Page 1 AMENDED AND RESTATED LOAN AGREEMENT THIS AMENDED AND RESTATED LOAN AGREEMENT (this “Agreement”) is made as of August 28, 2023 by and among each lender from time to time a party hereto (individually, a “Lender” and collectively, the “Lenders”),...
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3662757.12 AMENDED AND RESTATED LOAN AGREEMENT by and among 1180 XXXXXXX XXXXX RENEWAL, LLC, PACIFIC OAK SOR AUSTIN SUBURBAN PORTFOLIO, LLC, PACIFIC OAK SOR II OAKLAND CITY CENTER, LLC, PACIFIC OAK SOR MARQUETTE PLAZA, LLC, each a Delaware limited liability company, individually and collectively, as Borrower and BANK OF AMERICA, N.A., a national banking association, as Administrative Agent and The Other Financial Institutions Party Hereto Dated as of August 28, 2023 BANK OF AMERICA, N.A., as Sole Arranger and Sole Bookrunner Exhibit 10.2
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Page 1 AMENDED AND RESTATED LOAN AGREEMENT THIS AMENDED AND RESTATED LOAN AGREEMENT (this “Agreement”) is made as of August 28, 2023 by and among each lender from time to time a party hereto (individually, a “Lender” and collectively, the “Lenders”), and BANK OF AMERICA, N.A., a national banking association as Administrative Agent, and 1180 XXXXXXX XXXXX XXXXXXX, LLC, a Delaware limited liability company (“Xxxxxxx Xxxxxxxx”), PACIFIC OAK SOR AUSTIN SUBURBAN PORTFOLIO, LLC, a Delaware limited liability company (“Xxxxxx Xxxxxxxx”), PACIFIC OAK SOR II OAKLAND CITY CENTER, LLC, a Delaware limited liability company (“Oakland Borrower”), and PACIFIC OAK SOR MARQUETTE PLAZA, LLC, a Delaware limited liability company (“Marquette Borrower,” and, together with Xxxxxxx Xxxxxxxx, Xxxxxx Xxxxxxxx, and Oakland Borrower, individually and/or collectively as required by context, the “Borrower”). RECITALS: X. Xxxxxxxxx Xxxxxxxx previously entered into a mortgage loan in the original aggregate principal amount of $70,785,000.00 (the “Existing Marquette Loan”) made to Marquette Borrower by Lender pursuant to loan documents evidencing, securing and otherwise made in connection with the Existing Marquette Loan, including without limitation that certain Loan Agreement dated as of June 6, 2018 (“Existing Marquette Loan Agreement” together with the other loan documents evidencing, securing and otherwise made in connection with the Existing Marquette Loan referred to herein collectively as, the “Existing Marquette Loan Documents”), which Existing Marquette Loan is secured by, among other things, that certain that Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing (the “Existing Marquette Mortgage”), executed by Xxxxxxxxx Xxxxxxxx in favor of Administrative Agent, dated June 6, 2018 and recorded in (i) the Office of the Registrar or Titles, Hennepin County, Minnesota, as Document No. T05536350, and (ii) the Office of the County Recorder, Hennepin County, Minnesota, as Document No. A10560928, encumbering certain real property located in Hennepin County, Minnesota more particularly described on Exhibit A-4 attached hereto; X. Xxxxxxx Xxxxxxxx previously entered into a mortgage loan in the maximum principal amount of $31,070,000.00 (the “Existing Xxxxxxx Xxxx”) made to Xxxxxxx Xxxxxxxx by Bank of America, N.A., pursuant to loan documents evidencing, securing and otherwise made in connection with the Existing Xxxxxxx Loan (collectively, the “Existing Xxxxxxx Loan Documents”), which Existing Xxxxxxx Xxxx is secured by, among other things, that certain real property located in Essex County, New Jersey more particularly described in the Existing Xxxxxxx Loan Documents; X. Xxxxxx Xxxxxxxx previously entered into a mortgage loan in the original aggregate principal amount of $28,600,000.00 (the “Existing Austin Loan”) made to Austin Borrower by Bank of America, N.A., as administrative agent and lender and together with the other lenders party to loan documents evidencing, securing and otherwise made in connection with the Existing Austin Loan (collectively, the “Existing Austin Loan Documents”), which Existing
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Page 2 Austin Loan is secured by, among other things, that certain real property located in Travis County, Texas more particularly described in the Existing Austin Loan Documents; and D. Oakland Borrower previously entered into a mortgage loan in the original aggregate principal amount of $103,400,000.00 (the “Existing Oakland Loan” together with Existing Xxxxxxx Loan, and Existing Austin Loan shall be referred to herein collectively as “Other Existing Loans”) made to Oakland Borrower by Bank of America, N.A., pursuant to loan documents evidencing, securing and otherwise made in connection with the Existing Oakland Loan (collectively, the “Existing Oakland Loan Documents”), which Existing Oakland Loan is secured by, among other things, that certain real property located in Alameda County, California more particularly described in the Existing Oakland Loan Documents. E. The Existing Marquette Loan is fully disbursed and Lenders have no remaining unfunded commitments thereunder. The outstanding balance of the Existing Marquette Loan is $60,459,501.23. F. Each Borrower is wholly owned, directly or indirectly, by Guarantor (as defined below). X. Xxxxxxxxx Xxxxxxxx has requested and Administrative Agent and Xxxxxx agreed to amend and restate the Existing Marquette Loan Agreement to (i) increase the Aggregate Commitment (as defined below) under the Existing Marquette Loan from $60,459,501.23 to $188,035,943.00 and make an additional advance thereunder in the amount of $127,576,441.77, (ii) extend the term of the Existing Marquette Loan, (iii) join Xxxxxx Xxxxxxxx, Oakland Borrower and Xxxxxxx Xxxxxxxx as additional joint and several co-borrowers with Marquette Borrower under the Existing Marquette Loan, (iv) accept the Xxxxxxx Property, Austin Property, and Oakland Property as additional collateral for the Existing Marquette Loan, and (v) make certain other modifications to the Existing Marquette Loan Agreement and the Existing Marquette Loan Documents on the terms and conditions set forth in this Agreement. Now, therefore, in consideration of the premises, and in further consideration of the mutual covenants and agreements herein set forth and of the sum of Ten Dollars ($10.00) paid by each party to the other, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound hereby, covenant and agree as follows: ARTICLE 1 -AGREEMENTS:THE LOAN 1.1 General Information and Exhibits. This Agreement includes all of the Exhibits listed below, all of which Exhibits are attached hereto and made a part hereof for all purposes. Borrower and Xxxxxxx agree that if any Exhibit attached to this Agreement contains blanks, the same shall be completed correctly and in accordance with this Agreement prior to or at the time of the execution and delivery thereof. _X_ Exhibit “A-1” - Legal Description of Xxxxxxx Land _X_ Exhibit “A-2” - Legal Description of Austin Land _X_ Exhibit “A-3” - Legal Description of Oakland Land _X_ Exhibit “A-4” - Legal Description of Marquette Land _X_ Exhibit “B” - Definitions
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Page 3 _X_ Exhibit “C” - Conditions Precedent to the Additional Advance _X_ Exhibit “D-1” - Leasing and Tenant Matters (Austin Property, Oakland Property, and Marquette Property) _X_ Exhibit “D-2” - Leasing and Tenant Matters (Xxxxxxx Property) _X_ Exhibit “E” - Assignment and Assumption _X_ Exhibit “F” - Promissory Note _X_ Exhibit “G” - Schedule of Lenders _X_ Exhibit “H” - Swap Contracts _X_ Exhibit “I” - Extension Conditions _X_ Exhibit “J-1” - Financial Covenants _X_ Exhibit “J-2” - Form of Guarantor Compliance Certificate _X_ Exhibit “J-3” - Form of Debt Service Coverage Ratio Certificate _X_ Exhibit “K-1” - Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes) _X_ Exhibit “K-2” - Form of U.S. Tax Compliance Certificate (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes) _X_ Exhibit “K-3” - Form of U.S. Tax Compliance Certificate (For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes) _X_ Exhibit “K-4” - Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes) _X_ Exhibit “L” - Form of Secured Party Designation Notice _X_ Exhibit “M” - Permitted Encumbrances _X_ Exhibit “N” - Form of Borrower’s Instruction Certificate _X_ Exhibit “O” - Organizational Chart _X_ Exhibit “P” - Borrower Detail Form The Exhibits contain other terms, provisions and conditions applicable to the Loan. Capitalized terms used in this Agreement shall have the meanings assigned to them in Exhibit “B”. The Closing Checklist sets forth the conditions for closing the Loan and recording the Security Instruments. This Agreement and the other Loan Documents, which must be in form, detail and substance satisfactory to Administrative Agent and Lenders, evidence the agreements of Borrower, Administrative Agent and Lenders with respect to the Loan. Borrower shall comply with all of the Loan Documents. 1.2 Joinder and Assumption; Purpose. 1.2.1 Joinder and Assumption. (a) Each of Xxxxxx Xxxxxxxx, Oakland Borrower and Xxxxxxx Xxxxxxxx hereby assumes and agrees to be bound by all of the terms, covenants, representations, warranties and conditions of this Agreement, jointly and severally with Xxxxxxxxx Xxxxxxxx, and assumes and agrees to be bound hereby as a Borrower as if Xxxxxx Xxxxxxxx, Oakland Borrower and Xxxxxxx Xxxxxxxx, respectively, had originally
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Page 4 executed the Existing Marquette Loan Agreement and the other Existing Marquette Loan Documents. (b) Xxxxxxxxx Xxxxxxxx, Administrative Agent and Xxxxxxx hereby consent to the assumption, on a joint and several basis with Xxxxxxxxx Xxxxxxxx, of this Agreement and the Obligations by Xxxxxx Xxxxxxxx, Oakland Borrower and Xxxxxxx Xxxxxxxx and agree and acknowledge that after the date of this Agreement, Xxxxxx Xxxxxxxx, Oakland Borrower and Xxxxxxx Xxxxxxxx shall be a “Borrower” for all purposes hereunder and each of the other Loan Documents. 1.2.2 Purpose. The proceeds of the Loan shall be used by Borrower solely to refinance Other Existing Loans. 1.3 Commitment to Lend. Xxxxxxxx agrees to borrow from Lenders, and Xxxxxxx severally agree to make, the Additional Advance on the Closing Date to Borrower, which Additional Advance shall be funded directly to BANK OF AMERICA, N.A., on behalf of Borrower, to repay the Other Existing Loans on the terms and subject to the conditions set forth in this Agreement and Exhibit “C”. Advances made by each Lender at any one time outstanding shall not exceed such Xxxxxx’s Pro Rata Share of the Loan (except for Administrative Agent with respect to Administrative Agent Advances). Each Lender shall fund its Pro Rata Share of the Additional Advance under this Agreement, provided, however, that no Lender will be required to make an advance in any amount which would cause such Lender’s Pro Rata Share of the outstanding principal balance of the Loan to exceed such Xxxxxx’s then-current Commitment hereunder. Lenders’ Commitments to lend pursuant to this Agreement shall expire and terminate automatically (a) if the Loan is prepaid in full, and (b) upon the occurrence of a Default, and (c) on the Maturity Date. The Loan is not revolving. Any amount repaid may not be reborrowed. 1.4 Interest Rates. Subject to the terms and conditions hereof, the unpaid principal balance of the Loan from day to day outstanding which is not past due, shall bear interest at a fluctuating rate of interest per annum equal to the BSBY Rate, computed as provided in Section 1.4.3 below. 1.4.1 Reserved. 1.4.2 Reserved. 1.4.3 Computations and Determinations. All computations of interest for the Base Rate (to the extent applicable) shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on the Advance of the Loan for the day on which the Advance is made, and shall not accrue on an Advance, or any portion thereof, for the day on which the Advance or such portion is paid, provided that any Advance that is repaid on the same day on which it is made shall, subject to subject to the provisions in this Agreement addressing payments generally, bear interest for one day. Each determination by Administrative Agent of an interest rate or fee hereunder applicable
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Page 7 (b) Subject to the conditions set forth in Exhibit “I”, Borrower shall have an option to extend the Maturity Date from the Initial Maturity Date to the First Extended Maturity Date and the First Extended Maturity Date to the Second Extended Maturity Date, as applicable (each such extension period is referred to herein as the “Extension Term”). (c) For the avoidance of doubt, if Borrower elects to extend the Maturity Date pursuant to the conditions set forth in Exhibit “I”, Borrower’s monthly Seven Hundred Thousand and No/100 Dollars ($700,000.00) installment principal payment obligations under Section 1.6(a) above shall continue as specified therein through each Extension Term until the full and final repayment on the Loan. (d) For the avoidance of doubt, the maturity of the Existing Marquette Loan is extended from June 6, 2023 through the Maturity Date (as provided in Section 1.6(a) above). The terms and conditions of the Existing Marquette Loan Documents have been in effect from June 6, 2023 through August 27, 2023 and the terms and conditions of this Agreement and the other Loan Documents are effective as of the date hereof. 1.7 Payments Generally; Administrative Agent’s Clawback. (a) All payments by Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by Xxxxxxxx hereunder shall be made to Administrative Agent, for the account of the respective Lenders to which such payment is owed, at Administrative Agent’s Office in U.S. Dollars and in immediately available funds not later than 12:00 p.m. (Administrative Agent’s Time) on the date specified herein. Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. All payments received by Administrative Agent after 12:00 p.m. (Administrative Agent’s Time) shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. If any payment to be made by Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be. (b) For the avoidance of doubt, Administrative Agent will distribute payments to each Lender, (i) on the date of receipt, if Administrative Agent receives such funds on or before 12:00 p.m. (Administrative Agent’s Time), or (ii) on the Business Day following the date of receipt, if Administrative Agent receives such funds after 12:00 p.m. (Administrative Agent’s Time). If Administrative Agent fails to timely pay any amount to any Lender in accordance with this Section 1.7, Administrative Agent shall pay to such Lender interest on such amount at the greater of the Federal Funds Rate and a rate determined by Administrative Agent in accordance with banking industry rules on interbank compensation, for each day from the day such amount was to be paid until it is paid to such Lender. Unless Administrative Agent shall have received notice from Borrower prior to the date on which any payment is due to Administrative Agent for the account of Xxxxxxx hereunder that Borrower will not make such payment, Administrative Agent may assume that Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to Lenders the amount due. With respect to any payment that Administrative Agent makes for the account of Lenders hereunder as to which
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Page 8 Administrative Agent determines (which determination shall be conclusive absent manifest error) that any of the following applies (such payment referred to as the “Rescindable Amount”): (1) Borrower has not in fact made such payment; (2) Administrative Agent has made a payment in excess of the amount so paid by Borrower (whether or not then owed); or (3) Administrative Agent has for any reason otherwise erroneously made such payment; then each of the Lenders severally agrees to repay to Administrative Agent forthwith on demand the Rescindable Amount so distributed to such Lender immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by Administrative Agent in accordance with banking industry rules on interbank compensation. (c) A notice of Administrative Agent to any Lender or to Borrower with respect to any amount owing under this Section 1.7 shall be conclusive, absent manifest error. (d) Throughout the term of the Loan, Administrative Borrower shall maintain the Checking Account in good standing with Administrative Agent. Administrative Borrower (and, to the extent applicable, each other Borrower) hereby grants to Administrative Agent a security interest in the Checking Account (and in any other successor or replacement account designated by Administrative Borrower) for the purpose of securing the Obligations. (e) Xxxxxxxx agrees that monthly payments on the Loan will be deducted automatically on their due dates from the Checking Account (or such other account designated by Administrative Borrower). Administrative Agent is hereby authorized to apply the amounts so debited to Borrower’s obligations under the Loan. Notwithstanding the foregoing, Administrative Agent will not automatically deduct the principal payment at maturity from the Checking Account (or such other account designated by Administrative Borrower). (f) Administrative Agent will debit the Checking Account (or such other account designated by Administrative Borrower) on the dates the payments become due. If a due date does not fall on a Business Day, Administrative Agent will debit the Checking Account (or such other account designated by Administrative Borrower) on the first Business Day following the due date. (g) Borrower shall maintain sufficient funds in the Checking Account (or such other account designated by Administrative Borrower) on the dates Administrative Agent enters debits authorized by this Agreement. If there are insufficient funds in the Checking Account (or such other account designated by Administrative Borrower) on the date Administrative Agent enters any debit authorized by this Agreement, without limiting Administrative Agent’s other remedies in such an event, the debit will be reversed in whole or in part, in Administrative Agent’s sole and absolute discretion, and such amount not debited shall be deemed to be unpaid and shall be immediately due and payable in accordance with the terms of this Agreement. 1.8 Evidence of Debt. Amounts of the Loan funded by each Lender shall be evidenced by one or more accounts or records maintained by such Xxxxxx and by Administrative Agent in the ordinary course of business. The accounts or records maintained by Administrative Agent and each Lender shall be conclusive, in the absence of manifest error, of the amounts of the Loan funded by Lenders to Borrower, the interest and payments thereon, and all other sums
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Page 9 owing to Administrative Agent and each Lender from time to time under the Loan Documents. Any failure to so record such information or any error in doing so shall not, however, limit or otherwise affect the obligation of Borrower hereunder to pay any amount owing with respect to the Indebtedness or the obligations of the Property under the Loan Documents. In the event of any conflict between the accounts and records maintained by any Xxxxxx and the accounts and records of Administrative Agent in respect of such matters, the accounts and records of Administrative Agent shall control in the absence of manifest error. Each Lender may attach schedules to its Note(s) and endorse thereon the date, amount and maturity of the applicable Note and payments with respect thereto. 1.9 Administrative Borrower. Each Borrower hereby irrevocably appoints Xxxxxxxxx Xxxxxxxx as the borrowing agent and attorney-in-fact for all Borrowers (“Administrative Borrower”), which appointment shall remain in full force and effect unless and until Administrative Agent shall have received prior written notice signed by each Borrower (and approved in writing by Administrative Agent, which approval shall not be unreasonably withheld, conditioned or delayed) that such appointment has been revoked and that another Borrower has been appointed Administrative Borrower. Each Borrower hereby irrevocably appoints and authorizes the Administrative Borrower (i) to provide Administrative Agent and all Lenders with all notices and instructions under this Agreement and the other Loan Documents, (ii) to establish all accounts required pursuant to the Loan Documents in its own name, in the name of any one or more Borrowers, or in any other manner as may be required by Administrative Agent, (iii) to request and receive on behalf of Borrowers the proceeds of the Loan and any and all disbursements from any collateral or reserve accounts established pursuant to the Loan Documents, and (iv) to take any and all actions as the Administrative Borrower deems appropriate to exercise such other powers as are reasonably incidental thereto to carry out the purposes of this Agreement and the other Loan Documents. It is understood that the handling of the Loan in a combined fashion, as more fully set forth herein, is done solely as an accommodation to Borrowers in order to utilize the collective borrowing powers of Borrowers in the most efficient and economical manner and at their request, and none of Administrative Agent or any Lender shall incur any liability to any Borrower as a result hereof. Each Borrower expects to derive benefit, directly or indirectly, from the handling of the Loan in a combined fashion since the successful operation of each Borrower and the Property is dependent on the continued successful performance of the integrated group. In the event that Administrative Agent or any Lender receives any conflicting request or instruction from Administrative Borrower and any other Borrower, the request or instruction from Administrative Borrower shall control. To induce Administrative Agent and Lenders to do so, and in consideration thereof, each Borrower hereby jointly and severally agrees to indemnify Administrative Agent and each Lender and hold Administrative Agent and each Lender harmless against any and all liability, expense, loss or claim of damage or injury, made against Administrative Agent or any Lender by any Borrower or by any third party whosoever, arising from or incurred by reason of (a) the handling of the Loan by Administrative Borrower as herein provided, (b) Administrative Agent or any Lender(s) relying on any instructions of Administrative Borrower, (c) any other action taken by Administrative Agent or any Lender hereunder or under the other Loan Documents at the request of Administrative Borrower, or (d) any other action taken by Administrative Borrower hereunder or under the Loan Documents; provided that none of Administrative Agent nor any Lender shall be entitled to any indemnification from any claim, loss, cost or expense caused solely by its own gross negligence or willful misconduct.
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Page 13 (II) executed copies of IRS Form W-8ECI; (III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit K-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN- E (or W-8BEN, as applicable); or (IV) to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W- 8ECI, IRS Form W-8BEN-E (or W-8BEN, as applicable), a U.S. Tax Compliance Certificate substantially in the form of Exhibit “K-2” or Exhibit “K-3”, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit “K-4” on behalf of each such direct and indirect partner. (C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Borrower and Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable written request of Borrower or Administrative Agent), executed copies of any other form prescribed by applicable Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable Law to permit Borrower or Administrative Agent to determine the withholding or deduction required to be made; and (D) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to Borrower and Administrative Agent at the time or times prescribed by Law and at such time or times reasonably requested by Borrower or Administrative Agent such documentation prescribed by applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by Borrower or Administrative Agent as may be necessary for Borrower and Administrative Agent to comply with their obligations under FATCA and to determine that such Xxxxxx has complied with such Xxxxxx’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for
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Page 16 Unavailability Date, the BSBY Screen Rate will be replaced hereunder and under any Loan Document with, subject to the proviso below, the first available alternative set forth in the order below for any payment period for interest calculated that can be determined by Administrative Agent, in each case, without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document (the “Successor Rate”): (i) Term SOFR plus the SOFR Adjustment; and (ii) Daily Simple SOFR plus the SOFR Adjustment; provided that, if initially the BSBY Screen Rate is replaced with the rate contained in clause (ii) above (Daily Simple SOFR plus the SOFR Adjustment) and subsequent to such replacement, Administrative Agent determines that Term SOFR has become available and is administratively feasible for Administrative Agent in its sole discretion, and Administrative Agent notifies Borrower and each Lender of such availability, then with Borrower’s written consent from and after the relevant interest payment date or the beginning of the relevant payment period for interest calculated, in each case, commencing no less than thirty (30) days after the date of such notice, the Successor Rate shall be Term SOFR plus the SOFR Adjustment. If the Successor Rate is Daily Simple SOFR plus the SOFR Adjustment, all interest payments will be payable on a monthly basis. Notwithstanding anything to the contrary herein, (A) if Administrative Agent determines that neither of the alternatives set forth in clauses (i) and (ii) above is available on or prior to the BSBY Replacement Date or (B) if the events or circumstances of the type described in Section 2.4(a) or (b) have occurred with respect to the Successor Rate then in effect, then in each case, Administrative Agent and Borrower may amend this Agreement solely for the purpose of replacing BSBY or any then current Successor Rate in accordance with this Section at any relevant interest payment date or the end of any payment period for interest calculated, as applicable, with another alternate benchmark rate giving due consideration to any evolving or then existing convention for similar U.S. Dollar denominated syndicated credit facilities for such alternative benchmarks and, in each case, including any mathematical or other adjustments to such benchmark giving due consideration to any evolving or then existing convention for similar U.S. Dollar denominated syndicated credit facilities for such benchmarks, which adjustment or method for calculating such adjustment shall be published on an information service as selected by Administrative Agent from time to time in its reasonable discretion and may be periodically updated. For the avoidance of doubt, any such proposed rate and adjustments shall constitute a Successor Rate. Any such amendment shall become effective at 5:00 p.m. Administrative Agent’s Time on the fifth (5th) Business Day after Administrative Agent shall have posted such proposed amendment to all Lenders and Borrower unless, prior to such time, Lenders comprising Required Lenders have delivered to Administrative Agent written notice that such Required Lenders object to such amendment. Administrative Agent will promptly (in one or more notices) notify Borrower and each Lender of the implementation of any Successor Rate.
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Page 21 general liability insurance, on an “occurrence” basis, against claims for “personal injury” liability, including bodily injury, death or property damage liability, for the benefit of Borrower as named insured and Administrative Agent as additional insured; (iv) statutory workers’ compensation insurance with respect to any work on or about the Property (including employer’s liability insurance, if required by Administrative Agent), covering all employees of Borrower and any contractor; (v) if there is a general contractor, commercial general liability insurance, including products and completed operations coverage, and in other respects similar to that described in clause (iii) above, for the benefit of the general contractor as named insured and Borrower and Administrative Agent as additional insureds, in addition to statutory workers’ compensation insurance with respect to any work on or about the Property (including employer’s liability insurance, if required by Administrative Agent), covering all employees of the general contractor and any contractor; and (vi) such other insurance on the Property and endorsements as may from time to time be reasonably required by Administrative Agent (including soft cost coverage, automobile liability insurance, business interruption insurance or delayed rental insurance, boiler and machinery insurance, earthquake insurance, wind insurance, volcano insurance, sinkhole coverage, and/or permit to occupy endorsement) and against other insurable hazards or casualties which at the time are commonly insured against in the case of premises similarly situated, due regard being given to the height, type, construction, location, use and occupancy of buildings and improvements. All insurance policies shall be issued and maintained by insurers, in amounts, with deductibles, limits and retentions, and in forms reasonably satisfactory to Administrative Agent, and shall require not less than ten (10) days’ prior written notice to Administrative Agent of any cancellation for nonpayment of premiums, and not less than thirty (30) days’ prior written notice to Administrative Agent of any other cancellation or any change of coverage. All insurance companies must be qualified, authorized, or licensed to do business in the state in which the Property is located and must have an A.M. Best Company financial and performance ratings of A-:IX or better. All insurance policies maintained, or caused to be maintained, with respect to the Property, except for general liability insurance, shall provide that each such policy shall be primary without right of contribution from any other insurance that may be carried by Borrower or Administrative Agent and that all of the provisions thereof, except the limits of liability, shall operate in the same manner as if there were a separate policy covering each insured. If any insurer which has issued a policy of title, hazard, liability or other insurance required pursuant to this Agreement or any other Loan Document becomes insolvent or the subject of any petition, case, proceeding or other action pursuant to any Debtor Relief Law, or if in Administrative Agent’s reasonable opinion the financial responsibility of such insurer is or becomes inadequate, Borrower shall, in each instance promptly upon its discovery thereof or upon the written request of Administrative Agent therefor, and at Borrower’s expense, promptly obtain and deliver to Administrative Agent a like policy (or, if and to the extent permitted by Administrative Agent, acceptable evidence of insurance) issued by another insurer, which insurer and policy meet the requirements of this Agreement or such other Loan Document, as the case may be. Without limiting the discretion of Administrative Agent with respect to required endorsements to insurance policies, all such policies for loss of or damage to the Property shall contain a standard mortgagee “Loss Payee” clause (without contribution) naming Administrative Agent as “Loss Payee” with loss proceeds payable to Administrative Agent notwithstanding (A) any act, failure to act or negligence of or violation of any warranty, declaration or condition contained in any such policy by any named or additional insured; (B) the occupation or use of the Property for purposes more hazardous than permitted by
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Page 25 contract, including the Management Agreement, and do all things necessary to preserve and to keep unimpaired its material rights thereunder. At all times, Borrower shall cause the Property to be managed by an Approved Manager. All management contracts, including the Management Agreement, affecting the Property shall be terminable upon thirty (30) days’ written notice without penalty or charge (except for unpaid accrued management fees). All management contracts (including the Management Agreement), modifications or waiver of any right of Borrower under of any management contract (including the Management Agreement), or any terminations thereof must be approved in writing by Administrative Agent prior to the execution of the same (which approval shall not be unreasonably withheld or delayed). (b) Operation. (i) Borrower will operate the Property in a manner and at a level consistent with good management and operating practices for comparable competitive properties and will pay all fees or charges of any kind in connection therewith. Borrower will keep the Property occupied so as to not impair the insurance carried thereon. Borrower will not use or occupy or conduct any activity on, or knowingly allow the use or occupancy of or the conduct of any activity on, the Property in any manner which constitutes a public or private nuisance or which makes void, voidable or cancelable or increases the premium of, any insurance set forth in Section 4.5 then in force with respect thereto. Borrower shall not knowingly commit, permit or suffer to exist any act or omission, including any use or occupancy of, or activity at or on, the Property, which affords any Governmental Authority the right of forfeiture as against the Property, or any part thereof or any monies paid in performance of Borrower’s obligations under any of the Loan Documents. (ii) Borrower will preserve, protect, renew, extend and retain all requisite rights, powers, authority, privileges and franchises in all material respects to carry on its business and to own and operate the Property in accordance with the Leases, the Permitted Encumbrances and otherwise in accordance with this Agreement, and all other material rights and privileges granted for or applicable to the Property. Borrower will not initiate or permit any zoning reclassification of the Property or seek any variance under existing zoning ordinances applicable to the Property without Administrative Agent’s prior written consent (not to be unreasonably withheld or delayed). Borrower shall not use or knowingly permit the use of any Property in such a manner which would result in such use becoming a nonconforming use under applicable zoning ordinances or other Law. If under applicable zoning provisions, the use of all or any portion of any Property is or shall become a nonconforming use, Borrower will not cause or permit the nonconforming use to be discontinued or the nonconforming Improvement to be abandoned without the prior written consent of Administrative Agent. (iii) Without Administrative Agent’s prior written approval, and subject to the consent of Required Lenders, as to parties, terms and all other matters, Borrower shall not apply for or accept any PACE Financing. Borrower will not impose any easement, restrictive covenant or encumbrance upon the Property, execute or file any subdivision plat or condominium declaration affecting the Property or consent to the annexation of the Property to any municipality, without the prior written consent of Administrative
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Page 26 Agent. Without the prior written consent of Administrative Agent, there shall be no drilling or exploration for or extraction, removal or production of any mineral, hydrocarbon, gas, natural element, compound or substance (including sand and gravel) from the surface or subsurface of the Land regardless of the depth thereof or the method of mining or extraction thereof. (iv) Borrower will cause all debts and liabilities of any character (including without all debts and liabilities for labor, material and equipment (including software embedded therein) and all debts and charges for utilities servicing the Property) incurred in the construction, maintenance, operation and development of the Property to be promptly paid, except to the extent that Borrower is then contesting such debt, liability or charge in accordance with the terms and conditions of the Loan Documents. (c) Maintenance; Repair; Restoration. (i) Borrower shall keep the Property in such order, repair, operating condition and appearance as is consistent with good management and operating practices for comparable competitive properties, causing all necessary and material repairs, renewals, replacements, additions and improvements to be promptly made with good quality materials and in a good and workmanlike manner, and shall not knowingly allow the Property to be the subject of any material waste, misuse, abuse or deterioration, subject, however, to the other provisions of this Agreement and the other Loan Documents requiring consent or approval of Administrative Agent. If any act or occurrence of any kind or nature (including any Condemnation or any Casualty for which insurance was not obtained or obtainable) shall result in damage to or loss or destruction of any Property, Borrower shall give prompt notice thereof to Administrative Agent and Borrower shall promptly, at Borrower’s sole cost and expense and regardless of whether insurance or condemnation proceeds (if any) shall be available or sufficient for the purpose pursuant to Section 4.7 or otherwise, secure the Property as necessary and commence and continue diligently to completion to restore, repair, replace and rebuild the Property as nearly as practicable to its value, condition and character immediately prior to the damage, loss or destruction; provided, however, Borrower shall have no obligation to restore any Condemnation or Casualty affecting any Property if (A) Administrative Agent has received Net Proceeds in connection therewith, (B) Borrower has satisfied the applicable conditions set forth in Section 4.7 above for the release to Borrower of such Net Proceeds, and (C) Administrative fails to release such Proceeds to Borrower for such purpose. (ii) Notwithstanding the foregoing, Borrower shall not, without the prior written consent of Administrative Agent, (i) remove from any Property any fixtures or personal property comprising Property except such as is replaced by Borrower by an article of equal suitability and value, owned by Borrower, free and clear of any lien or security interest (except that created by such Security Instrument or any other Loan Document), or (ii) make any alteration to the Property; provided, however, that the consent of Administrative Agent shall not be required in the case of (x) any alteration which individually does not cost more than $1,000,000.00, or the cost of which, when aggregated with the total cost of all alterations in the applicable calendar year, does not
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Page 27 result in costs in excess of $2,500,000.00; (y) any alteration required pursuant to any Lease entered into in accordance with Exhibit “D-1” or Exhibit “D-2” and any other provision of this Agreement and the other Loan Documents and (z) any alteration in connection with a restoration following Casualty or Condemnation, or otherwise required for the maintenance and upkeep of the Property in accordance with the Loan Documents that could not reasonably be expected to have a Material Adverse Effect. 4.9 Books and Records; Financial Statements; Tax Returns; KYC Information. Borrower shall provide or cause to be provided to Administrative Agent all of the following: (a) Unaudited balance sheet and income statement of Borrower for each calendar year, as soon as reasonably practicable and in any event within one hundred-twenty (120) days after the close of each calendar year. (b) Unaudited Financial Statements of Guarantor: (i) for each fiscal year, as soon as reasonably practicable and in any event within one hundred twenty (120) days after the close of each fiscal year, and (ii) for the first three (3) fiscal quarters, as soon as reasonably practicable and in any event within sixty (60) days after the close of each such fiscal quarter. In the event that Pacific Oak Strategic Opportunity REIT, Inc. shall no longer file with the Securities and Exchange Commission fiscal year-end audited consolidated financial statements which include the results of operation of Guarantor, either (i) the financial statements of Guarantor to be delivered to Administrative Agent shall be audited by a third-party certified public accountant reasonably satisfactory to Administrative Agent, or (ii) Guarantor shall deliver to Administrative Agent audited consolidated financial statements of Pacific Oak Strategic Opportunity REIT, Inc. which include the results of operation of Guarantor. (c) (i) prior to the beginning of each calendar year, a capital and operating budget for each Property (in each case, a “Budget”); and (ii) for each calendar quarter (and for the calendar year through the end of that calendar quarter) (A) property operating statements, which include all income and expenses in connection with the Property, including in each case a comparison to the Budget, (B) rent rolls, (C) a current leasing status report (including tenants’ names, occupied tenant space, lease terms, rents, vacant space and proposed rents), (D) a statement of sources and uses evidencing cash flow into and out of each Borrower, and (E) a certificate in the form of Exhibit “J-3,” confirming, among the other items specified therein, (1) the calculation of the Debt Service Coverage Ratio for such quarter in form and detail reasonably acceptable to Administrative Agent, and (2) compliance with Section 5.8 of this Agreement, as soon as reasonably practicable but in any event within sixty (60) days after the end of each such calendar quarter, certified in writing as true and correct by a representative of Borrower reasonably satisfactory to Administrative Agent. Items provided under this Section shall be in form and detail reasonably satisfactory to Administrative Agent. (d) From time to time promptly after Administrative Agent’s or, subject to the provisions of Section 4.9(e), any Lender’s reasonable request, such additional information, reports and statements respecting the Property and/or Improvements, or the business operations and financial condition of each reporting party, as Administrative Agent or any Lender, subject to the provisions of Section 4.9(e), may reasonably request.
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Page 28 Borrower will keep and maintain full and accurate books and records administered in accordance with sound accounting principles, consistently applied, showing in detail the earnings and expenses of the Property and the operation thereof. All Financial Statements shall be in form and detail satisfactory to Administrative Agent. All reports, statements, plans, Budgets, applications, agreements and other data and information heretofore furnished or hereafter to be furnished by or on behalf of Borrower to Administrative Agent in connection with the Loan (including all financial statements and financial information) will be true, correct and complete in all material respects as of their respective dates and will not omit to state any fact or circumstance necessary to make the statements contained therein not misleading in any material respect. All certifications and signatures on behalf of corporations, partnerships, limited liability companies or other entities shall be by a representative of the reporting party satisfactory to Administrative Agent. Except as otherwise referenced above, all year-end Financial Statements of Borrower and Guarantor may be prepared by the reporting party. All quarterly Financial Statements may be prepared by the applicable reporting party and shall include a minimum of a balance sheet, income statement, and statement of cash flow. Borrower shall provide, upon Administrative Agent’s request, convenient facilities for the audit and verification of any such statement. Additionally, Borrower will provide Administrative Agent at Xxxxxxxx’s expense with all evidence that Administrative Agent may from time to time reasonably request as to compliance with all provisions of the Loan Documents. Borrower shall promptly notify Administrative Agent of any event or condition that could reasonably be expected to have a Material Adverse Effect. (e) Any request by any Lender (other than any request pursuant to Section 9.25) to Borrower or Guarantor pursuant to this Agreement or any other Loan Document must be made by such Lender first notifying Administrative Agent of such Xxxxxx’s request, and Administrative Agent then making such request (which Administrative Agent agrees to do promptly after receiving any request from a Lender) to Borrower or Guarantor, as applicable, on behalf of such Lender; it being understood and agreed that no Lender shall directly contact Borrower or Guarantor to make any request and that all such requests must be made through Administrative Agent. Notwithstanding anything to the contrary in this Agreement, any request by any Lender pursuant to Section 9.25 shall be made directly from such Lender to Borrower and/or Guarantor and shall not be subject to this Section 4.9(e). (f) Concurrently with the delivery of the Guarantor Financial Statements referenced in Section 4.9(b) above, Guarantor shall provide a duly completed compliance certificate in the form attached hereto as Exhibit J-2 of Unencumbered Liquid Assets and Tangible Net Worth, which shall contain sufficient detail (including bank statements and brokerage statements) to enable Administrative Agent to determine whether Guarantor has maintained sufficient Unencumbered Liquid Assets and Tangible Net Worth to comply with the requirements set forth in Exhibit J-1. (g) Promptly following any request therefor, Borrower shall provide information and documentation reasonably requested by the Administrative Agent or any Lender for purposes of compliance with applicable “know your customer” requirements under the PATRIOT Act, the Beneficial Ownership Regulation or other applicable anti-money laundering laws (provided, however, so long as Pacific Oak Strategic Opportunity REIT, Inc. maintains its status as an entity registered with the Securities Exchange Commission under the Securities Exchange Act of 1934,
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Page 29 and such entity type at the time of such request is excluded from the definition of “legal entity customer” under the then applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the Beneficial Ownership Regulation, no information regarding the shareholders of Pacific Oak Strategic Opportunity REIT, Inc. shall be required). 4.10 Estoppel Certificates. Within ten (10) days after any request by Administrative Agent or a proposed assignee or purchaser of the Loan or any interest therein, Borrower shall certify in writing to Administrative Agent, or to such proposed assignee or purchaser, to Borrower’s knowledge: (i) the then unpaid balance of the Loan, (ii) the Note, this Agreement and the other Loan Documents are valid and binding obligations of Borrower, enforceable against Borrower in accordance with their terms, (iii) the date to which interest on the Note is paid, (iv) the Note, this Agreement and the other Loan Documents have not been released, subordinated or modified, and (v) there are no offsets, counterclaims or defenses against the enforcement of the Note, this Agreement or any other Loan Document. If any of the foregoing statements in subsections (ii), (iv), or (v) are untrue, then Borrower shall give a detailed written description of such claimed right. 4.11 Taxes; Tax Receipts. Borrower shall pay and discharge all Taxes prior to the date the same shall become delinquent, unless and to the extent only that such Taxes are contested in accordance with the terms of the applicable Security Instrument. Borrower shall furnish to Administrative Agent upon written request, receipts for the payment of Real Property Taxes within five (5) days after Administrative Agent’s request therefor. If Borrower shall fail to pay or contest any Real Property Taxes in accordance with this Section 4.11, in addition to all other rights and remedies of Administrative Agent and Lenders, Administrative Agent shall have the right, but shall not be obligated, to (i) pay Real Property Taxes, and Borrower shall repay same to Administrative Agent upon demand, with interest thereon at the Default Rate accruing from the date such advance is due to be repaid by Borrower to the date of repayment, and such amount shall constitute a portion of the Obligations secured by each Security Instrument, and (ii) without limiting any other remedies available to Administrative Agent, Administrative Agent may, at Borrower’s sole expense, obtain and enter into a tax services contract with respect to the Property with a tax reporting agency satisfactory to Administrative Agent. 4.12 Administrative Agent’s Rights to Pay and Perform. If, after written notice, Xxxxxxxx fails to promptly pay or perform any of the Obligations within any applicable grace or cure periods, Administrative Agent, without further Notice to or demand upon Borrower, and without waiving or releasing any Obligation or Default, may (but shall be under no obligation to) at any time thereafter make such payment or perform such act for the account and at the expense of Borrower. Administrative Agent may enter upon the Property for that purpose and take all action thereon as Administrative Agent considers necessary or appropriate. 4.13 Reimbursement; Interest. If Administrative Agent shall incur any Expenses or pay any Claims after delivery of any Notice required by the terms of this Agreement or any other Loan Document by reason of the Loan or the rights and remedies provided under the Loan Documents (regardless of whether or not any of the Loan Documents expressly provide for an indemnification by Borrower against such Claims), Administrative Agent’s payment of such Expenses and Claims shall constitute advances to Borrower which shall be paid by Borrower to
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Page 30 Administrative Agent on demand, together with interest thereon from the date incurred until paid in full at the rate of interest then applicable to the Loan under the terms of this Agreement. Each advance shall be secured by each Security Instrument and the other Loan Documents as fully as if made to Borrower, regardless of the disposition thereof by the party or parties to whom such advance is made. Notwithstanding the foregoing, however, in any action or proceeding to foreclose any Security Instrument or to recover or collect the Obligations, the provisions of Law governing the recovery of costs, disbursements and allowances shall prevail unaffected by this Section. 4.14 Notification by Xxxxxxxx. Following knowledge thereof, Borrower shall promptly give Notice to Administrative Agent of the following (a) the occurrence of any Default or material Potential Default hereunder or under any of the other Loan Documents, (b) any written claim of a default by Xxxxxxxx, or any claim by Borrower of a default by any other party under any property management contract or any Lease, (c) any notice received by Borrower with respect to the cancellation, alteration or non-renewal of any insurance coverage required by Section 4.5 hereof to be maintained with respect to any Property; (d) any lien filed against any Property; (e) any investigation by any Governmental Authority, or any litigation, arbitration or other proceeding instituted or threatened in writing against Borrower or any Guarantor or the Property, including pursuant to the Controlled Substances Act, anti-money laundering Laws, or the Civil Asset Forfeiture Reform Act, and any material development therein, and/or (f) any Material Adverse Effect in the financial condition, results of operations, business or properties of Borrower or Guarantor. 4.15 Reports and Testing. Borrower shall promptly deliver to Administrative Agent copies of all reports, studies, inspections and similar geological, structural, physical condition or environmental tests made by Borrower on any part of the Property. Borrower shall promptly notify Administrative Agent following Xxxxxxxx’s knowledge of any report, study, inspection or test that indicates any materially adverse geological, physical, structural or environmental condition relating to the Property or any such materials. 4.16 Fees and Expenses. Borrower shall pay all fees, charges, costs and expenses required to satisfy the conditions of the Loan Documents. Without limitation of the foregoing, Xxxxxxxx will pay, when due, and if paid by Administrative Agent will reimburse Administrative Agent on demand for, all reasonable fees and expenses of any construction consultant (if any), the title insurer, environmental engineers, appraisers, surveyors and Administrative Agent’s counsel in connection with the closing, administration, modification or any “workout” of the Loan, or the enforcement of Administrative Agent’s or any Xxxxxx’s rights and remedies under any of the Loan Documents. Notwithstanding any provision to the contrary set forth in this Agreement or in any other Loan Document, except in any instance where, due to a legal conflict of interest, a single counsel cannot represent Administrative Agent and Lenders in connection with the enforcement of Administrative Agent’s or Lenders’ rights and remedies under any of the Loan Documents (in which event Lenders may employ, at Borrower’s expense, a single separate counsel to represent the interests of Lenders in connection with the enforcement of Lenders’ rights and remedies under any of the Loan Documents), Borrower shall not be required to pay or reimburse any Lender for the costs and expenses of any counsel to any Lender.
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Page 36 given in connection with any construction at any Property, including any construction of capital improvements and tenant improvements. 5.3 Commingling. Borrower shall not commingle the funds and other assets of Borrower with those of any Affiliate or any other Person that is not, in each instance, a Borrower. 5.4 Transfers; Encumbrances; Additional Debt. (a) Borrower shall not, voluntarily or involuntarily, directly or indirectly, sell, convey, transfer, lease or otherwise dispose of, grant easements or other rights with respect to, or mortgage, encumber or create a lien or security interest in, any Property or the income or any other revenues therefrom or knowingly permit or suffer any such action to be taken, except in each case as permitted by this Agreement or the other Loan Documents (including without limitation, Section 9.33 hereof). (b) Borrower shall not incur any debt for borrowed money, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than (a) the Loan, and (b) advances or trade debt or accrued expenses incurred in the ordinary course of business of operating the Property. 5.5 Sanctions. Borrower and Guarantor shall not, directly or indirectly, use any proceeds of the Loan, or lend, contribute or otherwise make available such proceeds to any of their respective subsidiaries or joint venture partners or other individual or entity, to fund any activities of or business with any individual or entity, or in any Designated Jurisdiction, that, at the time of such funding, is the subject of Sanctions, or in any other manner that could reasonably be expected to result in a violation by any individual or entity (including any individual or entity participating in the transaction, whether as Lender, Arranger, Administrative Agent, or otherwise) of Sanctions. 5.6 Anti-Corruption Laws. Neither Borrower nor Guarantor nor any of their respective subsidiaries shall directly or indirectly use the proceeds of the Loan for any purpose which would breach the United States Foreign Corrupt Practices Act of 1977, the U.K. Bribery Act 2010, or other similar anti-corruption legislation in other jurisdictions. 5.7 Contracts. (a) Affiliates. Without the prior written consent of Administrative Agent, Borrower shall not, nor shall Borrower’s Constituent Member, enter into any contract or otherwise engage in any transactions with an Affiliate of Borrower or such Constituent Member, except for contracts, amendments and transactions entered into in the ordinary course of business of Borrower and at prices and on terms that are commercially reasonable and are no less favorable to Borrower or such Constituent Member, as applicable, than would be obtained in a comparable arm’s-length transaction with an unrelated third party. (b) Third Parties. Without the prior written consent of Administrative Agent (not to be unreasonably withheld or delayed), Borrower shall not enter into any material contract or amend any material contract except for contracts, amendments and transactions entered into in
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Page 37 the ordinary course of business of Xxxxxxxx, on an arm’s-length basis and on commercially reasonable terms in Borrower’s good faith judgment. 5.8 Limitation on Restricted Payments. During the term of the Loan, Borrower shall not make any Restricted Payments. ARTICLE 6 - REPRESENTATIONS AND WARRANTIES Xxxxxxxx makes the following representations and warranties to Administrative Agent and each Lender as of the date hereof and as of the date of each advance hereunder: 6.1 Organization, Power and Authority of Borrower; Loan Documents. (a) Each Borrower is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware and is duly qualified to do business and in good standing in the state in which the Land is located (if different from the state of its formation) and in any other state where the nature of Borrower’s business or property requires it to be qualified to do business. Xxxxxxxx’s exact legal name is correctly set forth on the signature page of this Agreement. Xxxxxxxx is not a “foreign person” within the meaning of Section 1445 or 7701 of the Code. Without limiting the foregoing, Borrower is not a foreign corporation, foreign partnership, foreign trust, foreign estate or nonresident alien or a disregarded entity owned by any of them (as those terms are defined in the Code). As of the date of this Agreement, the information included in the Beneficial Ownership Certification, if applicable, is true and correct in all respects. (b) Xxxxxxxx has heretofore delivered to Administrative Agent true and complete copies of the organizational documents of Xxxxxxxx, Guarantor and such of their direct and indirect Constituent Members as required by Administrative Agent. The organizational chart attached hereto as Exhibit “O” sets forth a true, correct and complete representation of Borrower’s organizational structure and the ownership of the Property as of the Effective Date, and without limiting the foregoing, Pacific Oak Strategic Opportunity REIT, Inc. is the ultimate parent of Borrower and Guarantor, and is in Control of Borrower and Guarantor, and as of the Effective Date, Xxxxxxx Xxxxxx has been designated by Pacific Oak Strategic Opportunity REIT, Inc. as Xxxxxxxx’s and Guarantor’s authorized representative for the purpose of this Agreement and the other Loan Documents to act on behalf of Borrower and Guarantor as applicable. To the knowledge of Borrower, no individual owns either directly or indirectly twenty-five percent (25%) or more of the equity interests of Borrower. (c) Borrower is authorized to do business in, and if required by Law, in good standing in, each state in which the Property owned by such Borrower is located, and possessed of all requisite power and authority to carry on its business and to own and operate such Property. Borrower is authorized to execute, deliver and perform all of its obligations under the Loan Documents. No authorization, approval or other action by, and no notice to or filing with, any Governmental Authority is required for the due execution, delivery and performance by Borrower of this Agreement, the other Loan Documents and all other documents executed in connection herewith and therewith except such as have been obtained by Xxxxxxxx. This Agreement, the other Loan Documents and all other documents executed in connection herewith
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Page 39 101, as modified by Section 3(42) of ERISA; (c) neither Borrower nor any Guarantor is or will be a “governmental plan” within the meaning of Section 3(32) of ERISA; and (d) no transactions by or with Borrower or any Guarantor are or will be subject to federal, state or local statutes applicable to Borrower or such Guarantor regulating investments of fiduciaries with respect to governmental plans. 6.10 Compliance with Laws and Zoning and Other Requirements; Encroachments. (a) To Borrower’s knowledge and belief, Borrower is in material compliance with the requirements of all applicable Laws and Requirements. To Borrower’s knowledge and belief, the present use of each Property complies with applicable zoning ordinances (except with respect to uses that are considered legally non-conforming), regulations and restrictive covenants affecting the Land. To Borrower’s knowledge and belief, all use and other requirements of any Governmental Authority having jurisdiction over each Property have been satisfied. To Xxxxxxxx’s knowledge and belief, Xxxxxxxx’s execution, delivery and performance of the Loan Documents do not violate any Law, Requirement or order of any Governmental Authority or any material contract or agreement binding on Borrower or Guarantor. To Borrower’s knowledge and belief, no violation of any Law exists with respect to any Property. To Xxxxxxxx’s knowledge and belief, and except as may be disclosed in the Survey, the Improvements are constructed entirely on the Land and do not encroach upon any easement or right-of-way, or upon the land of others. To Borrower’s knowledge and belief, and except as may be disclosed in the Survey, (i) the Improvements comply with all applicable building restriction lines and set- backs, however established, and (ii) are in strict compliance with all applicable use or other restrictions and the provisions of all applicable agreements, declarations and covenants and all applicable zoning and subdivision ordinances and regulations. (b) Borrower is not a party to any tax sharing agreement. To Xxxxxxxx’s knowledge, there is no proposed tax assessment against Borrower or Guarantor. To the extent required by applicable Law, Borrower and Guarantor have filed all necessary tax returns and reports and have paid all taxes and governmental charges thereby shown to be due or otherwise owing with respect to Borrower and/or the Property. Borrower has not entered into any PACE Financing and has no knowledge of any pending assessments or adjustments in connection therewith. (c) None of the Property is part of a larger tract of land owned by Borrower or any of its Affiliates, is not otherwise included under any unity of title or similar covenant with other real property not encumbered by a Security Instrument, and each Property constitutes a separate tax lot or lots with a separate tax assessment or assessments, independent of those for any other lands or improvements. None of the Property is, and shall not be, dependent on any property or premises or any interest therein other than such Property to fulfill any requirement of any Law. No land, building or other improvement not subject to the lien of a Security Instrument relies on any Property or any interest therein to fulfill any requirement of any Law. (d) The Improvements comply in all material respects with all applicable Laws regarding access and facilities for handicapped or disabled persons. (e) Notwithstanding the foregoing, the representations and warranties set forth in this Section 6.10 are qualified by and subject to the Permitted Encumbrances, the Title Insurance
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Page 40 policies delivered under this Agreement and any information and disclosures set forth in any zoning report or other written materials delivered by Borrower to Administrative Agent in connection with the Existing Loans. 6.11 Certificates of Occupancy. To Borrower’s knowledge and belief, all certificates of occupancy and other permits and licenses necessary or required in connection with the use and occupancy of the Improvements as currently used or occupied have been validly issued and are in full force and effect. There is no proceeding pending or, to Xxxxxxxx’s knowledge, threatened in writing, that seeks to rescind, terminate or suspend any such certificates of occupancy. 6.12 Utilities; Roads; Access. To Borrower’s knowledge and belief, all utility services necessary for the operation of the Improvements for their intended purposes have been fully installed, including telephone service, cable television, water supply, storm and sanitary sewer facilities, natural gas and electric facilities, including cabling for telephonic and data communication, and the capacity to send and receive wireless communication. To Borrower’s knowledge and belief, all roads and other accesses necessary to serve the Land and Improvements have been completed, are serviceable in all weather, and where required by the appropriate Governmental Authority, have been dedicated to and formally accepted by such Governmental Authority. 6.13 Other Liens. Except for the Existing Loans and any contracts for labor, materials and services furnished or to be furnished in connection with any construction at any Property, including any construction of capital improvements and tenant improvements, Borrower has made no material contract or arrangement of any kind the performance of which by the other party thereto would give rise to a lien on such Property. 6.14 No Defaults. To Borrower’s knowledge and belief, except for the Existing Loans (i) there is no Default or Potential Default under any of the Loan Documents, and (ii) there is no default or event of default under any material contract, agreement or other document related to the construction or operation of the Improvements. 6.15 Reserved. 6.16 No Broker. Except as expressly disclosed by Xxxxxxxx to Administrative Agent in writing, no financial advisers, brokers, underwriters, placement agents, agents or finders have been dealt with by Borrower, Guarantor or any Affiliate thereof in connection with the Loan. 6.17 Not a Foreign Person. Xxxxxxxx is not a “foreign person” within the meaning of Section 1445 or 7701 of the Code. Without limiting the foregoing, Borrower is not a foreign corporation, foreign partnership, foreign trust, foreign estate or nonresident alien or a disregarded entity owned by any of them (as those terms are defined in the Code). 6.18 OFAC. Neither Borrower nor Guarantor, nor any of their respective subsidiaries, nor, to the knowledge of Borrower and Guarantor, any director, officer, employee, agent, Affiliate (excluding any shareholders of Pacific Oak Strategic Opportunity REIT, Inc. so long as Pacific Oak Strategic Opportunity REIT, Inc. maintains its status as an entity registered with the Securities Exchange Commission under the Securities Exchange Act of 1934, and such entity type at the time of such request is excluded from the definition of “legal entity customer” under
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Page 41 the then applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the Beneficial Ownership Regulation) or representative of Borrower, Guarantor or any of their subsidiaries, is a Prohibited Person. 6.19 Anti-Corruption Laws. Xxxxxxxx, Guarantor and their respective subsidiaries have conducted their businesses in compliance with the United States Foreign Corrupt Practices Act of 1977, the U.K. Bribery Act 2010, and other similar anti-corruption legislation in other jurisdictions, and Pacific Oak Capital Advisors, LLC, the investment advisor to Borrower and Guarantor, has instituted and maintained policies and procedures designed to promote and achieve compliance with such laws. 6.20 Affected Financial Institution. No Borrower nor any Guarantor is an Affected Financial Institution. 6.21 Beneficial Ownership Certification. The information included in the Beneficial Ownership Certification is true and correct in all respects. 6.22 Usury; Offsets. To Xxxxxxxx’s knowledge, the Loan Documents are not subject to any offsets, counterclaims or defenses by Xxxxxxxx, including the defense of usury. 6.23 Agreements. Except in each case with respect to the Existing Loans, to Borrower’s knowledge: (a) Borrower has not directly or indirectly conveyed, assigned or otherwise disposed of or Transferred (or agreed to do so) any development rights, air rights or other similar rights, privileges or attributes with respect to the Property, including those arising under any applicable zoning or land use ordinance or other Law; and (b) Borrower is not a party to any agreement or instrument or subject to any restriction which would materially and adversely affect Borrower or the Property, or Borrower’s business, properties or assets, operations or condition, financial or otherwise. To Borrower’s knowledge, Borrower is not in default in any material respect in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any material agreement or instrument to which it is a party or by which Borrower or the Property is bound. To Borrower’s knowledge, Borrower does not have any material financial obligation under any agreement or instrument to which Borrower is a party or by which Borrower or the Property is otherwise bound, other than (i) obligations incurred with the ordinary course of the operation of the Property and (ii) obligations under the Loan Documents. Neither Borrower, nor Xxxxxxxx’s Constituent Member, is a party to any contract, or is engaged in any transaction, which would constitute a breach of Section 5.7. Notwithstanding the foregoing, the covenants and agreements set forth in this Section 6.23 are qualified by and subject to the Permitted Encumbrances, the title policies delivered under this Agreement and any information and disclosures set forth in any zoning report or other written materials delivered by Borrower to Administrative Agent in connection with the Existing Loans. 6.24 Management Agreements. The Management Agreement is in full force and effect and to Borrower’s knowledge, there is no material default thereunder by any party thereto, and no event known to Borrower has occurred that, with the passage of time and/or the giving of notice would constitute an event of default thereunder. No management fees under the
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Page 42 Management Agreement are accrued and unpaid. Xxxxxxxx has delivered to Administrative Agent a true and complete copy of the Management Agreement. 6.25 Flood Zone. None of the Improvements are located, under the Flood Insurance Laws, in a Special Flood Hazard Area, or, if any portion of the Improvements is located within such area, Borrower is in compliance with Section 4.5(b) and has obtained the flood insurance prescribed therein. 6.26 Litigation. There is no judicial or administrative action, suit or proceeding pending (or, to Borrower’s knowledge, threatened) against Borrower, Guarantor or any other Person liable, directly or indirectly, for any of the Obligations, except as has been disclosed in writing to Administrative Agent in connection with the Loan. There is no suit, action, claim, investigation, inquiry, proceeding or demand pending (or, to Xxxxxxxx’s knowledge, threatened) against Borrower, Guarantor or against any other Person liable, directly or indirectly, for any of the Obligations or which affects any Property (including any which challenges or otherwise pertains to Borrower’s title to such Property) or the validity, enforceability or priority of any of the Loan Documents. There are no actions, suits or proceedings pending, or to Borrower’s knowledge threatened, against or affecting Borrower and/or any Property which, in each case, if adversely determined, would materially affect the ability of Borrower to perform its respective obligations under or under any of the Loan Documents, at law or in equity before any Governmental Authority. There are no actions or proceedings pending before any Governmental Authority, quasi-judicial body or administrative agency relating to compliance of a Property with any Laws or Requirements. 6.27 Reserved. 6.28 Leases. Except as disclosed to Administrative Agent prior to the date hereof in connection with the Existing Loans, the Leases, or otherwise communicated to Administrative Agent in writing: (a) Each rent roll delivered to Administrative Agent in connection with the Loan for each respective Property contains a true, correct and complete list of all existing Leases for the Property and all information set forth on such rent roll is true and correct in all material respects; (b) all Leases are valid and enforceable, and in full force and effect, and are unmodified except as stated therein, (c) to Borrower’s actual knowledge without duty of inquiry, no tenant under any Lease at each Property (other than the Xxxxxxx Property) is the subject of any bankruptcy, insolvency or similar proceeding; (d) the copies of the Leases and any related guaranties delivered to Administrative Agent in connection with the Existing Loan are true and complete in all material respects; (e) Borrower has no knowledge of any written notice of termination or default with respect to any Lease; (f) Borrower has not assigned or pledged any of the Leases, the Rents or any interests therein except to Administrative Agent (on behalf of the Lenders) and in connection with the Existing Loans; (g) no tenant or other party has an unexpired option, right of first refusal or other preferential right to purchase all or any portion of the Property; (g) no tenant has the unilateral right to terminate its Lease prior to expiration of the stated term of such Lease absent the occurrence of any casualty, condemnation or default by the applicable Borrower thereunder; and (h) no tenant has prepaid more than one (1) month’s rent in advance (except for security deposits and other charges collected in accordance with the terms of the applicable Lease).
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Page 45 (e) Borrower fails to promptly perform or comply with (i) any of the covenants contained in Article V, or (ii) any provision of this Agreement or any other Loan Document with respect to maintaining insurance, including the covenants contained in Section 4.5. (f) Borrower or Guarantor fails to comply with the requirements of Section 4.24. (g) Any material permit, license, certificate or approval that Borrower is required to obtain with respect to any construction activities at any Property or the operation, leasing or maintenance of the Improvements for any Property lapses or ceases to be in full force and effect for a period of thirty (30) days, unless (i) the failure to maintain any such permit, license, certificate or approval, by its nature, is not capable of being cured by payment of money and if such failure requires work to be performed, acts to be done or conditions to be removed which cannot reasonably, with due diligence, be performed, done or removed as the case may be within such period, (ii) within such period, Borrower commences to cure such failure and thereafter diligently prosecutes the cure thereof, and (iii) Borrower causes such failure to be cured no later than ninety (90) days after the date of such Notice from Administrative Agent. (h) A lien for the performance of work or the supply of materials filed against any Property, or any stop notice served on Borrower, any contractor of Borrower, Administrative Agent or any Lender, remains unsatisfied or unbonded for a period of thirty (30) days after the date of filing or service in violation of the terms of Section 4.4 above. (i) (i) Any Borrower or Guarantor files a bankruptcy petition or makes a general assignment for the benefit of creditors, (ii) a bankruptcy petition is filed against Borrower or Guarantor by, Borrower, Guarantor or any member of Borrower, Guarantor or any Affiliate thereof, or (iii) a bankruptcy petition is filed against Borrower or Guarantor by any Person other than Borrower, Guarantor or any member of Borrower, Guarantor or any Affiliate thereof and such involuntary bankruptcy petition continues undismissed for a period of ninety (90) days after the filing thereof. (j) Any Borrower or Guarantor applies for or consents in writing to the appointment of a receiver, trustee or liquidator of any Borrower, Guarantor, any Property, or all or substantially all of the other assets of any Borrower or Guarantor, or an order, judgment or decree is entered by any court of competent jurisdiction on the application of a creditor appointing a receiver, trustee or liquidator of any Borrower, Guarantor, any Property, or all or substantially all of the other assets of any Borrower or Guarantor, but only if any of the foregoing is not dismissed within ninety (90) days after such appointment, judgment or decree. (k) Any Borrower or Guarantor admits in writing its inability or fails generally to pay its debts as they become due (other than principal of the Loan due at maturity). (l) A final nonappealable judgment for the payment of money involving more than One Million Dollars ($1,000,000) is entered against any Borrower, and such Borrower fails to discharge the same, or fails to cause it to be discharged or bonded off to Administrative Agent’s satisfaction, within thirty (30) days from the date of the entry of such judgment, or any action is legally taken by a judgment creditor to attach or levy upon any assets of any Borrower or Guarantor to enforce such judgment.
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Page 46 (m) Unless the written consent of Administrative Agent is previously obtained, all or substantially all of the business assets of Borrower or Guarantor are sold, Borrower or Guarantor is dissolved, or there occurs any change in the form of business entity through which Borrower or Guarantor presently conducts its business or any merger or consolidation involving Borrower or Guarantor. (n) Without the prior written consent of Administrative Agent (which consent may be conditioned, among other matters, on the issuance of a satisfactory endorsement to the Title Insurance policy insuring Administrative Agent’s interest under any Security Instrument), the controlling interest in Borrower ceases to be owned, directly or indirectly, by Pacific Oak Strategic Opportunity REIT, Inc. (o) A judicial or nonjudicial forfeiture or seizure proceeding is commenced by a Governmental Authority and remains pending with respect to any Property or any part thereof, on the grounds such Property or any part thereof had been used to commit or facilitate the commission of a criminal offense by any Person, including any tenant, pursuant to any Law, including the Controlled Substances Act or the Civil Asset Forfeiture Reform Act, regardless of whether or not such Property or the applicable Security Instrument shall become subject to forfeiture or seizure in connection therewith. (p) If for any reason, without Administrative Agent’s specific written consent, any Loan Document ceases to be in full force and effect, or is declared null and void or unenforceable, in whole or in part, or the validity or enforceability thereof, in whole or in part, is challenged or denied by any party thereto other than Administrative Agent; or the liens, mortgages or security interests of Administrative Agent for the benefit of Lenders in any Property become unenforceable, in whole or in part, or cease to be of the priority herein required, or the validity or enforceability thereof, in whole or in part, is challenged or denied by Xxxxxxxx, Guarantor or any Person obligated to pay any part of the Indebtedness. (q) Reserved. (r) Borrower or Guarantor knowingly and intentionally conceals, removes, or permits to be concealed or removed, any part of its property, with intent to hinder, delay or defraud its creditors or any of them, or makes or suffers a transfer of any of its property which may be fraudulent under any applicable fraudulent conveyance law or Debtor Relief Law; or makes any transfer of its property to or for the benefit of a creditor at a time when other creditors similarly situated have not been paid; or suffers or permits, while insolvent, any creditor to obtain a lien upon any of its property through legal proceedings which are not vacated and such lien is not discharged prior to enforcement thereof or in any event within sixty (60) days from the date thereof. 7.2 Remedies. Upon the occurrence and during the continuance of a Default, Administrative Agent at its election may (but shall not be obligated to) without the consent of and shall at the direction of the Required Lenders, without notice, exercise any and all rights and remedies afforded by this Agreement, the other Loan Documents, Law, equity or otherwise, including (a) declaring any and all Indebtedness immediately due and payable (provided that, without limitation of the foregoing, upon the occurrence of an actual or deemed entry of an order
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Page 48 contracting parties. With respect to any matter that requires, in accordance with the terms hereof or of any other Loan Document, the consent or approval of any or all Lenders, Borrower shall be entitled to conclusively rely on any written notification provided by Administrative Agent to Borrower that such consent or approval has been obtained. (b) Notwithstanding any provision to the contrary contained elsewhere herein or in any other Loan Document, Administrative Agent shall not have any duties or responsibilities except those expressly set forth herein, and its duties and responsibilities shall be administrative in nature. Without limiting the generality of the foregoing, Administrative Agent and its Related Parties: (i) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default has occurred and is continuing, and no implied covenants, functions, responsibilities, obligations or liabilities shall be read into this Agreement or any other Loan Document or otherwise exist against Administrative Agent or its Related Parties; (ii) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents), provided that Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and (iii) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty or responsibility to disclose, and shall not be liable for the failure to disclose, any information relating to Xxxxxxxx, Guarantor or any of their Related Parties that is communicated to or obtained by the Person serving as Administrative Agent or any of its Related Parties in any capacity. (c) No individual Lender or group of Lenders shall have any right to amend or waive, or consent to the departure of any party from any provision of any Loan Document, or secure or enforce the obligations of Borrower or any other party pursuant to the Loan Documents, or otherwise. All such rights, on behalf of Administrative Agent or any Lender or Lenders, shall be held and exercised solely by and at the option of Administrative Agent for the pro rata benefit of the Lenders. Such rights, however, are subject to the rights of a Lender or Lenders, as expressly set forth in this Agreement, to approve matters or direct Administrative Agent to take or refrain from taking action as set forth in this Agreement. Except as expressly otherwise provided in this Agreement or the other Loan Documents, Administrative Agent shall have and may use its sole discretion with respect to exercising or refraining from exercising any discretionary rights, or taking or refraining from taking any actions which Administrative Agent is expressly entitled to exercise or take under this Agreement and the other Loan Documents, including (i) the determination if and to what extent matters or items subject to Administrative Agent’s
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Page 55 Contract, and payment and satisfaction in full of all Indebtedness; (ii) constituting a release, transfer or sale of a lien or Collateral if Borrower will certify to Administrative Agent that the release, transfer or sale is permitted under this Agreement or the other Loan Documents (and Administrative Agent may rely conclusively on any such certificate, without further inquiry); or (iii) after foreclosure or other acquisition of title (1) in the discretion of Administrative Agent if a purchase price of at least ninety percent (90%)) of the value indicated in the most recent appraisal of the collateral obtained by Administrative Agent and made in accordance with regulations governing Administrative Agent, less any reduction indicated in the appraised value estimated by any experts in the applicable areas engaged by Administrative Agent; or (2) if approved by the Required Lenders. (b) If all or any portion of the Collateral is acquired by foreclosure or by deed in lieu of foreclosure, Administrative Agent shall take title to the Collateral in its name or by an Affiliate of Administrative Agent, but for the benefit of all Lenders in their Pro Rata Shares on the date of the foreclosure sale or recordation of the deed in lieu of foreclosure (the “Acquisition Date”). Administrative Agent and all Lenders hereby expressly waive and relinquish any right of partition with respect to any collateral so acquired. After any Collateral is acquired, Administrative Agent shall appoint and retain one or more Persons (individually and collectively, the “OREO Property Manager”) experienced in the management, leasing, sale and/or disposition of similar properties. As of the Acquisition Date, the insurance policies referred to in Section 4.5 (including unearned premiums) and all proceeds payable thereunder shall vest in Administrative Agent for the benefit of all Lenders in their Pro Rata Shares, to the extent permissible under such policies. (c) After consulting with the OREO Property Manager, Administrative Agent shall prepare a written plan for operation, management, improvement, maintenance, repair, sale and disposition of the Collateral and a budget for the aforesaid, which may include a reasonable management fee payable to Administrative Agent (the “Business Plan”). Administrative Agent will deliver the Business Plan not later than the sixtieth (60th) day after the Acquisition Date to each Lender with a written request for approval of the Business Plan. If the Business Plan is approved by the Required Lenders, Administrative Agent and the OREO Property Manager shall adhere to the Business Plan until a different Business Plan is approved by the Required Lenders. Administrative Agent may propose an amendment to the Business Plan as it deems appropriate, which shall also be subject to Required Lender approval. If the Business Plan (as may be amended) proposed by Administrative Agent is not approved by the Required Lenders, or if sixty (60) days have elapsed following the Acquisition Date without a Business Plan being proposed by Administrative Agent, any Lender may propose an alternative Business Plan, which Administrative Agent shall submit to all Lenders for their approval. If an alternative Business Plan is approved by the Required Lenders, Administrative Agent may appoint one of the approving Lenders to implement the alternative Business Plan. Notwithstanding any other provision of this Agreement, unless in violation of an approved Business Plan or otherwise in an emergency situation, Administrative Agent shall, subject to Section 8.10(a), have the right but not the obligation to take any action in connection with the Collateral (including those with respect to all Real Property Taxes, Insurance Premiums, operation, management, improvement, maintenance, repair, sale and disposition), or any portion thereof.
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Page 58 (a) Waivers and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of “Required Lenders” and Section 9.9. (b) Any payment of principal, interest, fees or other amounts received by Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 7 or otherwise) or received by Administrative Agent from a Defaulting Lender pursuant to Section 9.7 shall be applied at such time or times as may be determined by Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to Administrative Agent hereunder; second, as Borrower may request (so long as no Default or Potential Default exists), to the funding of any advance in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by Administrative Agent; third, if so determined by Administrative Agent and Xxxxxxxx, to be held in a deposit account and released pro rata in order to satisfy such Defaulting Lender’s potential future funding obligations with respect to advances under this Agreement; fourth, to the payment of any amounts owing to the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against such Defaulting Lender as a result of such Defaulting Xxxxxx’s breach of its obligations under this Agreement; fifth, so long as no Default or Potential Default exists, to the payment of any amounts owing to Borrower as a result of any judgment of a court of competent jurisdiction obtained by Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and sixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any advances in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such advances were made at a time when the conditions for same, if any, were satisfied or waived, such payment shall be applied solely to pay the advances of all Non- Defaulting Lenders on a pro rata basis prior to being applied to the payment of any advances of such Defaulting Lender until such time as all advances are held by the Lenders pro rata in accordance with the Commitments hereunder. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto. 8.13.2 Defaulting Lender Cure. If Xxxxxxxx and Administrative Agent agree in writing that a Lender is no longer a Defaulting Lender, Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein, that Lender will, to the extent applicable, purchase at par that portion of outstanding advances of the other Lenders or take such other actions as Administrative Agent may determine to be necessary to cause the Commitments (and outstanding principal balance of all advances) to be held on a pro rata basis by the Lenders in accordance with their Pro Rata Shares, whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Xxxxxx’s having been a Defaulting Lender.
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Page 61 Administrative Agent’s and Lenders’ protection only, and shall not constitute an assumption of responsibility to Borrower or anyone else with regard to the condition, value, construction, maintenance or operation of the Property, or relieve Borrower or Guarantor of any of its obligations. 9.1.2 Indemnification by Xxxxxxxx. Borrower shall indemnify Administrative Agent (and any sub-agent thereof), each Lender and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from (a) any claim, action, loss or cost (including reasonable attorneys’ fees and costs of Administrative Agent, and to the extent provided under Section 4.16, Lenders) arising from or relating to (i) the Leases, the Property, the Improvements and the other Property, including any defect therein, (ii) all accounts of Borrower or the Property, (iii) the performance or default of Borrower, Xxxxxxxx’s surveyors, architects, engineers, contractors, the construction inspector, or any other Person, (iv) any failure to construct, complete, protect or insure any Improvements, including Tenant Improvements, (v) the payment of costs of labor, materials, or services supplied for the construction of any Improvements, including Tenant Improvements, (vi) the protection, preservation, operation, management, improvement, maintenance, repair, sale and disposition of each Property (including those with respect to Real Property Taxes, Insurance Premiums, and leasing costs and broker fees) or (vii) the performance of any obligation of Borrower whatsoever; (b) any and all losses, claims, damages, liabilities and related expenses (including the reasonable fees, charges and disbursements of any outside counsel for Administrative Agent, and to the extent provided under Section 4.16, Lenders), incurred by such Indemnitee or asserted against such Indemnitee by any Person (including Borrower or Guarantor) arising out of, in connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument expressly contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder, the consummation of the transactions contemplated hereby or thereby, or, in the case of Administrative Agent (and any sub agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents (including in respect of any matters addressed in Section 2.1), (ii) any Commitment or Advance of the Loan, (iii) the content or accuracy of any appraisal provided by Administrative Agent to Xxxxxxxx, Xxxxxxxx’s use of any such appraisal, and/or subsequent use of any such appraisal by any third party to whom Xxxxxxxx provides such appraisal, or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding, whether it is defeated, successful, or withdrawn), whether brought by a third party or by Borrower or Guarantor, and regardless of whether any Indemnitee is a party thereto, including all actual out-of-pocket costs and expenses incurred by any Indemnitee in connection with any subpoena, deposition or otherwise acting as a witness, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE (all of the foregoing, collectively, the “Indemnified Liabilities”); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence, or willful misconduct of such Indemnitee or (z) result from a claim not involving an act or omission of Borrower and that is brought by an Indemnitee against another Indemnitee (other than against the arranger or
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Page 63 and each of the Lenders may, at its option, create one or more copies of any Communication in the form of an imaged Electronic Record (“Electronic Copy”), which shall be deemed created in the ordinary course of such Person’s business, and destroy the original paper document. All Communications in the form of an Electronic Record, including an Electronic Copy, shall be considered an original for all purposes, and shall have the same legal effect, validity and enforceability as a paper record. Notwithstanding anything contained herein to the contrary, Administrative Agent is under no obligation to accept an Electronic Signature in any form or in any format unless expressly agreed to by Administrative Agent pursuant to procedures approved by it; provided, further, without limiting the foregoing, (a) to the extent Administrative Agent has agreed to accept such Electronic Signature, Administrative Agent and each of the Lenders shall be entitled to rely on any such Electronic Signature purportedly given by or on behalf of Borrower or any Guarantor without further verification and regardless of the appearance or form of such Electronic Signature and (b) upon the request of Administrative Agent or any Lender, any Communication executed using an Electronic Signature shall be promptly followed by a manually executed, original counterpart. For purposes hereof, “Electronic Record” and “Electronic Signature” shall have the meanings assigned to them, respectively, by 15 USC §7006, as it may be amended from time to time. 9.2.4 Severability. A determination that any provision of this Agreement or any other Loan Document is unenforceable or invalid shall not affect the enforceability or validity of any other provision and the determination that the application of any provision of this Agreement to any Person or circumstance is illegal or unenforceable shall not affect the enforceability or validity of such provision as it may apply to other Persons or circumstances. The parties shall endeavor in good faith negotiations to replace the unenforceable or invalid provisions with valid provisions the economic effect of which comes as close as possible to that of the unenforceable or invalid provisions. The unenforceability or invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Without limiting the foregoing provisions of this Section 9.2.4, if and to the extent that the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by Administrative Agent, then such provisions shall be deemed to be in effect only to the extent not so limited. 9.2.5 Time of the Essence. Time shall be of the essence with respect to Borrower’s obligations under the Loan Documents. 9.2.6 GOVERNING LAW. THIS AGREEMENT AND EACH OTHER LOAN DOCUMENT (EXCEPT TO THE EXTENT EXPRESSLY SET FORTH THEREIN), AND THEIR RESPECTIVE VALIDITY, ENFORCEMENT AND INTERPRETATION, SHALL BE GOVERNED BY THE LAWS OF THE STATE OF CALIFORNIA (WITHOUT REGARD TO ANY CONFLICT OF LAWS PRINCIPLES) AND APPLICABLE UNITED STATES FEDERAL LAW. 9.2.7 Electronic Delivery. (a) Documents required to be delivered pursuant to Section 4.9, and Exhibit “B” (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically (including by use of the Platform, the Online Banking Portal, or such
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Page 64 other delivery method as may be approved by Administrative Agent) and if so delivered, shall be deemed to have been delivered on the date (i) on which Borrower posts such documents, uploads such documents on the Platform, the Online Banking Portal, or such other delivery method as may be approved by Administrative Agent; or (ii) on which such documents are posted on Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and Administrative Agent have access (whether a commercial, third-party website or whether sponsored by Administrative Agent); provided that: (A) Borrower shall deliver paper copies of such documents to Administrative Agent or any Lender upon its request to Borrower to deliver such paper copies until a written request to cease delivering paper copies is given by Administrative Agent or such Lender and (B) Borrower shall notify Administrative Agent and each Lender (by facsimile or electronic mail) of the posting of any such documents and provide to Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Administrative Agent shall have no obligation to request the delivery of or to maintain paper copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by Borrower with any such request by a Lender for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents. (b) Borrower hereby acknowledges that (i) Administrative Agent and/or Arranger may, but shall not be obligated to, make available to the Lenders materials and/or information provided by or on behalf of Borrower hereunder (collectively, “Borrower Materials”) by posting Borrower Materials on Debt Domain, IntraLinks, Syndtrak or another similar electronic system (the “Platform”) and (ii) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Person’s securities. Borrower hereby agrees that so long as Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (A) by marking Borrower Materials “PUBLIC,” Borrower shall be deemed to have authorized Administrative Agent, Arranger and Lenders to treat Borrower Materials as not containing any material non-public information with respect to Borrower or its securities for purposes of United States Federal and state securities Laws (provided, however, that to the extent Borrower Materials constitute Information, they shall be treated as set forth in Section 9.5); (B) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information,” and (C) Administrative Agent and Arranger shall be entitled to treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.” Notwithstanding the foregoing, no Borrower shall be under any obligation to mark any Borrower Materials “PUBLIC.” 9.2.8 Notices; Electronic Communication. (a) Notices Generally. Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in clause (b) below), all
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Page 65 notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile or electronic mail as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows: (i) to the address, facsimile number, electronic mail address or telephone number specified for notices as follows (unless changed by similar notice in writing given by the particular party whose address is to be changed): (1) if to Borrower at the addresses set forth on the signature page of this Agreement, (2) if to any Guarantor at the addresses set forth on the signature page of the Guaranty, (3) or if to Administrative Agent to the addresses set forth on the Schedule of Lenders; (ii) if to any other Lender, to the address, facsimile number, electronic mail address or telephone number specified in its Administrative Questionnaire (including, as appropriate, notices delivered solely to the Person designated by a Lender on its Administrative Questionnaire then in effect for the delivery of notices that may contain material non-public information relating to Borrower); Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient); provided, however, that service of a notice required by any applicable statute shall be considered complete when the requirements of that statute are met. Notices and other communications delivered through electronic communications to the extent provided in sub clause (b) below, shall be effective as provided in such clause (b). (b) Electronic Communications. Notices and other communications to Lenders hereunder may be delivered or furnished by electronic communication (including e-mail, and Internet or intranet websites) pursuant to procedures approved by Administrative Agent. Administrative Agent or Borrower may each, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications. Unless Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgment from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgment), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (i) of notification that
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Page 66 such notice or communication is available and identifying the website address therefor; provided that, for both clauses (i) and (ii), if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice, email or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient. (c) The Platform. THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON- INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM. In no event shall Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to Borrower, any Lender, or any other Person for losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising out of Borrower’s, any Guarantor’s or Administrative Agent’s transmission of Borrower Materials or notices through the Platform, any other electronic platform or electronic messaging service, or through the Internet. (d) Change of Address, Etc. Each of Borrower or Administrative Agent may change its address, facsimile or telephone number for notices and other communications hereunder by written notice to the other parties hereto. Each other Lender may change its address, facsimile or telephone number for notices and other communications hereunder by written notice to Xxxxxxxx and Administrative Agent. In addition, each Xxxxxx agrees to notify Administrative Agent from time to time to ensure that Administrative Agent has on record (i) an effective address, contact name, telephone number, facsimile number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore, each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and Applicable Law, including United States Federal and state securities Laws, to make reference to Borrower Materials that are not made available through the “Public Side Information” portion of the Platform and that may contain material non-public information with respect to Borrower or its securities for purposes of United States Federal or state securities laws. (e) Reliance by Administrative Agent and Xxxxxxx. Administrative Agent and Lenders shall be entitled to rely and act upon any notices (including telephonic Loan advance notices and any notices received by Administrative Agent given through the Online Banking Portal) purportedly given by or on behalf of Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. Borrower shall indemnify each Indemnitee from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of Borrower. All telephonic notices to and other communications with Administrative
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Page 68 Commitment and Pro Rata Share of the Loan at the time owing to it); provided that any such assignment shall be subject to the following conditions: (i) Minimum Amounts. (A) in the case of an assignment of the entire remaining amount of the assigning Xxxxxx’s Commitment and Pro Rata Share of the Loan at the time owing to it or contemporaneous assignments to related Approved Funds that equal at least the amount specified in Section 9.4(b)(i)(B) in the aggregate or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and (B) in any case not described in Section 9.4(b)(i)(A), the aggregate amount of the Commitment (which for this purpose includes the Pro Rata Share of the Loan outstanding) or, if the Commitment is not then in effect, the principal outstanding Pro Rata Share of the Loan that is subject to each such assignment, determined as of the date of the “Effective Date” specified in the Assignment and Assumption, shall not be less than Ten Million Dollars ($10,000,000) unless each of Administrative Agent and, so long as no Default has occurred and is continuing, Borrower otherwise consent (each such consent not to be unreasonably withheld or delayed), and, with respect to any consent of Borrower, shall be deemed given if Administrative Agent does not receive a written disapproval from Borrower within five (5) Business Days after delivery of any request for consent. Borrower shall not be required to execute any documents in connection with any such assignment that expand any of the obligations of Borrower hereunder or under any of the other Loan Documents or create any additional covenants, representations or warranties of Borrower hereunder or thereunder. (ii) Proportionate Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Xxxxxx’s rights and obligations under this Agreement with respect to its Pro Rata Share of the Loan and the Commitment assigned. (iii) Required Consents. No consent shall be required for any assignment except to the extent required by Section 9.4(b)(i)(B) and, in addition: (A) the consent of Borrower (such consent not to be unreasonably withheld or delayed; it being understood and agreed that it shall be reasonable for Borrower to withhold its consent if, as a result of such assignment (X) Borrower will be required to make additional payments in respect of Indemnified Taxes as provided in Section 2.1, or (Y) Xxxxxxxx demonstrates to Administrative Agent’s reasonable satisfaction that, in the future, Borrower will likely be required to make additional payment in respect of Indemnified Taxes as provided in Section 2.1) shall be required unless (1) a Default has occurred and is continuing at the time of such assignment or (2) such assignment is to a Lender, an Affiliate of a
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Page 69 Lender or an Approved Fund; provided that Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to Administrative Agent within five (5) Business Days after having received notice thereof, and provided, further, that Xxxxxxxx’s consent shall not be required during the primary syndication of the Loan; and (B) the consent of Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required if such assignment is to a Person that is not a Lender, an Affiliate of such Lender or an Approved Fund with respect to such Lender. (iv) Assignment and Assumption. The parties to each assignment shall execute and deliver to Administrative Agent an Assignment and Assumption, together with a processing and recordation fee in the amount of Three Thousand Five Hundred Dollars ($3,500); provided, however, that Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to Administrative Agent an Administrative Questionnaire. (v) No Assignment to Certain Persons. No such assignment shall be made (A) to Borrower, Guarantor or any other Person liable for any part of the Obligations or any Affiliate or Subsidiary of the foregoing, (B) to any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (B), or (C) to a natural Person. (vi) Certain Additional Payments. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of Borrower and Administrative Agent, the applicable Pro Rata Share of the Loan previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to Administrative Agent or any Lender hereunder (and interest accrued thereon) and (y) acquire (and fund as appropriate) its full Pro Rata Share of the Loan. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable Law without compliance with the provisions of this Section 9.4(b), then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs. Subject to acceptance and recording thereof by Administrative Agent pursuant to Section 9.4(c), from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under
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Page 74 in Administrative Agent’s reasonable determination shall not have a Material Adverse Effect; provided, however, that otherwise no such amendment, waiver or consent shall be effective unless in writing, signed by the Required Lenders and Borrower or the applicable party to the Loan Documents, as the case may be, and acknowledged by Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; and provided, further, that no such amendment, waiver or consent shall: (a) extend or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section 7.2), without the written consent of such Lender (it being understood that a waiver of a Default shall not constitute an extension or increase in any Lender’s Commitment); (b) except in accordance with Section 1.6(b) and Exhibit “I” hereof, postpone any date fixed by this Agreement or any other Loan Document for any payment of principal, interest, fees or other amounts due to Lenders (or any of them) hereunder or under any other Loan Document, without the written consent of each Lender directly affected thereby; (c) reduce the principal of, or the rate of interest specified herein on, any portion of the Loan, or any fees or other amounts payable hereunder or under any other Loan Document, without the written consent of each Lender directly affected thereby; provided, however, that Administrative Agent may waive any obligation of Borrower to pay interest at the Default Rate and/or late charges for periods of up to thirty (30) days, and only the consent of the Required Lenders shall be necessary to waive any obligation of Borrower to pay interest at the Default Rate or late charges thereafter, or to amend the definition of “Default Rate” or “late charges”; (d) change the percentage of the combined Commitments or of the aggregate unpaid principal amount of the Loan which is required for the Lenders or any of them to take any action hereunder, without the written consent of each Lender; (e) change the definition of “Pro Rata Share” or “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder, without the written consent of each Lender; (f) amend this Section 9.9, or Section 9.8, without the written consent of each Lender; (g) except in accordance with Section 4.27(d), release the liability of Borrower or any existing Guarantor without the written consent of each Lender; (h) permit the sale, transfer, pledge, mortgage or assignment of any Collateral or any direct or indirect interest in Borrower, except as expressly permitted under Section 4.27 of this Agreement or the other Loan Documents, without the written consent of each Lender; or (i) transfer or release any lien on, or after foreclosure or other acquisition of title by Administrative Agent on behalf of the Lenders transfer or sell, any Collateral except as permitted in Section 4.27 or Section 8.10, without the prior written consent of each Lender, and provided,
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Page 79 shall control every other covenant and agreement in this Agreement, the Note and the other Loan Documents. If applicable state or federal Law should at any time be judicially interpreted so as to render usurious any amount called for under any of the Loan Documents, or contracted for, charged, taken, reserved, or received with respect to the Loan, or if Administrative Agent’s exercise of the option to accelerate the Maturity Date, or if any prepayment by Borrower results in Borrower’s having paid any interest in excess of that permitted by applicable Law, then it is Administrative Agent’s and each Lender’s express intent that all excess amounts theretofore collected by Administrative Agent or any Lender shall be credited on the Principal Debt and all other Indebtedness and the provisions of the Loan Documents shall immediately be deemed reformed and the amounts thereafter collectible hereunder and thereunder reduced, without the necessity of the execution of any new documents, so as to comply with the applicable Law, but so as to permit the recovery of the fullest amount otherwise called for hereunder or thereunder. All sums paid or agreed to be paid to Lenders for the use, forbearance, or detention of 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 lawful rate from time to time in effect and applicable to the Loan for so long as the Loan is outstanding. 9.20 DISPUTE RESOLUTION PROVISION. This Section is referred to as the “Dispute Resolution Provision.” Administrative Agent, Xxxxxxx and Xxxxxxxx (and any other party to this Agreement) agree that this Dispute Resolution Provision is a material inducement for their entering into this Agreement. (a) Scope. This Dispute Resolution Provision concerns the resolution of any disputes, controversies, claims, counterclaims, allegations of liability, theories of damage, or defenses (collectively, a “Dispute” or “Disputes”) between Administrative Agent or any Lender, on the one hand, and Borrower and/or any obligor, on the other hand (each side being, for the purposes of this Dispute Resolution Provision, a “Party” and the two sides together being the “Parties”), regardless of whether based on federal, state, or local law, statute, ordinance, regulation, contract, common law, or any other source, and regardless of whether foreseen or unforeseen, suspected or unsuspected, or fixed or contingent at the time of this Agreement, including but not limited to Disputes that arise out of or relate to: (i) this Agreement (including any renewals, extensions, or modifications); or (ii) any document related to this Agreement. For purposes of this Dispute Resolution Provision only, the terms “Lender” or “Party” or “Parties” (to the extent referring to or including Lender) shall include any parent corporation, subsidiary or affiliate of Lender, and the terms “Borrower” or “Party” or “Parties” (to the extent referring to or including Borrower) shall include any parent corporation, subsidiary or affiliate of Borrower, as applicable. (b) Judicial Reference. Any Dispute brought by any Party in a California state court shall be resolved by a general reference to a referee (or a panel of referees) as provided in California Code of Civil Procedure Section 638. The referee (or presiding referee of the panel) shall be a retired Judge or Justice of the California state court system. The referee(s) shall be selected by mutual written agreement of the Parties. If the Parties do not agree, the referee(s) shall be selected by the Presiding Judge of the Court (or his or her representative) as provided in California Code of Civil Procedure Section 640. The referee(s) shall hear and determine all issues relating to the Dispute, whether of fact or of law, and shall do so in accordance with the
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Page 80 Laws of the State of California, and shall report a statement of decision. The referee(s) shall be empowered to enter equitable as well as legal relief, provide all temporary or provisional remedies, enter equitable and legal orders that will be binding on the Parties, and rule on any motion which would be authorized in court litigation, including motions to dismiss, for summary judgment, or for summary adjudication. The referee(s) shall award legal fees and costs (including the fees of the referee(s)) relating to the judicial reference proceeding, and to any related litigation or arbitration, in accordance with the terms of this Agreement. The award that results from the decision of the referee(s) shall be entered as a judgment in the court that appointed the referee(s), in accordance with the provisions of California Code of Civil Procedure Sections 644(a). Pursuant to California Code of Civil Procedure Sections 645, the Parties reserve the right to seek appellate review of any judgment or order, including but not limited to, orders pertaining to class certification, to the same extent permitted in a court of law. (c) Arbitration Provisions. The Parties agree that judicial reference pursuant to Subsection (b) above is the preferred method of dispute resolution of all Disputes, when available. The Parties therefore agree that injunctive relief, including a temporary restraining order, without the posting of any bond or security, shall be appropriate to enjoin the prosecution of any arbitration proceeding where the Disputes at issue become subject to (and as long as they remain subject to) judicial reference pursuant to Subsection (b) above, provided that, subject to the provisions of Subsection (g) below, a Party moves for such relief within thirty (30) days of its receipt of a demand for arbitration of a Dispute. However, with respect to any Dispute brought in a forum other than a California state court, or brought in a California state court but judicial reference pursuant to Subsection (b) above is not available or enforced by the court, subject to the provisions of Subsection (g) below, the arbitration provisions in this Subsection (c) (collectively, the “Arbitration Provisions”) shall apply to the Dispute. In addition, if either of the Parties serves demand for arbitration of a Dispute in accordance with these Arbitration Provisions, and the other Party does not move to enjoin the arbitration proceeding within thirty (30) days of receipt of the demand, the right to judicial reference shall be waived and, subject to the provisions of Subsection (g) below, the Dispute shall remain subject to these Arbitration Provisions thereafter. The inclusion of these Arbitration Provisions in this Agreement shall not otherwise be deemed as any limitation or waiver of the judicial reference provisions. The Arbitration Provisions are as follows: (i) For any Dispute for which these Arbitration Provisions apply, the Parties agree that at the request of any Party to this Agreement, such Dispute shall be resolved by binding arbitration. The Disputes shall be governed by the Laws of the State of California without regard to its conflicts of law principles. The Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (the “Act”), shall apply to the construction, interpretation, and enforcement of these Arbitration Provisions, as well as to the confirmation of or appeal from any arbitration award. (ii) Arbitration proceedings will be determined in accordance with the Act, the then-current Commercial Finance rules and procedures of the American Arbitration Association or any successor thereof (“AAA”) (or any successor rules for arbitration of financial services disputes), and the terms of these Arbitration Provisions. In the event of any inconsistency, the terms of these Arbitration Provisions shall control. The arbitration shall be administered by the Parties and not the AAA and shall be conducted, unless
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Page 81 otherwise required by Law, at a location selected solely by Administrative Agent in any U.S. state where real or tangible personal property collateral for this credit is located or where Borrower has a place of business. If there is no such state, Administrative Agent shall select a location in California. (iii) If aggregate Disputes are One Million Dollars ($1,000,000) or less: (A) All issues shall be heard and determined by one neutral arbitrator. The arbitrator shall have experience with commercial financial services disputes and, if possible, prior judicial experience, and shall be selected pursuant to the AAA “Arbitrator Select: List and Appointment” process, to be initiated by Administrative Agent. If the AAA “Arbitrator Select: List and Appointment” process is unavailable, Administrative Agent shall initiate any successor process offered by the AAA or a similar process offered by any other nationally recognized alternative dispute resolution organization. (B) Unless the arbitrator has a dispositive motion under advisement or unforeseeable and unavoidable conflicts arise (as determined by the arbitrator), all arbitration hearings shall commence within ninety (90) days of the appointment of the arbitrator, and under any circumstances the award of the arbitrator shall be issued within one hundred twenty (120) days of the appointment of the arbitrator. (C) A Party shall be entitled to take no more than two (2) fact depositions, one or both of which may be taken in accordance with Fed. R. Civ. P. 30(b)(6), plus depositions of any experts designated by the other Party, each of seven (7) hours or less, during pre-hearing discovery. (D) There shall be no written discovery requests except a Party may serve document requests on the other Party not to exceed twenty (20) in number, including subparts. The requests shall be served within forty-five (45) days of the appointment of the arbitrator and shall be responded to within twenty-one (21) days of service. (iv) If aggregate Disputes exceed One Million Dollars ($1,000,000): (A) The issues shall be heard and determined by one neutral arbitrator selected as above unless either Party requests that all issues be heard and determined by three (3) neutral arbitrators. In that event, each Party shall select an arbitrator with experience with commercial financial services disputes, and the two arbitrators shall select a third arbitrator, who shall have prior judicial experience. If the arbitrators cannot agree, the third arbitrator shall be selected pursuant to the AAA “Arbitrator Select: List and Appointment” process, to be initiated by Administrative Agent. (B) Unless the arbitrator(s) have a dispositive motion under advisement or other good cause is shown (as determined by the arbitrator(s)), all arbitration hearings shall commence within one hundred twenty (120) days of the appointment of the arbitrator(s), and under any circumstances the award of the
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Page 82 arbitrator(s) shall be issued within one hundred eighty (180) days of the appointment of the arbitrator(s). (C) A Party shall be entitled to take no more than five (5) fact depositions, one or more of which may be taken in accordance with Fed. R. Civ. P. 30(b)(6), plus depositions of any experts designated by the other Party, each of seven (7) hours or less, during pre-hearing discovery. (D) There shall be no written discovery requests except a Party may serve document requests on the other Party not to exceed thirty (30) in number, including subparts. The requests shall be served within forty-five (45) days of the appointment of the arbitrator(s) and shall be responded to within twenty-one (21) days of service. (v) Where a Party intends to rely upon the testimony of an expert on an issue for which the Party bears the burden of proof, the expert(s) must be disclosed within thirty (30) days following the appointment of the arbitrator(s), including a written report in accordance with Fed. R. Civ. P. 26(a)(2)(B). The arbitrator(s) shall exclude any expert not disclosed strictly in accordance herewith. The other Party shall have the right within thirty (30) days thereafter to take the deposition of the expert(s) (upon payment of the expert’s reasonable fees for the in-deposition time), and to identify rebuttal expert(s), including a written report in accordance with Fed. R. Civ. P. 26(a)(2)(B). (vi) The arbitrator(s) shall consider and rule on motions by the Parties to dismiss for failure to state a claim; to compel; and for summary judgment, in a manner substantively consistent with the corresponding Federal Rules of Civil Procedure. The arbitrator(s) shall enforce the “Apex” doctrine with regard to requested depositions of high-ranking executives of both Parties. The arbitrator(s) shall exclude any Dispute not asserted within thirty (30) days following the demand for arbitration. This shall not prevent a Party from revising the calculation of damages on any existing theory. All discovery shall close at least one (1) week before any scheduled hearing date, and all hearing exhibits shall have been exchanged by the same deadline or they shall not be given weight by the arbitrator(s). (vii) The arbitrator(s) will give effect to applicable statutes of limitations in determining any Dispute and shall dismiss the Dispute if it is barred by the statutes of limitations. For purposes of the application of any statutes of limitations, the service of a written demand for arbitration or counterclaim pursuant to the notice section of this Agreement is the equivalent of the filing of a lawsuit. At the request of any Party made at any time, including at confirmation of an award, the resolution of a statutes of limitations defense to any Dispute shall be decided de novo by a court of competent jurisdiction rather than by the arbitrator(s). Otherwise, any dispute concerning these Arbitration Provisions or whether a Dispute is arbitrable shall be determined by the arbitrator(s), except as otherwise set forth in this Dispute Resolution Provision. (viii) The arbitrator(s) shall have the power to award legal fees and costs relating to the arbitration proceeding and any related litigation or arbitration, pursuant to
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Page 83 the terms of this Agreement. The arbitrator(s) shall provide a written statement of reasons for the award. The arbitration award may be submitted to any court having jurisdiction to be confirmed and have judgment entered and enforced. (ix) The filing of a court action is not intended to constitute a waiver of the right of any Party, including the suing Party, thereafter to require submittal of the Disputes to arbitration. (x) The arbitration proceedings shall be private. All documents, transcripts, and filings received by any Party shall not be disclosed by the recipient to any third parties other than attorneys, accountants, auditors, and financial advisors acting in the course of their representation, or as otherwise ordered by a court of competent jurisdiction. Any award also shall be kept confidential, although this specific requirement shall be void once the award must be submitted to a court for enforcement. The Parties agree that injunctive relief, including a temporary restraining order, from a trial court is the appropriate relief for breach of this Subsection, and they waive any security or the posting of a bond as a requirement for obtaining such relief. (d) Self-Help. This Dispute Resolution Provision does not limit the right of any Party to: (i) exercise self-help remedies, such as but not limited to, setoff; (ii) initiate judicial or non- judicial foreclosure against any real or personal property collateral; (iii) exercise any judicial or power of sale rights; or (iv) act in a court of law to obtain an interim remedy, such as but not limited to, injunctive relief, writ of possession or appointment of a receiver, or additional or supplementary remedies. (e) Class Action Waiver. Any arbitration or court trial (whether before a judge or jury or pursuant to judicial reference) of any Dispute will take place on an individual basis without resort to any form of class or representative action (the “Class Action Waiver”). THE CLASS ACTION WAIVER PRECLUDES ANY PARTY FROM PARTICIPATING IN OR BEING REPRESENTED IN ANY CLASS OR REPRESENTATIVE ACTION REGARDING A CLAIM. Regardless of anything else in this Dispute Resolution Provision, the validity and effect of the Class Action Waiver may be determined only by a court or referee and not by an arbitrator. The Parties to this Agreement acknowledge that the Class Action Waiver is material and essential to the arbitration of any disputes between the Parties and is nonseverable from the agreement to arbitrate Disputes. If the Class Action Waiver is limited, voided, or found unenforceable, then the Parties’ agreement to arbitrate shall be null and void with respect to such proceeding, subject to the right to appeal the limitation or invalidation of the Class Action Waiver. THE PARTIES ACKNOWLEDGE AND AGREE THAT UNDER NO CIRCUMSTANCES WILL A CLASS ACTION BE ARBITRATED. (f) Jury Waiver. By agreeing to judicial reference or binding arbitration, the Parties irrevocably and voluntarily waive any right they may have to a trial by jury as permitted by Law in respect of any Dispute. Furthermore, without intending in any way to limit the provisions hereof, to the extent any Dispute is not submitted to judicial reference or arbitration, the Parties irrevocably and voluntarily waive any right they may have to a trial by jury to the extent permitted by Law in respect of such Dispute. This waiver of jury trial shall remain in effect even if the Class Action Waiver is limited, voided, or found unenforceable. WHETHER THE
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Page 84 CLAIM IS DECIDED BY JUDICIAL REFERENCE, BY ARBITRATION, OR BY TRIAL BY A JUDGE, THE PARTIES AGREE AND UNDERSTAND THAT THE EFFECT OF THIS DISPUTE RESOLUTION PROVISION IS THAT THEY ARE GIVING UP THE RIGHT TO TRIAL BY JURY TO THE EXTENT PERMITTED BY LAW. EACH PARTY HERETO (i) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER DOCUMENTS CONTEMPLATED HEREBY BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION, AND (iii) CERTIFIES THAT THIS WAIVER IS KNOWINGLY, WILLINGLY, AND VOLUNTARILY MADE. (g) Real Property Secured Dispute. Notwithstanding any provision in this Agreement or any other Loan Document to the contrary, in no event shall the Arbitration Provisions apply to any Dispute if the Dispute, at the time of the proposed submission to arbitration, arises from or relates to an obligation to Administrative Agent or Lender secured by real property. In this case, all of the parties to this Agreement, in their sole and absolute discretion, must consent to submission of the Dispute to arbitration. 9.21 Service of Process. Borrower hereby irrevocably designates and appoints Xxxxxxx Xxxxxx as Xxxxxxxx’s authorized agent to accept and acknowledge on Xxxxxxxx’s behalf service of any and all process that may be served in any suit, action, or proceeding instituted in connection with the Loan in any state or federal court sitting in the State of California. If such agent shall cease so to act, Borrower shall irrevocably designate and appoint without delay another such agent reasonably satisfactory to Administrative Agent and shall promptly deliver to Administrative Agent evidence in writing of such agent’s acceptance of such appointment and its agreement that such appointment shall be irrevocable. Borrower hereby consents to process being served in any suit, action, or proceeding instituted in connection with the Loan by (a) the mailing of a copy thereof by certified mail, postage prepaid, return receipt requested, to Borrower and (b) serving a copy thereof upon the agent hereinabove designated and appointed by Borrower as Xxxxxxxx’s agent for service of process. Borrower irrevocably agrees that such service shall be deemed to be service of process upon Borrower in any such suit, action, or proceeding. Nothing herein or in any other Loan Document shall (i) affect the right of Administrative Agent to serve process in any manner otherwise permitted by Law or (b) limit the right of Administrative Agent on behalf of the Lenders otherwise to bring proceedings against Borrower in the courts of any jurisdiction or jurisdictions. 9.22 No Delays; Defaults. No delay or omission of Administrative Agent or Lenders to exercise any right, power or remedy accruing upon the happening of a Default shall impair any such right, power or remedy or shall be construed to be a waiver of any such Default or any acquiescence therein. No delay or omission on the part of Administrative Agent or Lenders to exercise any option for acceleration of the maturity of the Indebtedness, or for foreclosure of any Security Instrument following any Default as aforesaid, or any other option granted to
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Page 85 Administrative Agent and Xxxxxxx hereunder in any one or more instances, or the acceptances by Administrative Agent or Lenders of any partial payment on account of the Obligations, shall constitute a waiver of any such Default, and each such option shall remain continuously in full force and effect. No remedy herein conferred upon or reserved to Administrative Agent and/or Lenders is intended to be exclusive of any other remedies provided for in any Note or any of the other Loan Documents, and each and every such remedy shall be cumulative, and shall be in addition to every other remedy given hereunder, or under any Note or any of the other Loan Documents, or now or hereafter existing at Law or in equity or by statute. Every right, power and remedy given to Administrative Agent and Lenders by this Agreement, any Note or any of the other Loan Documents shall be concurrent, and may be pursued separately, successively or together against Borrower, Guarantor, any other Person liable for any part of the Obligations, the Property, or any other Collateral, and every right, power and remedy given by this Agreement, any Note or any of the other Loan Documents may be exercised from time to time as often as may be deemed expedient by the Required Lenders. No application of payments will cure any Default, or prevent acceleration, or continued acceleration, of amounts payable under the Loan Documents, or prevent the exercise, or continued exercise, of rights or remedies of Administrative Agent and Lenders hereunder or thereunder or at Law or in equity. 9.23 USA PATRIOT Act; Beneficial Ownership. Each Lender that is subject to the PATRIOT Act (as hereinafter defined) and Administrative Agent (for itself and not on behalf of any Lender) hereby notify Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “PATRIOT Act”) and 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”), they are required to obtain, verify and record information that identifies Xxxxxxxx, which information includes the name and address of Borrower, a Beneficial Ownership Certification, and other information that will allow such Lender or Administrative Agent, as applicable, to identify Borrower in accordance with the PATRIOT Act and the Beneficial Ownership Regulation. Borrower shall, promptly following a written request by Administrative Agent or any Lender, provide all documentation and other information that Administrative Agent or such Lender reasonably requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act and the Beneficial Ownership Regulation (provided, however, so long as Pacific Oak Strategic Opportunity REIT, Inc. maintains its status as an entity registered with the Securities Exchange Commission under the Securities Exchange Act of 1934, and such entity type at the time of such request is excluded from the definition of “legal entity customer” under the then applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act and the Beneficial Ownership Regulation, no information regarding the shareholders of Pacific Oak Strategic Opportunity REIT, Inc. shall be required). 9.24 Acknowledgement and Consent to Bail-In of Affected Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Lender that is an Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
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Page 86 (a) the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any Lender that is an Affected Financial Institution; and (b) the effects of any Bail-in Action on any such liability, including, if applicable; (i) a reduction in full or in part or cancellation of any such liability; (ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or (iii) the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of the applicable Resolution Authority. 9.25 Acknowledgement Regarding Any Supported QFCs. To the extent that the Loan Documents provide support, through a guaranty, mortgage, or otherwise, for any Swap Contract or any other agreement or instrument that is a QFC (such support, “QFC Credit Support”, and each such QFC, a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “U.S. Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States): In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
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Page 92 transfer or conveyance under Section 548 of the Bankruptcy Code or any comparable provisions of any similar federal or state law. (b) Administrative Agent and Xxxxxxx may bring an action against any Borrower, whether an action is brought against the other Borrowers. Each Borrower agrees that any release which may be given by Administrative Agent or any Lender to any other Borrower will not release such Borrower from its obligations under this Agreement or any of the other Loan Documents. (c) Each Borrower waives any right to assert against Administrative Agent or any Lender any defense, setoff, counterclaim or claim that such Borrower may have against any other Borrower or any other party liable to Administrative Agent or any Lender for the obligations of such Borrower under this Agreement or any of the other Loan Documents. (d) Each Borrower agrees that it is solely responsible for keeping itself informed as to the financial condition of any other Borrowers and of all circumstances which bear upon the risk of nonpayment. Each Borrower waives any right it may have to require Administrative Agent or any Lender to disclose to such Borrower any information that Administrative Agent or any Lender may now or hereafter acquire concerning the financial condition of any other Borrowers. (e) Each Borrower waives all rights to notices of default or nonperformance by any other Borrower under this Agreement and the other Loan Documents. Each Borrower further waives all rights to notices of the existence or the creation of new indebtedness by any other Borrower. (f) Until all obligations of Borrower under this Agreement and the other Loan Documents have been paid or otherwise performed in full, each Borrower waives any right of subrogation, reimbursement, indemnification and contribution (contractual, statutory or otherwise), including any claim or right of subrogation under the Bankruptcy Code or any successor statute, that such Borrower may now or hereafter have against any other Borrower with respect to the Obligations. Each Borrower waives any right to enforce any remedy which Administrative Agent or any Lender now has or may hereafter have against any other Borrower, and waives any benefit of, and any right to participate in, any security now or hereafter held by Administrative Agent or Lenders. (g) Each Borrower hereby waives any election of remedies by Administrative Agent or any Lender that impairs any subrogation or other right of such Borrower to proceed against any other Borrower or other person, including any loss of rights resulting from any applicable anti deficiency laws relating to nonjudicial foreclosures of real property or other laws limiting, qualifying or discharging obligations or remedies. (h) The parties hereto recognize and acknowledge that a Borrower may from time to time have advanced to it under the Loan an aggregate principal amount in excess of the borrowing that would otherwise be supported by Collateral owned by such Borrower and encumbered under a Security Instrument. The Loan has been established in the manner provided herein (and with the possible result referred to in the foregoing sentence) at the express request of, and to accommodate the administrative and operational requirements of, Borrowers and
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Page 93 Guarantor. Specifically, the Loan might have been established to provide a limit on direct borrowings by each Borrower consistent with the specific borrowing base limitations imposed by Collateral owned by such Borrower, with additional credit needs of such Borrower in excess thereof being accommodated by inter-company loans from Borrower(s) with excess borrowing capacity to such other Borrower requiring additional funds. However, for administrative and operational reasons imposed by Xxxxxxxxx and Guarantor, as aforesaid, the Loan has been established as provided herein, but with the intention, as confirmed in subsection (i) below, that Borrowers ultimately share, among themselves, repayment obligations under the Loan to the same extent as if such borrowings had been made under the alternative disbursement procedure described in the preceding sentence. (i) Without limiting the joint and several liability of each Borrower to Administrative Agent and the Lenders under this Agreement, the Note and other Loan Documents, each Borrower hereby severally covenants and commits to indemnify and hold harmless each other Borrower from and against any liability (in the form of indebtedness repaid to Administrative Agent and Lenders under the Loan, including foreclosure under any Security Instrument) incurred by such other Borrower to Administrative Agent and Lenders under or pursuant to this Agreement or any Note in respect of such indebtedness incurred by the indemnifying Borrower. The effect of the foregoing shall be that, as between the Borrowers, each shall be responsible to reimburse the other Borrowers to the end that each Borrower hereunder ultimately bears the burden of payment of its respective share of indebtedness incurred under and pursuant to the Loan. (j) In connection with the Borrowers’ joint and several obligations under the Loan Documents, each Borrower hereby waives the following rights and defenses: (i) any defense based upon any legal disability or other defense of any other Borrower, or by reason of the cessation or limitation of the liability of any other Borrower from any cause other than full payment of all sums payable under the Note or any of the other Loan Documents; (ii) any defense based upon any lack of authority of the officers, directors, partners or agents acting or purporting to act on behalf of any Borrower or any principal thereof or any defect in the formation of any Borrower or any such principal; (iii) any defense based upon the application by any Borrower of the proceeds of the Loan for purposes other than the purposes permitted under this Agreement or any other Loan Document; (iv) any and all rights and defenses arising out of an election of remedies by Administrative Agent and/or any Lender, even though that election of remedies, such as non-judicial foreclosure with respect to security for any Property, has destroyed all rights of any party to a deficiency judgment against the owner of such Property of subrogation and reimbursement against the principal by the operation of any applicable anti- deficiency law or otherwise, and, as a consequence, will destroy all rights which any Borrower would otherwise have (including, without limitation, the right of subrogation, the right of reimbursement, and the right of contribution) to proceed against such other Borrower; (v) any defense based upon Xxxxxx’s failure to disclose any information concerning any other Borrower’s financial condition or any other circumstances bearing on any other Borrower’s ability to pay all sums payable under any Note or any of the other Loan Documents; (vi) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in any other respects ore burdensome than that of a principal; (vii) any defense based upon the Lender’s election, in any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code or any
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Page 94 successor statute; (viii) any defense based upon, any borrowing or any grant of a security interest under Section 364 of the Bankruptcy Code; (ix) any right of subrogation, any right to enforce any remedy which Administrative Agent and/or the Lenders may have against any other Borrower and any right to participate in, or benefit from, any security for the Notes or the other Loan Documents now or hereafter held by Administrative Agent and/or any Lender; (x) to the extent permitted by Law, any defense or benefits that may be derived from CCP Sections 580a, 580b, 580d or 726, or comparable provisions of the Laws of any other jurisdiction and all other anti-deficiency and one form of action defenses under the Laws of California and any other jurisdiction, (xi) to the extent permitted by Law, any right to a fair value hearing under CCP Section 580a, or any other similar Law, to determine the size of any deficiency owing (for which any Borrower would be liable hereunder) following a non-judicial foreclosure sale, (xii) to the extent permitted by Law, any rights, defenses and benefits that may be derived from Sections 2787 to 2855, inclusive, of the California Civil Code or comparable provisions of the Laws of any other jurisdiction, and (xiii) the benefit of any statute of limitations affecting the liability of each Borrower or the enforcement hereof. Each Borrower agrees that the payment of all sums payable under the Note or any of the other Loan Documents or any part thereof or other act which tolls any statute of limitations applicable to the Note or other Loan Documents shall similarly operate to toll the statute of limitations applicable to each Borrower’s liability hereunder. Without limiting the generality, of the foregoing or any other provision hereof, each Borrower expressly waives to the extent permitted by law any and all rights and defenses which might otherwise be available to it under applicable law. Subject to the terms and conditions of this Agreement, Administrative Agent may (A) apply security and direct the order or manner of sale thereof as Administrative Agent in its sole discretion may determine; and (B) release, substitute or add any one or more endorsers of the Note or guarantors of Borrowers’ obligations under the Note or the other Loan Documents. If all or any portion of the Obligations of any Borrower are paid or performed, the Obligations of each other Borrower hereunder shall continue and shall remain in full force and effect in the event that all or any part of such payment or performance is avoided or recovered directly or indirectly from Administrative Agent or any Lender as a preference, fraudulent transfer or otherwise under the Bankruptcy Code or other similar laws, irrespective of full payment and performance of all of the indebtedness and obligations evidenced and secured by the Loan Documents. (k) Without limiting subsection (j) above, each Borrower hereby specifically waives presentment, demand, protest and notice of any kind and without limiting the generality of the foregoing or any provision of subsection (j) above, each Borrower further expressly waives to the extent permitted by law any and all rights and defenses, including, without limitation, any rights of subrogation, and, except as expressly provided for in this Agreement, any rights of reimbursement, indemnification and contribution, which might otherwise be available to such Borrower. (l) In any provision of this Agreement where any Borrower makes a representation, warranty or covenant, such representation, warranty or covenant shall constitute a separate representation, warranty or covenant made by each Borrower as to itself as to the content and substance thereof; (m) In any provision of this Agreement where any Borrower makes an agreement or covenant, such agreement or covenant shall be a separate agreement or covenant of each
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Page 96 9.36 Amendment and Restatement; No Novation. This Agreement constitutes an amendment and restatement of the Existing Marquette Loan Agreement effective from and after the Closing Date. From and after the Closing Date, this Agreement shall exclusively control and govern the mutual rights and obligations of the parties hereto with respect to the Loan, and the Existing Marquette Loan Agreement shall be superseded by this Agreement in all respects, in each case, on a prospective basis only. The execution and delivery of this Agreement shall not constitute a novation of the loan or other obligations owing to Administrative Agent or Lenders under the Existing Marquette Loan Agreement based on facts or events occurring or existing prior to the execution and delivery of this Agreement. On the Closing Date, the loan described in the Existing Marquette Loan Agreement shall be amended, supplemented, modified and restated in its entirety by the Loan described herein. Any inconsistency between the terms of this Agreement and the Existing Marquette Loan Agreement shall be controlled by the terms hereof. THE WRITTEN LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. [The balance of this page is intentionally left blank.]
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[Signature Page to Amended and Restated Loan Agreement] PACIFIC OAK SOR AUSTIN SUBURBAN PORTFOLIO, LLC, a Delaware limited liability company By: Pacific Oak SOR Acquisition XVIII, LLC, a Delaware limited liability company, its sole member By: Pacific Oak SOR Properties, LLC, a Delaware limited liability company, its sole member By: Pacific Oak SOR (BVI) Holdings, Ltd., a British Virgin Islands company limited by shares, its sole member By: Pacific Oak Strategic Opportunity Limited Partnership, a Delaware limited partnership, its sole shareholder By: Pacific Oak Strategic Opportunity REIT, Inc., a Maryland corporation, its sole general partner By: /s/ Xxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxx Title: Chief Financial Officer [Signatures continued on following page]
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[Signature Page to Amended and Restated Loan Agreement] PACIFIC OAK SOR II OAKLAND CITY CENTER, LLC, a Delaware limited liability company By: Pacific Oak SOR II Acquisition VII, LLC, a Delaware limited liability company, its sole member By: Pacific Oak SOR US Properties II LLC, a Delaware limited liability company, its sole member By: Pacific Oak Strategic Opportunity Limited Partnership II, a Delaware limited partnership, its sole member By: Pacific Oak SOR II, LLC, a Maryland limited liability company, its sole general partner By: Pacific Oak SOR II Holdings, LLC, a Maryland limited liability company, its sole member By: Pacific Oak SOR Properties, LLC, a Delaware limited liability company, its sole member By: Pacific Oak SOR (BVI) Holdings, Ltd., a British Virgin Islands company limited by shares, its sole member By: Pacific Oak Strategic Opportunity Limited Partnership, a Delaware limited partnership, its sole shareholder By: Pacific Oak Strategic Opportunity REIT, Inc., a Maryland corporation, its sole general partner By: /s/ Xxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxx Title: Chief Financial Officer [Signatures continued on following page]
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[Signature Page to Amended and Restated Loan Agreement] PACIFIC OAK SOR MARQUETTE PLAZA, LLC, a Delaware limited liability company By: Pacific Oak SOR Acquisition XXXIII, LLC, a Delaware limited liability company, its sole member By: Pacific Oak SOR Properties, LLC, a Delaware limited liability company, its sole member By: Pacific Oak SOR (BVI) Holdings, Ltd., a British Virgin Islands company limited by shares, its sole member By: Pacific Oak Strategic Opportunity Limited Partnership, a Delaware limited partnership, its sole shareholder By: Pacific Oak Strategic Opportunity REIT, Inc., a Maryland corporation, its sole general partner By: /s/ Xxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxx Title: Chief Financial Officer Borrower’s Address for Notices: 1180 Xxxxxxx Xxxxx Renewal, LLC; Pacific Oak SOR Austin Suburban Portfolio, LLC; Pacific Oak SOR II Oakland City Center, LLC; and Pacific Oak SOR Marquette Plaza, LLC c/o Pacific Oak Capital Advisors LLC 0000 Xxxx Xxxxxx Xxxxx, Xxxxx 000 Xxxxx Xxxx, Xxxxxxxxxx 00000 Attn: Xxxxx Xxxxxxxx Telephone: (000) 000-0000 Electronic Mail: xxxxxxxxx@xxx-xxx.xxx [Signatures continue on following page]
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[Signature Page to Amended and Restated Loan Agreement] BANK OF AMERICA, N.A., a national banking association, individually as Administrative Agent, and a Lender By: /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Title: Senior Vice President
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B-1 EXHIBIT “B” DEFINITIONS 1. DEFINITIONS: As used in this Agreement and the attached exhibits, the following terms shall have the following meanings: “Actual Operating Revenue” means, with respect to any period of time, all income, computed on an annualized basis in accordance with generally accepted accounting principles, consistently applied, from the ownership and operation of the Property, on a combined basis, from whatever source (other than any source affiliated with Borrower or Guarantor), including Rents, utility charges, escalations, service fees or charges, license fees, parking fees, other required pass-throughs, and, with respect to any Lease executed (or that commences) during the applicable Calculation Period, income generated by such Lease calculated as if the Lease was in effect as of the first day of such Calculation Period, but excluding sales, use and occupancy or other Taxes on receipts required to be accounted for by the applicable Borrower to any Governmental Authority, refunds from tenants, uncollectible accounts, sales of furniture, fixtures and equipment, interest income, Condemnation Awards, Insurance Proceeds (other than business interruption or other loss of income insurance), unforfeited security deposits, utility and other similar deposits, income from tenants not paying rent, income from tenants in bankruptcy, and non-recurring or extraordinary income, including lease termination payments. Except as otherwise expressly provided herein, Actual Operating Revenue shall be net of rent concessions and credits. Actual Operating Revenue shall be subject to appropriate seasonal and other adjustments in Administrative Agent’s reasonable discretion. “Additional Advance” means a single advance of Loan proceeds on the Closing Date in the amount of One Hundred Twenty-Seven Million, Five Hundred Seventy-Six Thousand Four Hundred Forty-One and 77/100 Dollars ($127,576,441.77). “Administrative Agent” means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent. “Administrative Agent Advances” has the meaning set forth in Section 8.12(a). “Administrative Agent’s Office” means Administrative Agent’s address and, as appropriate, account as set forth on the Schedule of Lenders, or such other address or account as Administrative Agent hereafter may from time to time notify Borrower and Lenders. “Administrative Agent’s Time” means the time of day observed in the city where Administrative Agent’s Office is located, provided that so long as Bank of America shall serve as Administrative Agent, “Administrative Agent’s Time” shall mean Pacific time. “Administrative Questionnaire” means an Administrative Questionnaire in a form approved by Administrative Agent. “Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
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B-2 “Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. “Agent Parties” has the meaning set forth in Section 9.2.8(c). “Aggregate Commitments” means the Commitments of all Lenders. “Agreement” has the meaning set forth in the introductory paragraph of this Agreement, and includes all exhibits attached hereto and referenced in Section 1.1. “Amended and Restated Marquette Security Instrument” means that certain Amended and Restated Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing executed and delivered by Xxxxxxxxx Xxxxxxxx, in favor of in favor of Administrative Agent as security for the Obligations and encumbering the Property described therein, as the same may be amended, restated, supplemented or modified from time to time, which amends and restates in its entirety the Existing Marquette Mortgage. “Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender. “Approved Manager” means Borrower, and with respect to any Property, CBRE, Inc., a Delaware corporation, Transwestern, Xxxxx Xxxx LaSalle, Pinnacle Property Management Services Northeast LLC, a Delaware limited liability company, or any other reputable and creditworthy property manager, subject to the prior approval of Administrative Agent, not to be unreasonably withheld, with a portfolio of properties comparable to the applicable Property under active management. “Arranger” means Bank of America, N.A., in its capacity as sole lead arranger and sole bookrunner. “Assignment and Assumption” means an Assignment and Assumption substantially in the form of Exhibit “E”. “Austin Land” means the real property described in Exhibit “A-2” attached hereto. “Austin Property” means the real and personal property conveyed and encumbered by the Security Instrument executed and delivered by Xxxxxx Xxxxxxxx in favor of Administrative Agent as security for the Obligations. “Authorized Person” means any representative of Borrower duly designated by Borrower in the Borrower’s Instruction Certificate, authorized in accordance with the governing documents of Borrower and all Laws applicable to Borrower, to bind Borrower requesting disbursements of Loan proceeds. An Authorized Person may also have the authority to perform Online Facility Transactions that may be granted to an Authorized Portal User under any Online Banking Portal if designated as such by an Authorized Signer in the Online Portal Agreements. Authorized Person also includes any individual who is an Authorized Person of a Controlling Entity of Borrower.
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B-3 “Authorized Portal User” means any and all individuals to whom access to an Online Banking Portal is granted, whether (a) by such individual being designated as an authorized user (or other applicable designation) of such Online Banking Portal as set forth in the Online Portal Agreements, or (b) by such individual utilizing log-in credentials of an authorized user (or other applicable designation) of such Online Banking Portal, or (c) in any other manner pursuant to the terms of the Online Portal Agreements. “Authorized Signer” means any representative of Borrower duly designated by Borrower as such in the Borrower’s Instruction Certificate, authorized in accordance with the governing documents of Borrower and all applicable Laws to: (a) bind Borrower and to act for Borrower for all purposes in connection with the Loan, including but not limited to, requesting disbursements of Loan proceeds, requesting interest rate changes, obtaining information pertaining to the Loan, requesting any action under the Loan Documents, providing any certificates, and appointing and changing any Authorized Persons; and (b) delegate his/her authority to any Authorized Portal User solely to allow such Authorized Portal Users to perform Online Facility Transactions on any Online Banking Portal in accordance with the terms of this Agreement and the Online Portal Agreements. Authorized Signer includes, as to any Borrower, any individual who is an Authorized Signer of a Controlling Entity of such Borrower. “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution. “Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, rule, regulation or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings). “Bank of America” means Bank of America, N.A. and its successors. “Bankruptcy Code” means Title 11 of the United States Code, as in effect from time to time. “Base Rate” means, on any day, a fluctuating rate per annum equal to the Base Rate Margin plus the highest of: (a) the Federal Funds Rate for that day plus ½ of 1%, (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “Prime Rate,” or (c) one percent (1.00%). “Base Rate Margin” means one hundred seventy-five (175) basis points per annum. “Base Rate Principal” means, at any time, the Principal Debt minus the portion, if any, of such Principal Debt which is BSBY Rate Principal. “Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.
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B-4 “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230. “Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in and subject to Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”. “BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party. “Bloomberg” means Bloomberg Index Services Limited. “Borrower” has the meaning set forth in the introductory paragraph of this Agreement. Notwithstanding the foregoing, upon the release of such Borrower and the release or reconveyance of a Property owned by a particular Borrower from the lien of the applicable Security Instrument pursuant to Section 4.27, such Borrower shall cease to be a “Borrower” for all purposes under this Agreement. “Borrower Detail Form” means Borrower’s detail form provided in the form attached hereto as Exhibit “P”. “Borrower Materials” has the meaning set forth in Section 9.2.7. “Borrower’s Deposit Account” means an account established with Administrative Agent pursuant to the terms of Section 4.7. “Borrower’s Instruction Certificate” means a certificate provided by or on behalf of Borrower in the form attached hereto as Exhibit “N”, designating certain Authorized Persons and Authorized Signers as set forth therein. “BSBY” means the Bloomberg Short-Term Bank Yield Index rate. “BSBY Daily Floating Rate” means, for any day, a fluctuating rate of interest per annum equal to the BSBY Screen Rate two (2) Business Days prior to such day for a term of one (1) month; provided that if the rate is not published on such determination date then BSBY Daily Floating Rate means the BSBY Screen Rate on the first (1st) Business Day immediately prior thereto; provided, further, if the BSBY Daily Floating Rate determined in accordance with the foregoing provisions of this definition would otherwise be less than zero percent (0.00%), the BSBY Daily Floating Rate shall be deemed zero percent (0.00%) for purposes of this Agreement. “BSBY Margin” means two hundred seventy-five (275) basis points per annum. “BSBY Rate” means, for any day, a fluctuating rate per annum equal to the BSBY Margin plus the BSBY Daily Floating Rate.
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B-5 “BSBY Rate Advance” means an advance of the Loan by Lenders to Borrower or any portion of the Loan held by a Lender which bears interest at an applicable BSBY Rate at the time in question. “BSBY Rate Principal” means any portion of the Principal Debt which bears interest at an applicable BSBY Rate at the time in question. “BSBY Replacement Date” has the meaning specified in Section 2.4. “BSBY Screen Rate” means BSBY as administered by Bloomberg (or any successor administrator satisfactory to Administrative Agent) and published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by Administrative Agent from time to time). “Budget” has the meaning set forth in Section 4.9(c). “Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, the state where Administrative Agent’s Office is located and, if such day relates to any BSBY Rate Advance or BSBY Rate Principal, in New York City. “Business Plan” has the meaning set forth in Section 8.10(c). “Calculation Period” means the three (3) month period ending on the applicable Determination Date. “Casualty” means any act or occurrence of any kind or nature that results in damage, loss or destruction to the Property. “Change in Law” means the occurrence, after the Closing Date, of any of the following: (a) the adoption or taking effect of any Law, (b) any change in any Law or in the administration, interpretation, implementation or application thereof by any Governmental Authority, or (c) the making or issuance of any request, rule, guideline, or directive (whether or not having the force of Law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith or in the implementation thereof and (y) all requests, rules, guidelines, or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority), or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted, or issued. “Checking Account” means account no. ending in XXXX of Administrative Borrower maintained with Administrative Agent (or such other account of Administrative Borrower maintained with Administrative Agent as Administrative Borrower may from time to time designate).
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B-6 “Civil Asset Forfeiture Reform Act” means the Civil Asset Forfeiture Reform Act of 2000 (18 U.S.C. Sections 983 et seq.), as amended from time to time, and any successor thereto. “Claim” means any liability, suit, action, claim, demand, loss, expense, penalty, fine, judgment or other cost of any kind or nature whatsoever, including fees, costs and expenses of attorneys, consultants, contractors and experts. “Closing Checklist” means that certain Closing Requirements and Checklist setting forth the conditions for closing the Loan and recording each Security Instrument. “Closing Date” means the date of this Agreement. “Collateral” means any property of Borrower that is subject to a lien or security interest security any of the Obligations pursuant to any Security Instrument or any other Loan Document. “Code” means the Internal Revenue Code of 1986, as amended from time to time. “Commitment” means, as to each Lender, its obligation to advance its Pro Rata Share of the Loan in an aggregate principal amount not exceeding the amount set forth opposite such Lender’s name on the Schedule of Lenders at any one time outstanding, as such amount may be reduced or adjusted from time to time in accordance with this Agreement. “Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute. “Communication” has the meaning set forth in Section 9.2.3. “Condemnation” means any taking of title to, use of, or any other interest in the Property under the exercise of the power of condemnation or eminent domain, whether temporarily or permanently, by any Governmental Authority or by any other Person acting under or for the benefit of a Governmental Authority. “Condemnation Awards” means any all judgments, awards of damages (including severance and consequential damages), payments, proceeds, settlements, amounts paid for a taking in lieu of Condemnation, or other compensation hereafter made, including interest thereon, and the right to receive the same, as a result of, or in connection with, any Condemnation or threatened Condemnation. “Conforming Changes” means, with respect to the use, administration of or any conventions associated with BSBY or any proposed Successor Rate, as applicable, any conforming changes to the definition of “BSBY,” timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters (including, for the avoidance of doubt, the definition of “Business Day,” timing of borrowing requests or prepayment, conversion or continuation notices and length of lookback periods) as may be appropriate, in the discretion of Administrative Agent, to reflect the adoption and implementation of such applicable rate, and to permit the administration thereof by Administrative Agent in a manner substantially consistent with market practice (or, if Administrative Agent determines that adoption of any portion of such market practice is not
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B-7 administratively feasible or that no market practice for the administration of such rate exists, in such other manner of administration as Administrative Agent determines is reasonably necessary in connection with the administration of this Agreement and any other Loan Document). “Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes. “Constituent Member” means the constituent members or other direct equity owners of a Person. “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto. “Controlled Substances Act” means the Controlled Substances Act (21 U.S.C. Sections 801 et seq.), as amended from time to time, and any successor statute. “Controlling Entity” means any entity having the power and authority to Control the business and activities and otherwise bind Borrower, pursuant to the governing documents of Borrower and applicable Law, such as a general partner of a partnership or a manager or managing member of a limited liability company. “Covered Entity” means any of the following: (i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). “Covered Party” has the meaning set forth in Section 9.25. “Credit Party” has the meaning set forth in Section 8.19. “Daily Simple SOFR” with respect to any applicable determination date means the secured overnight financing rate (“SOFR”) published on such date by the Federal Reserve Bank of New York, as the administrator of the benchmark (or a successor administrator) on the Federal Reserve Bank of New York’s website (or any successor source). “Debt Service” means as of any Determination Date, the payments of principal and interest that would have been payable under a hypothetical loan during a twelve (12) month period, assuming (a) an initial loan balance equal to the Principal Debt then outstanding, (b) an imputed interest rate equal to the greater of (i) seven and one-quarter of one percent (7.25%) per annum, and (ii) the then applicable ten (10) year Treasury bond yield plus two and one-half of one percent (2.5%) per annum, and (c) amortization of the principal indebtedness over a thirty (30) year amortization period.
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B-8 “Debt Service Coverage Ratio” means, as of any Determination Date, for the applicable Calculation Period the ratio, as determined by Administrative Agent, of Net Operating Income to Debt Service as determined by Xxxxxxxx and approved by Administrative Agent it its reasonable discretion. “Debtor Relief Law(s)” means the Bankruptcy Code of the United States, and all other applicable liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States or other applicable jurisdictions from time to time in effect. “Default” has the meaning set forth in Section 7.1. “Default Rate” shall have the meaning set forth in Section 1.4.5. “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable. “Defaulting Lender” means, subject to Section 8.13.2, any Lender that (a) has failed to (i) fund all or any portion of its advances within two (2) Business Days of the date such advances were required to be funded hereunder unless such Lender notifies Administrative Agent and Borrower in writing that such failure is the result of such Xxxxxx’s determination that one or more conditions precedent to advances (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to Administrative Agent or any Lender any other amount required to be paid by it hereunder within two (2) Business Days of the date when due, (b) has notified Borrower or Administrative Agent in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund an advance hereunder and states that such position is based on such Xxxxxx’s determination that a condition precedent to funding (which condition precedent together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request by Administrative Agent or Borrower to confirm in writing to Administrative Agent and Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by Administrative Agent and Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity , or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow, or disaffirm any contracts or agreements made with such Lender. Any determination by Administrative Agent that a Lender
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B-9 is a Defaulting Lender under any one or more of clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 8.13.2) as of the date established therefor by Administrative Agent in a written notice of such determination, which shall be delivered by Administrative Agent to Borrower and each Lender promptly following such determination. “Designated Jurisdiction” means any country or territory to the extent that such country or territory itself is the subject of any Sanction. “Determination Date” means any date as of which Administrative Agent shall calculate the Debt Service Coverage Ratio. “EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent. “EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway. “EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution. “Electronic Copy” has the meaning set forth in Section 9.2.3. “Electronic Record” has the meaning set forth in Section 9.2.3. “Electronic Signature” has the meaning set forth in Section 9.2.3. “Eligible Assignee” means any Person that meets the requirements to be an assignee under Sections 9.4(b)(iii) and (v) (subject to such consents, if any, as may be required under Section 9.4(b)(iii)). “Environmental Agreement” means the Amended and Restated Environmental Indemnity Agreement, dated as of the Closing Date, by and between Borrower and Administrative Agent for the benefit of Lenders and certain other parties, as amended, modified, replaced, restated, extended or renewed from time to time. “ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder. “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
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B-10 “Excluded Taxes” means any of the following Taxes imposed on or with respect to any Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the Laws of, or having its principal office or, in the case of any Lender, its Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in an advance of the Loan or a Commitment pursuant to a Law in effect on the date on which (i) such Lender acquires such interest in such advance of the Loan or Commitment (other than pursuant to an assignment request by Borrower under Section 2.7) or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 2.1(a)(ii), (a)(iii) or (c), amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.1(e) and (d) any U.S. federal withholding Taxes imposed pursuant to FATCA. “Existing Loans” means individually and the Existing Marquette Loan and Other Existing Loans. “Existing Marquette Loan” has the meaning given to such term in the recitals. “Existing Marquette Loan Agreement” has the meaning given to such term in the recitals. “Expenses” means all actual, out-of-pocket fees, charges, costs and expenses of any nature whatsoever incurred at any time and from time to time (whether before or after a Default) by Administrative Agent or any Lender in making, funding, administering or modifying the Loan, in negotiating or entering into any “workout” of the Loan, or in exercising or enforcing any rights, powers and remedies provided in each Security Instrument or any of the other Loan Documents, including reasonable attorneys’ fees, court costs, receiver’s fees, management fees and costs incurred in the repair, maintenance and operation of, or taking possession of, or selling, the Property. “Extension Term” has the meaning set forth in Section 1.6(b). “FATCA” means Sections 1471 through 1474 of the Code, as of the Closing Date (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code. “Federal Funds Rate” means, for any day, the rate per annum calculated by the Federal Reserve Bank of New York based on such day’s federal funds transactions by depository institutions (as determined in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the federal funds effective rate; provided that if the Federal Funds Rate as so determined would be less than zero, such rate shall be deemed to be zero for purposes of this Agreement. “FEMA” means the Federal Emergency Management Agency or any successor agency.
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B-11 “Financial Statements” means for each reporting party, a balance sheet, income statement, statements of cash flow, cash flow projections (cash flow projections to be provided only at fiscal year-end and upon Administrative Agent’s request), real estate schedules providing details on each individual real property in the reporting party’s portfolio, including, but not limited to raw land, land under development, construction in process and stabilized properties and unless Administrative Agent otherwise consents, consolidated and consolidating statements if the reporting party is a holding company or a parent of a subsidiary entity. For purposes of this definition and any covenant requiring the delivery of Financial Statements, each party for whom Financial Statements are required is a “reporting party” and a specified period to which the required Financial Statements relate is a “reporting period.” “First Extended Maturity Date” means September 1, 2027. “Flood Insurance Laws” means, collectively, (a) the National Flood Insurance Act of 1968, (b) the Flood Disaster Protection Act of 1973, and (c) the National Flood Insurance Reform Act of 1994, and any regulation promulgated thereto, each as amended and together with any successor Law of such type. “Foreign Lender” means (a) if Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction other than that in which Borrower is resident for tax purposes. For purposes of this definition, the United States, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction. “Fund” means any Person (other than a natural Person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities. “Funding Date” means the date on which the Advance shall occur. “Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank). “Guarantor” means PACIFIC OAK SOR PROPERTIES, LLC, a Delaware limited liability company. “Guaranty” means the Amended and Restated Guaranty Agreement of even date herewith executed by Guarantor in favor of Administrative Agent for the ratable benefit of Lenders, as the same may from time to time be extended, amended, restated, supplemented or otherwise modified. “Hedge Bank” means any Person in its capacity as a Swap Counterparty.
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B-12 “Improvements” means all buildings, structures and replacements thereof and other improvements now or hereafter existing, erected or placed on any of the Land, including all fixtures of every kind and nature whatsoever forming part of said structures and/or buildings together with any on-site improvements and off-site improvements in any way used or to be used in connection with the use, enjoyment, occupancy or operation of any of the Land. Notwithstanding the foregoing, upon the release or reconveyance of a Property from the lien of the applicable Security Instrument pursuant to Section 4.27(d), the Improvements located on and comprising such Property shall cease to be “Improvements” for all purposes under this Agreement. “Indebtedness” means any and all obligations, indebtedness and liabilities of Borrower that constitute Obligations. “Indemnified Liabilities” has the meaning set forth in Section 9.1. “Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of Borrower or Guarantor under any Loan Document and (b) to the extent not otherwise described in clause (a), Other Taxes. “Initial Maturity Date” means September 1, 2026. “Insurance Premiums” means those premiums due in connection with any insurance policies required to be maintained by Borrower pursuant to any Loan Document. “Insurance Proceeds” means the insurance claims under and the proceeds of any and all policies of insurance covering the Property or any part thereof, including all returned and unearned premiums with respect to any insurance relating to such Property, in each case whether now or hereafter existing or arising. “KYC Equity Ownership Percentage” means the percentage of direct or indirect ownership interests in the Borrower owned by a Person following a transfer which results in Administrative Agent’s or any Lender’s internal policies reasonably requiring a description of such transfer, the interest transferred and the identity of the transferor and transferee, including, without limitation, all documentation and other information that Administrative Agent or any Lender reasonably requests in order to comply with its ongoing obligations (as determined by Administrative Agent or such Lender) under applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), provided, however, that any change in the KYC Equity Ownership Percentage shall not be effective until Administrative Agent or the applicable Lender has notified Borrower in writing of such change. “Land” means, individually and collectively, (a) the Xxxxxxx Xxxx, (b) the Austin Land, (c) the Oakland Land, and (d) the Marquette Land. Notwithstanding the foregoing, upon the release or reconveyance of a Property from the lien of the applicable Security Instrument pursuant to Section 4.27(d), the land comprising such Property shall cease to be “Land” for all purposes under this Agreement.
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B-13 “Law” or “Laws” means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law. With respect to Borrower and the Property, “Law” or “Laws” includes the PATRIOT Act and all regulations promulgated thereunder, and all Laws pertaining to the construction, sale, leasing or use of the Improvements and to access and facilities for handicapped or disabled persons, including and to the extent applicable, any building codes, the Controlled Substances Act, the Flood Insurance Laws, the Federal Architectural Barriers Act (42 U.S.C. § 4151 et seq.), the Fair Housing Amendments Act of 1988 (42 U.S.C. § 3601 et seq.), the Americans With Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.), the Rehabilitation Act of 1973 (29 U.S.C. § 794), each as amended to date and further amended from time to time. “Lease(s)” means all leases, license agreements and other occupancy or use agreements (whether oral or written), now or hereafter existing, which cover or relate to the Property or any part thereof, together with all options therefor, amendments thereto and renewals, modifications and guaranties thereof, including any cash or security deposited under the Leases to secure performance by the tenants of their obligations under the Leases, whether such cash or security is to be held until the expiration of the terms of the Leases or applied to one or more of the installments of rent coming due thereunder. “Leasing Commissions” means reasonable and customary commissions paid in connection with a Lease to a real estate broker licensed in the state where the applicable Property is located, under commission agreements containing such terms and provisions as are then prevailing between third party, unaffiliated owners and brokers for comparable leases of space at properties similar to such Property in the market area in which such Property is located. “Lender” or “Lenders” means, singly or collectively, each lender from time to time party to this Agreement. “Lender Net Disposition Proceeds” has the meaning set forth in Section 8.10(e). “Lending Office” means, as to any Lender, the office or offices of such Lender described as such on the Schedule of Lenders, or such other office or offices as such Lender may from time to time notify Borrower and Administrative Agent. “Loan” means the Existing Marquette Loan, as modified and increased hereby to the maximum principal amount of One Hundred Eighty-Eight Million Thirty-Five Thousand Nine Hundred Forty-Three and No/100 Dollars ($188,035,943.00). “Loan Documents” means this Agreement (including all exhibits), each Security Instrument, any Note, the Environmental Agreement, the Manager Subordination Agreement, any Swap Contract, the Guaranty, financing statements, and such other documents evidencing,
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B-14 securing or pertaining to the Loan as shall, from time to time, be executed and/or delivered by Xxxxxxxx, Guarantor or any other Person to Administrative Agent or any Lender pursuant to this Agreement, as they may be amended, modified, restated, replaced and supplemented from time to time. “Loan-to-Value Ratio” means, as of any date of determination, (i) the outstanding principal balance of the Loan, divided by (ii) the combined appraised “As-Is” value of the Property set forth in a then-current appraisal of the Property obtained by Administrative Agent as of any calculation of the Loan-to-Value Ratio. “Management Agreement” means a separate agreement entered into by an Approved Manager and each Borrower in accordance with this Agreement with respect to the Property owned by such Borrower, and any replacement management agreement therefor. “Manager Subordination Agreement” means, individually and collectively, using an interpretation most favorable to Administrative Agent and Lenders, or as the context shall require, each separate Assignment and Subordination of Property Management Agreement dated as of or after the Closing Date, by and among Administrative Agent, Borrower and the Approved Manager for the Property, as amended, modified, replaced, restated, extended or renewed from time to time. “Marquette Land” means the real property described in Exhibit “A-4” attached hereto. “Marquette Property” means the real and personal property conveyed and encumbered by the Amended and Restated Marquette Security Instrument executed and delivered by Xxxxxxxxx Xxxxxxxx in favor of Administrative Agent as security for the Obligations. “Master Agreement” has the meaning set forth in the definition of “Swap Contract” set forth in this Exhibit “B”. “Material Adverse Effect” means (a) a material adverse change in, or a material adverse effect upon, the Property, or the operations, business, properties, liabilities (actual or contingent), condition (financial or otherwise) or prospects of Borrower or Guarantor; (b) a material impairment of the ability of any party to the Loan Documents to perform its obligations under any Loan Document to which it is a party; or (c) a material adverse effect upon the legality, validity, binding effect or enforceability against any party to the Loan Documents of any Loan Document to which it is a party. “Maturity Date” means the Initial Maturity Date, the First Extended Maturity Date, or the Second Extended Maturity Date, as applicable, as it may be earlier accelerated or extended in accordance with the terms hereof. “Minimum Release Price” means: (i) prior to Borrower’s payment in full of the first Required Principal Payment, (a) with respect to the Austin Property, Twenty-Five Million One Hundred Sixty-One Thousand One Hundred Sixteen and No/100 Dollars ($25,161,116.00), (b) with respect to the Oakland Property, Seventy-Four Million Four Hundred Fifty-Six Thousand Three
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B-15 Hundred Sixty-Five and No/100 Dollars ($74,456,365.00), and (c) with respect to the Marquette Property, Fifty-Four Million Five Hundred Fifty-Eight Thousand Five Hundred Forty-Three and No/100 Dollars ($54,558,543.00); and (ii) following Borrower’s payment in full of the first Required Principal Payment, (a) with respect to the Austin Property, Twenty-Three Million Eight Hundred Twenty- Three Thousand Fifteen and No/100 Dollars ($23,823,015.00), (b) with respect to the Oakland Property Seventy Million Four Hundred Ninety-Six Thousand Six Hundred Seventy-Seven and No/100 Dollars ($70,496,677.00), and (c) with respect to the Marquette Property, Fifty-One Million Six Hundred Fifty-Seven Thousand Forty-Eight and No/100 Dollars ($51,657,048.00). “Net Operating Income” means, on a combined basis, with respect to any period of time, the amount obtained by subtracting actual Operating Expenses from Actual Operating Revenue. “Net Proceeds” when used with respect to any Condemnation Awards or Insurance Proceeds, means the gross proceeds from any Condemnation or Casualty remaining after payment of all expenses, including attorneys’ fees, incurred in the collection of such gross proceeds. “Non-Consenting Lender” means any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of all Lenders or all affected Lenders in accordance with the terms of Section 9.9 and (b) has been approved by the Required Lenders. “Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time. “Note” means the Promissory Note(s) executed by Xxxxxxxx and payable to the order of each Lender pursuant to this Agreement in the amount of such Lender’s Commitment and collectively in the maximum amount of the Loan substantially in the form of Exhibit “F”, together with all replacements and substitutes thereof, in each case, as amended, modified, replaced, restated, extended or renewed from time to time. As of the date hereof, the Amended and Restated Promissory Note, dated as of the Closing Date, executed by Xxxxxxxx and payable to Bank of America, N.A., as Lender, in the maximum principal amount of the Loan, is the only Note issued and outstanding pursuant to this Agreement. “Notice” means a notice, request, consent, demand or other communication given in accordance with the provisions of Section 9.2.8 of this Agreement. “Oakland Land” means the real property described in Exhibit “A-3” attached hereto. “Oakland Property” means the real and personal property conveyed and encumbered by the Security Instrument executed and delivered by Oakland Borrower in favor of Administrative Agent as security for the Obligations. “Obligations” means all liabilities, obligations, covenants and duties of, Borrower arising under or otherwise with respect to any Loan Document or any Swap Contract, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due,
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B-16 now existing or hereafter arising and including interest and fees that accrue after the commencement by or against Borrower or any other party to a Loan Document of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceedings. Notwithstanding any language contained in the Loan Documents, the Obligations of Borrower to pay and perform under the Environmental Agreement are unsecured. “OFAC” means the Office of Foreign Assets Control of the United States Department of the Treasury. “Online Banking Portal” means any online banking portal and/or electronic transmission system as shall be made available by Administrative Agent for use by Borrower to conduct Online Facility Transactions in connection with the terms of this Agreement and the applicable Online Portal Agreements. “Online Portal Agreements” means all applicable treasury services agreements, terms and conditions (including any booklet with respect thereto), acceptance of services, cash management agreements and terms and conditions (including any booklet with respect thereto), supplements, addenda, amendments, setup and authorization forms, and/or any other documentation which Borrower is required to execute or agree to with respect to the use of, and conducting of any Online Facility Transactions on, the Online Banking Portal from time to time (including any of the foregoing agreed to or accepted by an Authorized Portal User in a “clickwrap” or “clickthrough” agreement on any such Online Banking Portal), and any and all amendments, restatements and modifications thereto. “Online Facility Transactions” means any transactions that Authorized Portal Users may execute on the Online Banking Portal, including but not limited to: (a) electronically view Borrower’s Loan information, (b) to upload documentation; and (c) to take any actions allowed under the Online Banking Portal based on the terms of the Online Portal Agreements, which may include, but not be limited to, making payments on the Loan, submitting rollover notices (if applicable), and any other actions which may be allowed under the Online Banking Portal at any time in the future, all in accordance with the terms of this Agreement and the Online Portal Agreements executed by Borrower. “Operating Expenses” means, with respect to any period of time, the total of all expenses actually paid or payable, computed on an annualized basis in accordance with generally accepted accounting principles, consistently applied, of whatever kind relating to the ownership, operation, maintenance or management of the Property, on a combined basis, including utilities, ordinary repairs and maintenance, insurance premiums, ground rents, if any, license fees, Taxes, advertising expenses, payroll and related taxes, management fees equal to the greater of three percent (3.0%) of Actual Operating Revenue or the management fees actually paid under all applicable management agreements, operational equipment or other lease payments as approved by Administrative Agent, but specifically excluding depreciation and amortization, impairments, income Taxes, debt service on the Loan, any item of expense that would otherwise be covered by the provisions hereof but which is paid by any tenant under such tenant’s Lease or other agreement provided such reimbursement by tenant is not included in the calculation of Actual Operating Revenue. Operating Expenses shall be subject to appropriate seasonal and other
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B-17 adjustments which are either (i) recommended by Xxxxxxxx and approved by Administrative Agent in Administrative Agent’s reasonable discretion, or (ii) otherwise made by Administrative Agent in Administrative Agent’s reasonable discretion. “OREO Property Manager” has the meaning specified in Section 8.10(b). “Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned any interest in the Loan or any Loan Document). “Other Existing Loans” has the meaning set forth in Recital D above. “Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from a receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.7). “PACE Financing” means any property assessed clean energy financing or similar energy efficiency or renewable energy financing repaid through assessments against property (without regard to the name given to such financing). “Participant” has the meaning set forth in Section 9.4(d). “PATRIOT Act” has the meaning set forth in Section 9.23. “Payments” has the meaning set forth in Section 8.11. “Permitted Encumbrances” means the encumbrances set forth in Exhibit “M”. “Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity. “Platform” has the meaning set forth in Section 9.2.7. “Potential Default” means any condition or event which with the giving of notice or lapse of time or both would, unless cured or waived, become a Default. “Prime Rate” means a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such Prime Rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.
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B-18 “Principal Debt” means the aggregate unpaid principal balance of the Loan at the time in question. “Prohibited Person” means any individual or entity that is (a) currently the subject or target of any Sanctions, (b) included on OFAC’s List of Specially Designated Nationals, HMT’s Consolidated List of Financial Sanctions Targets and the Investment Ban List, or any similar list enforced by any other relevant sanctions authority, (c) any individual or entity that is owned or Controlled by, acting on behalf of, or an Affiliate of, an individual or entity listed in the previous clause (a) or (b), or (d) located, organized or resident in a Designated Jurisdiction. “Property” means, individually and collectively, using an interpretation most favorable to Administrative Agent and Lenders, or as the context shall require, (a) the Xxxxxxx Property, (b) the Austin Property, (c) the Oakland Property, and (d) the Marquette Property. Notwithstanding the foregoing, upon the release or reconveyance of a Property from the lien of the applicable Security Instrument pursuant to Section 4.27, such Property shall cease to be a “Property” for all purposes under this Agreement. “Pro Rata Share” means, with respect to each Lender at any time, a fraction expressed as a percentage, the numerator of which is the amount of the Commitment of such Lender at such time and the denominator of which is the amount of the Aggregate Commitments at such time or, if the Aggregate Commitments have been terminated, a fraction (expressed as a percentage, carried out to the ninth decimal place), the numerator of which is the total outstanding amount of all Indebtedness held by such Lender at such time and the denominator of which is the total outstanding amount of all Indebtedness at such time. The initial Pro Rata Share of each Lender named on the signature pages hereto is set forth opposite the name of that Lender on the Schedule of Lenders. “PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time. “Public Lender” has the meaning set forth in Section 9.2.7(b). “Purchase Offer” has the meaning set forth in Section 8.10(e). “QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D). “QFC Credit Support” has the meaning set forth in Section 9.25. “Qualified ECP Borrower” means, at any time, each Borrower with total assets exceeding Ten Million Dollars ($10,000,000) or that qualifies at such time as an “eligible contract participant” under the Commodity Exchange Act and can cause another Person to qualify as an “eligible contract participant” at such time under Section 1a(18)(A)(v)(II) of the Commodity Exchange Act. “Xxxxxxx Land” means the real property described in Exhibit “A-1” attached hereto.
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B-19 “Xxxxxxx Property” means the real and personal property conveyed and encumbered by the Security Instrument executed and delivered by Xxxxxxx Xxxxxxxx in favor of Administrative Agent as security for the Obligations. “Real Property Taxes” mean taxes, assessments and other charges or levies imposed upon or against or with respect to the Property or the ownership, use, occupancy or enjoyment of any portion thereof, or any utility service thereto, as the same become due and payable, including all taxes assessed against the Property or any part thereof. “Recipient” means Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of Borrower or Guarantor under the Loan Documents. “Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and such Person’s Affiliates. “Release Price” means Release Price (Apartment) or Release Price (Office), as applicable. “Release Price (Apartment)” means, with respect to the Xxxxxxx Property (i) prior to Xxxxxxxx’s full satisfaction of the Specified Paydown Requirement, Sixty Million Six Hundred Sixty Thousand and No/100 Dollars ($60,660,000.00), and (ii) following Borrower’s full satisfaction of the Specified Paydown Requirement, Forty-Seven Million One Hundred Eighty Thousand and No/100 Dollars ($47,180,000.00). “Release Price (Office)” means, with respect to the release of the Austin Property, Oakland Property and/or the Marquette Property, as applicable, an amount equal to the greater of: (i) the Minimum Release Price applicable to such Property, together with all unpaid interest, fees and expenses relating thereto, all as reasonably determined by Administrative Agent; and (ii) a sum such that, after giving effect to the release of the applicable Release Property and the payment of such release price, the Debt Service Coverage Ratio achieved by the Remaining Property as of the most recently ended calendar quarter shall be not less than 1.05 to 1.00. “Release Property” has the meaning set forth in Section 4.27(a). “Relevant Governmental Body” means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York. “Remaining Property” means, on any date of determination, all Property then subject to a first priority lien in favor of Administrative Agent pursuant to a Security Instrument; provided,
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B-20 however, for the purposes of Section 4.27, the “Remaining Property” shall exclude the applicable Release Property. “Rents” means all of the rents, royalties, issues, profits, revenues, earnings, income and other benefits of the Property or any part thereof, or arising from the use or enjoyment of the Property or any part thereof, including all such amounts paid under or arising from any of the Leases and all fees, charges, accounts or other payments for the use or occupancy of rooms or other public facilities within the Property or any part thereof. “Replacement Note” has the meaning set forth in Section 9.4(b). “Required Principal Payment” means an amount equal to Ten Million Dollars and No/100 Dollars ($10,000,000.00). “Required Lenders” means as of any date of determination at least two (2) Lenders having at least sixty-six and two-thirds percent (66-2/3%) of the Aggregate Commitments or, if the Aggregate Commitments have been terminated, at least two Lenders holding in the aggregate at least sixty-six and two-thirds percent (66-2/3%) of the total outstanding amount of all Indebtedness; provided that the Commitment of, and the portion of the total outstanding amount of all Indebtedness held by, any Defaulting Lender shall be excluded for purposes of making a determination of the Required Lenders. At any time that there is only one (1) Lender, then “Required Lenders” shall mean such Lender. At any time that there are only two (2) Lenders, then, subject to the following sentence, “Required Lenders” shall mean each such Lender. At any time that all but one (1) of the Lender are Defaulting Lenders, then “Required Lenders” shall mean the non-Defaulting Lender. “Requirements” means, collectively, all applicable orders, restrictions and requirements of, and all written agreements with and written commitments to, any Governmental Authority, including any utility district or similar authority, having jurisdiction over the Property, including all Laws, ordinances and resolutions relating to zoning, land use, building, health and environmental requirements, all subdivision and platting requirements, all recorded covenants and restrictions affecting the Property, and any similar order, ordinance, resolution or requirement by such Governmental Authority. “Rescindable Amount” has the meaning set forth in Section 1.7(b). “Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority. “Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any equity or other ownership interest in Borrower or any subsidiary of Borrower, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such equity or other ownership interests in Borrower or any subsidiary of Borrower or any option, warrant or other right to acquire any such equity or other ownership interest in Borrower or any subsidiary of Borrower; provided, however, that any insurance proceeds received by Borrower pursuant to any
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B-21 Environmental Insurance Policy disbursed to Guarantor pursuant to and in accordance with Section 2(f) of the Rider attached to the Guaranty shall not constitute a Restricted Payment. “Sanction(s)” means any international economic sanction administered or enforced by the United States Government, including OFAC, the United Nations Security Council, the European Union, His Majesty’s Treasury (“HMT”) or other relevant sanctions authority. “Schedule of Lenders” means the schedule of Lenders party to this Agreement as set forth on Exhibit “G”, as it may be modified from time to time in accordance with this Agreement. “Scheduled Unavailability Date” has the meaning set forth in Section 2.4. “Second Extended Maturity Date” means September 1, 2028. “Secured Party Designation Notice” means a notice from any Lender or an Affiliate of a Lender substantially in the form of Exhibit “L”. “Security Instrument” means, individually and collectively, using an interpretation most favorable to Administrative Agent and Lenders, or as the context shall require (i) the Amended and Restated Marquette Security Instrument, and (ii) each first priority mortgage, deed of trust, deed to secure debt or similar security instrument executed and delivered by Borrower in favor of Administrative Agent as security for the Obligations and encumbering the Property described therein, in each case, as the same may be amended, restated, supplemented or modified from time to time. “SOFR” has the meaning set forth in the definition of “Daily Simple SOFR”. “SOFR Adjustment” with respect to Daily Simple SOFR means 0.11448% (11.448 basis points); and with respect to Term SOFR means 0.11448% (11.448 basis points) for an interest period of one (1)-month’s duration, 0.26161% (26.161 basis points;) for an interest period of three (3)-months’ duration, 0.42826% (42.826 basis points) for an interest period of six (6)- months’ duration, and 0.71513% (71.513 basis points) for an interest period of twelve (12)- months’ duration. “Special Flood Hazard Area” means an area identified as such by the Administrator of FEMA using FEMA’s Flood Insurance Rate Map or FEMA’s Flood Hazard Boundary Map. “Specified Borrower” has the meaning set forth in Section 4.27(d). “Specified Paydown Requirement” has the meaning set forth in Section 1.6(a). “State” means the State of California. “Survey” means a map or plat of survey of the Land described therein which conforms with Administrative Agent’s survey requirements set forth in the Closing Checklist or as otherwise approved by Administrative Agent in its sole discretion; which, for the avoidance of
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B-22 doubt, shall include all surveys of the Land which were delivered to Administrative Agent in connection with the Existing Loans. “Swap Contract” means any agreement, whether or not in writing, relating to any Swap Transaction, including, unless the context otherwise clearly requires, any agreement or contract that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act and CFTC Regulation 1.3(xxx), any form of master agreement (the “Master Agreement”) published by the International Swaps and Derivatives Association, Inc., and any other master agreement, entered into on or prior to the Closing Date or any time after the Closing Date, between Swap Counterparty and Borrower, together with any related schedule and confirmation, as amended, supplemented, superseded or replaced from time to time. “Swap Counterparty” means any Person in its capacity as a party to a Swap Contract that, at the time it enters into a Swap Contract not prohibited under this Agreement, is a Lender or an Affiliate of a Lender, in its capacity as a party to such Swap Contract (even if such Person ceases to be a Lender or such Person’s Affiliate ceased to be a Lender); provided, in the case of a Swap Contract with a Person who is no longer a Lender (or Affiliate of a Lender), such Person shall be considered a Swap Counterparty only through the stated termination date (without extension or renewal) of such Swap Contract and provided further that for any of the foregoing to be included as a “Swap Contract” on any date of determination by Administrative Agent, the applicable Hedge Bank (other than Administrative Agent or an Affiliate of Administrative Agent) must have delivered a Secured Party Designation Notice to Administrative Agent prior to such date of determination. “Swap Obligation” means any obligation to pay or perform under any Swap Contract, or any other agreement, contract or transaction entered into in connection with a Swap Transaction. “Swap Transaction” means any transaction entered into by Borrower that is a rate swap transaction, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap or option, bond option, note or bill option, interest rate option, forward foreign exchange transaction, cap transaction, spot or floor transaction, collar transaction, floor transaction, currency swap transaction, cross-currency rate swap transaction, swap option, currency option, credit swap or default transaction, T-lock, or any other similar transaction (including any option to enter into the foregoing) or any combination of the foregoing, in connection with the Loan. “Tax” or “Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto. “Tenant Improvements” means the construction and related work to be undertaken by Borrower pursuant to any Lease as tenant improvements. “Termination Fee Deposit” shall have the meaning set forth in Section 4.18. “Term SOFR” means the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body for a one (1) month interest
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B-23 period (or if there is no one (1) month interest period applicable to SOFR, the closest corresponding interest period of SOFR). “Title Company” means First American Title Insurance Company. “Title Insurance” means the loan policy or policies of title insurance issued to Administrative Agent for the benefit of Lenders by the Title Company, in an amount acceptable to Administrative Agent, insuring the validity and priority of each Security Instrument encumbering any portion of the Land and Improvements for the benefit of Administrative Agent and Lenders. “Transfer” means any direct or indirect sale, assignment, conveyance, change of Control or transfer, including any Contract of Sale and any other contract or agreement to sell, assign, convey or transfer, whether made voluntarily or by operation of Law or otherwise, and whether made with or without consideration. “UCC” means the Uniform Commercial Code as in effect in the State of California; provided that, if perfection or the effect of perfection or non-perfection or the priority of any security interest in any Property is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of California, the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority. “UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended form time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person subject to IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms. “UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution. “U.S. Person” means any Person that is a “United States person” as defined in Section 7701(a)(30) of the Code. “U.S. Tax Compliance Certificate” has the meaning set forth in Section 2.1(e)(ii)(B)(III). “Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write- down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised
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B-24 under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.