Exhibit 10.43
COLLECTION AND DEPOSIT ACCOUNT AGREEMENT
THIS COLLECTION AND DEPOSIT ACCOUNT AGREEMENT (this "AGREEMENT")
dated as of July 30, 2001, among LASALLE BANK NATIONAL ASSOCIATION having an
address at 000 XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, in its
capacity as collection bank (the "COLLECTION BANK"), LASALLE BANK NATIONAL
ASSOCIATION, having an address at 000 XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxx 00000, in its capacity as depository (the "DEPOSITORY"), LAKESHORE
MARKETPLACE, LLC, a Delaware limited liability company, having an address at
00 Xxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000 ("BORROWER") and
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC., a Delaware corporation, having an
address at 000 Xxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000 (together with
its successors and assigns, "LENDER").
W I T N E S S E T H:
A. Lender has agreed to make a loan in the amount of
$15,993,000 (the "LOAN") to Borrower evidenced by a Promissory Note, dated as
of the date hereof (as amended, modified or restated and any replacements
therefor, the "NOTE"), from Borrower to Lender, and secured, INTER ALIA, by a
Mortgage, dated as of the date hereof (as amended, modified, restated, spread
or consolidated, the "INSTRUMENT"; together with the Note, this Agreement and
all other documents and agreements evidencing and/or securing the Loan,
collectively, the "LOAN DOCUMENTS"), on certain real property known as
Lakeshore Marketplace located in Muskegon, Michigan (the "PROPERTY");
B. Borrower and Horizon Group Properties, L.P., a Delaware
limited partnership (the "MANAGER") are parties to a management agreement
pursuant to which the Manager has agreed to act as manager with respect to
the Property;
C. The Instrument provides that all Rents (as hereinafter
defined) shall be sent directly to one or more financial institutions
acceptable to Lender for deposit into an account designated and established
by Lender or its designee; and
D. Lender and Borrower desire to retain the Collection Bank
and Depository to provide the services described herein.
NOW THEREFORE, in consideration of the mutual premises contained
herein and for other good and valuable consideration the sufficiency of which
is hereby acknowledged, the parties hereto agree as follows:
1. DEFINED TERMS. Certain capitalized terms used herein are
defined in Section 16.
2. DEPOSIT OF RENTS; DUTIES OF THE COLLECTION BANK.
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(a) From and after the date hereof, Borrower will (a) cause
all tenants under Leases now or hereafter affecting all or a portion of the
Property to deliver all Rents directly to the Collection Bank at the
following address: Lakeshore Marketplace, LLC, 000 X. XxXxxxx Xx., Xxxx.
0000, Xxxxxxx, XX 00000-0000 (the "Lockbox"), whereupon the Collection Bank
shall promptly deposit such rents into the Collection Account (hereinafter
defined), and (b) cause any and all other Rents received by Borrower, its
affiliates, partners or members, the Manager or any other party on Borrower's
behalf to be deposited into the Collection Account within two (2) Business
Days after receipt thereof by or on behalf of Borrower. On the date hereof,
Borrower shall deliver to each tenant under an existing Lease an irrevocable
direction in the form of EXHIBIT A attached hereto and made a part hereof
(each, a "TENANT NOTICE") to deliver all Rent payable under such tenant's
Lease, when due, directly to the Lockbox. In addition, Borrower shall deliver
a Tenant Notice to each tenant under any Lease entered into after the date
hereof promptly after execution of such Lease.
(b) The Collection Bank shall receive and process any
deposits properly presented by Borrower, its partners, members or any of
their respective agents pursuant to Section 6 in accordance with the terms of
this Agreement. The Collection Bank shall also receive and process all Rents
sent directly to the Lockbox by tenants at the Property in accordance with
the terms of the Wholesale Lockbox Mail Service Agreement between Borrower
and Collection Bank. The Rents and other deposits described in this Section
2(b) are collectively referred to herein as the "RECEIPTS." The Collection
Bank shall establish and maintain a Collection Account for the Property in
the name of Borrower, with Lender, as secured party, as account number
5800254475 (the "COLLECTION ACCOUNT"), into which the Collection Bank shall
deposit all Receipts received by it with respect to the Property.
(c) Items deposited with, or funds transfers received (for
credit to the Collection Account) by, the Collection Bank which are returned
for insufficient or uncollected funds will be re-deposited the first time.
Items or funds transfers returned unpaid the second time for whatever reason
shall be debited to the Collection Account under advice and returned to
Borrower. Borrower shall be liable to the Collection Bank for the amount of
any exchange or collection charges incurred by the Collection Bank. Fees for
returned items (or funds transfers) will be charged directly to the
Collection Account. If there are insufficient funds in the Collection Account
to fully reimburse Collection Bank for the amount of any returned item (or
funds transfer) and any related fees and expenses, then Borrower and Lender
agree to fully reimburse Collection Bank on demand to the extent either
receives the proceeds of such item or funds transfer. The Collection Bank
shall send a monthly statement to Lender, which shall specify the amounts
deposited into the Collection Account with respect to the Property for the
previous month.
(d) The Collection Account shall be an Eligible Account
entitled "Lakeshore Marketplace, LLC, for the benefit of Greenwich Capital
Financial Products, Inc., together with its successors and assigns, as
Secured Party", or entitled in such other fashion as Lender shall determine.
The Collection Bank shall deposit into the Collection Account the Rents for
the Property and all other amounts transferred to the Collection Bank,
pursuant to this Agreement or otherwise. The Collection Account shall be
under the sole dominion and control of Lender (which may be exercised through
Lender's Servicer designated by Lender to the Collection Bank
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by written notice given from time to time) and Lender (and its Servicer)
shall have the sole right to make withdrawals from the Collection Account and
to exercise all rights with respect to the amounts deposited from time to
time in the Collection Account. The Lender hereby directs the Collection
Bank, on each Business Day, to transfer all final and collected funds in the
Collection Account to the Deposit Account (as hereinafter defined). The
Lender or Servicer may from time to time after delivery of an Event of
Default Notice direct the Collection Bank in writing to transfer all final
and collected finds in the Collection Bank on each Business Day to any other
account, maintained by the Lender or Servicer at the Collection Bank or
otherwise, and the Collection Bank shall be and hereby is irrevocable
authorized to follow such instructions.
3. DUTIES OF DEPOSITORY.
(a) The Depository shall establish and maintain a Deposit
Account for the Property in the name of Borrower with Lender, as secured
party, as account number 678831504 (the "DEPOSIT ACCOUNT"), into which the
Depository shall credit all funds transferred (by the Collection Bank) from
the Collection Account. The Deposit Account shall be an Eligible Account
entitled "Lakeshore Marketplace, LLC, for the benefit of Greenwich Capital
Financial Products, Inc., together with its successors and assigns, as
Secured Party", or entitled in such other fashion as Lender shall determine.
The Depository shall hold amounts deposited in the Deposit Account and shall
not commingle such amounts with any other amounts held on behalf of Lender or
any other Person. The Deposit Account shall be under the sole dominion and
control of Lender (which may be exercised through Lender's Servicer
designated by Lender to the Depository by written notice given from time to
time) and Lender (and its Servicer) shall have the sole right to make
withdrawals from the Deposit Account and to exercise all rights with respect
to the amounts on deposit from time to time in the Deposit Account. The
Lender hereby directs the Depository Bank to permit Servicer to make
disbursements out of the Deposit Account (and the Sub-Accounts therein (as
defined below)), from time to time, in accordance with this Agreement, and
for the purposes set forth herein. All actions and decisions of Lender
hereunder may be taken by the Servicer acting on Lender's behalf, and all
actions and decisions of Servicer hereunder may be taken by Lender at
Lender's option in Servicer's stead.
(b) Upon the establishment of the Deposit Account, the
Depository shall establish and maintain the following sub-accounts to the
Deposit Account (collectively, the "SUB-ACCOUNTS"): (a) the "CASH MANAGEMENT
FEES SUB-ACCOUNT", which will be allocated funds in accordance with the fee
agreement between Depository and Borrower, and (b) from and after
Depository's receipt of a notice stating that a Cash Trap Event (as defined
below) has occurred substantially in the form of Exhibit B attached hereto
and made a part hereof (the "TRIGGER NOTICE"), the "OPERATING EXPENSE
SUB-ACCOUNT" and "DEBT SERVICE RESERVE SUB-ACCOUNT", which shall be allocated
funds in accordance with Lender's or Servicer's written directions given from
time to time to the Depository. The Sub-Accounts shall be maintained by the
Depository and managed, on a ledger entry basis, by the Servicer .
(c) Except as otherwise provided herein, funds transferred to
the Deposit Account (with the exception of funds, if any, allocated to the
Sub-Accounts) during each Interest Period (as defined below) shall be allocated
in accordance with Lender's (or Servicer's) written
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instructions to Depository to the extent of available funds and in the
priority specified in such instructions.
(d) At the end of each Interest Period, any amounts remaining
in the Deposit Account after disbursement of all required amounts as
specified by Lender (or Servicer) for such Interest Period and any funds
subsequently transferred to the Deposit Account (from the Collection Account)
during the remainder of such Interest Period shall be transferred (i) if
Depository has not received a Trigger Notice, to Borrower's account with
Collection Bank, at account number 5800311952 (or to any account and bank as
Borrower may otherwise specify in writing to Depository) on, or within three
(3) Business Days after, the last day of such Interest Period, if Depository
has not received a Trigger Notice, or (ii) after Depository's receipt of a
Trigger Notice, shall be deposited or allocated among the Sub-Accounts as
specified by Lender or its Servicer.
(e) The insufficiency of funds in the Collection Account,
Deposit Account or any Sub-Account shall in no way relieve Borrower from its
obligations to pay to Lender, as and when due, any of the following: (a) the
taxes and insurance with respect to the Property required under Section 2 of
the Instrument, (b) the monthly installments of principal and interest
required under the Note, (c) the monthly deposits required under the
Replacement Reserve and Security Agreement or (d) the monthly deposit
required under the Tenant Improvement and Leasing Commission Reserve and
Security Agreement. At least once a month, Depository or Servicer, as
applicable, shall send to Borrower a report or statement which lists all
disbursements from the Deposit Account and the Sub-Accounts.
(f) At Lender's option, funds in any Sub-Account may be
reallocated to fund any deficiency in any other Sub-Account. Subject to such
right to reallocate, each transfer of funds to be made hereunder shall be
made only to the extent that funds are on deposit in the Deposit Account or
the affected Sub-Account, and except as otherwise provided herein, Lender
shall have no responsibility to make additional funds available in the event
that funds on deposit are insufficient.
(g) "INTEREST PERIOD" shall mean a period commencing on the
first day and ending on the last day of each calendar month during the term
of the Loan. As used herein the term "PAYMENT DATE" means the first day of
each calendar month or, if the first day of any calendar month is not a
Business Day, then the Payment Date for such month shall be the first
Business Day thereafter.
(h) EVENT OF DEFAULT. Notwithstanding anything herein
to the contrary, upon the Depository's receipt of a notice stating that an
Event of Default (as defined in the Instrument) has occurred and is
continuing substantially in the form of Exhibit C attached hereto and made a
part hereof (the "EVENT OF DEFAULT NOTICE"), all funds on deposit in the
Deposit Account and/or the Sub-Accounts shall be disbursed to or as directed
by Lender (or Servicer).
(i) So long the Depository has not received an Event of
Default Notice, Lender or its Servicer shall instruct the Depository and
Servicer to invest amounts held in the Deposit Account in Permitted
Investments as Lender shall determine in Lender's discretion. All funds in
the Deposit Account or any Sub-Account that are invested in a Permitted
Investment are deemed to
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be held in such Deposit Account or Sub-Account for all purposes of this
Agreement and the other Loan Documents. The maturities of the Permitted
Investments on deposit in the Deposit Account or any Sub-Account shall, to
the extent such dates are ascertainable, be selected and coordinated by
Lender to become due not later than the day before any disbursements from the
Sub-Accounts must be made. All Permitted Investments hereunder shall be in
the same names as the Deposit Account and shall be under the sole dominion
and control of Lender. Neither Lender nor Depository shall have any liability
for any loss in investments of funds in the Deposit Account or Sub-Account
that are invested in Permitted Investments. Borrower shall include all such
earnings and losses on the Deposit Account or any Sub-Account as income or
losses, as the case may be, of Borrower for federal and applicable state tax
purposes.
(j) As between Borrower and Lender, Lender agrees that prior
to the occurrence of an Event of Default, and thereafter solely at Lender's
option from time to time exercised in whole or in part, Lender or Servicer
shall direct the Depository to transfer or allocate funds in the Deposit
Account (other than those allocated to the Sub-Accounts) available for
disbursement on each Payment Date (as defined below) as follows and in the
following order of priority:
(i) First, there shall be disbursed to Lender or
Servicer an amount equal to the monthly escrows for taxes and insurance
with respect to the Property required to be deposited for such Interest
Period under Section 2 of the Instrument;
(ii) Second, there shall be disbursed to Lender or
Servicer an amount equal to the monthly installment of principal and
interest payable under the Note for the next Payment Date;
(iii) Third, there shall be disbursed to Lender or
Servicer an amount equal to the monthly deposit required to be made by
Borrower under the Replacement Reserve and Security Agreement, dated as of
the date hereof (as amended or modified, the "REPLACEMENT RESERVE
AGREEMENT"), between Borrower and Lender, for such Interest Period;
(iv) Fourth, there shall be disbursed to Lender or
Servicer an amount equal to the monthly deposit required to be made by
Borrower under the Tenant Improvement and Leasing Commission Reserve and
Security Agreement, dated as of the date hereof (as amended or modified,
the "TI AND LEASING COMMISSION RESERVE AGREEMENT"; together with the
Replacement Reserve Agreement, collectively the "RESERVE AGREEMENTS"),
between Borrower and Lender for such Interest Period; and
(v) Fifth, either
(A) provided that no Cash Trap Event shall
have occurred and be continuing and the Depository has not
received a Trigger Notice and been instructed by Lender that
Lender has authorized disbursement pursuant to this clause for
such Interest Period, any amounts remaining in the Deposit
Account (other than in the Sub-Accounts) after disbursement of
all required amounts specified in clauses (i) through (iv)
above for such Interest Period and any funds deposited into
the Deposit Account during the remainder of such Interest
Period shall be paid to Borrower on, or within three (3)
Business Days after, the last day
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of such Interest Period, or
(B) if a Cash Trap Event shall have occurred
and the Depository is given the Trigger Notice, then unless
and until a Cash Trap Cure shall occur, and subject to the
Lender's exercise in its discretion from time to time of its
rights under this Agreement and the other Loan Documents (or
at law or in equity) upon the occurrence and during the
continuance of an Event of Default, any amounts from such
Interest Period remaining in the Deposit Account (other than
in the Sub-Accounts) after disbursement of all required
amounts specified in clauses (i) through (iv) above for such
Interest Period and any funds deposited into the Collection
Account during the remainder of such Interest Period shall be
deposited as follows: (1) an amount equal to the applicable
monthly operating expenses (other than repairs, replacements
and capital expenditures) provided in the Approved Operating
Budget (or such other amount as shall be approved by Lender)
shall be transferred to the Operating Expenses Sub-Account
under the control of Lender, and (2) the remainder shall be
deposited into and held in the Debt Service Reserve
Sub-Account under the control of Lender.
(k) As between Borrower and Lender, Lender agrees that prior to
the occurrence of an Event of Default, and thereafter solely at Lender's option
from time to time exercised in whole or in part, Funds in the Sub-Accounts shall
be disbursed or applied as follows:
(i) OPERATING EXPENSE SUB-ACCOUNT. Lender may require
compliance with reasonable conditions prior to disbursement of amounts
for Operating Expenses held in the Operating Expenses Sub-Account (if
any) including, without limitation, the following:
(A) Borrower shall submit a request for payment not
more frequently than once per calendar month, which request
shall include invoices, receipts, and other evidence
reasonably required by Lender with respect to the Operating
Expenses which are the subject of such request;
(B) Such request for payment shall be signed by
Borrower, certifying that the requested funds are to be used
to pay Operating Expenses in accordance with the Approved
Operating Budget for the Property and for no other purpose,
and that all information in such request is true and complete;
(C) Such request shall include a line-item accounting
comparing Operating Expenses incurred in the subject month and
on a year-to-date basis with the approved Operating Budget;
(D) There shall be sufficient funds for such
disbursement in the Operating Expense Sub-Account, and Lender
shall have received evidence reasonably satisfactory to
Lender, and Lender shall have determined that sufficient funds
will be available for unincurred or unfunded remaining
Operating Expenses in the Approved Operating Budget for such
calendar month and any additional expenses
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then reasonably foreseen (and in the case of an imbalance,
Lender may require deposit of additional funds in the amount
of the shortfall); and
(E) Such request shall include evidence of payment
(including partial lien releases) of expenses for which prior
disbursements from the Operating Expense Sub-Account were
made; and
(F) At Lender's option, Lender may issue payment
directly to Borrower or to Manager.
(ii) DEBT SERVICE RESERVE SUB-ACCOUNT. Amounts on
deposit in the Debt Service Reserve Sub-Account shall be held as
additional collateral for the Loan and other obligations of Borrower
under the Loan Documents unless and until Borrower establishes to
Lender's satisfaction that the Debt Service Coverage Ratio for each of
the three (3) and twelve (12) month periods ending in the month
preceding the month in which Borrower requests a release of funds from
the Debt Service Reserve Sub-Account equals or exceeds 1.25:1 (a "CASH
TRAP CURE", subject, however, to such Cash Trap Cure being deemed to
occur under the proviso at the end of this sentence), in which event
Lender shall authorize the disbursement of the funds in the Debt
Service Reserve Sub-Account to Borrower; PROVIDED, that no release of
funds shall be permitted, and no Recovery Event shall be deemed to have
occurred, (A) if an Event of Default shall have occurred and be
continuing or (B) if a Cash Trap Event and subsequent Cash Trap Cure
shall have already occurred twice during the term of the Loan.
(l) Within ten (10) days after the end of each calendar
month, Borrower shall provide to Lender (i) accrual basis operating
statements together with statements of cash flow for the Property and a
tenant sales report and aged receivables report, each in a form reasonably
satisfactory to Lender, (1) for such month, (2) for the year to date and (3)
for the 12 month period ended as of the end of such calendar month, (b)
Borrower's calculation of the Debt Service Coverage Ratio for each of the
three (3) and twelve (12) month period ending at the end of such calendar
month, together with the Borrower's method of calculation and such detail and
background information as Lender shall require, (c) a certification executed
on behalf of Borrower by its managing member in form and substance reasonably
satisfactory to Lender stating that, to such officer's knowledge after due
inquiry, such operating statements, documents, and information are true and
complete in all material respects and do not omit to state any material
information without which the same might reasonably be misleading and (d) a
Compliance Certificate.
(m) No later than thirty (30) days prior to the expiration
of each calendar year, Borrower shall deliver to Lender Borrower's operating
budget and capital expenditure budget (in each case presented on a monthly
and annual basis) for the Property for the following calendar year, which
shall each be subject to Lender's reasonable approval. The proposed operating
budget shall identify and set forth Borrower's best estimate, after due
consideration, of all revenue, costs, and expenses, and shall specify Gross
Revenue and Operating Expenses. The proposed capital expenditure budget shall
identify and set forth Borrower's best estimate, after due consideration, of
all costs and expenses contemplated to be necessary in the current and
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subsequent years for capital improvements and leasehold improvements, leasing
commissions and other leasing costs not included in the operating budget, and
the contemplated sources of payment of the same. If any of said budgets or
plans for any calendar year are not in form and substance reasonably
satisfactory to Lender, Lender may disapprove the same and specify the
reasons therefor, and Borrower shall promptly amend and resubmit for approval
revised budgets or plans, as applicable, making such changes as are necessary
to comply with the reasonable requirements of Lender.
(n) As used hereinabove and herein for purposes of Sections
3(i), 3(j), 3(k), 3(l), 3(m) and this 3(n), the following capitalized terms
shall have the respective meanings set forth below:
(1) "APPROVED OPERATING BUDGET" means Borrower's
operating budget setting forth Gross Revenues and Operating Expenses, for the
Property, which operating budget has been reasonably approved by Lender in
accordance with Section 8 hereof.
(2) "CASH TRAP EVENT" means the occurrence of (1) an
Event of Default (as defined in the Instrument), (2) a Debt Service Coverage
Ratio of less than 1.10:1 for the three (3) month period ended as of the end
of any calendar month or (3) the failure by Borrower to deliver the
Compliance Certificate and documentation required under Section 7 above
within ten (10) days after the required delivery date.
(3) "COMPLIANCE CERTIFICATE" means a certificate
duly executed on behalf of Borrower by its managing member in form and
substance reasonably satisfactory to Lender, stating that there does not
exist any Event of Default or occurrence which with the passage of time or
the giving of notice would constitute an Event of Default under the Loan
Documents (or if any exists, specifying the same in detail) and stating the
Debt Service Coverage Ratio for each of the three (3) and twelve (12) month
periods ended as of the end of such calendar month.
(4) "DEBT SERVICE COVERAGE RATIO" shall mean, for
any period, the ratio, as determined by Lender, of (i) Underwritable Cash
Flow for such period to (ii) the amount of principal and interest due under
the Loan for such period.
(5) "GAAP" means generally accepted accounting
principles as in effect in the United States of America from time to time.
(6) "GROSS REVENUES" means, without duplication, all
revenue derived from the ownership and operation of the Property by Borrower
from whatever source determined on a GAAP basis, including, but not limited
to, Rents, but excluding sales, use and occupancy or other taxes on receipts
required to be accounted for by Borrower to any governmental authority,
non-recurring revenues as determined by Lender (e.g. proceeds from a sale of
assets or refinancing), security deposits, refunds and uncollectible
accounts, proceeds of casualty or other insurance and condemnation awards,
and any disbursements to Borrower from any reserve or other fund established
by the Loan Documents or any proceeds from the sale, refinancing of the
Property or recapitalization of the Borrower. In addition, if required by
Lender, income accrued but not paid in cash during an accounting period shall
be discounted for an allowance for doubtful accounts in a manner consistent
with historical net realizable value.
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(7) "OPERATING EXPENSES" means all costs and
expenses accrued in accordance with GAAP relating to the operation,
maintenance, repair, use and management of the Property, including, without
limitation, utilities, repairs and maintenance, insurance, property taxes and
assessments, advertising expenses, payroll and related taxes, equipment lease
payments, actual management fees and all amounts paid into reserves required
under the Loan Documents but excluding (i) principal and interest payments
made by Borrower under the Loan Documents, and (ii) depreciation,
amortization and other non-cash expenses of the Property, and (iii) capital
expenditures and other costs and expenses to the extent paid from reserves
for the same maintained under the Loan Documents; provided, however such
costs and expenses shall be subject to reasonable adjustment by Lender to
normalize such costs and expenses.
(8) "UNDERWRITABLE CASH FLOW" means for any
measurement period the excess of Gross Revenues over Operating Expenses for
such period as determined by Lender, after making such adjustments to Gross
Revenues and Operating Expenses as Lender deems necessary or appropriate.
Underwritable Cash Flow (including determination of any necessary adjustments
to Gross Revenues or Operating Expenses) shall be calculated by Lender based
upon Lender's sole determination of Rating Agency criteria, provided that
necessary adjustments shall include without limitation the following:
(i) all rents, including base rentals and percentage
rentals, will be included in calculating Gross Revenues only
for Leases reasonably approved by Lender where the tenants are
in occupancy, paying rent (without discount or deduction) and
open for business at their respective premises, and have not
given notice verbally or in writing that they intend to go
dark;
(ii) base rental revenues will be calculated as no
greater than the lesser of (A) actual base rentals received
from tenants under Leases for the relevant period, and (B) the
current base rentals (projected or prorate for a period
equivalent to the measurement period) under such Leases as of
the time of determination of Underwritable Cash Flow;
(iii) percentage rental revenues will be calculated
as the lesser of (A) the projected percentage rents based on
anticipated year-end tenant sales, prorated as allocable to a
period equivalent to the measurement period, and (B) 75% of
the percentage rents for the year prior to that in which
Underwritable Cash Flow is determined;
(iv) all above-market rents (as determined by
Lender), including base rentals and percentage rentals, will
be reduced to market as determined by Lender;
(v) Lender shall make adjustment for a credit
loss/vacancy allowance equal to the greatest of 10%, actual
vacancy or market vacancy (as determined by Lender);
(vi) management fees shall equal to the greater of
actual management fees and 4% of Gross Revenues;
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(vii) Operating Expenses shall be adjusted to be the
greater of (i) actual Operating Expenses for the measurement
period and (ii) Operating Expenses projected for an equivalent
period at anticipated recurring, stabilized expense levels,
incorporating any anticipated increases in expenses (as
determined by Lender);
(viii) Gross Revenues adjustments shall be made to
eliminate any non-recurring items, and to implement deductions
for impending vacancies and lease expirations and other items,
as determined by Lender; and
(ix) deductions will be made for projected normalized
leasing costs (including without limitation tenant
improvements, leasing commissions and other tenant
inducements) for retenanting on a normalized basis, as well as
other projected normalized capital costs (in each case as
determined by Lender), if and to the extent such deductions
are in excess of reserve deposits therefor which are included
in Operating Expenses for purposes of calculating
Underwritable Cash Flow.
4. FEES. To compensate the Collection Bank and Depository
for performing the herein-described services, Borrower agrees to pay the fees
and expenses owed to the Collection Bank and Depository, respectively, and
calculated in accordance with the agreed upon fee schedules between the
Collection Bank, Depository and Borrower. The Collection Bank and Depository
shall debit the Collection Account or Deposit Account (as applicable) under
advice on a monthly basis or shall include its fees in an account analysis
statement, in accordance with the particular arrangements between the
Depository and Borrower.
5. TERMINATION.
(a) The Collection Bank or Depository may resign from
obligations under this Agreement at any time after 30 days' prior written
notice to the other parties hereto; PROVIDED, HOWEVER, that Collection Bank
or Depository may terminate this Agreement immediately in the event it
suspects fraud or illegal activity in connection with the Collection Account,
Deposit Account or Sub-Accounts or this Agreement, but in no event shall the
Collection Bank or Depository be released of its obligations hereunder unless
and until a substitute bank has been designated and assumed its respective
obligations hereunder. With respect to the appointment of a successor to the
Collection Bank or Depository, Borrower and Lender shall use reasonable
efforts to designate such a bank promptly after receipt of notice of
resignation by the Collection Bank or Depository and shall take all
reasonable actions necessary to cause such designated successor promptly to
assume the obligations of the Collection Bank or Depository hereunder, as
applicable. However, if a successor to the Collection Bank or Depository
Bank, as applicable, has not assumed such obligations within thirty (30) days
of notice of its resignation, then the Collection Bank or Depository, as
applicable, shall have the right, at Borrower's expense, to petition a court
of competent jurisdiction to appoint a successor.
(b) Lender may terminate this Agreement at any time upon 30
days' prior written notice to the other parties hereto.
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(c) Borrower may not unilaterally terminate this Agreement or
close the Collection Account, Deposit Account or any Sub-Accounts established
hereunder.
6. DEPOSIT OF RECEIPTS BY BORROWER AND MANAGER. Borrower and
Manager hereby agree to deposit or cause to be deposited with the Collection
Bank within two (2) Business Day of receipt, all Rents received by Borrower
or its partners, members or affiliates or Manager, respectively, with respect
to the Property.
7. INDEMNIFICATION. Borrower agrees to indemnify, defend and
save harmless the Collection Bank and Depository from all loss, liability or
expense (including the reasonable fees and expenses of in house or outside
counsel) arising out of or in connection with (i) the Collection Account,
Deposit Account or Sub-Accounts or any transactions relating thereto, or (ii)
its execution and performance of this Agreement, except to the extent that
such loss, liability or expenses is due to the gross negligence or willful
misconduct of the Collection Bank or Depository, as applicable. Borrower and
Lender agree, jointly and severally, to indemnify, defend and save harmless
the Collection Bank and Depository from all loss, liability or expense
(including the reasonable fees and expenses of in house or outside counsel)
arising out of or in connection with its following any instructions or other
directions from Lender or its Servicer, except to the extent that such loss,
liability or expenses is due to the gross negligence or willful misconduct of
the Collection Bank or Depository, as applicable.
8. GRANT OF SECURITY INTERESTS.
(a) Borrower hereby pledges, transfers and assigns to Lender,
and grants to Lender, as additional security for payment of the principal
amount of the Loan, accrued and unpaid interest thereon and any and all other
sums and amounts due under the Note, the Instrument and the other Loan
Documents (collectively, the "DEBT"), a continuing perfected security
interest in and to, and a general first lien upon the following
(collectively, the "ACCOUNT COLLATERAL"): (i) the Collection Account, Deposit
Account and Sub-Accounts (collectively, the "Accounts") and all of Borrower's
right, title and interest in and to all cash, property or rights transferred
to or deposited in the Accounts from time to time by Borrower or on behalf of
Borrower in accordance with the provisions of this Agreement, (ii) all
earnings, investments and securities held in the Accounts in accordance with
this Agreement, and (iii) any and all proceeds of the foregoing. Borrower
further agrees to execute, acknowledge, deliver, file or do, at its sole cost
and expense, all other acts, assignments, notices, agreements or other
instruments as Lender may reasonably require in order to effectuate, assure,
convey, secure, assign, transfer and convey unto Lender any of the rights
granted by this Section. Borrower acknowledges and agrees that the Accounts
maintained hereunder are subject to the sole dominion, control and discretion
of Lender, its authorized agents or designees, and notwithstanding anything
set forth herein to the contrary, neither Borrower nor any other person or
entity, through or under Borrower, shall have any control over the use of, or
any right to withdraw any amount from, the Accounts, and the Collection Bank
and Depository shall comply with all instructions originated by the Lender,
its authorized agents or designees without further consent by the Borrower.
(b) Borrower and Lender hereby notify the Collection Bank and
Depository of the grant by Borrower to Lender of a security interest in the
Accounts and all of the Borrower's right, title and interest in and to all
cash, property and rights transferred or deposited in the Accounts.
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In addition, the Collection Bank, Depository and Borrower each acknowledge
and agree that the Accounts maintained hereunder are subject to the sole
dominion, control and discretion of Lender and its authorized agents or
designees subject to the terms and conditions of this Agreement, and
notwithstanding anything set forth herein to the contrary, neither Borrower
nor any other person or entity, through or under Borrower, shall have any
control over the use of, or any right to withdraw any amount from, the
Accounts, and the Collection Bank and Depository shall comply with all
instructions originated by the Lender, its authorized agents or designees
without further consent by the Borrower. Borrower shall be entitled to
request and receive any information about the Accounts that it shall
reasonably request from time to time. The Collection Bank and Depository each
waive any right of offset, set-off, recoupment or lien against the Accounts
or Borrower, its partners or their respective affiliates which it might have
against the Accounts; PROVIDED, HOWEVER, that each retain the right to charge
the Collection Account, Deposit Account or Sub-Accounts, as applicable, for
(i) any of their respective charges, fees and expenses provided for herein
for which Borrower is responsible and (ii) all items deposited in and fund
transfers credited to the Collection Account and subsequently returned unpaid
or with respect to which the Collection Bank fails to receive final
settlement.
9. EVENT OF DEFAULT; BUDGET AND REPORTING.
(a) Upon the Collection Bank and Depository's receipt of the
Event of Default Notice, and notwithstanding anything to the contrary
contained herein, in addition to exercising any and all rights and remedies
available to Lender under the Note, the Instrument or the other Loan
Documents or otherwise at law or in equity, Lender may apply any and all
funds in the Accounts (including any of the Sub-Accounts) to payment of the
Debt in such order as Lender in its sole discretion may elect. In such event,
the parties agree that the Collection Bank and Depository shall pay over to
Lender all amounts deposited in the Accounts on demand, without notice to
Borrower, PROVIDED, HOWEVER, that in making such demand, Lender certifies, in
such Event of Default Notice, signed by Lender or an authorized agent
thereof, that an Event of Default has occurred and is continuing and
instructs Collection Bank and Depository as to where such amounts deposited
in the Accounts should be directed.
(b) Upon the request of Lender, Lender shall be entitled to
receive copies of all reports, advices, statements and other information
supplied hereunder as Lender shall reasonably request.
10. SUCCESSORS AND ASSIGNS; ASSIGNMENTS. This Agreement shall
bind and inure to the benefit of and be enforceable by the Collection Bank,
Depository, Borrower and Lender and their respective successors and assigns.
Lender shall have the right to assign or transfer its rights under this
Agreement without limitation. Any assignee or transferee shall be entitled to
all the benefits afforded Lender under this Agreement; PROVIDED, HOWEVER,
that such assignee or transferee shall have delivered to the other parties
hereto written confirmation that such assignee or transferee agrees to be
bound by the terms of this Agreement and is also the assignee or transferee
(or agent thereof) of the Note, the Instrument and the other Loan Documents.
Any corporation into which the Collection Bank or Depository, as applicable,
in its individual capacity may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Collection Bank or Depository (as applicable) in
its individual capacity shall be a party, (or, with respect to the
69
Depository, any corporation to which substantially all the corporate trust
business of the Depository in its individual capacity may be transferred),
shall be the Collection Bank or Depository, as applicable, under this
Agreement without further act. The Collection Bank and Depository each
reserve the right to transfer this Agreement or any of its obligations
hereunder to any of its affiliates.
11. AMENDMENTS; OTHER AGREEMENTS. This Agreement may be
further amended from time to time in writing by all parties hereto. This
Agreement is supplemented by the terms of the Collection Bank's or
Depository's deposit account agreement(s) with Borrower, and to the extent
the terms of such agreement(s) directly conflict with this Agreement, the
specific terms of this Agreement shall control.
12. NOTICES. Notices to the Collection Bank should be sent to
the address first written above or by telecopy to (000) 000-0000, Attention:
Commercial Real Estate; notices to the Depository should be sent to the
address first above written or by telecopy to (000) 000-0000, Attention:
Asset Backed Securities, Corporate Trust Department; notices to Borrower
should be sent to the address first above written or by telecopy to (312)
917-8440, Attention: Xxxxx Xxxxxxx; and notices to Lender should be sent to
the address first above written or by telecopy to (000) 000-0000, Attention:
Xxxx Xxxxxxxxx; or, in each case, to such other address as shall be
designated in writing by the respective party to the other parties hereto.
Unless otherwise expressly provided herein, all such notices shall be in
writing (including by facsimile), and shall be effective for all purposes if
(i) hand delivered, or (ii) sent by (A) certified or registered United States
mail, postage prepaid, or (B) expedited prepaid delivery service, either
commercial or United States Postal Service, with proof of attempted delivery,
or (C) telecopier (confirmed electronically and by phone with receiving
party), addressed as set forth above. A notice shall be deemed to have been
given: in the case of hand delivery, at the time of delivery; in the case of
registered or certified mail, when delivered or the first attempted delivery
on a Business Day; in the case or expedited prepaid delivery, upon the first
attempted delivery on a Business Day; or in the case of telecopier, on the
date confirmed electronically and telephonically (as described above).
13. GOVERNING LAW AND VENUE. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS
(WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES APPLIED IN ILLINOIS). ANY
LEGAL SUIT, ACTION OR PROCEEDING AGAINST COLLECTION BANK, DEPOSITORY, LENDER
OR BORROWER ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE INSTITUTED
IN ANY FEDERAL OR STATE COURT IN ILLINOIS, AND THE COLLECTION BANK,
DEPOSITORY, LENDER AND BORROWER WAIVE ANY OBJECTION WHICH THEY MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING,
AND THE LENDER, COLLECTION BANK, DEPOSITORY AND BORROWER HEREBY IRREVOCABLY
SUBMIT TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR
PROCEEDING.
14. CERTAIN MATTERS AFFECTING THE DEPOSITORY; LIMIT ON
LIABILITY. The Collection Bank and Depository may rely and shall be protected in
acting or refraining from acting upon any notice (including but not limited to
electronically confirmed facsimiles of such notice) believed
70
by it to be genuine and to have been signed or presented by the proper party
or parties. The duties and obligations of the Collection Bank and Depository
set forth in this Agreement shall be determined solely by the express
provisions of this Agreement, and no implied covenants or obligations shall
be read into this Agreement against the Collection Bank and Depository.
Neither the Collection Bank nor Depository shall have any duty or obligation
to confirm that the actions taken under this Agreement comply with the Note,
Instrument, any of Sections 3(i), 3(j), 3(k), 3(l), 3(m) or 3(n) of this
Agreement or any other agreement between Borrower and Lender. The Collection
Bank and Depository shall each only be liable for direct damages attributable
to its gross negligence or willful misconduct in the performance of its
duties and obligations as are specifically set forth in this Agreement; in no
event shall the Collection Bank or Depository be liable for (i) any other
damages, including, without limitation, special, indirect, punitive or
consequential loss or damage of any kind whatsoever (including but not
limited to lost profits), even if it has been advised of the likelihood of
such loss or damage and regardless of the form of action, or (ii) losses or
delays resulting from acts of God, war, computer malfunction, interruption of
communication facilities, labor difficulties or other causes beyond its
reasonable control.
15. INTERPLEADER. If at any time the Collection Bank or
Depository, in good faith, is in doubt as to the action it should take under
this Agreement, it shall have the right to commence an interpleader action in
any federal or state court of competent jurisdiction located in the State of
Illinois and to take no further action except in accordance with joint
instructions from Lender and Borrower or in accordance with the final order
of the court in such action.
If the Borrower becomes subject to a voluntary or involuntary
proceeding under the United States Bankruptcy Code, or if Collection Bank or
Depository is otherwise served with legal process or becomes aware of facts
or circumstances which such party in good faith believes affects the
disposition of funds deposited in the Collection Account, Deposit Account or
the Sub-Accounts, Collection Bank or Depository, as the case may be, shall
have the right (a) to place a hold on funds deposited in the Collection
Account, Deposit Account or Sub-Accounts, as the case may be, until such time
as Collection Bank or Depository receives an appropriate order from a court
of competent jurisdiction or other assurances satisfactory to such party
establishing that funds may continue to be disbursed according to the
instructions given pursuant to this Agreement or (b) commence at the
Borrower's expense an interpleader action and to take no further action
except in accordance with joint instructions of Lender and Borrower or in
accordance with the final order of a court in such action.
16. DEFINED TERMS. As used herein the following capitalized
terms shall have the respective meanings set forth below:
(a) "BUSINESS DAY" shall mean any day other than a Saturday,
Sunday or any day on which commercial banks in Chicago, Illinois are
authorized or required to close.
(b) "ELIGIBLE ACCOUNT" shall mean a segregated account that is
either: (a) maintained with a depository institution or trust company the
long-term unsecured debt obligations of which (or, in the case of a depository
institution or trust company that is the principal subsidiary of a holding
company, the long-term unsecured debt obligations of such holding company) have
been rated by the Rating Agencies in one of their two highest rating categories
or the short-term
71
commercial paper of which is rated by the Rating Agencies (as hereinafter
defined) in their highest rating category at the time of any deposit therein;
(b) maintained with a federal or state chartered depository institution or
trust company having aggregate deposits in an amount not less than
$100,000,000 and otherwise acceptable to Lender. The title of each Eligible
Account shall indicate that funds held therein are held in trust for the uses
and purposes set forth herein.
(c) "LEASE" means any lease or other rental or occupancy
agreement (including, without limitation, any and all guarantees of any of
the foregoing) heretofore or hereafter entered into for the use and occupancy
of the Property or any portion thereof, including any extensions, renewals,
modifications or amendments thereof.
(d) "PERMITTED INVESTMENTS" shall mean any one or more of the
following obligations or securities having at the time of purchase, or at
such other time as may be specified, the required ratings, if any, provided
for in this definition:
(i) direct obligations of, or guaranteed as to timely
payment of principal and interest by, the United States of America or
any agency or instrumentality thereof provided that such obligations
are backed by the full faith and credit of the United States of
America;
(ii) direct obligations of, or guaranteed as to timely
payment of principal and interest by, the Federal Home Loan Mortgage
Corporation, the Federal Home Loan Bank, the Federal National Mortgage
Association or the Federal Farm Credit System, provided that any such
obligation, at the time of purchase or contractual commitment providing
for the purchase thereof, is qualified by any Rating Agency as an
investment of funds backing securities rated "AAA" (or such comparable
rating);
(iii) demand and time deposits in or certificates of
deposit of, or bankers' acceptances issued by, any bank or trust
company, savings and loan association or savings bank, provided that,
in the case of obligations that are not fully insured by the Federal
Deposit Insurance Corporation, the commercial paper and/or long-term
unsecured debt obligations of such depository institution or trust
company (or in the case of the principal depository institution in a
holding company system, the commercial paper or long-term unsecured
debt obligations of such holding company) have the highest rating
available for such securities by any Rating Agency;
(iv) general obligations of or obligations guaranteed by
any State of the United States or the District of Columbia receiving
the highest long-term debt rating available for such securities by the
Rating Agency;
(v) commercial or finance company paper (including both
non-interest bearing discount obligations and interest-bearing
obligations payable on demand or on a specified date not more than one
year after the date of issuance thereof) that is rated by any Rating
Agency in its highest short-term unsecured debt rating category at the
time of such investment or contractual commitment providing for such
investment, and is issued by a corporation the outstanding senior
long-term debt obligations of which are then rated by any such Rating
Agency in its highest long-term unsecured debt rating category;
72
(vi) guaranteed reinvestment agreements issued by bank,
insurance company or other corporation rated in one of the two highest
long-term unsecured debt rating levels available to such issuers by any
Rating Agency at the time of such investment, provided that any such
agreement must by its terms provide that it is terminable by the
purchaser without penalty in the event any such rating is at any time
lower than such level;
(vii) repurchase obligations with respect to any security
described in clause (i) or (ii) above entered into with a depository
institution or trust company (acting as principal) described in clause
(iii) above;
(viii) securities bearing interest or sold at a discount
that are issued by any corporation incorporated under the laws of the
United States of America or any state thereof and rated by any Rating
Agency in its highest long-term unsecured rating category at the time
of such investment or contractual commitment providing for such
investment;
(ix) units of taxable money market funds which funds are
regulated investment companies, seek to maintain a constant net asset
value per share and invest solely in obligations backed by the full
faith and credit of the United States, and have been approved in
writing by the Lender as Permitted Investments with respect to this
definition; and
(x) such other obligations as are acceptable as
Permitted Investment to the Lender;
PROVIDED, HOWEVER, that no instrument or security shall be a Permitted
Investment if (y) such instrument or security evidences a right to receive
only interest payments or (z) the right to receive principal and interest
payments derived from the underlying investment provides a yield to maturity
in excess of 120% of the yield to maturity at par of such underlying
investment.
(e) "RATING AGENCY" shall mean any of Standard & Poor's
Rating Services, a division of the XxXxxx-Xxxx Companies, Inc., Xxxxx'x
Investors Service, Inc., Fitch, Inc., any successors thereto, or any other
nationally-recognized statistical rating organization designated by Lender in
its sole discretion.
(f) "RENTS" shall mean all rents, rent equivalents, moneys
payable as damages (including payments by reason of the rejection of a Lease
in a bankruptcy proceeding or in lieu of rent or rent equivalents, royalties
(including all oil and gas or other mineral royalties and bonuses), income,
fees, receivables, receipts, revenues, deposits (including security, utility
and other deposits), accounts, cash, issues, profits, charges for services
rendered, and other payment and consideration of whatever form or nature
received by or paid to or for the account of or benefit of Borrower, Manager
or any of their agents or employees from any and all sources arising from or
attributable to the Property and the improvements, including all receivables,
customer obligations, installment payment obligations and other obligations
now existing or hereafter arising or created out of the sale, lease,
sublease, license, concession or other grant of the right of the use and
occupancy of the Property or rendering of services by Borrower or Manager
(rendered by Manager solely with respect to the Property) or any of their
agents or
73
employees (solely with respect to the Property) and proceeds, if any, from
business interruption or other loss of income insurance.
(g) "SERVICER" means the entity designated by Lender to act
as the servicer of the Loan under this Agreement.
17. COUNTERPARTS. This Agreement may be executed in two (2)
or more counterparts, each of which shall be an original, but all of which
taken together shall constitute one and the same agreement.
18. SECONDARY MARKET TRANSACTION; ASSIGNMENT OF ACCOUNTS AND
THIS AGREEMENT. Lender may sell, transfer and assign all or a portion of the
Loan, the Note, the Instrument, this Agreement and the other Loan Documents
or any interest therein in connection with a Secondary Market Transaction (as
defined in the Instrument). In connection with any such Secondary Market
Transaction, Lender may assign responsibility for servicing the Loan, or may
delegate some or all of such responsibility and/or obligations to a servicer
including, but not limited to, any subservicer or master servicer, on behalf
of the investors in any such Secondary Market Transaction. All references to
Lender herein shall refer to and include any such servicer to the extent
applicable.
19. NO AGENCY, PARTNERSHIP, MORTGAGEE IN POSSESSION. Nothing
contained in this Agreement shall constitute Lender as a joint venturer,
partner or agent of Borrower, or render Lender liable for any debts,
obligations, acts, omissions, representations, or contracts of Borrower.
Lender shall have no obligations whatsoever concerning the Property as a
consequence of this Agreement or any rights exercised hereunder. Without
limitation of the foregoing, nothing herein and no exercise of any rights
hereunder shall cause Lender to be a mortgagee in possession of the Property.
20. NO ORAL CHANGE. 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
COLLECTION BANK:
LASALLE BANK NATIONAL ASSOCIATION
By: ______________________________
Name:_________________________
Title:__________________________
DEPOSITORY:
LASALLE BANK NATIONAL ASSOCIATION
By: ______________________________
Name:_________________________
Title:__________________________
BORROWER:
LAKESHORE MARKETPLACE, LLC,
a Delaware limited liability company
By: LAKESHORE MARKETPLACE
FINANCE COMPANY, INC.,
a Delaware corporation,
its Managing Member
By: ____________________________
Name:_______________________
Title:________________________
LENDER:
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.
a Delaware corporation
By: _______________________________
Name:__________________________
Title:___________________________
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MANAGER HEREBY AGREES TO THE PROVISIONS OF SECTION 6 HEREOF:
HORIZON GROUP PROPERTIES, L.P.,
a Delaware limited partnership
By: HORIZON GROUP PROPERTIES, INC.,
a Maryland corporation,
its general partner
By:__________________________
Name:_______________________
Title:________________________
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EXHIBIT A
FORM OF TENANT NOTICE
[Letterhead of Landlord]
______________________________________
______________________________________
______________________________________
Attn:_________________________________
RE: Lease ("Lease") between Lakeshore Marketplace, LLC as
Landlord or its assignees ("Landlord") and as Tenant
("Tenant") dated ____________ for approximately _________
square feet of space in Lakeshore Marketplace in Muskegon,
Michigan (the "Project").
Gentlemen:
Pursuant to the terms of the above-referenced Lease, this letter
shall serve as notification to you that, effective upon the date of this
letter, all future payments of rent and other sums due to Landlord from
Tenant under the Lease are to be made payable to Lakeshore Marketplace, LLC
and delivered directly to the following address:
Lakeshore Marketplace, LLC
000 X. XxXxxxx Xx., Xxxx. 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Please take particular care in remitting all payments to the
appropriate address exactly as written above. Only checks made payable in
accordance with the foregoing instructions will be credited against sums due
to Landlord by Tenant. Until otherwise advised in writing by Landlord and
Greenwich Capital Financial Products, Inc., the mortgagee of the Project (or
its successors or assigns), you should continue to make your payments for
rent and other sums as directed by the terms of this letter or otherwise as
Lender may direct you in writing from time to time.
Thank you in advance for your cooperation with this change in payment
procedures.
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Very truly yours,
LAKESHORE MARKETPLACE, LLC,
a Delaware limited liability company
By: LAKESHORE MARKETPLACE FINANCE COMPANY, INC.,
a Delaware corporation,
its Managing Member
By:____________________________
Name:_________________________
Title:__________________________
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EXHIBIT B
FORM OF TRIGGER NOTICE
______________, 20__
LaSalle Bank National Association
000 XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Re: Collection and Deposit Account Agreement ("Account Agreement")
among LaSalle Bank National Association (the "Bank"),
Lakeshore Marketplace, LLC (the "Borrower") and Greenwich
Capital Financial Products, Inc. (with its successors and
assigns, "Lender")
Ladies and Gentlemen:
Reference is made to the above-referenced Account Agreement.
Capitalized terms used herein shall have the meanings set forth in the
Account Agreement, unless otherwise defined herein.
This letter constitutes the Trigger Notice referred to in the
Account Agreement. Please refer to the Account Agreement with respect to the
effect of such Trigger Notice. The Lender has determined that a Cash Trap
Event (as defined in the Instrument) has occurred.
Lender or the Servicer may, by written notice to you, from time to
time provide further instructions concerning the Accounts in accordance with
the Account Agreement and the instructions contained herein.
The undersigned also notifies you that the name and address of the
current Servicer for the Lender (or the Lender's address) with respect to the
Account Agreement is as follows:
[Servicer][Lender]
__________________________
__________________________
__________________________
__________________________
If you have any questions concerning this letter or the Account
Agreement, please contact ____________________ or _________________ .
LENDER, OR SERVICER ON LENDER'S BEHALF:
________________________________
By:_____________________________
Its:____________________________
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EXHIBIT C
FORM OF EVENT OF DEFAULT NOTICE
______________, 20__
LaSalle Bank National Association
000 XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Re: Collection and Deposit Account Agreement ("Account Agreement")
among LaSalle Bank National Association (the "Bank"),
Lakeshore Marketplace, LLC (the "Borrower") and Greenwich
Capital Financial Products, Inc. (with its successors and
assigns, "Lender")
Ladies and Gentlemen:
Reference is made to the above-referenced Account Agreement.
Capitalized terms used herein shall have the meanings set forth in the
Account Agreement, unless otherwise defined herein.
This letter constitutes the Event of Default Notice referred to in
the Account Agreement. Please refer to the Account Agreement with respect to
the effect of such Event of Default Notice. The Lender has determined that an
Event of Default (as defined in the Instrument) has occurred.
Lender or the Servicer may, by written notice to you, from time to
time provide further instructions concerning the Accounts in accordance with
the Account Agreement and the instructions contained herein.
The undersigned also notifies you that the name and address of the
current Servicer for the Lender (or the Lender's address) with respect to the
Account Agreement is as follows:
[Servicer][Lender]
__________________________
__________________________
__________________________
__________________________
If you have any questions concerning this letter or the Account
Agreement, please contact ____________________ or _________________ .
LENDER, OR SERVICER ON LENDER'S BEHALF:
_____________________________
By:__________________________
Its:_________________________
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