_____________________________________________________________________________
______________________________
AP-ANAHEIM LLC, a California limited liability company
AP-ARLINGTON LLC, a California limited liability company
AP-ATLANTIC LLC, a California limited liability company
AP-CITYVIEW LLC, a California limited liability company
AP-XXXXXXX XXXXX LLC, a California limited liability company
AP-PALMDALE LLC, a California limited liability company
AP-REDLANDS LLC, a California limited liability company
AP-VICTORIA LLC, a California limited liability company
AP-VICTORVILLE LLC, a Delaware limited liability company
AP-SIERRA LLC, a California limited liability company
as Borrower
and
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
as Lender
___________
$70,000,000
REVOLVING CREDIT AGREEMENT
Dated as of August 28, 1997
_____________________________________________________________________________
TABLE OF CONTENTS
ARTICLE I. DEFINITIONS: CONSTRUCTION
Section 1.01 Definitions. . . . . . . . . . . . . . . . . . . . . . .1
ARTICLE II. AMOUNT AND TERMS OF THE LOANS
Section 2.01 The Loans . . . . . . . . . . . . . . . . . . . . . . .3
ARTICLE III. FEES
Section 3.01 Fees . . . . . . . . . . . . . . . . . . . . . . . . . .4
ARTICLE IV. CONDITIONS PRECEDENT
Section 4.01 Conditions Precedent to Closing. . . . . . . . . . . . .5
Section 4.02 Conditions Precedent to Loans. . . . . . . . . . . . . .6
ARTICLE V. COLLATERAL VALUE AND RELEASES OF COLLATERAL
Section 5.01 Determinations of Collateral Value by Lender . . . . . 10
Section 5.02 Recalculations of Collateral Value at Borrower's Request10
Section 5.03 Release of Collateral. . . . . . . . . . . . . . . . . 11
Section 5.04 Calculations of Collateral Value and LTV Ratio . . . . 11
ARTICLE VI. REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 6.01 Representations and Warranties . . . . . . . . . . . . 11
Section 6.02 Financial Reports. . . . . . . . . . . . . . . . . . . 19
Section 6.03 Litigation . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE VII. EVENTS OF DEFAULT
Section 7.01 Events of Default. . . . . . . . . . . . . . . . . . . 20
ARTICLE VIII. MISCELLANEOUS
Section 8.01 Notices. . . . . . . . . . . . . . . . . . . . . . . . 20
Section 8.02 Performance by Lender. . . . . . . . . . . . . . . . . 20
Section 8.03 No Oral Change . . . . . . . . . . . . . . . . . . . . 21
Section 8.04 No Waiver: Remedies Cumulative . . . . . . . . . . . . 21
Section 8.05 Fees and Expenses. . . . . . . . . . . . . . . . . . . 21
Section 8.06 Indemnification. . . . . . . . . . . . . . . . . . . . 22
Section 8.07 Benefits of Agreement. . . . . . . . . . . . . . . . . 22
Section 8.08 Participations . . . . . . . . . . . . . . . . . . . . 22
Section 8.09 Assignments. . . . . . . . . . . . . . . . . . . . . . 23
Section 8.10 Governing Law. . . . . . . . . . . . . . . . . . . . . 23
Section 8.11 Counterparts . . . . . . . . . . . . . . . . . . . . . 24
Section 8.12 Waiver of Counterclaim, Etc. . . . . . . . . . . . . . 24
Section 8.13 Severable Provisions . . . . . . . . . . . . . . . . . 24
Section 8 14 Right of Setoff. . . . . . . . . . . . . . . . . . . . 24
Section 8.15 Confidentiality. . . . . . . . . . . . . . . . . . . . 25
Section 8.16 Exhibits Incorporated. . . . . . . . . . . . . . . . . 25
Section 8.17 Sole Discretion of Lender. . . . . . . . . . . . . . . 25
Section 8.18 Waiver of Notice . . . . . . . . . . . . . . . . . . . 25
Section 8.19 Remedies of Borrower . . . . . . . . . . . . . . . . . 25
Section 8.20 Waiver of Statute of Limitations . . . . . . . . . . . 25
Section 8.21 Application of Default Rate Not a Waiver . . . . . . . 25
Section 8.22 No Joint Venture or Partnership. . . . . . . . . . . . 25
Section 8.23 Time of the Essence. . . . . . . . . . . . . . . . . . 26
Section 8.24 Publicity. . . . . . . . . . . . . . . . . . . . . . . 26
Section 8.25 Securitization . . . . . . . . . . . . . . . . . . . . 26
Section 8.26 Offsets, Counterclaims and Defenses. . . . . . . . . . 26
Section 8.27 Headings; Construction of Documents; etc.. . . . . . . 26
Section 8.28 Joint and Several. . . . . . . . . . . . . . . . . . . 27
EXHIBITS
Exhibit A-1 - Form of Borrowing Request
Exhibit A-2 - Form of Preliminary Borrowing Request
Exhibit B - Form of Mortgage
Exhibit C - Form of Secured Promissory Note
Exhibit D - Form of Assignment of Leases and Rents and Security
Deposits
REVOLVING CREDIT AGREEMENT (this "Agreement"), dated as of August __,
1997 between the various limited liability companies who are signatories to
this Agreement (said limited liability companies, together with any New
Borrower (as defined below) who hereafter becomes a signatory to this
Agreement, are hereinafter collectively referred to as the "Borrower") and
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, a New York banking corporation
("Lender").
W I T N E S S E T H:
WHEREAS, in order to purchase existing commercial properties, Borrower
desires to borrow from Lender, on a secured revolving credit basis, loans in
an aggregate principal sum outstanding from time to time not exceeding
Seventy Million Dollars ($70,000.000.00); and
WHEREAS, Xxxxxx is willing to make loans (individually, a "Loan", and
collectively, the "Loans") to Borrower on such basis for such purposes,
subject to the terms and conditions hereof.
NOW THEREFORE, in consideration of the mutual promises and for other
good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties hereto agree follows:
ARTICLE I. DEFINITIONS; CONSTRUCTION
Section 1.01 Definitions.
(a) Defined terms used herein and not otherwise defined herein
shall have the meanings ascribed thereto in the Mortgages.
(b) As used herein and in the Note, the following terms shall have
the meanings herein specified (to be equally applicable to both the singular
and plural forms of the terms defined).
(c) As used herein with respect to a specific Subject Property,
the term "Borrower" shall mean the owner of the fee or leasehold interest in
that Subject Property.
"Agreement" means this Revolving Credit Agreement, as amended,
supplemented or modified from time to time in accordance with its terms.
"Borrowing" means a borrowing under this Agreement consisting of
Loans made to Borrower by Lender pursuant to Section 2.01 of this Agreement.
"Borrowing Date" with respect to a particular Borrowing shall mean
the Business Day, identified by the Borrower in the related Borrowing
Request, as the date on which the Borrower requests that Lender make Loans.
"Borrowing Request" means a Borrowing Request in the form of
Exhibit A-1.
"Closing Date" means the date hereof.
"Collateral" shall mean collectively, the real property and
improvements thereon secured by the Mortgages together with any additional
collateral pledged to Lender in accordance with Section 5.01 hereof.
"Collateral Value" means the aggregate value assigned by Lender to
the Collateral as of any date of determination, which value shall be
calculated in accordance with Lender's standard underwriting practices.
"Commitment" means the obligation of Lender to make Loans to
Borrower pursuant to Section 2.01 in an aggregate amount not to exceed
$70,000,000 at any one time outstanding.
"Commitment Period" means the period commencing with the Closing
Date and ending on the Expiration Date, unless otherwise extended by Lender
in writing or unless otherwise terminated pursuant to the terms hereof.
"Expiration Date" means September 1, 2000.
"Guarantor" means Xxxxxx X. Xxxxx.
"Initial Loans" shall mean the Loan to be made on the Closing Date
in the original principal amount of $48,400,000.
"Lender" shall have the meaning set forth in the preamble hereof,
which term shall include, as applicable, any other office of Lender
designated by it from time to time for the purpose of making or maintaining
any Loans hereunder.
"Lien" means any interest in property, real or personal, tangible
or intangible, securing an obligation owed to, or a claim by, a Person other
than the owner of such property, whether such interest is based on the common
law, statute or contract, and including, but not limited to, the security
interest, security title or lien arising from a security agreement, mortgage,
deed of trust, deed to secure debt, encumbrance, pledge, conditional sale or
trust receipt or a lease, consignment or bailment for security purposes. The
term "Lien" shall also include reservations, exceptions, encroachments,
easements, rights-of-way, covenants, conditions, restrictions, leases and
other title exceptions and encumbrances affecting such property.
"Loan(s)" is defined in the preamble to this Agreement.
"LTV Ratio" shall have the meaning set forth in Section 5.01
hereof.
"Maturity Date" means, with respect to each Loan, the Expiration
Date.
"Mortgage(s)" shall mean each mortgage, deed of trust, deed to
secure debt, security agreement, assignment of rents and fixture filings,
each substantially in the form of Exhibit B, and as otherwise originally
executed or as same may hereafter from time to time be supplemented, amended,
modified or extended by one or more indentures supplemental thereto granted
by Borrower to Lender as security for the Note.
"New Borrower" shall mean a new single purpose entity to be
approved by Lender for the purpose of acquiring and holding a Subject
Property, the acquisition of which will be financed by a subsequent Loan.
"Note" means the Secured Promissory Note in the maximum principal
amount of $70,000,000 in the form of Exhibit C, together with any amendments
thereto or supplements thereof.
"Participant" shall have the meaning set forth in Section 8.08.
"Preliminary Borrowing Request" means a request by Borrower in the
form of Exhibit A-2.
"Subject Property" means the property, real or personal, tangible
or intangible, which is, or which is proposed to be, subject to the Lien of
each Mortgage.
ARTICLE II. AMOUNT AND TERMS OF THE LOANS
Section 2.01 The Loans.
(a) Lender agrees, upon the terms and subject to the conditions
and relying upon the representations, warranties and covenants hereinafter
set forth, to make one or more Loans on a revolving credit basis, to Borrower
up to the amount of the Commitment, provided, however, that notwithstanding
anything to the contrary contained herein or in any other Loan Document, in
no event will Lender be obligated to re-advance more than $10,000,000 of Loan
proceeds such that the aggregate principal amount of all Loans made hereunder
(including such re-advances) shall in no event exceed $80,000,000 over the
term of this Agreement. Borrower and Xxxxxx acknowledge and agree that on the
Closing Date the Initial Loans in the aggregate principal amount of
$48,400,000 will be made to Borrower subject to the satisfaction of all
applicable terms and conditions hereinafter set forth.
(b) Each Loan shall be in an aggregate amount of not less than One
Million Dollars ($1,000,000.00), and in integral multiples of Fifty Thousand
Dollars ($50,000.00); provided, however, that the aggregate amount of Loans
at any time outstanding shall not exceed the lesser of (x) the amount of the
Commitment or (y) 80% of the Collateral Value.
(c) In connection with each Loan to be made hereunder:
(i) Borrower shall deliver a Preliminary Borrowing Request to
Lender, accompanied by each of the instruments, documents and agreements set
forth on Schedule I, together with such other information as Lender may
reasonably request, and with respect to items 9 through 13 of said Schedule
I, performed by Persons previously approved by Xxxxxx, as set forth on
Schedule II hereof, and engaged by Xxxxxx at the sole cost and expense of
Borrower, except to the extent that any such instrument, document or
agreement has been previously delivered to Lender;
(ii) Lender shall approve, which approval may be granted or
denied in Xxxxxx's sole and absolute discretion, or disapprove any such
Preliminary Borrowing Request received by Xxxxxx from Borrower within ten
(10) Business Days of the receipt thereof; and
(iii) In the event that Lender approves the Loan for which
the Preliminary Borrowing Request relates, such Loan shall be made subject to
the terms and conditions hereof, including, without limitation, Borrower
delivering a Borrowing Request not less than three (3) Business Days prior to
the proposed Borrowing Date, which Borrowing Request shall be irrevocable and
must be received by Lender not later than 1:00 p.m. (New York City time),
unless otherwise agreed to in writing by Xxxxxx. Subject to the terms and
conditions hereof, Lender shall make the amount of funds evidencing the Loan
requested available by wire transfer in accordance with the instructions set
forth in the applicable Borrowing Request.
(d) The Loans shall be evidenced by the Note, duly executed by
Xxxxxxxx, dated the Closing Date and payable to the order of Lender. Upon the
closing of any Subsequent Loan, the Note shall be modified to provide for the
assumption thereof on a joint and several basis by the applicable New
Borrower. All Loans to Borrower pursuant to this Agreement and all payments
of the principal of such Loans to Lender shall be recorded by Lender on the
schedule attached to the Note and by specific reference made a part thereof.
The amounts of principal indicated by said schedule as outstanding or accrued
and unpaid, as the case may be, shall constitute rebuttable presumptive
evidence of the principal outstanding and the accrued and unpaid interest on
the Loans; provided, that any failure or error on the part of Lender in
recording any Loan on such schedule shall not limit the obligation of
Borrower to pay all principal of and interest accruing on the Loans.
Section 3.01 Fees.
(a) Borrower has previously paid to Lender a non-refundable
arrangement fee in the amount of $25,000.00, which fee shall be credited
towards the initial payment due under Section 3.01(b). below.
(b) On each Borrowing Date, Borrower shall pay to Lender a loan
fee equal to (i) the principal amount of each Loan to be made on such
Borrowing Date, multiplied by (ii) 0.5%; provided, however, that Borrower
shall have no further liability to pay any fee in connection with this
Section 3.01(b) after the aggregate amount of all fees paid under this
Section 3.01(b) shall exceed Three Hundred Fifty Thousand Dollars
($350,000.00).
(c) All fees paid under this Section 3.01 shall be non-refundable.
Each payment thereof and any other charges or amounts payable under this
Agreement shall be paid by Borrower in accordance with Section 2.2 of the
Note.
ARTICLE IV. CONDITIONS PRECEDENT
Section 4.01 Conditions Precedent to Closing. On the Closing Date, in
addition to the other documents and instruments required by this Agreement,
Borrower shall deliver the following documents to Lender, all of which shall
be satisfactory in form and substance to Lender in its sole and absolute
discretion:
(a) Corporate Action. Certified copies of (i) the certificate and
agreement of partnership of Xxxxxxxx and the charter and bylaws of General
Partner, and (ii) all partnership and corporate action, as applicable, taken
by Xxxxxxxx and General Partner approving the Loans and the Loan Documents,
(including, without limitation, a certificate setting forth the resolutions
of the Board of Directors of General Partner, both in its individual capacity
and as general partner of Xxxxxxxx, adopted in respect of the transactions
contemplated thereby).
(b) Incumbency. A certificate of General Partner's officers
stating (i) the Persons authorized to sign the Loan Documents on behalf of
Xxxxxxxx and General Partner, and (ii) who will, until replaced by another
officer or officers duly authorized for that purpose, act on behalf of
Xxxxxxxx and General Partner for the purposes of signing documents and giving
notices and other communications in connection with the Loan Documents and
the transactions contemplated thereby (and Xxxxxx may conclusively rely on
such certificate until it receives notice in writing from Borrower and
General Partner, signed by any of such officers, to the contrary).
(c) Officer's Certificate. The conditions set forth in paragraphs
(a), (d) and (e) of Section 4.02 hereof shall be satisfied on and as of the
Closing Date and Lender shall have received a certificate of Borrower
certifying that such conditions have been satisfied.
(d) Opinion of Counsel. An opinion of counsel to Xxxxxxxx and
General Partner in form and substance satisfactory to Lender.
(e) Loan Documents. This Agreement, the Note and each of the other
Loan Documents shall have been duly executed and delivered by the parties
thereto.
(f) Perfection of Security Interests. Evidence that all actions
necessary or, in the opinion of Xxxxxx, desirable to perfect and protect the
Liens and security interests created by the Loan Documents have been taken.
(g) Fees and Expenses. Evidence (including, without limitation,
payment instructions given by Borrower) that all fees and expenses payable to
Lender, including without limitation, the fees and expenses referred to in
each of Section 3.01 and Section 8.05, to the extent then due and payable,
have been paid in full.
(h) Other Documents. Such other documents relating to the
transactions contemplated hereby as Lender may reasonably request.
Section 4.02 Conditions Precedent to Loans. The obligation of Lender
to make any Loan to Borrower upon the occasion of any proposed Borrowing
hereunder is subject, in addition to the continued satisfaction of the
conditions in Section 4.01 hereof, to the fulfillment of the following
conditions, which, unless otherwise expressly stated below, shall be
satisfied both immediately prior and after giving effect to such Borrowing
and the application of the proceeds therefrom:
(a) Borrowing Request. A Borrowing Request and Preliminary
Borrowing Request, each executed and delivered on behalf of Borrower or the
New Borrower, as the case may be, by a duly authorized officer thereof, shall
have each been delivered to Lender and Lender shall have, in its sole and
absolute discretion, approved the Loan requested in the Preliminary Borrowing
Request and Borrowing Request.
(b) Due Diligence and Loan Documents. Lender shall have completed
its due diligence and underwriting of the proposed Loan and Subject Property,
all of which shall be satisfactory in form and substance to Lender in its
sole and absolute discretion. Lender shall have received, not less than
fifteen (15) Business Days prior to the date of the proposed Borrowing (or,
if a later delivery date is expressly set forth below, on or prior to such
later date), each of the following documents, instruments and agreements,
each of which shall be satisfactory in form and substance to Lender in its
reasonable discretion:
(i) Title Insurance. Policies of title insurance on forms
of, and issued by, one or more title insurance companies satisfactory to
Lender in its sole and absolute discretion (the "Title Companies"), showing
fee simple title vested in the relevant Borrower with respect to, or, if
applicable, showing the relevant Borrower's interest as a tenant under a
ground lease of, the applicable Subject Property and insuring the first
priority of the Liens created under the Mortgage thereon in an amount
satisfactory to Lender in its sole and absolute discretion, subject only to
such Liens as are acceptable to Lender, together with, as may be required by
Lender, such reinsurance schedules, endorsements and agreements in respect of
all then existing title insurance policies for such properties and the other
Subject Properties in amounts and otherwise in form and substance
satisfactory to Lender and executed by the Title Companies. Such policies
shall also contain such endorsements and affirmative insurance provisions as
Lender may reasonably require. In addition, Borrower shall have paid to the
Title Companies (and shall have delivered to Lender evidence of such payment)
all expenses of the Title Companies in connection with the issuance of such
policies, reinsurance schedules, endorsements and agreements and an amount
equal to the recording and stamp taxes (including, without limitation,
mortgage recording taxes) payable in connection with recording the Mortgages
in the appropriate county land offices.
(ii) Searches. Copies of the UCC filing searches, tax lien
searches, judgment searches and real estate tax searches and municipal
department searches setting forth any and all building violations (if
available) in each county where the applicable Subject Property is located
(and in the case of UCC filing searches, in the office of the Secretary of
State or other applicable State office of the State where such Subject
Property is located), demonstrating as of a recent date the existence of no
other financing statements, tax liens, judgments, building violations or
delinquent real estate taxes, together with evidence that all fees payable in
connection with any such searches have been paid.
(iii) Survey. A survey of the applicable Subject Property,
prepared by a land surveyor licensed or registered in the State in which such
Subject Property is located and otherwise satisfactory to Lender, in
compliance with the minimum standard detail requirements for land title
surveys adopted by the American Land Title Association and American Congress
on Surveying and Mapping, and certified to Lender, Borrower, the Title
Companies and any other parties requested by Xxxxxx, as of a date not more
than two months prior to the date of any Borrowing.
(iv) Ground Leases. Certified copies of all ground leases
affecting the applicable Subject Property, including all amendments and
modifications thereto, and a ground lessor estoppel and consent reasonably
satisfactory, in form and substance, to Lender.
(v) Material Contractual Obligations. Certified copies of
all documents, instruments or agreements constituting material Contractual
Obligations relating to the applicable Subject Property, together with a
certificate signed by Borrower stating that such documents, instruments and
agreements reflect the only material Contractual Obligations relating to such
property.
(vi) Counsel Opinions. Such legal opinions (including an
opinion of local counsel in the State in which such Subject Property is
located) with respect to such matters as Lender shall request and otherwise
in form and substance satisfactory to the Lender.
(vii) Rent Roll. A rent roll for the applicable Subject
Property, together with a certificate signed by Xxxxxxxx stating that such
rent roll is true, complete and correct and contains the aforesaid
information required by such Mortgage.
(viii) Leases. (a) Copies of all leases for the applicable
Subject Property, together with a certificate signed by Borrower to the
effect that each such copy is true, complete and correct and (b) an estoppel
certificate from each tenant at the applicable Subject Property in form and
substance satisfactory to Lender.
(ix) Management Agreement. A management agreement for the
applicable Subject Property in form and substance acceptable to Lender in its
sole and absolute discretion.
(x) Zoning Compliance, Etc. Evidence satisfactory to Lender
that all improvements have been constructed and are being used and operated
in compliance with (A) all applicable zoning, subdivision, environmental and
other laws, orders, rules, regulations and requirements of all governmental
or quasi-governmental authorities having jurisdiction with respect to the
Subject Properties and (B) all building permits issued in respect of the
Subject Properties and (if available) a copy of all certificates of occupancy
for each such property.
(xi) Contract of Sale. Copies of the contracts of sale
executed in connection with the purchase of the applicable Subject Property.
(xii) Title Updates. On or before the date of each
Borrowing, Xxxxxx shall have received a notice of title continuation and an
endorsement to each of the existing title insurance policies covering the
Subject Properties insuring that since the later of (A) the Closing Date and
(B) the date on which such a notice of title continuation and endorsement
shall have been last delivered to Lender pursuant to this paragraph (xii),
there has been no change in the state of title or priority of Lender's Lien
and no survey exceptions not theretofore approved by Xxxxxx, together with
other evidence satisfactory to Lender in its sole and absolute discretion
that no mechanics' liens or other Liens have been filed and remain filed with
respect to the Subject Properties (other than Liens expressly permitted by
the relevant Mortgages), which endorsement shall have the effect of (1)
updating the date of the existing title insurance policies covering the
Subject Properties to the date of such Borrowing and insuring that the
priority of Xxxxxx's Lien is not subject to any intervening Liens arising
between the date of the existing title policies and the date of such
Borrowing, and (2) increasing the coverage of the existing title insurance
policies by an amount equal to the Borrowing, if any, then being made.
(xiii) Perfection of Security Interests. Evidence that all
actions necessary or, in the opinion of Xxxxxx, desirable to perfect and
protect the Liens created by the Loan Documents have been taken, including,
without limitation, evidence that the Mortgage on the applicable Subject
Property has been duly filed and recorded in the appropriate governmental
offices and that the related UCC financing statements have been duly filed in
the appropriate governmental offices.
(xiv) Fees and Expenses. Evidence (including, without
limitation, payment instructions given by Borrower) that all fees and
expenses payable to Lender, including, without limitation, the fees and
expenses referred to in Section 3.01 and Section 8.05 hereof, to the extent
then due and payable, have been paid in full.
(xv) Other Documents. Such other documents relating
to the transactions contemplated hereby as Lender may reasonably request,
including, without limitation, an assignment of leases and rents in
substantially the form of Exhibit D attached hereto and a reaffirmation of
guaranty executed by the Guarantor in form and substance satisfactory to
Lender.
(c) Loan Documents. On or before the date of each Borrowing, the
Mortgages shall constitute valid first mortgage liens on the fee simple title
to, or, if applicable, on the relevant Borrower's interest as a tenant under
a ground lease of, the Subject Properties and which shall secure all of the
Debt, subject only to such defects, Liens, encumbrances, assessments,
security interests, restrictions, easements and other title exceptions as
shall be acceptable to Lender or permitted by the express terms of the
relevant Mortgage; and UCC-1 financing statements covering fixtures owned by
the relevant Borrower and affixed to, or used in connection with each such
property, in each case appropriately completed and duly executed and
delivered to Lender for filing in the appropriate county and State offices
shall have been filed to perfect Xxxxxx's Lien in the collateral described
therein.
(d) Default. No Event of Default or Default shall have occurred
and be continuing and no Default will occur as the result of the consummation
of any of the transactions contemplated by the Loan Documents.
(e) Representations. The representations and warranties of
Borrower and Guarantor included and incorporated by reference in this
Agreement and each of the other Loan Documents shall be true, correct and
complete on and as of the date of such Borrowing (or, for purposes of Section
4.01(c), on and as of the Closing Date) with the same force and effect as if
made on and as of such date. On the date of funding of each Subsequent Loan,
the applicable New Borrower shall execute a certification to Lender stating
that all representations and warranties made by the Borrower in this
Agreement are true and correct as they relate to the New Borrower.
(f) Material Adverse Effect. Since the date of the most recent
financial statements of Borrower or Guarantor delivered to Lender, nothing
shall have occurred which would or could have a Material Adverse Effect on
Borrower or Guarantor.
(g) Recording Taxes. Borrower shall have paid all mortgage
recording taxes payable (if any) in each jurisdiction in which the applicable
Subject Property is located and shall have delivered to Lender any and all
supplemental or additional mortgages, in form and substance satisfactory to
Lender, as may be required by Xxxxxx. Without limiting the generality of the
foregoing, and notwithstanding anything to the contrary contained in any Loan
Document, Borrower acknowledge and agree that to the extent there is a
payment of principal of the Loans which results in the aggregate outstanding
principal amount of the Loans being less than the aggregate maximum principal
amount of the Loans secured by any Jurisdictional Capped Mortgage(s) (whether
or not such aggregate outstanding principal amount of the Loans was
originally less than the aggregate maximum principal amount of the Loans
secured by such Jurisdictional Capped Mortgage(s) prior to such payment),
then (A) Borrower may thereafter be required to pay additional mortgage
recording taxes in connection with any future Borrowing pursuant to this
Agreement so that the Jurisdictional Capped Mortgages in existence at or
prior to such Borrowing will secure, in accordance with applicable law, the
amount of such Borrowing up to the aggregate maximum original principal
amount secured by such Jurisdictional Capped Mortgage(s), and (B) if and to
the extent that Lender determines in good faith that any such additional
mortgage recording taxes are so due and payable in connection with any such
future Borrowing and unless Borrower shall have presented to Lender evidence,
satisfactory to Lender, that any such additional mortgage recording taxes are
not so due and payable, Borrower shall pay such additional mortgage recording
taxes to the appropriate governmental taxing authorities, and shall duly
execute and deliver to Lender any and all supplemental or additional
mortgages and consolidation agreements, as may be required by Lender in
connection therewith. As used herein, "Jurisdictional Capped Mortgages" shall
collectively mean, for each State, all of the Mortgage(s) now or hereafter
covering Subject Properties located in such State which secure a maximum
original principal amount of indebtedness which is less than the Commitment,
whether for the purpose of limiting the debt secured by such Mortgages and
any mortgage recording taxes payable in connection therewith or otherwise
with approval of Lender; and the "aggregate maximum principal amount of the
Loans secured by any such Jurisdictional Capped Mortgage(s)" shall mean, at
any time, the aggregate maximum original principal amount of indebtedness
secured by all of the Mortgages covering Subject Properties in such State at
such time, as specified in such Mortgages.
(h) Loan Amount. The aggregate amount of all Loans then
outstanding, prior to and after giving effect to the making of the Loan on
the Borrowing Date, does not exceed the lesser of (i) the amount of the
Commitment or (ii) 80% of the Collateral Value.
Each Borrowing Request hereunder shall be deemed to constitute a
certification by Borrower to the effect set forth in the above clauses of
this Section 4.02 (as of the date of such notice and, unless Borrower
otherwise notifies Lender prior to the date of such Borrowing, as of the date
of such Borrowing, both immediately prior to and after giving effect to such
Borrowing and the application of proceeds therefrom).
ARTICLE V COLLATERAL VALUE AND RELEASES OF COLLATERAL
Section 5.01 Determinations of Collateral Value by Lender.Lender shall
have the right at any time to recalculate the Collateral Value. In the event
that Lender determines at any time, whether pursuant to this Section 5.01 or
5.02 below, that the ratio of the aggregate outstanding principal balances of
all Loans to the then current Collateral Value (the "LTV Ratio") exceeds
eighty percent (80%), Borrower shall, within ten (10) days following Lender's
demand therefor, either (a) pay down the principal balance of the Loans in an
amount necessary to reduce the LTV Ratio to eighty percent (80%) or (b)
deliver to Lender such additional collateral in form, type and amount
satisfactory to Lender in its sole and absolute discretion, which additional
collateral shall be subject to a first lien security interest in favor of
Lender. In the event that Borrower elects to deliver additional collateral,
Borrower shall also deliver such additional materials and assurances with
respect thereto as Lender may request based upon the nature of the
collateral. Upon Xxxxxx's receipt of a first lien security interest in such
additional approved collateral, such additional collateral shall, so long as
Lender continues to hold a first lien security interest therein, be included
in all future calculations of Collateral Value.
Section 5.02 Recalculations of Collateral Value at Borrower's
Request. Borrower shall have the right to request that Xxxxxx recalculate
the Collateral Value once in each calendar quarter during the term of this
Agreement. In the event the recalculated Collateral Value results in an LTV
Ratio in excess of eighty percent (80%), Borrower shall be prepay the Loans
or deliver additional collateral to Lender in accordance with the
requirements set forth in Section 5.01 above. In the event that the
recalculated Collateral Value results in an LTV Ratio of less than eighty
percent (80%), Borrower shall have the right, subject to the satisfaction of
all applicable conditions set forth herein, to receive additional advances
hereunder until the LTV Xxxxx reaches eighty percent (80%), but in no event
shall the aggregate outstanding balance at any time exceed $70,000,000.
Section 5.03 Release of Collateral.Provided there exists no Default or
Event of Default hereunder (other than a Default or Event of Default which
is non-monetary in nature and relates only to the property encumbered by the
Mortgage to be reconveyed), Lender shall fully reconvey any Mortgage upon the
request of the Borrower (but Lender shall not partially reconvey any
Mortgage) provided that after giving effect to such reconveyance, (a) the LTV
Ratio does not exceed eighty percent (80%) and (b) there shall exist no
Default or Event of Default. As a condition to any such reconveyance,
Borrower shall remit to Lender the release price calculated by Lender as
necessary to achieve an eighty percent (80%) LTV Ratio after giving effect to
the reconveyance of the Mortgage. As additional conditions to any such
reconveyance, Borrower shall (i) at Borrower's sole cost and expense, deliver
to Lender an endorsement to each title policy insuring the lien of a Mortgage
that will remain in effect after such reconveyance, insuring Lender that such
Mortgage will not lose any priority as a result of such reconveyance and (ii)
pay all fees, costs and expenses, including reasonable attorneys' fees and
expenses, incurred by Lender in connection with such reconveyance. In
connection with a reconveyance of a particular Mortgage, Lender shall also,
at Borrower's expense, release the related Assignment of Rents and UCC-1 in
connection with that particular Mortgage as well as release the Borrower who
owns the reconveyed mortgaged property from its obligations under the Note.
Section 5.04 Calculations of Collateral Value and LTV Ratio.All
calculations of Collateral Value and LTV Ratio shall be made by Lender in
accordance with its customary underwriting standards and shall be deemed
binding and conclusive upon Borrower.
ARTICLE VI. REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 6.01 Representations and Warranties. In order to induce
Xxxxxx to enter into this Agreement and to make the Loans hereunder, each
entity which comprises Borrower hereby represents and warrants to Lender as
of the date hereof or such other date as is set forth below:
(a) Organization and Authority. Borrower (i) is a limited
liability company, general partnership, limited partnership or corporation,
as the case may be, duly organized, validly existing and in good standing
under the laws of the jurisdiction of its formation, (ii) has all requisite
power and authority and all necessary licenses and permits to carry on its
business as now conducted and as presently proposed to be conducted and (iii)
is duly qualified, authorized to do business and in good standing in each
other jurisdiction where the conduct of its business or the nature of its
activities makes such qualification necessary. If Borrower is a limited
liability company, limited partnership or general partnership, each general
partner or managing member, as applicable, of Borrower which is a corporation
is duly organized, validly existing, and in good standing under the laws of
the jurisdiction of its incorporation.
(b) Power. Borrower and, if applicable, each General Partner has
full power and authority to execute, deliver and perform, as applicable, the
Loan Documents to which it is a party.
(c) Authorization of Borrowing. The execution, delivery and
performance of the Loan Documents to which Borrower is a party, are within
the powers of Borrower and have been duly authorized by Xxxxxxxx and, if
applicable, the General Partners, by all requisite action (and Borrower
hereby represents that no approval or action of any limited partner or
shareholder, as applicable, of Borrower is required to authorize any of the
Loan Documents to which Borrower is a party) and will constitute the legal,
valid and binding obligation of Borrower, enforceable against Borrower in
accordance with their terms, except as enforcement may be stayed or limited
by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity (whether
considered in proceedings at law or in equity) and will not (i) violate any
provision of its partnership agreement or partnership certificate or
certificate of incorporation or bylaws, or operating agreement, or articles
of organization, as applicable, or, to its knowledge, any law, judgment,
order, rule or regulation of any court, arbitration panel or other
Governmental Authority, domestic or foreign, or other Person affecting or
binding upon Borrower or the Subject Property, or (ii) violate any provision
of any indenture, agreement. mortgage, contract or other instrument to which
Borrower or, if applicable, any General Partner is a party or by which any of
their respective properties, assets or revenues are bound, or be in conflict
with, result in an acceleration of any obligation or a breach of or
constitute (with notice or lapse of time or both) a default or require any
payment or prepayment under, any such indenture, agreement, mortgage,
contract or other instrument, or (iii) result in the creation or imposition
of any lien, except those in favor of Xxxxxx as provided in the Loan
Documents to which it is a party.
(d) Consent Neither Borrower nor, if applicable, any General
Partner, is required to obtain any consent, approval or authorization from,
or to file any declaration or statement with, any Governmental Authority or
other agency in connection with or as a condition to the execution, delivery
or performance of this Agreement, the Note or the other Loan Documents which
has not been so obtained or filed.
(e) Interest Rate The rate of interest paid under the Note and
the method and manner of the calculation thereof do not violate any usury or
other law or applicable Legal Requirement.
(f) Other Agreements. Borrower is not a party to nor is otherwise
bound by any agreements or instruments which, individually or in the
aggregate, are reasonably likely to have a Material Adverse Effect. Neither
Borrower nor, if applicable, any General Partner, is in violation of its
organizational documents or other restriction or any agreement or instrument
by which it is bound, or any judgment, decree, writ, injunction, order or
award of any arbitrator, court or Governmental Authority, or any Legal
Requirement, in each case, applicable to Borrower or the Subject Property,
except for such violations that would not, individually or in the aggregate,
have a Material Adverse Effect.
(g) Maintenance of Existence.
(i) Each entity which comprises Borrower is familiar with all
of the requirements of Lender to qualify as a special-purpose bankruptcy-
remote entity, which requirements are set forth below in this paragraph (g)
and in the Mortgages, and each Borrower and, if applicable, each General
Partner at all times since their formation have been duly formed and existing
and shall preserve and keep in full force and effect their existence as a
Single Purpose Entity.
(ii) Borrower and, if applicable, each General Partner, at
all times since their organization have complied, and will continue to
comply, with the provisions of its certificate and agreement of partnership
or certificate of incorporation and by-laws or articles of organization and
operating agreement, as applicable, and the laws of its jurisdiction of
organization relating to partnerships, corporations or limited liability
companies, as applicable.
(iii) All customary formalities regarding the partnership, or
corporate, or company existence, as applicable, of Borrower, and if,
applicable, each General Partner have been observed at all times since its
formation and will continue to be observed.
(iv) Borrower and, if applicable, each General Partner, have
at all times accurately maintained, and will continue to accurately maintain,
their respective financial statements, accounting records and other
partnership, company or corporate documents separate from those of any other
Person. Borrower and, if applicable, each General Partner have not at any
time since their formation commingled, and except for deposits into and
withdrawals from the Revenue Account, will not commingle, their respective
assets with those of any other Person. Except for the Revenue Account which
is held jointly in the name of each entity comprising Borrower, Borrower has,
at all times since its formation accurately maintained, and will continue to
accurately maintain, its own bank accounts, payroll and separate books of
account.
(v) Borrower and, if applicable, each General Partner, have
at all times paid, and will continue to pay, their own liabilities from their
own separate assets.
(vi) Borrower and, if applicable, each General Partner, have
at all times identified themselves, and will continue to identify themselves,
in all dealings with the public, under their own names and as separate and
distinct entities. Borrower and, if applicable, each General Partner, have
not at any time identified themselves, and will not identify themselves, as
being a division of any other Person.
(vii) Borrower and, if applicable, each General Partner, have
been at all times, and will continue to be, adequately capitalized in light
of the nature of their respective businesses.
(viii) Borrower (A) does not own and will not own any
encumbered asset other than the Subject Properties, (B) is not engaged and
will not engage in any business other than the ownership, management and
operation of the Subject Properties, (C) will not enter into any contract or
agreement with any Affiliate of Borrower or, if applicable, any Affiliate of
a General Partner except upon terms and conditions that are intrinsically
fair and substantially similar to those that would be available on an arm's-
length basis with third parties other than an Affiliate, (D) has not incurred
and will not incur any debt, secured or unsecured, direct or contingent
(including guaranteeing any obligation), other than the Loan, and (E) has not
made and will not make any loans or advances to any Person (including any
Affiliate).
(ix) Borrower will not change its name or principal place of
business.
(x) Borrower does not have, and will not have, any
subsidiaries.
(xi) Borrower will preserve and maintain its existence as a
limited liability company under its respective state of formation and all
material rights, privileges, tradenames and franchises.
(xii) Neither Borrower, nor, if applicable, any General
Partner, will merge or consolidate with, or sell all or substantially all of
its respective assets to any Person, or liquidate, wind up or dissolve itself
(or suffer any liquidation, winding up or dissolution). Borrower, will not
acquire any business or assets from, or capital stock or other ownership
interest of, or be a party to any acquisition of, any Person.
(xiii) Borrower has not at any time since its formation
assumed or guaranteed, and will not assume or guarantee, the liabilities of
its partners, shareholders or members or any predecessor company, corporation
or partnership, each as applicable, any Affiliates, or any other Persons.
Borrower has not at any time since its formation acquired, and will not
acquire, obligations or securities of its partners or shareholders, members
or any predecessor company, corporation or partnership, each as applicable,
or any Affiliates. Borrower has not at any time since its formation made, and
will not make, loans to its partners, members or shareholders or any
predecessor company, corporation or partnership, each as applicable, or any
Affiliates of any of such Persons. Xxxxxxxx has no known contingent
liabilities nor does it have any material financial liabilities under any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which such Person is a party or by which it is otherwise bound
other than obligations incurred in the ordinary course of the operation of
the Subject Properties and other than obligations under the Loan Document.
(xiv) Borrower has not at any time since its formation
entered into and was not a party to, and, will not enter into or be a party
to, any transaction with its members, partners or shareholders, as
applicable, or any Affiliates thereof except in the ordinary course of
business of Borrower on terms which are no less favorable to Borrower than
would be obtained in a comparable arm's length transaction with an unrelated
third party.
(h) No Defaults. No Default or Event of Default has occurred and
is continuing or would occur as a result of the consummation of the
transactions contemplated by the Loan Documents. Borrower is not in default
in the payment or performance of any of its Contractual Obligations in any
respect.
(i) Governmental Consents and Approvals. Xxxxxxxx and, if
applicable, each General Partner, have obtained or made all necessary (i)
consents, approvals and authorizations, and registrations and filings of or
with all Governmental Authorities and (ii) consents, approvals, waivers and
notifications of partners, stockholders, creditors, lessors and other
nongovernmental Persons, in each case, which are required to be obtained or
made by Borrower or, if applicable, the General Partner, in connection with
the execution and delivery of, and the performance by Borrower of its
obligations under, the Loan Documents.
(j) Investment Company Act Status. Borrower is not an "investment
company," or a company "controlled" by an "investment company," as such terms
are defined in the Investment Company Act of 1940, as amended.
(k) Compliance with Law. Borrower is and shall remain in
compliance in all material respects with all Legal Requirements to which it
is subject, including, without limitation, all Environmental Statutes, the
Occupational Safety and Health Act of 1970, the Americans with Disabilities
Act and ERISA.
(l) Financial Information. All financial data that has been
delivered by Borrower to Lender (i) is true, complete and correct in all
material respects, (ii) accurately represents the financial condition and
results of operations of the Persons covered thereby as of the date on which
the same shall have been furnished, and (iii) has been prepared on a cash
basis in accordance with sound accounting principles consistently applied (or
such other accounting basis as is reasonably acceptable to Lender) throughout
the periods covered. As of the date hereof, neither Borrower nor, if
applicable, any General Partner, has any contingent liability, liability for
taxes or other unusual or forward commitment not reflected in such financial
statements delivered to Lender; since the date of the last financial
statements delivered by Borrower to Lender except as otherwise disclosed in
such financial statements or notes thereto, there has been no change in the
assets, liabilities or financial position of Borrower nor, if applicable, any
General Partner, or in the results of operations of Borrower which would have
a Material Adverse Effect. Neither Borrower nor, if applicable, any General
Partner, has incurred any obligation or liability, contingent or otherwise
not reflected in such financial statements which would have a Material
Adverse Effect.
(m) Transaction Brokerage Fees. Xxxxxxxx has not dealt with any
financial advisors, brokers, underwriters, placement agents, agents or
finders in connection with the transactions contemplated by this Agreement
except for Lender and its Affiliates. All brokerage fees, commissions and
other expenses payable in connection with the transactions contemplated by
the Loan Documents have been paid in full contemporaneously with the
execution of the Loan Documents and the funding of the Loan. Xxxxxxxx hereby
agrees to indemnify and hold Xxxxxx harmless from and against any and all
claims, liabilities, costs and expenses of any kind in any way relating to or
arising from (i) a claim by any Person that such Person acted on behalf of
Borrower in connection with the transactions contemplated herein or (ii) any
breach of the foregoing representation. The provisions of this subsection
shall survive the repayment of the Debt.
(n) Federal Reserve Regulations. No part of the proceeds of any
Loan will be used for the purpose of purchasing or acquiring any "margin
stock" within the meaning of Regulations G, T, U or X of the Board of
Governors of the Federal Reserve System or for any other purpose which would
be inconsistent with such Regulations G, T, U or X or any other Regulations
of such Board of Governors, or for any purposes prohibited by Legal
Requirements or by the terms and conditions of the Loan Documents.
(o) Pending Litigation. There are no actions, suits or proceedings
pending or, to the best knowledge of Borrower, threatened against or
affecting Borrower in any court or before any Governmental Authority which if
adversely determined either individually or collectively has or is reasonably
likely to have a Material Adverse Effect.
(p) Solvency; No Bankruptcy. Each of Borrower and, if applicable,
the General Partner, (i) is and has at all times been Solvent and will remain
Solvent immediately upon the consummation of the transactions contemplated by
the Loan Documents and (ii) is free from bankruptcy, reorganization or
arrangement proceedings or a general assignment for the benefit of creditors
and is not contemplating the filing of a petition under any state or federal
bankruptcy or insolvency laws or the liquidation of all or a major portion of
such Person's assets or property and Borrower has no knowledge of any Person
contemplating the filing of any such petition against it or, if applicable,
the General Partner. None of the transactions contemplated hereby will be or
have been made with an intent to hinder, delay or defraud any present or
future creditors of Borrower and Borrower has received reasonably equivalent
value in exchange for its obligations under the Loan Documents. Borrower's
assets do not, and immediately upon consummation of the transaction
contemplated in the Loan Documents will not, constitute unreasonably small
capital to carry out its business as presently conducted or as proposed to be
conducted. Borrower does not intend to, nor believe that it will, incur debts
and liabilities beyond its ability to pay such debts as they may mature.
(q) Use of Proceeds. The proceeds of the Loan shall be applied by
Xxxxxxxx to, inter alia, (i) satisfy certain mortgage loans presently
encumbering all or a part of the applicable Subject Property or to be
purchased with such proceeds, (ii) fund the Leasing Replacement Account and
any other reserve required by Lender in connection with a particular Loan,
(iii) purchase the Subject Property (as to any subsequent property), (iv)
pay certain transaction costs incurred by Borrower in connection with the
Loan and (v) for any other business purposes approved by Lender. No portion
of the proceeds of the Loan will be used for family, personal, agricultural
or household use.
(r) Tax Filings. Borrower and, if applicable, each General
Partner, have filed all federal, state and local tax returns required to be
filed and have paid or made adequate provision for the payment of all
federal, state and local taxes, charges and assessments payable by Xxxxxxxx
and, if applicable, the General Partners. Xxxxxxxx and, if applicable, the
General Partners, believe that their respective tax returns properly reflect
the income and taxes of Xxxxxxxx and said General Partner, if any, for the
periods covered thereby, subject only to reasonable adjustments required by
the Internal Revenue Service or other applicable tax authority upon audit.
(s) Not Foreign Person. Borrower is not a "foreign person" within
the meaning of Section 1445(f)(3) of the Code.
(t) ERISA.
(i) The assets of Borrower and Guarantor are not and will not
become treated as "plan assets", whether by operation of law or under
regulations promulgated under ERISA. Each Plan and Welfare Plan, and, to the
knowledge of Borrower, each Multiemployer Plan, is in compliance in all
material respects with, and has been administered in all material respects in
compliance with, its terms and the applicable provisions of ERISA, the Code
and any other applicable Legal Requirement, and no event or condition has
occurred and is continuing as to which Borrower would be under an obligation
to furnish a report to Lender under clause (ii)(A) of this subsection. Other
than an application for a favorable determination letter with respect to a
Plan, there are no pending issues or claims before the Internal Revenue
Service, the United States Department of Labor or any court of competent
jurisdiction related to any Plan or Welfare Plan under which Borrower,
Guarantor or any ERISA Affiliate, directly or indirectly (through an
indemnification agreement or otherwise), could be subject to any material
risk of liability under Section 409 or 502(i) of ERISA or Section 4975 of the
Code. No Welfare Plan provides or will provide benefits, including, without
limitation, death or medical benefits (whether or not insured) with respect
to any current or former employee of Borrower, Guarantor or any ERISA
Affiliate beyond his or her retirement or other termination of service other
than (A) coverage mandated by applicable law, (B) death or disability
benefits that have been fully provided for by fully paid up insurance or (C)
severance benefits.
(ii) Borrower will furnish to Lender as soon as
possible, and in any event within ten (10) days after Borrower knows or has
reason to believe that any of the events or conditions specified below with
respect to any Plan, Welfare Plan or Multiemployer Plan has occurred or
exists, an Officer's Certificate setting forth details respecting such event
or condition and the action, if any, that Borrower or its ERISA Affiliate
proposes to take with respect thereto (and a copy of any report or notice
required to be filed with or given to PBGC (or any other relevant
Governmental Authority) by Borrower or an ERISA Affiliate with respect to
such event or condition, if such report or notice is required to be filed
with the PBGC or any other relevant Governmental Authority:
(A) any reportable event, as defined in Section 4043(b)
of ERISA and the regulations issued thereunder, with respect
to a Plan, as to which PBGC has not by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified
within thirty (30) days of the occurrence of such event
(provided that a failure to meet the minimum funding standard
of Section 412 of the Code of Section 302 of ERISA, including,
without limitation, the failure to make on or before its due
date a required installment under Section 412(m) of the Code
of Section 302(e) of ERISA, shall be a reportable event
regardless of the issuance of any waivers in accordance with
Section 412(d) of the Code), and any request for a waiver
under Section 412(d) of the Code for any Plan;
(B) the distribution under Section 4041 of ERISA of a
notice of intent to terminate any Plan or any action taken by
Borrower or an ERISA Affiliate to terminate any Plan;
(C) the institution by PBGC of proceedings under Section
4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Plan, or the receipt by Borrower or
any ERISA Affiliate of a notice from a Multiemployer Plan that
such action has been taken by PBGC with respect to such
Multiemployer Plan;
(D) the complete or partial withdrawal from a
Multiemployer Plan by Borrower or any ERISA Affiliate that
results in liability under Section 4201 or 4204 of ERISA
(including the obligation to satisfy secondary liability as a
result of a purchaser default) or the receipt by Borrower or
any ERISA Affiliate of notice from a Multiemployer Plan that
it is in reorganization or insolvency pursuant to Section 4241
or 4245 of ERISA or that it intends to terminate or has
terminated under Section 4041A of ERISA;
(E) the institution of a proceeding by a fiduciary of
any Multiemployer Plan against Borrower or any ERISA Affiliate
to enforce Section 515 of ERISA, which proceeding is not
dismissed within thirty (30) days;
(F) the adoption of an amendment to any Plan that,
pursuant to Section 401(a)(29) of the Code or Section 307 of
ERISA, would result in the loss of tax-exempt status of the
trust of which such Plan is a part if Borrower or an ERISA
Affiliate fails to timely provide security to the Plan in
accordance with the provisions of said Sections; or
(G) the imposition of a lien or a security interest in
connection with a Plan.
(iii) Borrower shall not knowingly engage in or permit any
transaction in connection with which Borrower, Guarantor or any ERISA
Affiliate could be subject to either a civil penalty or tax assessed pursuant
to Section 502(i) or 502(1) of ERISA or Section 4975 of the Code, permit any
Welfare Plan to provide benefits, including without limitation, medical
benefits (whether or not insured), with respect to any current or former
employee of Borrower, Guarantor or any ERISA Affiliate beyond his or her
retirement or other termination of service other than (A) coverage mandated
by applicable law, (B) death or disability benefits that have been fully
provided for by paid up insurance or otherwise or (C) severance benefits,
permit the assets of Borrower or Guarantor to become "plan assets", whether
by operation of law or under regulations promulgated under ERISA or adopt,
amend (except as may be required by applicable law) or increase the amount of
any benefit or amount payable under, or permit any ERISA Affiliate to adopt,
amend (except as may be required by applicable law) or increase the amount of
any benefit or amount payable under, any employee benefit plan (including,
without limitation, any employee welfare benefit plan) or other plan, policy
or arrangement, except for normal increases in the ordinary course of
business consistent with past practice that, in the aggregate, do not result
in a material increase in benefits expense to Borrower, Guarantor or any
ERISA Affiliate.
(u) Labor Matters. Borrower is not a party to any collective
bargaining agreements.
Section 6.02 Financial Reports.
(a) Borrower will keep and maintain or will cause to be kept and
maintained on a Fiscal Year basis, on a cash basis in accordance with sound
accounting principles consistently applied (or such other accounting basis
reasonably acceptable to Lender), proper and accurate books, records and
accounts reflecting all of the financial affairs of Borrower. Xxxxxx shall
have the right from time to time at all times during normal business hours
upon reasonable notice to examine such books, records and accounts at the
office of Borrower or other Person maintaining such books, records and
accounts and to make such copies or extracts thereof as Lender shall desire.
After the occurrence of an Event of Default, Borrower shall pay any costs and
expenses incurred by Xxxxxx to examine Xxxxxxxx's accounting books and
records, as Lender shall determine to be necessary or appropriate in the
protection of Xxxxxx's interest.
(b) Borrower will furnish Lender annually, within one hundred
twenty (120) days following the end of each Fiscal Year of Borrower, with a
complete copy of Borrower's financial statement certified to be true, correct
and complete by a certified public accountant acceptable to Lender and
prepared on a cash basis in accordance with sound accounting principles
consistently applied (or such other accounting basis reasonably acceptable to
Lender) covering all of the financial affairs of Borrower and containing a
statement of revenues and expenses, a statement of assets and liabilities and
a statement of Xxxxxxxx's equity. Together with Xxxxxxxx's annual financial
statements, Borrower shall supplement the combined financial statement with
information on a property by-property basis that was used in the preparation
of the combined statement and shall furnish to Lender an Officer's
Certificate certifying as of the date thereof (i) that the annual financial
statements accurately represent the results of operation and financial
condition of Borrower (or, in the case of a combined financial statement, the
results of operation and financial condition of Borrower) all in accordance
with sound accounting principles consistently applied, and (ii) whether there
exists an event or circumstance which constitutes, or which upon notice or
lapse of time or both would constitute, a Default under the Note or any other
Loan Document executed and delivered by Borrower, and if such event or
circumstance exists, the nature thereof, the period of time it has existed
and the action then being taken to remedy such event or circumstance.
(c) Borrower shall furnish to Lender, within fifteen (15) days
following the end of each calendar quarter, income and expense statements and
an updated rent roll with respect to each of the Mortgaged Properties, in
each case certified by Borrower to be true and correct.
(d) Borrower shall furnish Lender, within thirty (30) days after
Xxxxxx's request therefor, with such further detailed information with
respect to the financial affairs of Borrower as may be reasonably requested
by Xxxxxx.
Section 6.03 Litigation. Borrower will give prompt written notice to
Lender of any litigation or governmental proceedings pending or threatened
(in writing) against Borrower which might have a Material Adverse Effect.
ARTICLE VII. EVENTS OF DEFAULT
Section 7.01 Events of Default. If any Event of Default shall occur
and be continuing then, and in any such event, and in addition to any other
rights or remedies Lender may have hereunder, under any other Loan Document,
including, without limitation, pursuant to Section 13.02 of the Mortgages, or
at law or equity, (A) if such event is an Event of Default specified in
Section 13.01(i) of the Mortgages, the Commitment hereunder shall immediately
terminate and the outstanding principal amount of the Note together with
accrued and unpaid interest thereon and all other amounts owing under this
Agreement and the Note shall immediately become due and payable, and (B) if
such event is any other Event of Default, Lender may, by written notice of
default to Borrower, terminate the Commitment hereunder and/or declare the
outstanding principal amount of the Note, together with accrued and unpaid
interest thereon and all other amounts owing under this Agreement and the
Note to be due and payable forthwith, whereupon the same shall immediately
become due and payable. Except as expressly provided above herein or in any
of the other Loan Documents, presentment, demand, protest and all other
notices of any kind are hereby expressly waived by Borrower.
ARTICLE VIII. MISCELLANEOUS
Section 8.01 Notices. All notices, requests and other communications
to any party hereunder or under the Note shall be given in the manner and to
the address of each party as set forth in Article XI of the Mortgages.
Section 8.02 Performance by Xxxxxx. Should Borrower fail to perform
any covenant, duty or agreement in accordance with the terms and conditions
of any of the Loan Documents to which it is party, or of the Mortgage Loans,
Lender may, at its option, perform, or attempt to perform, such covenant,
duty or agreement on behalf of Borrower. In such event, the appropriate
entity shall, at the request of Xxxxxx, promptly pay any amount expended by
Xxxxxx in such performance or attempted performance to Xxxxxx at the office
of Lender designated for receipt of payments of principal and interest on the
Loan, together with interest thereon at the Default Rate from the date of
such expenditure by Xxxxxx until paid. Notwithstanding the foregoing, it is
expressly understood that Xxxxxx does not assume and shall never have, except
by express written consent, any liability or responsibility for the
performance of any duties of Borrower hereunder, or under or in connection
with any of the other Loan Documents.
Section 8.03 No Oral Change. The terms of this Agreement, together
with the terms of the Note and the other Loan Documents constitute the entire
understanding and agreement of the parties hereto and supersede all prior
agreements, understandings and negotiations between Borrower and Lender with
respect to the Loans. This Agreement, and any provisions hereof, may not be
modified, amended, waived, extended, changed, discharged or terminated orally
or by any act on the part of Borrower or Lender, but only by an agreement in
writing signed by the party against whom enforcement of any modification,
amendment, waiver, extension, change, discharge or termination is sought.
Section 8.04 No Waiver: Remedies Cumulative. No failure or delay on
the part of Lender in exercising any right, remedy, power or privilege
hereunder or under the other Loan Documents and no course of dealing between
Borrower and Lender shall operate as a waiver thereof, nor shall any single
or partial exercise of any right, remedy, power or privilege hereunder or
under the other Loan Documents preclude any other or further exercise thereof
or the exercise of any other right, remedy, power or privilege hereunder or
thereunder. The rights and remedies provided herein and in the other Loan
Documents are cumulative and not exclusive of any rights or remedies provided
by law. The giving of notice to or demand on Borrower, which notice or demand
is not required hereunder or under the other Loan Documents, shall not
entitle Borrower to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights, remedies, powers or
privileges of Lender in any circumstances not requiring notice or demand.
Section 8.05 Fees and Expenses. Xxxxxxxx agrees to pay or reimburse
Lender for:
(a) all reasonable expenses (including, without limitation, the
fees, which shall not exceed $50,000, and the reasonable disbursements of
Xxxxxxx & Berlin, Chartered and any local counsel retained by Xxxxxx)
incurred in connection with the negotiation, preparation, execution and
delivery of this Agreement:
(b) all reasonable expenses (including, without limitation, the
fees, which shall not exceed $10,000 per Mortgage Loan, and the reasonable
disbursements of Xxxxxxx & Berlin, Chartered) incurred in connection with the
closing of each Mortgage Loan;
(c) all costs and expenses (including, without limitation,
reasonable fees and disbursements of counsel) incurred in connection with any
Default and any enforcement or collection proceedings resulting therefrom
including, without limitation, in connection with any bankruptcy, insolvency,
liquidation, reorganization, moratorium or other similar proceedings
involving Borrower or a "workout" of the Loans, as applicable, or in
connection with any seizure or sale of any Subject Property or any related or
similar proceedings;
(d) all Taxes, and all transfer, stamp, documentary or other
similar taxes, assessments or charges levied by any governmental or revenue
authority in respect of this Agreement, any other Loan Documents or any other
document referred to herein or therein, and all costs, expenses, Taxes and
other charges incurred in connection with any filing, registration, recording
or perfection of any security interest or Lien contemplated by this
Agreement, any other Loan Documents or any document referred to therein; and
(e) all Taxes and assessments, recording fees, registration taxes,
title insurance premiums, appraisal fees, costs of surveys, fees of third-
party consultants and all other fees and expenses reasonably incurred by
Xxxxxx in connection with any Subject Property, all of which sums shall be
paid on demand with interest thereon at the Default Rate.
Section 8.06 Indemnification. Borrower agrees to indemnify Lender and
its respective directors, officers, attorneys, employees and agents from, and
to hold each of them harmless against, any and all losses, liabilities,
claims, damages or expenses (in contract, tort or otherwise) incurred by any
of them, as incurred, arising out of or by reason of any claim of any Person
relating to or arising out of this Agreement or any other Loan Document or
any transaction contemplated hereby or thereby or resulting from the
ownership or financing of any Subject Property or any investigation or
litigation or other proceedings (including any threatened investigation or
litigation or other proceedings) relating to this Agreement or any other Loan
Document or any actual or proposed use by Borrower of any of the proceeds of
any of the Loans (including, without limitation, the reasonable fees and
disbursements of counsel), but excluding any such losses, liabilities,
claims, damages or expenses incurred by reason of the gross negligence or
willful misconduct of any Person to be indemnified hereunder. Notwithstanding
any other provision of this Agreement, the obligation of Borrower under this
Section 8.06 shall survive the repayment of the Loans.
Section 8.07 Benefits of Agreement. This Agreement shall be binding
upon and inure to the benefit of Xxxxxxxx, Xxxxxx and their respective
successors and assigns, except that Borrower may not assign or transfer any
of its rights or obligations under this Agreement or the Note without the
prior written consent of Lender.
Section 8.08 Participations. Lender may at any time grant to one or
more banks or other institutions (each a "Participant") participating
interests in its Commitment or any portion or all of the Loan. In the event
of any such grant by Xxxxxx of a participating interest to a Participant,
whether or not upon notice to Xxxxxxxx, Lender shall remain responsible for
the performance of its obligations hereunder, and Xxxxxxxx shall continue to
deal solely and directly with Lender in connection with Xxxxxx's rights and
obligations under this Agreement. Any agreement pursuant to which Lender may
grant such a participating interest shall provide that Lender shall retain
the sole right and responsibility to enforce the obligations of Borrower
hereunder including, without limitation, the right to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
participation agreement may provide that Lender will not agree to any
modification, amendment or waiver of this Agreement (a) which increases or
decreases the Commitment, (b) reduces the principal of or rate of interest on
the Loan or fees hereunder or (c) postpones the date fixed for any payment of
principal of or interest on the Loan or any fees hereunder without the
consent of the Participant. Lender shall have the right to deliver from time
to time to any Participant or prospective Participant copies of all financial
and other information in the possession of Payee with respect to any Loan,
the Borrower, any guarantor or any other related person or entity, all of
which information may be retained by such Participant and/or prospective
Participant.
Section 8.09 Assignments. Lender may at any time assign to one or
more banks or other institutions (each an "Assignee") all, or a proportionate
part of all, of its rights and obligations under this Agreement and the Note,
and such Assignee shall assume such rights and obligations, pursuant to an
assignment and assumption agreement executed by such Assignee and Lender,
with (and subject to) the subscribed consent of Borrower, which shall not be
unreasonably withheld; provided that if an Assignee is an Affiliate of
Lender, no such consent shall be required. Upon execution and delivery of
such instrument and payment by such Assignee to Lender of an amount equal to
the purchase price agreed between Lender and such Assignee, such Assignee
shall be a party to this Agreement and shall have all the rights and
obligations of a Bank with a Commitment as set forth in such instrument of
assumption, and Lender shall be released from its obligations hereunder to a
corresponding extent, and no further consent or action by any party shall be
required. Upon the consummation of any assignment pursuant to this Section
8.09, Lender and Borrower shall make appropriate arrangements so that, if
required, a new Note is issued to the Assignee. In addition to the foregoing,
Lender may assign or transfer any of its rights or obligations hereunder and
under the Note to an Affiliate or other branch of Lender.
Section 8.10 Governing Law.
(a) This Agreement was negotiated and executed in New York, and
the proceeds of the Note delivered pursuant hereto will be disbursed from New
York, which State the parties agree has a substantial relationship to the
parties and to the underlying transaction embodied hereby, and in all
respects, including, without limiting the generality of the foregoing,
matters of construction, validity and performance. This Agreement and the
obligations arising hereunder shall be governed by, and construed in
accordance with, the laws of the State of New York applicable to contracts
made and performed in such State and any applicable law of the United States
of America, except that at all times the provisions for the creation,
perfection, and enforcement of the liens and security interests created
pursuant to the Mortgages and pursuant to the other Loan Documents shall be
governed by and construed according to the law of the State in which the
Subject Property is located, it being understood that, to the fullest extent
permitted by law of such State, the law of the State of New York shall govern
the validity and the enforceability of all Loan Documents, and the Debt or
obligations arising hereunder or thereunder. To the fullest extent permitted
by law, Borrower hereby unconditionally and irrevocably waives any claim to
assert that the law of any other jurisdiction governs this Agreement and this
Agreement shall be governed by and construed in accordance with the laws of
the State of New York pursuant to Section 5-1401 of the New York General
Obligations Law.
(b) Any legal suit, action or proceeding against Borrower or Payee
arising out of or relating to this Agreement shall be instituted in any
federal or state court in New York, New York, pursuant to Section 5-1402 of
the New York General Obligations Law, and Borrower waives any objection which
it may now or hereafter have to the laying of venue of any such suit, action
or proceeding, and Borrower hereby irrevocably submits to the jurisdiction of
any such court in any suit, action or proceeding. Borrower does hereby
designate and appoint CT Corporation System, 0000 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 as its authorized agent to accept and acknowledge on its behalf
service of any and all process which may be served in any such suit, action
or proceeding in any federal or state court in New York, New York, and agrees
that service of process upon said agent at said address and written notice of
said service of Borrower mailed or delivered to Maker in the manner provided
in Section 8.01 hereof, shall be deemed in every respect effective service of
process upon Borrower, in any such suit, action or proceeding in the State of
New York. Borrower (i) shall give prompt notice to the Lender of any changed
address of its authorized agent hereunder, (ii) may at any time and from time
to time designate a substitute authorized agent with an office in New York,
New York (which office shall be designated as the address for service of
process), and (iii) shall promptly designate such a substitute if its
authorized agent ceases to have an office in New York, New York or is
dissolved without leaving a successor.
Section 8. 11 Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed an
original, and all of which shall together constitute one and the same
agreement.
Section 8.12 Waiver of Counterclaim, Etc. BORROWER HEREBY WAIVES THE
RIGHT TO ASSERT A COUNTERCLAIM, OTHER THAN A COMPULSORY COUNTERCLAIM, IN ANY
ACTION OR PROCEEDING BROUGHT AGAINST IT BY LENDER OR ITS AGENTS, AND WAIVES
TRIAL BY JURY IN ANY ACTION OR PROCEEDING BROUGHT BY EITHER PARTY HERETO
AGAINST THE OTHER OR IN ANY COUNTERCLAIM BORROWER MAY BE PERMITTED TO ASSERT
HEREUNDER OR WHICH MAY BE ASSERTED BY LENDER OR ITS AGENTS, AGAINST BORROWER,
OR IN ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS
AGREEMENT OR THE DEBT.
Section 8.13 Severable Provisions. If any term, covenant or condition
of the Loan Documents including, without limitation, the Note or this
Agreement, is held to be invalid, illegal or unenforceable in any respect,
such Loan Document shall be construed without such provision.
Section 8.14 Right of Setoff. In addition to any other rights now or
hereafter granted under applicable law or otherwise and not by way of
limitation of any such rights, upon the occurrence of an Event of Default,
Borrower hereby authorizes Lender and each Affiliate of Lender at any time or
from time to time, without presentment, demand, protest or other notice of
other kind to Borrower or any other Person, each of which is hereby expressly
waived by Borrower, to the extent permitted by applicable law, to set-off and
appropriate and apply any and all deposits (general or special) in any
currency and any amount owing from Lender to Borrower, to any amount owing by
Borrower hereunder and under the other Loan Documents to which it is a party
to Lender.
Section 8.15 Confidentiality. Except as provided herein to the
contrary, all correspondence from Xxxxxx to Borrower and all of the Loan
Documents are confidential and may not be shown by Borrower to or discussed
by Borrower with any third party (other than on a confidential basis with
Xxxxxxxx's legal counsel and independent public accountants and Xxxxxxxx's
investors) without Xxxxxx's prior written consent.
Section 8.16 Exhibits Incorporated. The information set forth on the
cover hereof, and the Exhibits annexed hereto, are hereby incorporated herein
as a part of this Agreement with the same effect as if set forth in the body
hereof.
Section 8.17 Sole Discretion of Lender. Whenever Lender exercises any
right given to it to approve or disapprove, or any arrangement or term is to
be satisfactory to Lender, the decision of Lender to approve or disapprove or
to decide that arrangements or terms are satisfactory or not satisfactory
shall be in the sole discretion of Lender and shall be final and conclusive,
except as may be otherwise specifically provided herein.
Section 8.18 Waiver of Notice. Borrower shall not be entitled to any
notices of any nature whatsoever from Lender except with respect to matters
for which this Agreement specifically and expressly provides for the giving
of notice by Xxxxxx to Borrower and except with respect to matters for which
Borrower is not, pursuant to applicable Legal Requirements, permitted to
waive the giving of notice.
Section 8.19 Remedies of Borrower. In the event that a claim or
adjudication is made that Xxxxxx has acted unreasonably or unreasonably
delayed acting in any case where by law or under the Note, this Agreement or
the other Loan Documents, it has an obligation to act reasonably or promptly,
Lender shall not be liable for any monetary damages, and Xxxxxxxx's remedies
shall be limited to injunctive relief or declaratory judgment.
Section 8.20 Waiver of Statute of Limitations. The pleadings of any
statute of limitations as a defense to any and all obligations secured by
this Agreement are hereby waived to the full extent permitted by Legal
Requirements.
Section 8.21 Application of Default Rate Not a Waiver. Application of
the Default Rate shall not be deemed to constitute a waiver of any Default or
Event of Default or any rights or remedies of Lender under this Agreement,
any other Loan Document or applicable Legal Requirements, or a consent to any
extension of time for the payment or performance of any obligation with
respect to which the Default Rate may be invoked.
Section 8.22 No Joint Venture or Partnership. Xxxxxxxx and Xxxxxx
intend that the relationship created hereunder be solely that of a borrower
and a lender. Nothing herein is intended to create a joint venture,
partnership, tenancy-in-common, or joint tenancy relationship between
Borrower and Lender.
Section 8.23 Time of the Essence. Time shall be of the essence in the
performance of all obligations of Borrower hereunder.
Section 8.24 Publicity. All promotional news releases, publicity or
advertising by Borrower or its Affiliates through any media intended to reach
the general public shall not refer to the Loan Documents or the financing
evidenced by the Loan Documents, or to Lender or any of its Affiliates
without the prior written approval of Lender or its Affiliates, as
applicable, in each instance, such approval not to be unreasonably withheld
or delayed. Lender shall be authorized to provide information relating to the
Loans and matters relating thereto to rating agencies, underwriters,
potential securities investors, auditors, regulatory authorities and to any
Persons which may be entitled to such information by operation of law.
Section 8.25 Securitization. In the event the Loans or any portion
thereof are to be included as an asset of a Securitization, Borrower, without
cost to Borrower (except any costs incurred by Borrower in connection with
its representation by legal counsel), shall, at the request of Lender,
promptly, but in any event within ten (10) Business Days of Lender's request
(a) amend the Loan Documents with respect to those Loans which are to be
included in the Securitization to extend the maturity date thereof for a
period to be determined by Lender in its sole discretion which shall in no
event be more than two (2) additional years, (b) split the Note into two or
more notes with principal balances aggregating not more than $70,000,000, (c)
amend any cross-default provisions and/or cross-collateralization provisions
in the Loan Documents so that any Loans or portions thereof which are not to
be included as an asset in the Securitization shall not be cross-defaulted or
cross-collateralized with any Loans or portions thereof which are not to be
included within such Securitization and (d) amend the Loan Documents and
enter into additional Loan Documents as may be reasonably requested by
Xxxxxx, provided, that no such amendments or additional documentation shall
materially and adversely affect Borrower.
Section 8.26 Offsets, Counterclaims and Defenses. Any assignee of
this Agreement, the Mortgage, the Assignment and the Note shall take the same
free and clear of all offsets, counterclaims or defenses which are unrelated
to this Agreement, the Mortgages, the Assignment or the Note which Borrower
may otherwise have against any assignor of this Agreement, the Mortgages, the
Assignment and the Note and no such unrelated counterclaim or defense shall
be interposed or asserted by Borrower in any action or proceeding brought by
any such assignee upon this Agreement, the Mortgages, the Assignment or the
Note and any such right to interpose or assert any such unrelated offset,
counterclaim or defense in any such action or proceeding is hereby expressly
waived by Borrower.
Section 8.27 Headings; Construction of Documents: etc. The table of
contents, headings and captions of various paragraphs of this Agreement are
for convenience of reference only and are not to be construed as defining or
limiting, in any way, the scope or intent of the provisions hereof. Xxxxxxxx
acknowledges that it was represented by competent counsel in connection with
the negotiation and drafting of this Agreement and the other Loan Documents
and that neither this Agreement nor the other Loan Documents shall be subject
to the principle of construing the meaning against the Person who drafted
same.
Section 8.28. Joint and Several.
If Borrower consists of more than one Person or party, the obligations
and liabilities of each such Person or party hereunder shall be joint and
several.
IN WITNESS WHEREOF, Xxxxxxxx and Xxxxxx have caused this Agreement to be
duly executed by their respective officers thereunto duly authorized, as of
the date first above written.
BORROWER:
AP - ANAHEIM LLC
a California limited liability company
By: Abbey Investments, Inc., a California
corporation, its Manager
By: /s/ Xxxxxx X. Xxxxx
_______________________________
Name: Xxxxxx X. Xxxxx
Title: President
AP - ARLINGTON LLC,
a California limited liability company
By: Abbey Investments, Inc., a California
corporation, its Manager
By: /s/ Xxxxxx X. Xxxxx
________________________________
Name: Xxxxxx X. Xxxxx
Title: President
[Signatures Continue on Following Page]
AP - ATLANTIC LLC,
a California limited liability company
By: Abbey Investments, Inc., a California
corporation, its Manager
By: /s/ Xxxxxx X. Xxxxx
__________________________________
Name: Xxxxxx X. Xxxxx
Title: President
AP - CITYVIEW LLC,
a California liability company
By: Abbey Investments, Inc., a California
corporation, its Manager
By: /s/ Xxxxxx X. Xxxxx
________________________________
Name: Xxxxxx X. Xxxxx
Title: President
AP - REDLANDS LLC
a California limited liability company
By: Abbey Investments, Inc., a California
corporation, its Manager
By: /s/ Xxxxxx X. Xxxxx
________________________________
Name: Xxxxxx X. Xxxxx
Title: President
AP - PALMDALE LLC,
a California limited liability company
By: Abbey Investments, Inc., a California
corporation, its Manager
By: /s/ Xxxxxx X. Xxxxx
_________________________________
Name: Xxxxxx X. Xxxxx
Title: President
[Signatures Continue on Following Page]
AP - XXXXXXX XXXXX LLC,
a California limited liability company
By: Abbey Investments, Inc., a California
corporation, its Manager
By: /s/ Xxxxxx X. Xxxxx
_________________________________
Name: Xxxxxx X. Xxxxx
Title: President
AP - SIERRA LLC,
a California limited liability company
By: Abbey Investments, Inc., a California
corporation, its Manager
By: /s/ Xxxxxx X. Xxxxx
_________________________________
Name: Xxxxxx X. Xxxxx
Title: President
AP - VICTORIA LLC,
a California limited liability company
By: Abbey Investments, Inc., a California
corporation, its Manager
By: /s/ Xxxxxx X Xxxxx
________________________________
Name: Xxxxxx X. Xxxxx
Title: President
AP - VICTORVILLE LLC,
a Delaware limited liability company
By: DA Investments Properties, Inc.,
a Delaware corporation, its Manager
By: /s/ Xxxxxx X. Xxxxx
_______________________________
Name: Xxxxxx X. Xxxxx
Title: President
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK
By: /s/ X. Xxxxx
__________________________________
Name: X. Xxxxx
Title: Vice President
By: /s/ Xxxxxxxx X. Xxxxxxxx
__________________________________
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President
EXHIBIT A
BORROWING REQUEST
From: _____________________________
00000 Xxxxx Xxxxxx
Xxxxx 000
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
To: Xxxxxx Guaranty Trust Company of New York
c/o X.X. Xxxxxx Securities Inc.,
its agent
00 Xxxx Xxxxxx, x0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
1. ______________________ ("Borrower") requests a Borrowing from
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK ("Lender") pursuant to the
Revolving Credit Agreement, dated August ___, 1997 between Borrower and
Lender (as the same may be amended from time to time, the "Agreement").
Capitalized terms used herein and defined in the Agreement shall be used
herein as so defined.
2. Borrowing requested:
(a) Borrower hereby requests a Borrowing in the principal amount
of $ ______________________; and
(b) Requested Borrowing Date: ________________, 199__
3. The undersigned officer of Xxxxxxxx represents and warrants to
Lender:
(a) no Default has occurred and is continuing; and
(b) no change or event which has a Material Adverse Effect has
occurred.
4. The representations and warranties of Borrower contained in the
Agreement and those contained in each other Loan Document to which Borrower
is a party are true and correct in all respects on and as of the date hereof.
IN WITNESS WHEREOF, Xxxxxxxx has caused this request to be duly executed
by its officer thereunto duly authorized, as of ________________________.
____________________________________
By: _________________________________
By: _______________________________
Name:
Title:
EXHIBIT A-2
PRELIMINARY BORROWING REQUEST
From: ________________________
00000 Xxxxx Xxxxxx
Xxxxx 000
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
To: Xxxxxx Guaranty Trust Company of New York
c/o X.X. Xxxxxx Securities Inc.,
its agent
00 Xxxx Xxxxxx, x0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
1. _______________________, a _____________________ ("Borrower")
hereby submits for your approval a preliminary request for a Borrowing from
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK (the "Lender") pursuant to the
Revolving Credit Agreement, dated as of August ___, 1997 between Borrower and
Lender (as the same may be amended from time to time, the "Agreement").
Capitalized terms used herein and defined in the Agreement shall be used
herein as so defined.
2. Borrowing requested:
(a) Borrower hereby requests a Borrowing in the principal
amount of $ ________________________; and
(b) Requested Borrowing Date: on or about , 199_.
3. The undersigned officer of Xxxxxxxx represents and warrants to
Lender:
(a) each of the documents, instruments and agreements
required to be delivered pursuant to Section 2.01(c) of the Agreement has
been previously delivered to you or accompanies this request, and each such
document, instrument and agreement is either the original or a true and
accurate copy thereof and has not been amended, modified or terminated since
the date submitted to you;
(b) no Default has occurred and is continuing under the
Agreement;
(c) no change or event which constitutes a Material Adverse
Effect
4. The representations and warranties of Borrower contained in the
Agreement and those contained in each other Loan Document to which Borrower
is a party are true and correct in all respects on and as of the date hereof.
IN WITNESS WHEREOF, Xxxxxxxx has caused this request to be duly executed
by its officer thereunto duly authorized, as of _____________________.
BORROWER
By: _________________________________________
Name:
Title:
Schedule I
Document No. Item
1. Checklist of Credit File Contents
2. Loan Summary Memorandum
3. Exhibit 1 - Site Plan or Building Layout/Floor Plan
4. Exhibit 2 - Color Photographs
5. Exhibit 3 - Property Operating Statements (2 prior years), current
year-to date and budget or trailing 12 - Months
6. Exhibit 4 - Rent Roll (or other evidence of leasing status) and
Lender rent roll form, if applicable
7. Exhibit 5 - Capital Expenditures Schedule and Budget
8. Signed Tenant Estoppel Certificates for commercial leases only
9. Appraisals (2 originals and 1 copy) to be ordered by Xxxxxx
10. Environmental Site Assessment (2 originals and 1 copy) to be
ordered by Xxxxxx
11. Physical Assessment Report (2 originals and 1 copy) to be ordered
by Xxxxxx
12. Seismic (2 originals) to be ordered by Xxxxxx
13. Site inspection - to be ordered by Lender
14. Real Estate Tax Bills (2 years)
15. Monthly Occupancy History (2 years)
16. Tenant Delinquency Report (1 year)
17. Standard Lease Form - all properties except Hotel and Nursing Home
18. Executed Ground Lease - if applicable
19. Tenant Leases - Retail, Industrial, Office only
20. Financial Statements for Tenants - Retail, Industrial, Office only
21. List of all current tenant concessions - Retail, Industrial, Office
only
22. Sales History (2 years) for Anchor Tenants and other Major Tenants
- Retail only
23. Updated Rent Roll - Multifamily and Self-Storage only
24. Termite Inspection Report - Multifamily only
25. Executed Property Management Agreement
26. All known current property code violations for the Mortgaged
Property
27. All known current litigation for the Mortgaged Property
28. Property Insurance Policies and Paid Receipts
29. Certificates of Occupancy
30. Licenses and Permits
31. Evidence of Zoning
32. Major Vendor/Service Contracts and Equipment Leases - Hotel,
Congregate Care and Nursing Home only
33. Letter of Rebuildability, if legal non-conforming use
Schedule II
APPROVED PROFESSIONAL CONSULTANTS
FIRM NAME CONTACT NAME CONTACT NUMBER
--------- ------------ --------------
APPRAISERS
CB Commercial Xxx Xxxxxxx (000) 000-0000
Xxxxxxx & Xxxxxxxxx Xxxxx Xxxxxxx (000) 000-0000
ENGINEERS AND ENVIRONMENTAL CONSULTANTS
Xxxxx & Xxxxxx Xxxxxxx Xxxxxxx (000) 000-0000
Certified Environments Inc. Xxxxxxx X. Xxxxxx (000) 000-0000
Xxxxxxx Consultants Xxx Xxxxxx (000) 000-0000
EMG Xxxxxx Xxxxx (000) 000-0000
Law Engineering Xxxxx Xxxxxx (000) 000-0000
Property Solutions, Inc. Xxx Xxxxxx (000) 000-0000
SEISMIC CONSULTANTS
Dames & Xxxxx Xxxxx Xxxxxxx (000) 000-0000
Xxxxxxx Consultants Xxxxxxxx Xxxx (000) 000-0000
Project Resources Inc. Xxxxxx X. Xxxxxxxxxxx (000) 000-0000
