from Borrower to Lender pursuant to the terms of the Loan Documents;
plus
(c) the Principal.
4.3 Prepayment. (a) Borrower may not prepay the Loan, in whole or in
part, except as provided in Section 4.3(b) below and except that (i) upon a
Martinsburg Property Sale, or (ii) the Taking of the Martinsburg Property in
whole or in substantial part, Borrower shall prepay the Loan or so much thereof
as has not been prepaid previously and, in the case of a Martinsburg Property
Sale, simultaneously shall pay to Lender an Exit Fee computed as provided in
Section 4.3(c) unless payment of said Exit Fee shall be deemed waived by Lender
as provided in Section 4.3(c). The Martinsburg Property shall be deemed to have
been Taken in substantial part if the portion thereof remaining after the Taking
cannot practically and economically be restored so as to be suitable for the use
to which the Martinsburg Property was being put at the time of the Taking.
(b) Borrower may prepay the Loan, in whole but not in part, upon or at
any time after the repayment of the First Mortgage on its original or any
extended maturity date upon at least forty-five (45) days notice to Lender and
the payment to Lender of the Exit Fee computed as provided in Section 4.3(c)
simultaneously with such prepayment.
(c) Whenever any Principal is repaid by Borrower, for any reason
whatsoever, Borrower shall pay in addition to the Principal so paid, and any
accrued and unpaid Interest thereon, an "Exit Fee" in the amount of three
percent (3%) of the Principal so paid, provided, however, that if and to the
extent that Principal is paid on the Maturity Date, or a prepayment is required
as a result of a Martinsburg Property Sale and there have been no material
Events of Default during the Term of the Loan with respect to payments of
Interest, or prepayment is required as a result of the Taking of the Martinsburg
Property in whole or in substantial part, then the Exit Fee shall be waived by
Lender and shall not be payable by Borrower.
(e) No prepayment, in whole or in part, however occurring shall affect
in any way the rights or status of Lender as a member of Borrower.
4.4 Acceleration Upon Allegation of Invalidity of Interest, Etc.. In
the event that Borrower, Presidential, or any of their Affiliates, or any third
party claiming through or under any of them, shall at any time assert or shall
take any action the effect of which is to assert that any Interest or Principal
is invalid or that the payment of any of the Indebtedness in accordance herewith
is unlawful or can be delayed or abridged for any reason whatsoever, Lender
shall have the right and option immediately to accelerate the Maturity Date. In
the event that Lender shall exercise such right and option to accelerate the
Maturity Date, the Principal, all Interest, and all other Indebtedness or sums
due from Borrower to Lender pursuant to the terms of the Note, this Loan
Agreement and the other Loan Documents shall be due and payable in full
immediately upon receipt by Borrower of the notice of acceleration from Lender.
ARTICLE FIVE
SECURITY
5.1 Loan Documents. To evidence and secure the payment to Lender of all
sums due or to become due under this Loan Agreement and the Note and the other
Loan Documents and the performance by Borrower of all of its covenants and
agreements hereunder and under the Note and other Loan Documents, Borrower and
Presidential (to the extent specifically provided herein) shall deliver to
Lender, and Lender shall receive and have the benefit of the following:
(a) the Note;
(b) this Loan Agreement;
(c) the Guaranty;
(d) the Pledge Agreement and all financing statements under the Uniform
Commercial Code required to perfect the security interests of
Lender thereunder;
(e) the Omnibus Agreement; (f) the Environmental Indemnity Agreement;
(g) the other Security Instruments; and
(h) such other agreements and instruments as Lender reasonably shall
require to carry out the intention of this Loan Agreement.
The Pledge Agreement shall create in favor of Lender a first priority
perfected security interest in the Pledged Collateral, subject only to matters
expressly permitted herein or therein.
ARTICLE SIX
REPRESENTATIONS AND WARRANTIES OF BORROWER
6.1 To induce Lender to make the Loan to Borrower, Borrower hereby
makes the following representations and warranties to, and covenants with,
Lender, it being agreed that Borrower's acceptance of the Loan shall constitute
reaffirmation by Borrower to the best of its knowledge, of the truth and
accuracy of all of the representations and warranties herein contained in all
material respects,:
(a) (i) To the best of its knowledge, (y) the execution
and delivery of the Loan Documents by Borrower and
the Martinsburg Property Owner have been duly
authorized by all necessary action on their part, and
(z) each Loan Document has been duly executed and
delivered and constitutes the valid and legally
binding obligation of the signatories thereto,
enforceable against Presidential, Borrower and the
Martinsburg Property Owner in accordance with the
terms hereof and thereof.
(ii) To the best of its knowledge, (w) Borrower and
the Martinsburg Property Owner are duly organized,
validly existing and in good standing under the laws
of the state of Delaware, (x) the Martinsburg
Property Owner is duly qualified and authorized to
own property and do business in the state of West
Virginia, (y) Lender and Presidential are the sole
members of Borrower, and (z) Borrower is the sole
member of the Martinsburg Property Owner. Neither
Presidential, nor to the best of its knowledge,
Borrower, has pledged, encumbered, hypothecated or
otherwise transferred or agreed to encumber,
hypothecate, pledge or otherwise transfer their
foregoing respective interests, and Borrower
covenants not to do so except with Lender's prior
written approval which Lender agrees not to
unreasonably withhold or delay.
(iii) To the best of its knowledge, Borrower and the
Martinsburg Property Owner have full power and
authority to enter into the Loan Documents and to
perform all their obligations hereunder and
thereunder, and have taken all action required by
law, any governing instruments or otherwise to
authorize the execution, delivery and performance of
the Loan Documents and consummation of the
transactions contemplated thereby.
(iv) To the best of its knowledge, Borrower and the
Martinsburg Property Owner do not own, beneficially
or of record, any shares of capital stock of, or any
other equity interest in, any corporation or any
other entity or any other assets, not related to or
forming a part of the Martinsburg Property;
(v) To the best of its knowledge, Borrower and the
Martinsburg Property Owner have made all filings
required to be made by them under the laws of each
jurisdiction where the failure to make such filings
would have a material adverse effect on the Loan; and
(vi) To the best of its knowledge, (y) the
Martinsburg Property Owner has full power, authority
and legal right to acquire, own, and operate the
Martinsburg Property, and to execute and deliver the
Loan Agreement and any other documents or instruments
contemplated herein or therein to be executed and
delivered by them, and (z) Borrower has full power,
authority and legal right to pledge ownership
interests as pledged in the Security Instruments to
be executed by it and to execute and deliver the Loan
Documents and any other documents or instruments
contemplated herein or therein to be executed and
delivered by it and to observe and perform the
provisions hereof and thereof.
(b) Intentionally omitted.
(c) To the best of its knowledge, neither it nor the
Martinsburg Property Owner has received a notice to the effect that execution
and delivery or performance of the Loan Documents, the consummation of the
transactions contemplated hereby or thereby, or compliance with the provisions
hereof and thereof, does or will conflict with or result in a breach of any of
the provisions of any Legal Requirements or applicable license, permit, statute,
ordinance, law, judgment, order, writ, injunction, decree, rule or regulation of
any court, administrative agency or other governmental authority, or of any
determination or award of any arbitrator, or of any agreement or instrument to
which Borrower or the Martinsburg Property Owner is or are a party or by which
they or the Martinsburg Property is bound, or constitute a default under any
thereof, or result in the creation or imposition of any lien, charge or
encumbrance upon the Martinsburg Property or the ownership interest pledged to
Lender by the Pledge Agreement.
(d) To the best of its knowledge, (x) there are no actions,
suits or proceedings pending or threatened against the Martinsburg Property,
Borrower or the Martinsburg Property Owner, by or before any court,
administrative agency or other governmental authority or any arbitrator that
would have a material, adverse effect on the Loan, (y) neither Borrower nor the
Martinsburg Property Owner is a party to, and the Martinsburg Property is not
bound by, any agreement or other instrument, other than the Permitted
Exceptions, or subject to any license, permit, statute, ordinance, law,
judgment, order, writ, injunction, decree, rule or regulation of any court,
administrative agency or other governmental authority, or any determination or
award of any arbitrator, which might materially adversely affect the Loan, and
(z) Borrower and the Martinsburg Property Owner are not in default in compliance
with any obligation under any Legal Requirements, or applicable license, permit,
statute, ordinance, law, judgment, order, writ, injunction, decree, rule or
regulation of any court, administrative agency or other governmental authority,
or any determination or award of any arbitrator, or under any agreement or
instrument to which either of them is a party or by which either of them or the
Martinsburg Property is bound which would materially adversely affect the Loan.
(e) To the best of its knowledge, no permit of or by any
court, administrative agency or other governmental authority not heretofore
obtained is required in connection with the execution, delivery, performance, or
consummation of the transactions contemplated by the Loan Documents.
(f) To the best of its knowledge, Borrower and the Martinsburg
Property Owner have filed all tax returns required to be filed by them and are
not in default in the payment of any taxes levied or assessed against them, any
of their assets or any of the Properties.
(g) To the best of its knowledge, (y) as of the Loan Closing
Date, the Martinsburg Property Owner shall have good and marketable fee title to
the Martinsburg Property and the Improvements thereon, free and clear of all
liens and encumbrances, except the Permitted Exceptions, and (z) the Martinsburg
Property shall not be subject to any option or other right to purchase in favor
of any third party.
(h) Lender shall have legal and valid security interests in
and to the Pledged Collateral superior in right to any pledges or liens which
any third party may have or may hereafter purport to acquire against the Pledged
Collateral.
(i) To the best of its knowledge, neither Borrower nor the
Martinsburg Property Owner has entered into any contract or agreement of any
kind which would give rise to a pledge or lien upon the Pledged Collateral.
(j) To the best of its knowledge, (y) the Martinsburg Property
is zoned for use in the manner in which it is used and conforms in all material
respects to all existing zoning, building and other Legal Requirements, and the
operation of the Martinsburg Property is not in material violation of any Legal
Requirements, Certificates of Occupancy or other permits, and (x) no notice has
been received from any governmental authority or other Person claiming a
material violation of any Legal Requirements, Certificates of Occupancy or other
permits. To the best of its knowledge, neither the zoning of the Martinsburg
Property nor any right to use the Martinsburg Property is to any material extent
dependent upon or related to any real estate other than the Martinsburg
Property.
(k) To the best of its knowledge, no Bankruptcy Event has ever
occurred with respect to Borrower or the Martinsburg Property Owner.
(l) To the best of its knowledge, neither Borrower nor the
Martinsburg Property Owner has pledged, assigned, hypothecated or otherwise
encumbered any of the Occupancy Leases or any interest therein except as
collateral security for theFirst Mortgage.
(m) To the best of its knowledge, (x) there is access for
ingress and egress to and from the Martinsburg Property to a public street or
roadway, pursuant to valid easements or other valid means, (y) the Martinsburg
Property Owner's rights to such access are not subject to any interference or
obstruction, and (z) neither Borrower nor the Martinsburg Property Owner has any
knowledge of any fact or condition which would result in the termination of such
access.
ARTICLE SEVEN
ADDITIONAL COVENANTS;
COVENANT BY LENDER
7.1 Additional Covenants by Borrower.
(a) Borrower promptly shall notify Lender of any (i)
occurrence, event, or condition (including, but not limited to, any pending or
threatened suit or proceeding by or before any court, administrative agency or
other governmental authority or any arbitrator), (ii) the enactment of any
statute, ordinance or law, of which Borrower shall receive written notice and
(iii) the giving of any notice or other communication by any party pursuant to
any other agreement relating to the ownership, use, or operation of the
Martinsburg Property which, individually or in the aggregate, would or could
have a material, adverse effect on the Loan.
(b) Borrower and the Martinsburg Property Owner shall allow
Lender and Lender's representatives and agents access to the Martinsburg
Property at all times and shall provide to Lender such documents relating to the
Martinsburg Property as may be requested by Lender or Lender's representatives
and agents.
(c) Borrower and the Martinsburg Property Owner shall cause
the Martinsburg Property at all times to be in full compliance with all Legal
Requirements to the extent and in the manner of prudent owners of similar
properties in the general area of the Martinsburg Property.
(d) Borrower shall not suffer or permit any event or
circumstance to occur or exist, or fail to take any action, which would result
in the lien and security interest of Lender under the Pledge Agreement ceasing
to be at all times a fully perfected lien and security interest on the Pledged
Collateral.
(e) Borrower will maintain such reserves for future operating
expenses, capital improvements and other cash requirements as Lender reasonably
shall request, which reserves may be in addition to any reserves required by the
holder of the First Mortgage or any mortgage resulting from a Refinancing Event.
(f) Borrower shall cause the Martinsburg Property to be
managed in accordance with the standards of care for properties of like kind in
their respective general areas and in accordance with Section 12.1. Borrower
shall (i) cause the Martinsburg Property to be maintained in good repair, (ii)
cause all principal, interest and other sums coming due under the First Mortgage
and any mortgages resulting from Refinancing Events, to the extent applicable to
the Martinsburg Property, to be paid promptly when due and cause all other
covenants, conditions and agreements set forth in the First Mortgage and any
mortgages resulting from Refinancing Events, and all related documents that
appertain to the Martinsburg Property, to be fully and timely performed, and
(iii) cause the Martinsburg Property to be kept insured in compliance with the
requirements of the First Mortgage, or any mortgage resulting from a Refinancing
Event, or if there be none, then by policies satisfactory to Lender and by
insurance companies satisfactory to Lender (acting reasonably in both instances)
and in amounts not less than the full insurable value of the Improvements on the
Martinsburg Property, (iv) cause to be paid all insurance premiums on policies
required hereunder and under the First Mortgage and any mortgages resulting from
Refinancing Events, that appertain to the Martinsburg Property, and all taxes,
assessments and other charges imposed upon the Martinsburg Property, as and when
the same shall become due. A condition, circumstance, or management practice
asserted by Lender to constitute a failure of compliance with the provisions of
the first sentence of this paragraph (f) or the preceding clause (i) if the
Martinsburg Property then is subject to the lien of the First Mortgage, or a
mortgage resulting from a Refinancing Event, shall not be a default hereunder
unless and until the same condition, circumstance or management practice has
been asserted by the holder of such First Mortgage, or mortgage resulting from a
Refinancing Event, to be a default thereunder.
(g) Borrower shall not enter into or permit the consummation
of any transaction with respect to the Martinsburg Property with an Affiliate of
Borrower or of the Martinsburg Property Owner without the prior written consent
of Lender which consent shall not be unreasonably withheld or delayed, but no
such consent shall be needed for transactions which are commercially reasonable
and at rates and terms, including, without limitation, prices that are
competitive with terms offered by other providers of similar goods and services
to similar properties in the County in which the Martinsburg Property is
located.
(h) Borrower shall not, without the prior written consent of
Lender which shall not be unreasonably withheld or delayed, cause or permit the
Martinsburg Property Owner to (i) sell, lease, exchange or otherwise dispose of
or Transfer all or any portion of a Martinsburg Property (or any interest
therein), except for Occupancy Leases and otherwise as expressly permitted
herein, it being understood that Borrower shall have the right to sell or permit
the sale of personal property in the ordinary course of business to the extent
that such personal property is obsolete, worn out or otherwise not required for
the operation or ownership of the Martinsburg Property; provided, however, that
any personal property which has been disposed of shall be replaced with new
personal property to the extent necessary for the maintenance and operation of
the Martinsburg Property in compliance with the terms of this Loan Agreement and
the other Loan Documents, (ii) consummate any Refinancing Event or otherwise
encumber any part of the Martinsburg Property, except as otherwise expressly
provided herein or in the Security Instruments, it being further understood that
Borrower shall have the right to permit the Martinsburg Property Owner to incur
unsecured trade account debts payable in the normal course of business, (iii)
enter into any agreement with any power or authority having the right of
condemnation or eminent domain for a Taking of the Martinsburg Property, or any
portion of the Martinsburg Property, or the temporary use thereof, (iv)
knowingly take or permit the Martinsburg Property Owner to take any actions or
knowingly fail to take such actions so as materially and adversely to impair the
economic value of the Martinsburg Property or the Security Instruments executed
and delivered or to be executed and delivered pursuant to the terms hereof, (v)
make or permit the Martinsburg Property Owner to make any alterations or
renovations or undertake any development, redevelopment or construction of any
Improvements on the Martinsburg Property, or any portion thereof, except for any
alterations that will not have an adverse affect on the physical or investment
characteristics of the Martinsburg Property, (vi) knowingly take or permit the
Martinsburg Property Owner to take any action which would materially, adversely
affect the zoning or building classification of the Martinsburg Property, (vii)
permit a default or an Event of Default, or an event or condition which upon
notice or the passage of time or otherwise would result in the occurrence of a
default or an Event of Default under any of the Loan Documents.
(i) The beneficial owner, member and manager of the
Martinsburg Property Owner, and Presidential as a beneficial owner, member and
manager of Borrower, shall not be changed or their ownership interests
Transferred, and no new members or managers shall be admitted to or appointed
therein, directly or indirectly, without the prior written consent of Lender
which shall not be unreasonably withheld or delayed; Lender agrees to consent to
any such Transfer of an interest that is less than a fifty percent (50%)
interest in the entity in question, both alone and when added to all other prior
and simultaneous Transfers of interests in the same entity, provided that any
security interest held by Lender is not adversely affected thereby or that any
such adverse effect is remedied to Lender's satisfaction at Presidential's or
Borrower's expense. Without the prior written consent of Lender, the certificate
of formation and operating agreement of Borrower and the Martinsburg Property
Owner shall not be amended or supplemented, and no equity interests or voting
rights in any of them shall be changed, except for such technical amendments of
any thereof as shall be required for compliance with applicable law and then
only after twenty (20) days prior notice to Lender.
(j) Borrower and the Martinsburg Property Owner shall (i) not
encumber or permit the encumbrance of the Martinsburg Property or permit any
mechanics', materialmens' or laborers' liens to be filed against the Martinsburg
Property or to remain filed against the Martinsburg Property for more than
ninety (90) days, or after foreclosure thereof shall have begun without causing
the same to be discharged by bonding or otherwise, and (ii) continue to maintain
policies of insurance with respect to the Martinsburg Property conforming to the
requirements of Section 2.2 hereof. The Martinsburg Property Owner shall not
engage in any business or activity not related to the ownership, management, and
operation of the Martinsburg Property.
(k) Borrower and the Martinsburg Property Owner shall maintain
or cause to be maintained in full force and effect all licenses and permits
required for the operation of the Martinsburg Property in a manner at least
equal to properties of like kind in the general areas in compliance with all
Legal Requirements.
(l) Promptly after receipt by Borrower or the Martinsburg
Property Owner of a demand, a default notice, or an inquiry concerning the
Martinsburg Property from the holder of the First Mortgage, or a mortgage
resulting from a Refinancing Event, the recipient thereof shall forward a copy
thereof to Lender.
7.2 Covenant by Lender. Lender covenants that as long as no Event of
Default shall have occurred under this Agreement or under any of the other Loan
Documents, and be continuing, Lender shall not assign the Note or any of
Lender's rights under the Note, this Agreement, or any of the other Loan
Documents to any other Person prior to the Maturity Date.
ARTICLE EIGHT
EXPENSES
8.1 Closing Costs. All reasonable out-of-pocket expenses incurred by
Lender in connection with the transactions contemplated by this Loan Agreement,
including, but not limited to, the fees, expenses and disbursements of Lender's
counsel, and all other reasonable costs and expenses, including, but not limited
to, the costs of surveys, title insurance premiums and fees and stamp, transfer
or other taxes or fees, incurred by or on behalf of Lender in connection with
the transactions contemplated hereby shall be paid out of the proceeds of the
Wachovia loan.
ARTICLE EIGHT-A
BROKERAGE
8-A.1 Mutual Representations. Lender and Borrower each represents to
the other that it has not dealt with any broker, "finder" or other intermediary
in connection with this Loan Agreement or the transaction of which it is a part.
8-A.2 Indemnities. If the foregoing representation be untrue, the party
that shall have made the untrue representation (the "indemnifying party") shall
indemnify and hold harmless the other party (the "indemnified party") from and
against any and all loss, cost and expense (including, without limitation,
reasonable attorneys' fees) the indemnified party may pay, suffer or incur as
the result of any claim made by any Person with whom the indemnifying party
shall have dealt in connection with this Loan Agreement and/or the transaction
of which it is a part.
ARTICLE NINE
SURVIVAL OF REPRESENTATIONS AND
WARRANTIES; BINDING EFFECT; INDEMNITY
9.1 Survival of Representations and Warranties; Binding Effect;
Indemnity. (a) All covenants, agreements, representations and warranties in the
Loan Documents and in the certificates and other instruments delivered to Lender
shall survive the execution and delivery of this Loan Agreement and except as
otherwise provided therein, shall continue in effect so long as this Loan
Agreement, the Loan or any of the instruments described in this Loan Agreement
are outstanding. All covenants, agreements, representations and warranties in
the Loan Agreement and in such certificates and other instruments shall bind the
party making the same and its successors and assigns and shall inure to the
benefit of and be enforceable by each party to whom made and its successors and
assigns (subject to and in accordance with the non- recourse provisions set
forth in Section 14.9 hereof).
(b) Borrower agrees to indemnify and hold Lender harmless from
and against any expenses, costs, losses and other damages (including court costs
and attorneys' fees and expenses) suffered or incurred by or on behalf of Lender
as a result of or arising out of (i) the breach of any representation, warranty
or covenant of Borrower or any Martinsburg Property Owner hereunder or under any
of the other Loan Documents or certificates and other instruments delivered to
Lender, and/or (ii) any action, suit, charge, complaint, proceeding or other
similar matter arising out of or in any way connected to any condition in, on,
about or of the Martinsburg Property, or arising out of or in any way connected
to any transaction or event relating to the acquisition or ownership of the
Martinsburg Property.
ARTICLE TEN
DEFAULTS
10.1 Event of Default. If during the Term one or more of the
following events (each an "Event of Default") shall occur and be continuing:
(i) Borrower shall default in the payment of any installment of
Interest or any other Indebtedness under the Loan Documents,
when and as the same becomes due and payable and such
nonpayment continues for a period of ten (10) business days
after notice thereof from Lender; or
(ii) This Agreement, or any of the other Loan Documents, or the
transaction of which they are a part, or the enforcement of
any right of Lender or any obligation of Borrower and/or the
Martinsburg Property Owner, creates an event of default under
the First Mortgage or any mortgage resulting from a
Refinancing Event; or
(iii) There shall occur an event of default under the First
Mortgage, or any mortgage resulting from a Refinancing Event,
that appertains to the Martinsburg Property, except that a
default under the First Mortgage, or any mortgage resulting
from a Refinancing Event, shall be an Event of Default under
this Agreement only if (a) such default is a default for sixty
(60) days or more in payment when due of principal and/or
interest under the First Mortgage, or mortgage resulting from
a Refinancing Event, or (b) the holder of the First Mortgage,
or mortgage resulting from a Refinancing Event, has commenced
an action to foreclose the lien thereof; or
(iv) any of the representations and warranties set forth herein,
in any other Loan Document or in any certificate executed and
delivered by Borrower or Presidential to Lender shall not be
true and correct in all material respects or shall be
knowingly and materially misleading when made, or there shall
be any default in the performance of or compliance with any
of the terms, covenants, or conditions hereof, or in any
other Loan Document, other than in the payment of Interest or
any payment of the Principal of the Loan or any other
Indebtedness under the Loan Documents, and such default shall
continue for more than twenty (20) business days after Lender
shall have given written notice thereof to Borrower, unless
any such default cannot be cured by payment of a sum of money
and Borrower shall within such period commence and continue
to prosecute with due diligence and dispatch the curing of
such default; or
(v) Borrower shall (a) fail to pay or cause all Impositions and
any fines, penalties, interest or costs added thereto, or (b)
fails to maintain or cause to be maintained in good standing
the insurance policies required pursuant to the terms hereof
for a period of ten (10) days after notice thereof from
Lender; or
(vi) a Bankruptcy Event shall have occurred with respect to
Borrower or the Martinsburg Property Owner; or
(vii) a default under Section 7.1 hereof; or
(viii) a judgment or judgments in excess of Two Hundred Thousand
Dollars ($200,000) in the aggregate shall be entered against
Borrower and/or the Martinsburg Property Owner and shall
remain unpaid, unappealed, undischarged, unbonded, unstayed
and undismissed for a period of sixty (60) days after the date
of the entry thereof;
then, and in any such Event of Default, Lender at any time thereafter may give
Borrower a Notice of such Event of Default, and if such Event of Default is not
cured within twenty (20) business days after receipt of such Notice, then, at
any time thereafter:
(a) Lender may declare the Principal, Interest and any other
Indebtedness outstanding under the Note and the other Loan
Documents to be immediately due and payable; provided, however
that if and as long as the only uncured Event of Default shall be
in the timely payment of an installment of Interest on the Loan,
and if (i) no default or event of default appertaining to the
Martinsburg Property shall have occurred under the First Mortgage
or any other mortgage resulting from a Refinancing Event whether
or not subject to a grace period and opportunity to cure and
whether or not the holder of the First Mortgage or such other
mortgage shall have given any notice or taken any other action
with regard thereto, and (ii) there shall be no other default
under this Loan Agreement or any other Loan Document which, with
the passage of a period of time or the giving of a notice, or
both, would become an Event of Default, then Lender shall not take
action to enforce Lender's rights under the Pledge Agreement
against the Pledged Collateral thereby unless and until such Event
of Default has been an Event of Default for a period of one (1)
year.
(b) subject to the proviso in the preceding clause (ii), Lender may
pursue any and all of its remedies, provided for under law and in
equity and any or all of the Loan Documents
10.2 Costs; Right to Cure. All costs and expenses incurred by or on
behalf of Lender (including, without limitation, reasonable attorneys' fees and
expenses) resulting from any default by Borrower and/or the Martinsburg Property
Owner under this Loan Agreement or any other Loan Documents shall be paid by
Borrower. Upon the occurrence of an Event of Default, Lender shall have the
right, but not the obligation, to cure any such default. Borrower and the
Martinsburg Property Owner hereby appoint Lender as their true and lawful
attorney-in-fact, to take any such action and to cure any such defaults in the
name and on behalf of such Person, which power of attorney shall be coupled with
an interest and be irrevocable so long as any of the Indebtedness hereunder or
under the Note is outstanding. Any costs or expenses incurred by Lender in
connection with any of the foregoing shall be payable, together with interest at
the rate of fifteen (15%) percent per annum (or such lesser rate as shall be the
maximum rate permitted by law) from the date incurred until paid.
10.3 Cross-Default. For purposes hereof and all of the Loan Documents,
an Event of Default under any of the Loan Documents shall be deemed to be an
Event of Default with respect to any and all of the other Loan Documents.
ARTICLE ELEVEN
BOOKS; RECORDS; STATEMENTS AND AUDITS
11.1 Books and Records. Borrower shall keep or shall cause the
Martinsburg Property Owner to keep accurate, full and complete books, records
and accounts showing the assets, liabilities, operations, transactions and
financial condition of all the Martinsburg Property. All books, records,
accounts and financial statements shall be accurate and complete in all material
respects, shall present fairly the financial position and results of the
operations of the Martinsburg Property and shall be prepared in accordance with
generally accepted accounting principles (on a cash basis) consistently applied.
11.2 Statements.
(a) Reports to Mortgagee. The Martinsburg Property Owner or
Borrower shall furnish to Lender the financial reports appertaining to the
Martinsburg Property required to be submitted to Wachovia, as holder of the
First Mortgage, within the time limits set forth in the First Mortgage. This
requirement shall continue whether or not the First Mortgage remains
outstanding. If the First Mortgage is replaced by a new mortgage as the result
of a Refinancing Event, Lender may, but shall not be required to, accept the
reports to be delivered to the holder of the mortgage resulting from the
Refinancing Event in place of the foregoing requirements.
(b) Income Reports. In addition to the requirements of
subsection (a) above, Borrower shall furnish, or cause the Martinsburg Property
Owner to furnish, to Lender no later than March 31 of each year (i) a statement
itemizing the sources and types of gross revenue for the preceding Fiscal Year
paid by tenants at the Martinsburg Property in accordance with Occupancy Leases
and reflecting other miscellaneous income, and (ii) such other year end reports
and other information as Lender reasonably may request.
(c) Other Reports. In addition, Borrower shall furnish or
cause the Martinsburg Property Owner to furnish to Lender copies of any and all
reports furnished under any management agreement or leasing agreement to the
extent not otherwise provided to Lender hereunder.
11.3 Lender's Right to Audit. The books, accounts and records of
Borrower and the Martinsburg Property Owner shall at all times be maintained at
the office of Borrower's property managing agent. Upon reasonable notice to
Borrower, Lender may at its option and expense conduct audits of the books,
records and accounts of the Martinsburg Property, on either a continuing or
periodic basis or both, by employees of Lender, an Affiliate of Lender, or by a
national firm of independent certified public accountants selected by Lender
("Auditor"). If Lender's accountants are not the Auditor and disagree with the
Auditor's decision as to any matter concerning the books, accounts and records
of the Martinsburg Property, Lender may notify Borrower of such disagreement,
and Borrower and Lender shall cause the Auditor and Lender's accountants,
respectively, to hold such meetings and discussions as they shall deem necessary
concerning the disagreement and to use all reasonable efforts to reach a
mutually acceptable resolution of the matter in question. If the Auditor and the
Lender's accountants are unable to reach a mutually acceptable resolution of the
matter in question, they shall select a national firm of certified public
accountants to act as a third auditor to review and make a determination as to
the matter in question. Such third auditor's determination shall be final and
binding upon the parties, the Auditor and Lender's accountants. Such third
auditor shall have full access to the books, records and accounts of the
Martinsburg Property.
The charges and expenses of such third auditor shall be paid by
Borrower.
ARTICLE TWELVE
MANAGEMENT OF THE PROPERTIES
12.1 Management. Borrower shall be responsible for providing or causing
to be provided all services necessary, proper, desirable or appropriate for the
successful leasing, operating, repair and management of the Martinsburg Property
in the manner of similar properties in the general area of the Martinsburg
Property and shall cause such management services to be performed as hereinafter
set forth; provided, however, that Lender shall designate a managing agent for
the Martinsburg Property, subject to Borrower's approval which shall not be
unreasonably withheld. A proposed management agreement with such managing agent,
under which the aggregate amount of fees and other compensation to be paid to
such managing agent shall not exceed three and one-half percent (3.5%) of the
rent and other direct income from the operation of the Martinsburg Property,
shall be provided to Borrower by Lender and shall be in form and substance
satisfactory to Borrower (acting reasonably). Any management agreement shall
also provide that all amounts coming due to the manager thereunder shall be
earned, due and payable only if, as, and when, and to the extent that, all
Indebtedness amounts then due and payable have been paid. Any replacement
managing agent or management agreement shall be subject to Borrower's written
approval.
12.2 Service Agreements. Copies of all service agreements shall be
delivered to Lender, if Lender so requests, and shall be maintained at the
office of Borrower's managing agent available for inspection by Lender at all
reasonable times.
12.3 Occupancy Leases. All Occupancy Leases with respect to the
Martinsburg Properties will be bona fide, good faith, arm's length leases in
writing with third parties that are not Affiliates of Borrower or of the
Martinsburg Property Owner (and Borrower will promptly furnish copies thereof to
Lender, if Lender so requests, and will maintain copies thereof at the office of
Borrower's managing agent available for Lender's inspection at all reasonable
times).
ARTICLE THIRTEEN
TRANSFER OF INTERESTS; NO FURTHER FINANCING
13.1 Transfers. (a) Except as otherwise expressly set forth herein,
neither the Martinsburg Property, nor any part thereof, nor the Pledged
Collateral, nor any direct or indirect interest in the Martinsburg Property
Owner or in Borrower, or in any entity that has any direct or indirect interest
in the Martinsburg Property Owner or in Borrower, shall be Transferred without
the prior written consent of Lender which shall not be unreasonably withheld.
Any Transfer or attempted Transfer not permitted under the terms hereof shall be
void ab initio and of no force or effect.
13.2 No Financing. Neither Borrower, nor the Martinsburg Property
Owner, nor any of their Affiliates, shall have the right to enter into a
Refinancing Event without the prior written consent of Lender which shall not be
unreasonably withheld.
ARTICLE FOURTEEN
MISCELLANEOUS
14.1 Notices. All notices, demands, consents, requests, instructions
and approvals ("Notice") herein required or permitted shall be in writing and
shall be either telecopied (except that default Notices shall not be effective
if only telecopied), delivered by a reputable overnight courier that provides a
receipt to sender, or mailed by certified mail, return receipt requested,
postage pre-paid, to the recipient at such recipient's address set forth below
(or at such other address for a party as shall be specified by Notice given
pursuant hereto):
If to Borrower or the Martinsburg
Property Owner to:
[Name of Addressee ]
-----------------------------
Presidential Realty Corporation
000 Xxxxx Xxxxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxxx Xxxxxx, President
Telecopy: (000) 000-0000
in either of the foregoing
cases with a copy to:
Cuddy & Xxxxx LLP
00 Xxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq. and
Xxxxxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
and if to Lender to:
Xxxxx Xxxxxxxxxxxx
000 Xxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxxxx, Esq.
Xxxxxxx, Xxxxxxxxx LLP
0 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
And a copy to: Corporate Counsel
The Lightstone Group
000 Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Telecopy: (000) 000-0000
All Notices shall be effective and deemed received three days after deposit in
the mail, postage prepaid, if mailed, and upon receipt in the case of telecopy
or if sent by overnight courier. Each Notice shall bear the date on which it is
delivered or mailed. In the event Notice is sent by telecopy, the notifying
party shall endeavor also to mail a copy of such Notice, but failure to do so
shall not affect the validity of such Notice as so telecopied, except with
respect to default Notices.
14.2 Entire Agreement; No Oral Changes. This Loan Agreement, the other
Loan Documents, the other documents and instruments referred to herein, a
certain loan agreement of even date herewith between Presidential and Lightstone
Member LLC, a Delaware limited liability company, and the loan documents and
other documents and instruments (if any) referred to therein, and any other
documents executed and delivered contemporaneously herewith, embody the entire
agreement and understanding between Lender and Borrower and their Affiliates
relating to the subject matter hereof and supersede all prior agreements and
understandings relating thereto. This Loan Agreement may not be changed orally,
but only by an instrument in writing signed by the party against whom
enforcement of any waiver, change, modification or discharge is sought.
14.3 Captions. The headings to the Articles and Sections of this Loan
Agreement have been inserted solely for convenience of reference and shall not
modify, define or limit the provisions of this Loan Agreement.
14.4 Governing Law. This Loan Agreement and the other Loan Documents
have been prepared, negotiated, executed and delivered wholly in the State of
New York and shall be governed by, construed, and enforced in accordance with
the laws of the state of New York applicable to agreements to be performed
entirely within New York.
14.5 Further Assurances. Borrower agrees to execute and deliver such
other instruments as may be reasonably requested from time to time by Lender to
effect and confirm the transactions described and contemplated hereby.
14.6 Interest Limitation. Notwithstanding anything contained to the
contrary in this Loan Agreement, or the Note or any other Loan Document, the
obligation of Borrower to pay Interest to Lender shall be subject to the
limitation that such payment of Interest shall not be required to the extent
that receipt thereof by Lender would be contrary to the provisions of law
applicable to Lender limiting the maximum rate of interest which may be charged
or collected by Lender.
14.7 Estoppel Certificates. Promptly upon the written request of Lender
and Borrower shall execute and deliver to Lender, in such form as Lender shall
reasonably request, a certificate confirming (i) that as of the date of such
certificate the Loan Documents are in full force and effect (ii) the amount of
Principal and Interest outstanding as of the date of such certificate, (iii)
that as of the date of such certificate there is no Default or Event of Default
under the Loan Documents, or if there is any such Default or Event of Default
describing the same in reasonable detail, and (iv) such other matters as Lender
may reasonably request.
14.8 Interpretation. In this Agreement, unless otherwise specified, (i)
singular words include the plural, and plural words include the singular; (ii)
words that include a number of constituent parts, things or elements shall be
construed as referring separately to each constituent part, thing or element
thereof, as well as to such constituent parts, things or elements as a whole;
(iii) all pronouns and any variations thereof shall be deemed to refer to the
masculine, feminine, neuter, singular or plural forms thereof, as the context
shall require; (iv) references to any Person include its successors and assigns
and, in the case of an individual, the word "successors" includes such
individual's heirs, devisees, legatees, executors, administrators, and personal
representatives; (v) references to any statute or other law include all rules,
regulations and orders adopted or made thereunder and all statutes or other laws
amending, consolidating or replacing the statute or law referred to; (vi)
references to any agreement or other document include all subsequent amendments
or other modifications thereof; (vii) the words "include" and "including", and
words of similar import, shall be deemed to be followed by the words "without
limitation"; (viii) the words "hereto", "herein", "hereof" and "hereunder", and
words of similar import, refer to this Loan Agreement in its entirety; (ix)
references to Articles, Sections or paragraphs are to the Articles, Sections or
paragraphs of this Loan Agreement; (x) no reference to a financing, Refinancing
Event, refinancing, or mortgage on the Martinsburg Property (other than the
First Mortgage) shall be construed as permitting any such financing, Refinancing
Event, refinancing, or mortgage event to occur without Lender's prior consent,
all of which (except as otherwise in this Loan Agreement expressly provided to
the contrary) shall require Lender's prior consent (which Lender covenants not
unreasonably to withhold) (reference is made to Article 13 hereof); and (xi)
references to mortgages shall include deeds of trust, and references to
foreclosure of a mortgage shall include the acts of a trustee under a deed of
trust to realize upon the security for the benefit of the beneficiary by
exercising a power of sale, taking possession of the mortgaged property, or
otherwise.
14.9 Non-Recourse. Notwithstanding anything herein or in any other Loan
Document to the contrary, except as otherwise set forth in this Section 14.9 to
the contrary, Lender shall not enforce the liability and obligation of Borrower
or any of its members to perform and observe the obligations contained in this
Agreement or any of the other Loan Documents by any action or proceeding wherein
a money judgment shall be sought against Borrower or its members, except that
Lender may bring a foreclosure action, action for specific performance, or other
appropriate action or proceeding (including, without limitation, an action to
obtain a deficiency judgment) solely for the purpose of enabling Lender to
realize upon (i) Borrower's interest in the Pledged Collateral, (ii) rents to
the extent received by Borrower (or received by its members) after the
occurrence of an Event of Default (the "Recourse Distributions") and (iii) any
other collateral given to Lender under the Loan Documents (the collateral
described in the foregoing clauses (i) - (iii) is hereinafter referred to as the
"Default Collateral"); provided, however, that any judgment in any such action
or proceeding shall be enforceable against Borrower or its members, as the case
may be, only to the extent of any such Default Collateral. The provisions of
this Section shall not, however, (a) impair the validity of the debt evidenced
by the Note or in any way affect or impair this Agreement or any of the other
Loan Documents or the right of Lender to foreclose upon the Pledged Collateral
following the occurrence of an Event of Default; (b) impair the right of Lender
to name Borrower as a party defendant in any action or suit for judicial
foreclosure and sale under this Agreement; (c) affect the validity or
enforceability of the Note, this Agreement, or any of the other Loan Documents,
or impair the right of Lender to seek a personal judgment against Guarantor; (d)
impair the right of Lender to obtain the appointment of a receiver; (e) impair
the enforcement of the Pledge Agreement; (f) impair the right of Lender to bring
suit for a monetary judgment against Borrower with respect to any losses
resulting from fraud or intentional misrepresentation by Borrower, Guarantor or
any of their Affiliates in connection with this Agreement, the Note or the other
Loan Documents, and the foregoing provisions shall not modify, diminish or
discharge the liability of Borrower, Guarantor or any of their Affiliates with
respect to same; (g) impair the right of Lender to bring suit for a monetary
judgment against Borrower to obtain the Recourse Distributions received by
Borrower including, without limitation, the right to bring suit for a monetary
judgment to proceed against Guarantor to the extent of Guarantor's liability
under the Guaranty, and the foregoing provisions shall not modify, diminish or
discharge the liability of Borrower or Guarantor with respect to same; (h)
impair the right of Lender to bring suit for a monetary judgment against
Borrower with respect to any losses resulting from Borrower's misappropriation
of tenant security deposits or other payments, including, without limitation,
rent collected more than one (1) month in advance, and the foregoing provisions
shall not modify, diminish or discharge the liability of Borrower with respect
to same; (i) impair the right of Lender to enforce the provisions of Articles
Six and Seven of this Agreement, even after repayment in full by Borrower of
Principal, Interest and any other amount due to Lender or to bring suit for a
monetary judgment against Borrower with respect to any losses resulting from any
obligation set forth in said Articles; (j) prevent or in any way hinder Lender
from exercising, or constitute a defense, or counterclaim, or other basis for
relief in respect of the exercise of, any other remedy against any or all of the
collateral securing the Note as provided in the Loan Documents; (k) impair the
right of Lender to bring suit for a monetary judgment against Borrower with
respect to any losses resulting from any misappropriation or conversion of
insurance proceeds and condemnation awards, and the foregoing provisions shall
not modify, diminish or discharge the liability of Borrower with respect to
same; (l) impair the right of Lender to xxx for, seek or demand a deficiency
judgment against Borrower solely for the purpose of foreclosing the Pledged
Collateral or any part thereof; provided, however, that any such deficiency
judgment referred to in this clause (l) shall be enforceable against Borrower
and Guarantor only to the extent of any of the Pledged Collateral; (m) impair
the ability of Lender to bring suit for a monetary judgment against Borrower
with respect to any losses resulting from arson or physical waste to or of the
Martinsburg Property or damage to the Martinsburg Property in each case
resulting from the intentional acts or intentional omissions of Borrower,
Guarantor or any of their Affiliates; (n) impair the right of Lender to bring a
suit for a monetary judgment against Borrower in the event of the exercise of
any right or remedy under any federal, state or local forfeiture laws resulting
in the loss of the security interest in the Pledged Collateral, or the priority
thereof; (o) be deemed a waiver of any right which Lender may have under any
provision of the Bankruptcy Code to file a claim for the full amount of the debt
or to require that all the Pledged Collateral shall continue to secure all of
the debt; (p) impair the right of Lender to bring suit for monetary judgment
against Borrower with respect to any losses resulting from any claims, actions
or proceedings initiated by Borrower (or any Affiliate of Borrower) alleging
that the relationship of Borrower and Lender is that of joint venturers,
partners, tenants in common, joint tenants or any relationship other than that
of debtor and creditor; or (q) impair the right of Lender to bring suit for a
monetary judgment with respect to any losses resulting from a Transfer in
violation of the provisions hereof. The provisions of this Section shall be
inapplicable to Borrower if (a) any proceeding, action, petition or filing under
the Bankruptcy Code, or any similar state or federal law now or hereafter in
effect relating to bankruptcy, reorganization or insolvency, or the arrangement
or adjustment of debts, shall be filed by, consented to or acquiesced in by or
with respect to Borrower, or if Borrower shall institute any proceeding for its
dissolution or liquidation, or shall make an assignment for the benefit of
creditors or (b) Borrower or any Affiliate contests or interferes with Lender's
enforcement of its rights and remedies hereunder or under the Loan Documents by
asserting any defense (x) as to the validity of the obligations under the Loan
Documents or in any way relating to the structure of the Borrower or the
enforceability of Lender's rights and remedies under the Loan Documents, or (y)
for the purpose of delaying, hindering or impairing Lender's rights and remedies
under the Loan Documents (collectively, a "contest") (provided that if any such
Person obtains a non-appealable order successfully asserting a contest, Borrower
shall have no liability under this clause (b)), in which event Lender shall have
recourse against all of the assets of Borrower including, without limitation,
any right, title and interest of Borrower in and to the Pledged Collateral.
14.10 Counterparts. This Agreement may be executed in counterparts, and
all counterparts so executed shall for all purposes constitute but one
Agreement, binding on all the parties hereto, notwithstanding that all parties
shall not have executed the same counterpart.
14.11 No Partnership. Nothing contained in this Agreement shall be
deemed to constitute the parties hereto as partners or joint venturers in any
manner or matter whatsoever.
14.12 Resolution of Drafting Ambiguities. Lender, Borrower and the
Martinsburg Property Owner acknowledge that they were represented by experienced
counsel in connection with the preparation, execution and delivery of the Loan
Documents and that their counsel negotiated all of the Loan Documents on their
behalf and that any rule of construction under any applicable law to the effect
that ambiguities are to be resolved against the drafting party shall not be
employed in the interpretation of any of the Loan Documents.
14.13 No Waiver; Cumulative Remedies and Rights Lender shall not by any
act, delay, omission or otherwise be deemed to have waived any of its rights or
remedies hereunder, and no waiver shall be valid unless in writing, signed by
Lender, and then only to the extent therein set forth. A waiver by Lender of any
right or remedy hereunder on any one occasion shall not be construed as a bar to
any right or remedy which Lender would otherwise have had on any future
occasion. No failure to exercise nor any delay in exercising on the part of
Lender, any right, power or privilege hereunder, shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or future exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies
hereunder provided are cumulative and may be exercised singly or concurrently
and shall be construed as affording Lender rights additional to and not
exclusive of any rights and remedies conferred under the laws of the state of
New York, any other laws or any other Security Instrument or Loan Document.
14.14 Certain Consents. If Borrower or the Martinsburg Property Owner
(the "requesting party") shall seek the approval by or consent of Lender under
this Loan Agreement or any of the other Loan Documents, and Lender shall fail or
refuse to give such consent or approval, then the requesting party shall not be
entitled to any damages for any withholding or delay of such approval or consent
by Lender, it being intended that the requesting party's sole remedy shall be an
action for injunction or specific performance, which remedy of an injunction or
specific performance shall be available only in those cases in which Lender has
expressly agreed under the applicable instrument or agreement not unreasonably
to withhold or delay its consent or approval.
14.15 Payment Days. In the event that any payment of Interest,
Principal, or any other payment to be made by Borrower to Lender hereunder or
under any of the other Loan Documents shall fall on a day which is a Saturday,
Sunday or any other day on which commercial banks in New York City are closed
for business, any such payment shall be made on the next succeeding business
day.
14.16 Severability. In the event that any provision of this Loan
Agreement or the application thereof to Borrower or the Martinsburg Property
Owner, in any circumstance, shall, to any extent, be invalid or unenforceable
under any applicable statute, regulation or rule of law, then such provision
shall be deemed inoperative to the extent that it may conflict therewith, and
shall be deemed modified to conform to such statute, regulation or rule of law,
and the remainder of this Loan Agreement and the application of any such invalid
or unenforceable provision to parties, jurisdictions, or circumstances other
than to whom or which it is held invalid or enforceable, shall not be affected
thereby nor shall same affect the validity or enforceability of any other
provision of this Loan Agreement.
14.17 Consent to Jurisdiction. Any court action brought to interpret or
enforce any provision of this Loan Agreement or any other Loan Document or to
prosecute any claim arising hereunder or thereunder must be commenced and
maintained in the state or federal courts in the State of New York. Borrower,
the Martinsburg Property Owner, and their Affiliates hereby irrevocably submit
to the exclusive jurisdiction and venue of the state and federal courts in the
State of New York for such purposes. Borrower hereby appoints Xxxxxxx X. Xxxxxx,
Esq. and Xxxxxxxx X. Xxxxxx, Esq., severally, of Cuddy & Xxxxx LLP, 00 Xxxxx
Xxxxxx, Xxxxx Xxxxxx, Xxx Xxxx 00000, and any member of Cuddy & Xxxxx LLP or any
successor firm, as agent for Borrower, the Martinsburg Property Owner and their
Affiliates for receipt of service of process on their behalf in connection with
any suit, writ, restraint, execution or discovery or supplementary procedures in
connection with the interpretation and/or enforcement of any provision of this
Loan Agreement and the other Loan Documents and any claims arising hereunder or
thereunder. Service shall be effected by any means permitted by the court in
which any action is filed, shall be deemed received as therein provided.
14.18 Waiver of Jury Trial. Borrower and the Martinsburg Property Owner
hereby irrevocably waive all right to trial by jury in any action, proceeding or
counterclaim arising out of or relating to this Loan Agreement or any of the
other Loan Documents.
/s/ Xxxxx Xxxxxxxxxxxx
----------------------------------
Xxxxx Xxxxxxxxxxxx
PRC MEMBER LLC
By Presidential Realty Corporation
Managing Member
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------
Xxxxxxx X. Xxxxxx, President
The undersigned Martinsburg Property Owner has executed, acknowledged and
delivered this Loan Agreement for the purpose of evidencing its consent and
agreement to this Loan Agreement to the extent applicable to it:
MARTINSBURG MALL LLC
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Xxxxxxx X. Xxxxxx, President
State of New York )
)ss.:
County of Westchester )
On the 22 day of September in the year 2004 before me, the undersigned,
personally appeared Xxxxxxx X. Xxxxxx, personally known to me or proved to me on
the basis of satisfactory evidence to be the individual whose name is subscribed
to the within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the individual, or the
person upon behalf of which the individual acted, executed the instrument.
/s/ Xxxxx Xxxxxxx-Xxxxx
--------------------------
Notary Public
Xxxxx Xxxxxxx-Xxxxx
Notary Public, ST.of NY
Xxxxxx Cty CLK #01J06005994
Commission Expires 4/20/06
State of New Jersy )
)ss.:
County of Ocean )
On the 23 day of September in the year 2004 before me, the undersigned,
personally appeared Xxxxx Xxxxxxxxxxxx, personally known to me or proved to me
on the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instrument and acknowledged to me that he executed the
same in his capacity, and that by his signature on the instrument, the
individual, or the person upon behalf of which the individual acted, executed
the instrument.
/s/ Xxxxxxx XxXxxxxxx
--------------------------
Notary Public
Xxxxxxx X. XxXxxxxxx
Notary Public of New Jersy
My Commission Expires Feb. 14, 2008
