LOAN AGREEMENT
by and between
XXXXXXX NATIONAL LIFE INSURANCE COMPANY, as Lender
and
MARKER INTERNATIONAL, a Utah corporation, as Borrower
Date: As of May 1, 1997
LOAN AGREEMENT
This Loan Agreement is made as of this lst day of May, 1997, by and
between MARKER INTERNATIONAL, a Utah corporation ("Borrower"), and XXXXXXX
NATIONAL LIFE INSURANCE COMPANY ("Lender").
RECITALS
A. Borrower is a Utah corporation which has its principal place of
business at 0000 Xxxxx 0000 Xxxx, Xxxx Xxxxxx Xxxx, Xxxx. Borrower is the owner
of certain real estate located in West Valley City, Utah, consisting of
approximately 3.2 acres, and legally described in Exhibit A hereto (the "Land"),
which is improved with a six story building/office/manufacturing/distribution
facility containing 56,608 gross square feet and adjacent parking that will
park 165 vehicles, with construction consisting of load bearing walls with
supportive steel frame, decorative block and tempered glass exterior, and
landscaping (collectively the "Improvements").
B. Borrower has applied to Lender for a loan (the "Loan") in the
maximum amount of Two Million Two Hundred Fifty Thousand Dollars ($2,250,000.00)
and Lender has agreed to make the Loan on the terms and conditions contained
herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
1. DEFINED TERMS. The following terms as used herein shall have the following
meanings:
Affiliated Party: (i) if Borrower or any Affiliated Party is a general
or limited partnership, the general partners thereof; (ii) if Borrower or any
Affiliated Party is a joint venture, its joint venture partners; (iii) if
Borrower is a corporation, any person or entity controlling Borrower;
Agreement: This Loan Agreement, as originally executed or as may be
hereafter supplemented or amended from time to time in writing.
Application: The application to PPM Finance, Inc. for the Loan dated
December 9, 1996 and accepted January 21, 1997.
Appraisal: An appraisal prepared by a member of a national appraisal
organization that has adopted the Uniform Standards of Professional Appraisal
Practice (USPAP) established by the Appraisal Standards Board of the Appraisal
Foundation. The appraiser shall use assumptions and limiting conditions
established by Lender, and the appraisal shall be in conformity with Lender's
appraisal guidelines and the requirements of the Application.
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Building Laws: All federal, state and local laws, regulations,
ordinances and requirements applicable to the development and operation of the
Project, including without limitation all access, building, zoning, planning,
subdivision, fire, traffic, safety, health, labor, discrimination,
environmental, air quality, wetlands, shoreline, and flood plain laws,
regulations and ordinances, including, without limitation, all applicable
requirements of the Fair Housing Act of 1988 (as amended), the Americans with
Disabilities Act of 1990, and all orders or decrees of any court adopted or
enacted with respect thereto applicable to the Project.
Commitment: The commitment to make the Loan issued by PPM Finance, Inc.
on behalf of Lender, dated January 21, 1997, including the terms contained in
the Application.
Default: Any event which, if it were to continue uncured, would, with
notice or lapse of time or both, constitute an Event of Default (as such term is
defined in Section 7.1 of this Agreement).
Default Rate: The default interest rate specified in the Note.
ERISA: Employee Retirement Income Security Act of 1974, as amended, and
the regulations promulgated thereunder from time to time.
Governmental Approvals: The meaning set forth in Section 4.11 of this
Agreement.
Governmental Authoritv: Any federal, state, county or municipal
government, or political subdivision thereof, any governmental or
quasi-governmental agency, authority, board, bureau, commission, department,
instrumentality, or public body, or any court, administrative tribunal, or
public utility.
Improvements: The meaning set forth in Recital A.
Indemnity Agreement: The indemnity agreement described in Section 2.2
of this Agreement, as originally executed or as may be hereafter supplemented or
amended from time to time in writing.
include or including: Including but not limited to.
Indemnitors: [None]
Internal Revenue Code: The Internal Revenue Code of 1986, as amended,
and the regulations promulgated thereunder from time to time.
knowledge: When used to modify a representation or warranty, actual
knowledge or such knowledge as a reasonable person under the circumstances
should have after diligent inquiry and investigation.
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Land: The land legally described in Exhibit A hereto.
Laws: Collectively, all federal, state and local laws, statutes, codes,
ordinances orders, rules and regulations, including judicial opinions or
precedential authority in the applicable jurisdiction.
Loan Documents: This Agreement, the documents and instruments listed in
Section 2.2 of this Agreement, and all the documents given to Lender from time
to time to secure the Loan.
Loan Maturity: The Maturity Date (as defined in the Note).
Loan Opening Date: The date of the disbursement of the Loan.
Mortgage: The mortgage, deed of trust, security deed, deed to secure
debt or similar instrument described in Section 2.2 of this Agreement, as
originally executed or as may be hereafter supplemented or amended from time to
time in writing.
Note: The mortgage note described in Section 2.2 of this Agreement, as
originally executed or as may be hereafter supplemented or amended from time to
time in writing.
Permitted Exceptions: Those matters listed in Exhibit B hereto to which
the interest of Borrower in the Real Property may be subject and any such other
title exceptions or objections, if any, as Lender, or its counsel, may approve
in advance in writing.
Proiect or Property: The Land together with all buildings, structures
and other improvements located or to be located thereon and all rights,
privileges, easements, hereditaments and appurtenances, "hereunto relating or
appertaining, including parking for at least 165 vehicles, but in any event
parking in compliance with any applicable zoning ordinance and tenant leases,
and all personal property, fixtures and equipment required or used (or to be
used) for the operation thereof.
Real Property: That portion of the Project constituting real property.
Title Insurer: First American Title Company of Utah, or such other
title insurance company licensed in the State of Utah, as may be approved by
Lender in connection with the Loan.
Defined terms may be used in the singular or the plural. When used in
the singular preceded by "a", "an", or "any", such term shall be taken to
indicate one or more members of the relevant class When used in the plural, such
term shall be taken to indicate all members of the relevant class.
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2. TERMS OF LOAN AND DOCUMENTS.
2.1. Agreement to Borrow and Lend. Subject to all of the terms,
provisions and conditions set forth in this Agreement, Lender agrees to make and
Borrower agrees to accept the Loan described in the Recitals of this Agreement.
Borrower agrees to pay all indebtedness evidenced and secured by the Loan
Documents in accordance with the terms thereof.
2.2. Loan Documents. In consideration of Lender's entry into this
Agreement and Lender's agreement to make the Loan, Borrower agrees that it will,
in sufficient time for review by Lender and its counsel prior to the Loan
Opening Date, execute and deliver or cause to be executed and delivered to
Lender the following documents and instruments in form and substance acceptable
to Lender:
(a) A promissory note ("Note") from Borrower payable to the order of
Lender in the original principal amount of Two Million Two Hundred Fifty
Thousand Dollars ($2,250,000.00);
(b) A deed of trust, security agreement, and financing statement
("Mortgage") on Borrower's fee simple estate in the Project securing the
Note, subject only to the Permitted Exceptions;
(c) An assignment to Lender of all rents and all leases, licenses,
concessions and other similar agreements relating to or connected with the
Project which shall be a present first priority absolute assignment of all
present and future leases of all or any part of the Project, all guarantees
and all rents and other sums payable thereunder;
(d) A security agreement granting Lender a security interest in all
personal property, tangible and intangible, owned or hereafter acquired by
Borrower including bank accounts, accounts receivable, all impound or
reserve accounts required in the Loan Documents, and other intangible
property, which agreement may be combined with the Mortgage;
(e) Uniform Commercial Code financing statements, in duplicate,
executed by Borrower as debtor with respect to all of the personal
property;
(f) An assignment to Lender of all of Borrower's right, title and
interest in and to all agreements and other documents relating to the
ownership, development, operation, construction, or use of the Project,
including any management agreements, contracts, leases, licenses,
warranties and guaranties relating to the Project, together with consents
thereto by any third parties to such agreements as Lender may require
thereof;
(g) An indemnity agreement with respect to certain matters including
environmental covenants (the "Environmental Indemnity");
(h) A subordination agreement between Lender, Borrower and the tenant
of the Property;
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(I) Any other documents required by the Commitment; and
(j) Such other papers and documents as may be required by this
Agreement or as Lender may reasonably require.
2.3. Terms of the Loan. The Loan will bear interest for the period and
at the rate set forth in the Note. The unpaid principal balance, all accrued and
unpaid interest and all other sums due and payable under the Note or other Loan
Documents, if not sooner paid, shall be paid in full at Loan Maturity.
2.4. Prepayments. Borrower shall have no right to make prepayments of
the Loan in whole or in part except in accordance with the terms of the Note.
2.5. Conditions to Disbursement. Borrower agrees to perform and
satisfy all conditions precedent to the disbursement of the Loan set forth in
the Application, including those set forth in sections 2.4 (Third Party Reports)
and 3 (The Closing) thereof.
2.6. Sources and Uses. Borrower shall use the proceeds of the Loan
solely for the purposes set forth in Exhibit C.
3. BORROWER'S COVENANTS. Borrower further covenants and agrees with lender as
follows:
3.1. Escrow Deposits.
(a) Borrower shall deposit monthly with Lender a sum equal to one
twelfth (1/12) of the amount estimated by Lender to be required to pay, at
least thirty (30) days prior to their respective due dates, annual taxes,
assessments, and insurance premiums for the Project (the "Escrow Account").
Lender shall not pay interest on or segregate the Escrow Account unless
required to do so under applicable law. If Lender is required to segregate
the Escrow Account, Borrower shall execute such documents as Lender, in its
sole discretion, deems necessary to perfect its security interest in the
Escrow Account. On the Loan Opening Date, Borrower shall make an initial
deposit with Lender of a sum equal to one-twelfth (l/12) of the estimated
yearly property taxes and assessments plus a sum equal to one-twelfth
(1/12) of the annual insurance premiums, multiplied by the number of months
elapsed in the respective billing periods. For example, if taxes are paid
every six (6) months (in June and December) and the Loan Opening Date
occurs in March, the initial real estate tax impound would be four-twelfths
(4/12) of the estimated yearly property tax.
(b) The Escrow Account is hereby pledged as additional security for
the Loan and shall be held to be irrevocably applied for the purposes for
which made hereunder and shall not be subject to the direction or control
of Borrower; provided, however, that neither Lender nor any depositary
holding such funds shall be liable for any failure to apply to the payment
of taxes and assessments or insurance premiums any amount so deposited
unless (i) Borrower shall have requested Lender or said depositary in
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writing to make application of such funds to the payment of the
particular taxes or assessments or the payment of the particular insurance
premiums as the case may be, accompanied by the bills for such taxes and
assessments or insurance premiums, (ii) there shall exist no Default or
Event of Default hereunder or under any of the Loan Documents, (iii) there
are sufficient funds in the Escrow Account to pay the particular taxes,
assessments or insurance premiums and (iv) following payment of such taxes,
assessments or insurance premiums, the Escrow Account will be "in balance"
in the reasonable opinion of Lender.
3.2. Payment of Taxes. Borrower shall pay all special assessments and
all real estate taxes, assessments and charges of every kind upon the
Project before the same become delinquent; provided, however, that Borrower
shall have the right to pay any such tax under protest or to otherwise
contest any such tax, assessment or charge but only if (i) such contest has
the effect of preventing the collection of such taxes so contested and also
prevent the sale or forfeiture of the Project or any part thereof or any
interest therein, (ii) Borrower has notified Lender in writing in advance
of its intent to contest such taxes, and (iii) Borrower has deposited
security in form and amount satisfactory to Lender, in its sole judgment,
and increases the amount of such security so deposited promptly after
Lender's request therefor. If Borrower fails to commence such contest or,
having commenced to contest the same, and having deposited such security
required by Lender for its full amount, shall thereafter fail to prosecute
such contest in good faith or with due diligence, or, upon adverse
conclusion of any such contest, shall fail to pay such tax, assessment or
charge, Lender may at its election (but shall not be required to), pay and
discharge any such tax, assessment or charge, and any interest or penalty
thereon, and any amounts so expended by Lender shall be deemed to
constitute disbursements of the Loan proceeds hereunder (even if the total
amount of disbursements would exceed the face amount of the Note). Lender
in making any payment hereby authorized relating to taxes and assessments,
may do so according to any xxxx, statement or estimate procured from the
appropriate public office without inquiry into the accuracy of such xxxx,
statement or estimate or into the validity of any tax, assessment, sale,
forfeiture, tax lien or title or claim thereof.
3.3. Maintenance of Insurance.
(a) Insurance Coverage Requirements: Borrower shall maintain the
following insurance coverages, all in forms, with companies and in amounts
satisfactory to Lender:
i. All risk/open perils special form property insurance must
be in force with limits of 100% replacement cost. Borrower agrees to
furnish upon Lender's request evidence of replacement costs, without cost
to Lender, such as are regularly and ordinarily made by insurance companies
to determine such replacement cost. If a coinsurance clause is in effect,
an agreed amount endorsement is required. Blanket policies must include
limits by property location. The coverage shall insure the Real Property
and all tangible personal property.
ii. Broad form boiler and machinery coverage, including a
form of business income, must be in force if any such item is located on or
about the Real Property.
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iii. If available, flood insurance must be in force if the
Real Property is located in a special flood hazard area according to the
most current flood insurance rate map issued by the Federal Emergency
Management Agency. The coverage shall include the Real Property and the
tangible personal property.
iv. A form of business income coverage must be in force in the
amount of 80% of one year's business income from the Property. Blanket
policies must include limits by property location.
v. Comprehensive/general liability coverage must be in force
with a $3,000,000 combined single limit per occurrence with a minimum
aggregate limit of $5,000,000. Umbrella/excess liability insurance may be
used to satisfy this requirement. Liquor liability coverage must be in
force if applicable law may impose liability on those selling, serving, or
giving alcoholic beverages to others and if such beverages will be sold,
served or given on the Real Property.
vi. Such additional coverages appropriate to the property type
and site location as Lender may require. Additional coverages may include
earthquake, mine subsidence, sinkhole, personal property, supplemental
liability, or coverages of other property-specific risks.
(b) Insurance Procedures:
i. How Lender Should Be Named. On all property policies and
coverages (including coverage against loss of business income), Lender must
be named as "first mortgagee" under a standard mortgage clause. On all
liability policies and coverages, Lender must be named as an "additional
insured." Lender should be referred to verbatim as follows: Xxxxxxx
National Life Insurance Company and its successors, assigns and affiliates,
as their interest may appear; c/o PPM Finance, Inc., 000 X. Xxxxxx Xxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000.
ii. Rating. The insurance carrier must be rated A, Class VIII,
or better by Best's Rating Service, without regard to its parent's or any
reinsurer's rating.
iii. Deductible. The maximum deductible on all coverages and
policies is $25,000.
iv. Notices. Changes and Renewals. All policies must require
the insurance carrier to give Lender a minimum of thirty (30) days notice
in the event of modification, cancellation or non-renewal. Any vacancy,
change of title, tenant occupancy or use, physical damage, additional
improvements or other factors affecting any insurance contract must be
reported to the Lender immediately. Borrower must provide Lender with a
paid insurance agent's receipt for all current coverages unless such bills
are paid by Lender from proceeds on deposit in the Escrow Account
established pursuant to Section 3.1 An original or certified copy of each
policy is required at Loan Opening and upon renewal. If no such copy is
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available, Lender will accept a binder for a period not to exceed 90 days.
All binders, certificates of insurance, and original or certified copies of
policies must name Borrower as a named insured, or as an additional
insured, must include the complete and accurate property address and must
bear the original signature of the issuing insurance agent.
v. No Other Insurance. Borrower shall not take out separate
insurance concurrent in form or contributing in the event of loss with that
required to be maintained hereunder unless Lender is included thereon under
a standard, noncontributory Lender clause acceptable to Lender. Borrower
shall immediately notify Lender whenever any such separate insurance is
taken out and shall promptly deliver to Lender the original policy or
policies of such insurance.
(c) Lender's Right to Obtain Insurance: Notwithstanding this Section
3.3, in the event of Borrower's Default under this Agreement or a default
under any of the Loan Documents, Lender shall have the right (but not the
obligation) to place and maintain insurance required to be placed and
maintained by Borrower hereunder, and use funds on deposit in the Escrow
Account for the payment of insurance to pay for same. Any additional
amounts expended therefor shall constitute additional disbursements of Loan
proceeds (even if the total amount of disbursements would exceed the face
amount of the Note).
3.4. Mechanics' Liens and Contest Thereof. Borrower will not suffer or
permit any mechanics' lien claims to be filed or otherwise asserted against the
Project and will promptly discharge the same if any claims for lien or any
proceedings for the enforcement thereof are filed or commenced; provided,
however, that Borrower shall have the right to contest in good faith and with
due diligence the validity of any such lien or claim upon furnishing to the
Title Insurer such security or indemnity as it may require to induce the Title
Insurer to insure against all such claims, liens or proceedings; and provided
further that Lender will not be required to make any further disbursements of
the Loan proceeds unless (x) any mechanics' lien claims shown by any title
insurance commitments or interim binders or certifications have been released or
insured against by the Title Insurer or (y) Borrower shall have provided Lender
with such other security with respect to such claim as may be acceptable to
Lender, in its sole discretion.
3.5. Settlement of Mechanics' Lien Claims. If Borrower shall fail
promptly to discharge any mechanics' lien claim filed or otherwise asserted or
to contest any such claims and give security or indemnity in the manner provided
in Section 3.4 hereof, or, having commenced to contest the same, and having
given such security or indemnity, shall thereafter fail to prosecute such
contest in good faith or with due diligence, or fail to maintain such indemnity
or security so required by the Title Insurer for its full amount, or, upon
adverse conclusion of any such contest, shall fail to cause any judgment or
decree to be satisfied and lien to be promptly released, then, and in any such
event, Lender may, at its election (but shall not be required to) (i) procure
the release and discharge of any such claim and any judgment or decree thereon,
without inquiring into or investigating the amount, validity or enforceability
of such lien or claim and (ii) effect any settlement or compromise of the same,
or may furnish such security or indemnity to the Title insurer, and any amounts
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so expended by Lender, including premiums paid or security furnished in
connection with the issuance of any surety company bonds, shall be deemed to
constitute disbursements of the Loan proceeds hereunder (even if the total
amount of disbursements would exceed the face amount of the Note).
3.6. Maintenance. Repair and Restoration of Improvements. Borrower
shall (i) promptly repair, restore or rebuild any improvements which may become
damaged or be destroyed; and (ii) keep the Improvements in good condition and
repair, without waste.
3.7. Leases and Lease Reports. (i) Borrower shall not enter into,
modify, amend, waive any material provision of, terminate or cancel any leases
of space in the Project without the prior written consent of Lender and all
lessees shall be required at Lender's election to execute estoppel certificates
and subordination, non-disturbance and attornment agreements in form and
substance satisfactory to Lender; and (ii) within fifteen (15) days following
the end of each month, Borrower shall deliver to Lender a report showing the
status of the leasing of space in the Project certified by Borrower. Such report
shall include information on the amount of space covered by any letters of
intent, leases out for execution, and fully executed leases; the rental under
each lease agreement or proposed lease agreement; the term of each lease
agreement; and a summary of any terms which vary from the standard form of lease
previously approved by Lender.
3.8. Compliance With Laws. Borrower shall promptly comply with all
applicable Laws of any Governmental Authority having jurisdiction over Borrower
or the Project, and shall take all actions necessary to bring the Project into
compliance with all applicable Laws, including without limitation all Building
Laws (whether now existing or hereafter enacted).
3.9. Alterations. Without the prior written consent of Lender,
Borrower shall not make any material alterations to the Project (other than
completion of tenant world required in accordance with leases entered into in
accordance with the terms of this Agreement).
3.10. Personal Property. (i) All of Borrower's personal property,
fixtures, furnishings, furniture, attachments and equipment located on or used
in connection with the Project, shall always be located at the Project and shall
also be kept free and clear of all chattel mortgages, conditional vendors liens
and all other liens, encumbrances and security interests of any kind whatever,
(ii) Borrower will be the absolute owner of said personal property, fixtures,
attachments and equipment, and (iii) Borrower shall, from time to time, furnish
Lender with evidence of such ownership satisfactory to Lender, including
searches of applicable public records.
3.11. Prohibition Against Cash Distributions and Application of Cash
Flow.
Borrower shall first apply all cash flow from the Project to pay Project
expenses, including amounts due to Lender pursuant to the Loan Documents. No
cash flow from the Project shall be distributed to any partners of Borrower or
applied to the payment of any obligations, debts or expenses not related to the
Project if an Event of Default has occurred or if there is a reasonable
likelihood that such money will be necessary for the operation of the Project or
the payment of principal and interest due in connection with the Loan Borrower
shall not make any loans to any party without the prior written consent of
Lender.
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3.12. Inspection by. Borrower will cooperate (and will cause the
managing agent to cooperate) with Lender in arranging for inspections of the
Project from time to time by Lender and its agents and representatives.
3.13. Furnishing Information. Borrower shall deliver or cause to be
delivered to Lender annual (and at any time requested by Lender in its sole
discretion, quarterly) financial statements for Borrower and annual financial
statements for Indemnitor as soon as available and in all events no later than
one hundred twenty (120) days after the close of each fiscal year for annual
statements and thirty (30) days after the close of each quarter for quarterly
statements. The annual and quarterly statements shall be certified as true and
correct by an authorized financial officer of Borrower or Indemnitor, as the
case may be. If a Default has occurred or Lender reasonably believes that
previously provided financial statements are inaccurate, the annual statements
shall be audited by certified public accountants acceptable to Lender. If
Borrower has leased any portion of the Project, Borrower shall also furnish a
current rent roll for the Project at the time it delivers its financial
statements. Additionally, Borrower will:
i. promptly supply Lender with such information concerning
their respective affairs and property relating to the development and
operation of the Project as Lender may hereafter request from time to
time;
ii. at any time during regular business hours permit Lender
or any of its agents or representatives to have access to and examine
all of its books and records regarding the development and operation
of the Project;
iii. permit Lender to copy and make abstracts from any and
all of such books and records;
iv. immediately notify Lender if Borrower receives any actual
notice, action or lien notice or otherwise becomes aware that the
Project violates or is alleged to violate any Building Law, or of a
condition or situation on the Property which will constitute violation
of a Building Law (whether now existing or hereafter enacted). The
notice to Lender shall describe with particularity the Building Law
violation and the Borrower's plan to promptly correct the violation;
and
v. provide any information requested by Lender at any time
with respect to the "Xxxx (R)" lawsuit; and
vi. promptly furnish to Lender other information concerning
the Borrower as is reasonably requested from time to time by Lender.
3.14. Documents of Further Assurance. Borrower shall, from time to
time, upon Lender's request, execute, deliver, record and furnish such documents
as Lender may reasonably deem necessary or desirable to (i) perfect and maintain
perfected as valid liens upon the Project, the liens granted by Borrower to
Lender under the Mortgage and the collateral assignments and other security
interests under the other Loan Documents as contemplated by this Agreement, (ii)
correct any errors of a typographical nature or inconsistencies which may
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be contained in any of the Loan Documents, and (iii) consummate fully the
transaction contemplated under this Agreement.
3. 15. Furnishing Reports. Borrower shall provide Lender promptly after
receipt with copies of all inspections, reports, test results and other
information received by Borrower from time to time from its employees, agents,
representatives, architects and engineers, which in any way relate to the
Project, or any part thereof.
3.16. Operation of Project and Zoning. As long as any portion of the
Loan remains outstanding, the Project shall be operated in a first class manner
as a commercial office building and manufacturing and distribution facility.
Borrower shall fully and faithfully perform all of its covenants, agreements and
obligations under each of the leases of space in the Project. Borrower shall not
initiate or acquiesce in a zoning variation or reclassification without Lender's
consent.
3.17. Management Agents' and Brokers' Contracts. Borrower shall not
enter into, modify, amend, waive any material provision of, terminate or cancel
any management contracts for the Project or agreements with agents or brokers,
without the prior written approval of Lender.
3.18. Furnishing Notices. Borrower shall deliver to Lender copies of
all material notices received or given by Borrower (or its agents or
representatives) in connection with the Project.
3.19. Indemnification. Borrower shall indemnify, defend and hold
Lender, and its officers, directors, employees, shareholders, advisers, and
agents (collectively, "Indemnified Parties") harmless from and against all
claims, injury, damage, loss, costs (including attorneys' fees and costs) and
liability of any and every kind incurred by Indemnified Parties by reason of (i)
the operation or maintenance of the Project or any construction at the Project;
(ii) the payment of any brokerage commissions or fees of any kind with respect
to the Commitment or the Loan, and for any legal fees or expenses incurred by
Lender in connection with any claims for such commissions or fees; (iii) any
other action or inaction by, or matter which is the responsibility of, Borrower;
and (iv) the breach of any representation or warranty or failure to fulfill any
of Borrower's obligations under this Agreement or any other Loan Document. The
foregoing indemnity shall include the cost of all alterations, repairs and
replacements to the Project (including without limitation architectural,
engineering, legal and accounting costs), all fines, fees and penalties, and all
legal and other expenses (including attorneys' fees), incurred in connection
with the Project being in violation of the Building Laws and for the cost of
collection of the sums due under this indemnity, whether or not Borrower is in
possession of the Property. If Lender shall become the owner of or acquire an
interest in or rights to the Project by foreclosure or deed in lieu of
foreclosure of the deed of trust securing payment of the Loan, or by other
means, the foregoing indemnification obligation shall survive such foreclosure
or deed in lieu of foreclosure or other acquisition of the Project
3.20. Partnership Agreement. Without the prior written consent of
Lender, Borrower shall not permit or suffer any amendment or modification of its
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partnership agreement, and shall not permit or suffer the admission of any new
partner, except as permitted pursuant to Section 6.3.
3.21. Lost Note. Borrower shall, if the Note is mutilated, destroyed,
lost, or stolen, promptly deliver to Lender, in substitution therefor, a new
promissory note containing the same terms and conditions as the Note with a
notation thereon of the unpaid principal accrued and unpaid interest.
3.22. Publicity. During the term of the Loan, Lender may issue or
publish releases or announcements stating that the financing for the Project is
being provided by Lender to Borrower, and Borrower hereby consents thereto.
3.23. [Intentionally left blank]
3.24. Lender's Attornevs' Fees and Expenses. If at any time hereafter
prior to repayment of the Loan in full, Lender employs counsel for advice or
other representation (whether or not any suit has been or shall be filed and
whether or not other legal proceedings have been or shall be instituted and, if
such suit is filed or legal proceedings instituted, through all administrative,
trial, and appellate levels) with respect to the Loan, the Project or any part
thereof, this Agreement or any of the Loan Documents, including any proposed or
actual restructuring of the Loan, or to protect, collect, lease, sell, take
possession of, or liquidate any of the Project, or to attempt to enforce any
security interest or lien on any of the Project, or to enforce any rights of
Lender or any of Borrower's obligations hereunder or those of any other person,
firm or corporation which may be obligated to Lender by virtue of this Agreement
or any other agreement, instrument or document heretofore or hereafter delivered
to Lender by or for the benefit of Borrower, or to analyze and respond to any
request for consent or approval made by Borrower, then, in any such event, all
of the attomeys' fees and expenses arising from such services, and all expenses,
costs and charges relating thereto, shall be paid by Borrower on demand and if
Borrower fails to pay such fees, costs and expenses payment thereof by Lender
shall be deemed to constitute disbursement of the Loan proceeds hereunder (even
if the total amount of disbursements would exceed the face amount of the Note)
and shall constitute additional indebtedness of Borrower to Lender, payable on
demand and secured by the Mortgage and other Loan Documents.
3.25. Loan Expenses. Borrower agrees to pay all expenses of the Loan,
including all amounts payable pursuant to Section 3.26 of this Agreement, and
also including all recording charges, title insurance charges, costs of surveys,
costs for certified copies of instruments, escrow charges, fees, expenses and
charges of architectural/engineering consultants of Lender, fees and expenses
(including word processing and photocopying expenses) of Lender's attorneys, and
all costs and expenses incurred by Lender in connection with the determination
of whether Borrower has performed the obligations undertaken by Borrower under
this Agreement or has satisfied any conditions precedent to the obligations of
Lender under this Agreement. All such expenses, charges, costs and fees shall be
the Borrower's obligation regardless of whether the Loan is disbursed in whole
or in part unless such failure to disburse is due to Lender's wrongful failure
12
to disburse hereunder. Any and all advances or payments made by Lender under
this Agreement from time to time, or for fees of architectural and engineering
consultants and attorneys' fees and expenses, if any, and all other Loan
expenses shall, as and when advanced or incurred by Lender, constitute
additional indebtedness evidenced by the Note and secured by the Mortgage and
the other Loan Documents to the same extent and effect as if the terms and
provisions of this Agreement were set forth therein, whether or not the
aggregate of such indebtedness shall exceed the aggregate face amount of the
Note.
3.26. Loan Fees. Borrower agrees to pay the loan fees ("Loan Fees") as
are set forth in the Commitment, subject to the terms and conditions set forth
therein. Borrower shall pay all Loan Fees at the times set forth in the
Commitment and shall pay all expenses incurred by Lender at the Loan Opening
Date and on demand at such subsequent times as Lender may determine. Lender may
require the payment of such fees and expenses as a condition to the disbursement
of the Loan.
4. REPRESENTATIONS AND WARRANTIES. To induce Lender to execute this agreement
and perform the obligations of Lender hereunder, Borrower hereby represents and
warrants to lender as follows:
4.1. Title. On the Loan Opening Date and thereafter, Borrower will have
good and marketable fee simple title to the Real Property, subject only to the
Permitted Exceptions.
4.2. No Litigation. Except for claims fully covered by insurance, where
the insurance company is defending such claims and such defense is not being
provided under a reservation of rights, and except as disclosed in writing to
Lender prior to the date hereof, there is no pending litigation or unsatisfied
judgment entered of record against the Borrower or Project. No litigation or
proceedings are pending, or to Borrower's knowledge are threatened, against any
Affiliated Party (i) which might affect the validity or priority of the lien of
the Mortgage, (ii) which might affect the ability of Borrower or any Indemnitor
to perform their respective obligations pursuant to and as contemplated by the
terms and provisions of this Agreement and the other Loan Documents, or (iii)
which could materially affect the operations or financial condition of the
Project, the Borrower, or any Affiliated Party.
4.3. Due Authorization. The execution and delivery of the Loan
Documents and all other documents executed or delivered by or on behalf of
Borrower and pertaining to the Loan have been duly authorized or approved by
Borrower and, when executed and delivered by Borrower or when caused to be
executed and delivered on behalf of Borrower, will constitute the legal, valid
and binding obligations of the obliger thereon, enforceable in accordance with
their respective terms except as limited by bankruptcy, insolvency, or other
laws of general application relating to the enforcement of creditor's rights,
and the payment or performance thereof will be subject to no offsets, claims or
defenses of any kind or nature whatsoever.
4.4. Breach of Laws or Agreements. The execution, delivery and
performance of this Agreement and the other Loan Documents have not constituted
(and will not, upon the giving of notice or lapse of time or both, constitute) a
breach or default under any other agreement to which Borrower or any Indemnitor
13
is a party or may be bound or affected, or a violation of any Law which may
affect the Project, any part thereof, any interest therein, or the use thereof.
4.5. Leases. Borrower and its agents have not entered into any leases
or other arrangements for occupancy of space within the Project except for a
lease with DNR USA, Inc., a Delaware corporation, as shown on the most recent
rent roll furnished to Lender (the "Rent Roll") or entered into in accordance
with the requirements of this Agreement. All leases disclosed on the Rent Roll
are in full force and effect and to Borrower's knowledge, there are no existing
defaults thereunder other than as disclosed in writing to Lender.
4.6. Condemnation. (i)No condemnation of any portion of the Project,
(ii)no condemnation or relocation of any roadways abutting the Project, and
(iii) no denial of access to the Project from any point of access to the
Project, has commenced or, to Borrower's knowledge, is contemplated by any
Governmental Authority.
4.7. Condition of Improvements. To the best of Borrower's knowledge,
the foundations and structure of the Improvements are structurally sound and the
various mechanical systems have adequate capacities and are in good working
condition. The Improvements were built in substantial compliance with applicable
plans and specifications furnished to the Lender's engineering consultant, and
the Improvements are in full compliance with all applicable Building Laws.
Certificates of occupancy with respect to the Improvements, and any other
certificates which may be required to evidence compliance with building codes
and permits and approval for full occupancy of the Improvements and all
installations therein have been issued by all appropriate authorities. Borrower
has no knowledge of required capital expenditures or deferred maintenance other
than those that would be normally expected for a building of similar age and
type. No notice of violation of any Building Law has been received.
4.8. Information Correct. All financial statements furnished to Lender
by Borrower or any Affiliated Party fairly present the financial condition of
such persons or entities and were prepared in accordance with a method of
preparation approved by Lender, consistently applied, and all other information
previously furnished by Borrower or any Affiliated Party to Lender in connection
with the Loan are true, complete and correct in all respects except as otherwise
disclosed to Lender in writing and do not fail to state any material fact
necessary to make the statements made not misleading. Neither Borrower nor
Inderunitor has misstated or failed to disclose to Lender any material fact
relating to: (i) the condition, use or operation of the Project, (ii) the status
or any material condition of any tenant or lease at the Project known to it,
(iii) the Borrower, (iv) any Indemnitor; or (v) the litigation disclosure
provided by Borrower and each Indemnitor, except as disclosed in writing to
Lender prior to the date hereof.
4.9. Material Adverse Change. No material adverse change in the
operations or financial condition of Borrower has occurred since the respective
effective dates of their financial statements previously submitted to Lender,
and no material adverse change in the condition (physical or otherwise) of the
Project has occurred since the date of the Application.
4 10. Solvency. Neither Borrower, any general partner of Borrower nor
any Indemnitor is (a) currently insolvent on a balance sheet basis, or (b)
14
currently unable to pay its debts as they come due; and no bankruptcy or
receivership proceedings are contemplated or pending as to any of them.
4.11. Zoning. The use of the Project (including contemplated accessory
uses) does not violate (i) any Law (including subdivision, zoning, building,
environmental protection and wetlands protection Laws), or (ii) any restrictions
of record, or any agreement affecting the Project or any part thereof. Without
limiting the generality of the foregoing, all consents, licenses and permits and
all other authorizations or approvals (collectively, "Governmental Approvals")
relating to the operation of the Project have been complied with.
4.12. Utilities. The Project has adequate water, gas and electrical
supply, storm and sanitary sewerage facilities, other required public utilities,
fire and police protection, and means of appropriate access between the Project
and public highways.
4.13. Brokerage Fees. No brokerage fees or commissions are payable by
or to any person in connection with this Agreement or the Loan to be disbursed
hereunder other than fees payable to Bonneville Mortgage Company, which fees
shall be paid by Borrower.
4.14. Encroachments. No building or other improvement in the Project
encroaches upon any building line, setback line, side yard line, or any recorded
or visible easement (or other easement of which Borrower has knowledge of with
respect to the Project).
4.15. Separate Parcel. The Project is taxed separately without regard
to any other property and for all purposes the Project may be mortgaged,
conveyed, and otherwise dealt with as an independent parcel.
4.16. ERISA. The assets of Borrower are not "plan assets" of any
employee benefit plan covered by ERISA or Section 4975 of the Internal Revenue
Code. The transactions contemplated by this Loan Agreement by or with Borrower
are not in violation of state statutes regulating investments of and fiduciary
obligations with respect to "governmental plans, "as defined in Section 3(32) of
ERISA.
4. 17. No Default. No Default or Event of Default has occurred and is
continuing.
4.18. Trade Name; Principal Place of Business. Borrower uses no trade
name other than its actual name set forth herein. The principal place of
business of Borrower is as stated on page 1 hereof.
4. 19. FIRPTA. Borrower is not a "foreign person" within the meaning
of Sections 1445 or 7701 of the Internal Revenue Code.
4.20. RICO. Borrower has not been charged with nor, to its knowledge,
is it under investigation for, possible violations of the Racketeer Influenced
and Corrupt Organizations Act ("RICO"), the Continuing Criminal Enterprise Act
("CCE"), the Controlled Substance Act of 1978, or similar laws providing for the
possible forfeiture of any of its respective assets or properties.
15
4.21. No Casualty. No part of the Project has been damaged by fire or
other casualty except as disclosed in writing to Lender.
4.22. Truth of Recitals. All statements set forth in the Recitals are
true and correct.
5. CASUALTY AND CONDEMNATION.
5.1. Lender's Election to Apply Insurance and Condemnation Proceeds to
Indebtedness. In the event of any loss or damage to any portion of the Project
due to fire or other casualty, Lender shall have the right, but not the
obligation, to settle insurance claims for more than $50,000.00 and if Lender
elects not to settle such claim then Borrower shall settle such claim and such
settlement shall be subject to Lender's prior written approval. Borrower shall
have the right to settle claims for less than such amount, provided that Lender
shall have the right to settle any claim that Borrower has not settled on or
before one hundred twenty (120) days after the date of such loss. If (i) no
Default exists hereunder at the time of such casualty or condemnation and at the
time such proceeds would be disbursed; (ii) no payment default has occurred
during the preceding twelve months; (iii) the Loan-to-value ratio of the Project
on completion of the restoration will be 75% or less, as determined by an
Appraisal obtained in the manner described in Section 2.4.1 of the Application
(unless the amount of proceeds is less than 3% of the original Loan amount);
(iv) the proceeds received by Lender, together with any additional funds
deposited with Lender by Borrower, are sufficient, in Lender's discretion,
either to restore the Project to its condition before the casualty or to remedy
the condemnation; (v) a loss of no more than 5% of the commercial tenant rental
income will occur as a result of the casualty or condemnation; and (vi) Borrower
complies with all conditions set forth in Section 5.2 of this Agreement, the
Borrower shall be entitled to use the insurance or condemnation proceeds to
rebuild the Project or to remedy the effect of the condemnation, as the case may
be. The Appraisal required pursuant to the foregoing provision shall be at
Borrower's expense and Lender may require that Borrower deposit $10,000 with
Lender as security for the expense or may pay the appraiser from the insurance
proceeds at its sole discretion. In all other cases, Lender shall have the right
(but not the obligation) to collect, retain and apply to the indebtedness of
Borrower under this Agreement all insurance proceeds (after deduction of all
expense of collection and settlement, including attorneys' and adjusters' fees
and expenses, but without any prepayment premium), and if such proceeds are
insufficient to pay such amount in full, to declare the balance remaining unpaid
on the Note and Mortgage to be due and payable forthwith and to avail itself of
any of the remedies afforded thereby as in the case of any default beyond
applicable cure periods thereunder. Any proceeds remaining after application to
the indebtedness of Borrower under this Agreement shall be paid by Lender to
Borrower or the party then entitled thereto.
5.2. Borrower's Obligation to Rebuild and Use of Proceeds Therefor. If
Lender does not elect to or is not entitled to apply fire or casualty insurance
proceeds to the indebtedness, as provided under Section 5.1 of this Agreement,
Lender shall have the right (but not the obligation) to settle, collect and
retain such proceeds, and after deduction of all expenses of collection and
settlement, including attorneys' and adjusters' fees and expenses, to release
the same to Borrower periodically provided that Borrower shall:
16
(a) Expeditiously repair and restore all damage to the portion of
the Project in question resulting from such fire or other casualty,
including completion of the Construction if such fire or other
casualty shall have occurred prior to completion, so that the Project
will be completed in accordance with the Plans and Specifications; and
(b) If the proceeds of fire or casualty insurance (and the
undisbursed available Loan proceeds for Construction) are, in Lender's
sole judgment, insufficient to complete the repair and restoration of
the buildings, structures and other improvements constituting the
Project, then Borrower shall promptly deposit with Lender the amount
of such deficiency.
Any request by Borrower for a disbursement by Lender of fire or
casualty insurance proceeds and funds deposited by Borrower pursuant to this
Section 5.2 and the disbursement thereof shall be conditioned upon Borrower's
compliance with and satisfaction of the same conditions precedent as would be
applicable in connection with construction loans made by institutional lenders
for projects similar to the Project, including approval of plans and
specifications submittal of evidence of completion, updated title insurance,
lien waivers, and other customary safeguards.
6. ASSIGNMENTS.
6.1. Lender's Right to Assign. Lender shall have the right to assign,
transfer, sell, negotiate, pledge or otherwise hypothecate this Agreement and
any of its rights and security hereunder, including the Note, Mortgage, and any
other Loan Documents. Borrower hereby agrees that all of the rights and remedies
of Lender in connection with the interest so assigned shall be enforceable
against Borrower by such assignee with the same force and effect and to the same
extent as the same would have been enforceable by Lender but for such
assignment. Borrower agrees that Lender shall have the right to sell
participations in the Loan or to include the Note in a securitized pool of
indebtedness without the consent of Borrower.
6.2. Prohibition of Assignments by Borrower. Borrower shall not assign
or attempt to assign its rights under this Agreement. Borrower will not suffer
or permit any of its interest or rights in the Project to be assigned, sold,
pledged, encumbered, transferred, hypothecated or otherwise disposed of until
the provisions of this Agreement have been fully complied with and the Loan and
all other sums evidenced by the Note and/or secured by the Mortgage and other
Loan Documents, have been repaid in full.
6.3. Prohibition of Transfers of Interests in Borrower. No party
directly or indirectly owning an interest in Borrower shall suffer or permit any
of such interest to be assigned, sold, pledged, encumbered, transferred,
hypothecated or otherwise disposed of without Lender's written consent (which
Lender may withhold in its sole discretion) until the provisions of this
Agreement have been fully complied with and the Loan and all other sums
evidenced by the Note and/or secured by the Mortgage and other Loan Documents
have been repaid in full. Borrower shall pay Lender's out-of-pocket expenses
incurred in connection with the review of any transfer for which Borrower
requests consent pursuant to Section 6.2 or this Section 6.3. In the event that
Lender consents to any such transfer, assignment, sale, encumbrance or other
17
disposal, Borrower shall pay to Lender a transfer fee in the amount of one
percent (1%) of the outstanding balance of the Loan.
6.4. Successors and Assigns. Subject to the foregoing restrictions on
transfer and assignment contained in this Article 6. this Agreement shall inure
to the benefit of and shall be binding on the parties hereto and their
respective successors and assigns.
7. EVENTS OF DEFAULT.
7.1. The occurrence of any one or more of the following shall
constitute an "Event of Default," as such term is used herein:
(a) If Borrower fails to pay principal or interest under the Note
when due;
(b) If Borrower defaults in the performance of any of its other
covenants, agreements and obligations under this Agreement involving
the payment of money;
(c) If Borrower defaults in the performance of any of its
non-monetary covenants, agreements and obligations under this
Agreement and fails to cure such default within thirty (30) days after
written notice thereof from Lender provided, however, that if such
default is reasonably susceptible of cure, but cannot be cured within
such thirty (30) day period, then so long as Borrower promptly
commences cure and thereafter diligently pursues such cure to
completion, the cure period shall be extended for an additional thirty
(30) days, within which Borrower may complete such cure;
(d) If at any time or times hereafter any representation or
warranty (including the representations and warranties of Borrower set
forth in any Loan Document), statement, report or certificate
furnished to Lender in connection with the Loan is not true and
correct in any material respect;
(e) If any petition is filed by or against Borrower or any
Affiliated Party under the Federal Bankruptcy Code or any similar
state or federal Law, whether now or hereafter existing (and, in the
case of involuntary proceedings, failure to cause the same to be
vacated, stayed or set aside within sixty (60) days after filing);
(f) If any assignment, pledge, encumbrance, transfer,
hypothecation or other disposition is made in violation of Section 6.2
or, Section 6.3 of this Agreement;
(g) If Borrower or any general partner of Borrower shall fail to
pay any debt owed by it or is in default under any agreement with
Lender or any other party and such failure or default continues after
any applicable grace period specified in the instrument or agreement
relating thereto; or
(h) If a default occurs under any of the Loan Documents and
continues beyond the applicable grace period, if any, contained
therein.
18
8. REMEDIES.
8.1. Remedies Conferred Upon Lender. Upon the occurrence of any Event
of Default, Lender shall, have the right (but not the obligation) to pursue any
one or more of the following remedies concurrently or successively, it being the
intent hereof that all such remedies shall be cumulative and that no such remedy
shall be to the exclusion of any other:
(a) Declare the Note to be immediately due and payable;
(b) Use and apply any monies deposited by Borrower with Lender,
including amounts in the Escrow Account, regardless of the purpose for
which the same was deposited, to cure any such default or to apply on
account of any indebtedness under this Agreement which is due and
owing to Lender; and
(c) Exercise or pursue any other right or remedy permitted under
this Agreement or any of the Loan Documents or conferred upon Lender
by operation of Law.
8.2. Non-Waiver of Remedies. No waiver of any breach or default
hereunder shall constitute or be construed as a waiver by Lender of any
subsequent breach or default or of any breach or default of any other provision
of this Agreement.
8.3. Cash Collateral Account. Upon the occurrence of an Event of
Default, Borrower shall deposit all revenues from the operation of the Project
into an account held by and pledged to Lender ("Cash Collateral Account").
Lender shall not pay interest on any amounts held on deposit in the Cash
Collateral Account, unless required to do so under applicable law. Borrower
shall execute such documents as Lender, in its sole discretion, deems necessary
to perfect its interest in the Cash Collateral Account.
9. GENERAL PROVISIONS.
9.1. Captions. The captions and headings of various Articles and
Sections of this Agreement and Exhibits pertaining hereto are for convenience
only and are not to be considered as defining or limiting in any way, the scope
or intent of the provisions hereof.
9.2. Merger. This Agreement, the Application, the Commitment and the
Loan Documents and instruments delivered in connection herewith, as may be
amended from time to time in writing, constitute the entire agreement of the
parties with respect to the Project and the Loan, and all prior discussions,
negotiations and document drafts are merged herein and therein. If there are any
inconsistencies between the Commitment and this Agreement or the Loan Document,
the terms contained in this Agreement and the other Loan Documents shall
prevail. Neither Lender nor any employee of Lender has made or is authorized to
make any representation or agreement upon which Borrower may rely unless such
matter is made for the benefit of Borrower and is in writing signed by an
authorized officer of Lender. Borrower agrees that it has not and will not rely
on any custom or practice of Lender, or on any course of dealing with Lender, in
connection with the Loan unless such matters are set forth in this Agreement or
19
the Loan Documents or in an instrument made for the benefit of Borrower and in a
writing signed by an authorized of fleer of Lender.
9.3. Notices. Any notice, demand, request or other communication which
any party hereto may be required or may desire to give hereunder shall be in
writing, addressed as follows and shall be deemed to have been properly given if
hand delivered, if sent by reputable overnight courier (effective the business
day following delivery to such courier) or if mailed (effective two business
days after mailing) by United States registered or certified mail, postage
prepaid, return receipt requested:
If to Borrower: Marker International
2305 South 0000 Xxxx
Xxxx Xxxxxx Xxxx, Xxxx 00000
Attn: President
If to Lender: Xxxxxxx National Life Insurance Company
c/o PPM Finance, Inc.
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxxxx
or at such other address as the party to be served with notice may have
furnished in writing to the party seeking or desiring to serve notice as a place
for the service of notice. Notices given in any other fashion shall be deemed
effective only upon receipt.
9.4. Modification: Waiver. No modification, waiver, amendment,
discharge or change of this Agreement shall be valid unless the same is in
writing and signed by the party against which the enforcement of such
modification, waiver, amendment, discharge or change is sought.
9.5. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED UNDER THE INTERNAL LAWS (AS OPPOSED TO THE LAWS OF
CONFLICTS) OF THE STATE OF UTAH.
9.6. Acquiescence Not to Constitute Waiver of Lender's Requirements.
Each and every covenant and condition for the benefit of Lender contained in
this Agreement may be waived by Lender.
9.7. Disclaimer by Lender.
(a) This Agreement is made for the sole benefit of Borrower and
Lender (and Lender's successors and assigns and participants, if any),
and no other person or persons shall have any benefits, rights or
remedies under or by reason of this Agreement, or by reason of any
actions taken by Lender pursuant to this Agreement. Lender shall not
be liable for any debts or claims accruing in favor of any third
parties against Borrower or
20
others or against the Project. Borrower is not and shall not be
an agent of Lender for any purposes. Except as expressly set forth in
the Loan Documents, Lender is not and shall not be an agent of
Borrower for any purposes. Lender, by making the Loan or taking any
action pursuant to any of the Loan Documents, shall not be deemed a
partner or a joint venturer with Borrower or fiduciary of Borrower.
(b) Any review, investigation or inspection conducted by Lender,
any architectural or engineering consultants retained by Lender or any
agent or representative of Lender in order to verify independently
Borrower's satisfaction of any conditions precedent to the
disbursement of the Loan, Borrower's performance of any of the
covenants, agreements and obligations of Borrower under this
Agreement, or the truth of any representations and warranties made by
Borrower hereunder (regardless of whether or not the party conducting
such review, investigation or inspection should have discovered that
any of such conditions precedent were not satisfied or that any such
covenants, agreements or obligations were not performed or that any
such representations or warranties were not true), shall not affect
(or constitute a waiver by Lender of) (i) any of Borrower's
representations and warranties under this Agreement or Lender's
reliance thereon, or (ii) Lender's reliance upon any certifications
required under this Agreement or any other facts, information or
reports furnished Lender by Borrower hereunder.
(c) By accepting or approving anything required to be observed,
performed, fulfilled or given to Lender pursuant to the Loan
Documents, including any certificate, statement of profit and loss or
other financial statement, survey, appraisal, lease or insurance
policy, Lender shall not be deemed to have warranted or represented
the sufficiency, legality, effectiveness or legal effect of the same,
or of any term provision or condition thereof, and such acceptance or
approval thereof shall not constitute a warranty or representation to
anyone with respect thereto by Lender.
9.8. Right of Lender to Make Advances to Cure Borrower's Defaults. If
Borrower shall fail to perform in a timely fashion any of Borrower's covenants,
agreements or obligations contained in this Agreement or the Loan Documents,
Lender may (but shall not be required to) perform any of such covenants,
agreements and obligations. Any funds advanced by Lender in the exercise of its
judgment that the same are needed to protect its security for the Loan are
deemed to be obligatory advances hereunder and any amounts expended (whether by
disbursement of undisbursed Loan proceeds or otherwise) by Lender in so doing,
shall constitute additional indebtedness evidenced and secured by the Note, the
Mortgage and the other Loan Documents.
9.9. Definitions Include Amendments. Definitions contained in this
Agreement which identify documents, including the Loan Documents, shall be
deemed to include all amendments and supplements to such documents from the date
hereof, and all future amendments and supplements thereto entered into from time
to time to satisfy the requirements of this Agreement or otherwise with the
consent of the Lender. Reference to this Agreement contained in any of the
foregoing documents shall be deemed to include all amendments and supplements to
this Agreement
21
9.10. Time Is of the Essence. Time is hereby declared to be of the
essence of this Agreement and of every part hereof.
9.11. Execution in Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
9.12. Waiver of Consequential Damages. In no event shall Lender be
liable to Borrower for consequential damages, whatever the nature of a breach by
Lender of its obligations under this Loan Agreement, or any of the Loan
Documents, and Borrower for itself and all Affiliated hereby waives all claims
for consequential damages.
9.13. Claims Against Lender. Lender shall not be in default under this
Agreement, or under any other Loan Documents, unless a written notice
specifically setting forth the claim of Borrower shall have been given to Lender
within 30 days after Borrower first had knowledge of, or reasonably should have
had knowledge of, the occurrence of the event which Borrower alleges gave rise
to such claim and Lender does not remedy or cure the default, if any there be,
promptly thereafter. If it is determined in any proceedings that Lender has
improperly failed to grant its consent or approval, where such consent or
approval is required by this Loan Agreement or any other Loan Documents,
Borrower's sole remedy shall be to obtain declaratory relief determining such
withholding to have been improper, and for itself and all Affiliated Parties
Borrower hereby waives all claims for damages or set-off against Lender
resulting from any withholding of consent or approval by Lender.
9.14. Jurisdiction and Venue. With respect to any suit, action or
proceedings relating to this agreement, the Project, or any of the Loan
Documents ("Proceedings") each party irrevocably (i) submits to the
non-exclusive jurisdiction of (A) the state and federal courts located in the
State where the Project is located, (B) the federal court for the Northern
District of Illinois and (C) the Circuit Court of Xxxx County and (ii) waives
any objection which it may have at any time to the laying of venue of any
proceedings brought in any such court, waives any claim that such Proceedings
have been brought in an inconvenient forum and further waives the right to
object, with respect to such Proceedings, that such court does not have
jurisdiction over such party. Nothing in this agreement shall preclude either
party from bringing Proceedings in any other jurisdiction nor will the bringing
of Proceedings in any one or more jurisdictions preclude the bringing of
Proceedings in any other jurisdiction.
9.15. Severability. The parties hereto intend and believe that each
provision in this Agreement comports with all applicable local, state and
federal laws and judicial decisions. However, if any provision or provisions, or
if any portion of any provision or provisions, in this Agreement is found by a
court of law to be in violation of any applicable local, state, or federal law,
statute, ordinance, administrative or judicial decision, or public policy, and
if such courts declare such portion, provision, or provisions of this Agreement
to be illegal, invalid, unlawful, void or unenforceable as written, then it is
the intent of all parties hereto that such portion, provision, or provisions
shall be given force to the fullest possible extent that they are legal, valid
22
and enforceable, and that the remainder of this Agreement shall be construed as
if such illegal, invalid, unlawful, void, or unenforceable portion, provision,
or provisions were not contained therein, and that the rights, obligations, and
interests of Borrower and Lender under the remainder of this Agreement shall
continue in full force and effect.
9.16. Incorporation of Recitals. The Recitals set forth herein and the
Exhibits attached hereto are incorporated herein and expressly made a part
hereof.
9.17. WAIVER OF JURY TRIAL. BORROWER AND LENDER EACH HEREBY WAIVE ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS UNDER THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR RELATING THERETO OR
ARISING FROM THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS AGREEMENT AND
AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY.
IN WITNESS WHEREOF, Borrower and Lender have executed this Agreement
as of the day and year first set forth above.
BORROWER
MARKER INTERNATIONAL, a Utah corporation
By: /s/ Xxxx X. Xxxxxxx
Its: Executive Vice President/ COO
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LENDER:
XXXXXXX NATIONAL LIFE INSURANCE COMPANY
By: PPM Finance, Inc. Its authorized agent
By: /s/ Xxxxx X. Xxxxxx
Its:
Xxxxx X. Xxxxxx, Senior Vice President
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EXHIBIT A
LEGAL DESCRIPTION
A parcel of land located in the Northwest quarter of Section 00, Xxxxxxxx 0
Xxxxx, Xxxxx 1 West, Salt Lake Base and Meridian, being more particularly
described as follows:
BEGINNING at a point on the East line of 0000 Xxxx Xxxxxx (a private roadway),
said point being South 0(degree)02'35" West 1460.82 feet along the quarter
Section line and East 4222.64 feet from the North quarter corner of Section 22,
Township 1 South, Range 1 West, Salt Lake Base and Meridian, and running thence
East 464.86 feet to the West right-of-way line of the Jordan River, thence South
41(degree)54'55" East 469.88 feet along the West right-of-way line of the Jordan
River to the North line of 0000 Xxxxx Xxxxxx; thence South 89(degree)55'00" West
771.74 feet along the North line of 0000 Xxxxx Xxxxxx; thence Northwesterly
20.26 feet along the arc of a 28.00 foot radius curve to the right, (center
bears North 48(degree)32'35" East and long chord bears North 20(degree)43'43"
West 19.82 feet, with a central angle of 41(degree)27'25") along the North line
of 0000 Xxxxx Xxxxxx, to the East line of 0000 Xxxx Xxxxxx; thence North 332.24
feet along the East line of 0000 Xxxx Xxxxxx to the point of beginning.
EXHIBIT B
PERMITTED EXCEPTIONS
1. Taxes for the year 1997 now a lien, not yet due.
2. Said property is included within the boundaries of Xxxxxxx-Xxxxxx
Improvement District, for the purpose of supplying water and sewage
facilities to said District.
3. Said property is included within the incorporated city limits of West
Valley City, a municipal corporation of the State of Utah, and is
subject to any special assessments for improvements or services as may
be therein provided.
4. An easement granted to Utah Power & Light Company, for the erection
and continued maintenance of electric transmission, distribution,
telephone and telegraph circuits, including steel and/or wood
structures, and the necessary appurtenances, together with rights of
ingress and egress; in the document recorded January 13, 1959 as Entry
No. 1631353 in Book 1577 at page 179 of Official Records; affecting a
strip of land, fifty (50) feet in width, being more particularly
described as:
Beginning at a point on the North line of a road known as Main
Street in the Western Pacific Addition, which point is 3543 feet
North and 1617 feet East, more or less, from the Southwest corner
of Section 00, Xxxxxxxx 0 Xxxxx, Xxxxx 1 West, Salt Lake Base and
Meridian; thence North 0(degree)28' East 181.4 feet; thence North
47(degree)25' East 893.6 feet to the West bank of the Jordan
River; thence North 05(degree)40'40" 13.6 feet along said West
bank to the North boundary line of Grantor's land; thence West
134.4 feet along the North boundary line; thence South
47(degree)25' West 842.8 feet, being parallel to and 100 feet
perpendicularly distant Northwesterly from the above described
Southeasterly boundary line; thence North 66(degree)03'30" West
42.2 feet; thence South 23(degree)56'30" West 10 feet; thence
South 66(degree)03'30" East 42.2 feet; thence South 0(degree)28'
West 220.2 feet, being parallel to and 100 feet perpendicularly
distant Westerly from the above described Easterly boundary lie
to the North boundary line of said road; thence East 100 feet
along said North boundary line to the point of beginning.
Said easement was modified by the terms and conditions contained within that
certain Agreement dated July 29, 1996 and recorded July 30, 1996 as Entry No.
6417100 in Book 7454 at page 742 of Official Records; by and between Utah Power
& Light Company, now known as PacifiCorp, an Oregon Corporation and Marker
International, Inc., a Utah corporation. Said Agreement also discloses that a
certain building and other improvements have been constructed within the
easement granted to Utah Power & Light Company.
5. The limitations, covenants, restrictions, conditions, reservations,
exceptions, easements, terms and liens contained in the Declaration of
Easements, Covenants and Restrictions (Metro Business Park - Phase II), recorded
November 12, 1986 as Entry No. 4347986 in
Book 5839 at pages 682 through 713 of Official Records, which provided, among
other things, that a violation thereof shall not defeat or render invalid the
lien of any mortgage or deed of trust made in good faith and for value.
First Amendment to Declaration of Easements, Covenants and Restrictions recorded
February 17, 1988 as Entry No. 4586959 in Book 6004 at page 1759 of Official
Records.
Second Amendment to Declaration of Easements, Covenants and Restrictions
recorded February 11, 1992 as Entry No. 5196953 in Book 6409 et page 1023 of
Official Records.
Third Amendment to Declaration of Easements, Covenants and Restrictions recorded
July 27, 1993 as Entry No.5562935 in Book 6716 at page 1770 of Official Records.
Fourth Amendment to Declaration of Easements, Covenants and Restrictions
recorded September 23, 1994 as Entry No. 5928513 in Book 7024 at page 1476 of
Official Records.
Fifth Amendment to Declaration of Easements, Covenants and Restrictions recorded
January 25, 1996 as Entry No. 6417101 in Book 7454 at page 754 of Official
Records.
EXHIBIT C
SOURCES AND USES OF FUNDS
SOURCES:
PPM Finance, Inc. Loan 2,250,000.00
USES:
Payoffexisting loan with First Security Bank ($2,250,000.00)
Closing costs ($50,000.00)
TOTAL USES ($2,300,000.00)
Amount by which USES exceeds SOURCES ($50,000.00)
