Exhibit 10.5
LOAN AGREEMENT
Dated: As of January 30, 2002
Among
THE XXXXXXX MASTER LIMITED PARTNERSHIP, a Delaware
limited partnership
("Borrower")
and
FLEET NATIONAL BANK ("Agent"),
and
FLEET NATIONAL BANK and any other Lenders, if any, which are, or may become,
parties to this Agreement ( "Lenders")
-------------------
FLEET SECURITIES, INC. ("Syndication Agent")
-------------------
$225,000,000.00 LOAN
TABLE OF CONTENTS
Page
----
1. BACKGROUND .......................................................... 1
1.1 Defined Terms ............................................... 1
1.2 Borrower ..................................................... 1
1.3 Exchange ..................................................... 1
1.4 Use of Loan Proceeds ........................................ 2
1.5 Guaranties and Indemnities ................................. 2
1.6 Loan ......................................................... 2
2. LOAN PROVISIONS ..................................................... 3
2.1 Amount of Loan ............................................... 3
2.2 Term of Loan; Extension Rights ............................... 3
2.3 Interest Rate and Payment Terms .............................. 3
2.3.1 Borrower's Options .................................. 3
2.3.2 Selection To Be Made ................................ 3
2.3.3 Notice .............................................. 3
2.3.4 Conversion of Other Advances ........................ 4
2.3.5 Telephonic Notice ................................... 4
2.3.6 Limits On Options, One Selection Per Month .......... 4
2.3.7 Payment and Calculation of Interest ................. 4
2.3.8 Principal ........................................... 4
2.3.9 Prepayment .......................................... 7
2.3.10 Maturity ............................................ 7
2.3.11 Method of Payment; Date of Credit ................... 8
2.3.12 Xxxxxxxx ............................................ 8
2.3.13 Default Rate ........................................ 8
2.3.14 Late Charges ........................................ 8
2.3.15 Make Whole Provision ................................ 8
2.4 Loan Fees; Agent's Fees ...................................... 9
2.4.1 Loan Fees ........................................... 9
2.4.2 Agent's Fees ........................................ 9
2.4.3 Extension Fees ...................................... 9
2.5 Acceleration ................................................. 9
2.6 Conditions to Extending Loan ................................. 9
2.6.1 No Default .......................................... 9
2.6.2 Notice From Borrower ................................ 9
2.6.3 Covenant Compliance ................................. 9
2.6.4 Exercise of Remainder Ground Lease Options
and Ground Lease Extension Options .................. 9
2.6.5 Conditions Satisfied ................................ 10
2.6.6 Extension Fee ....................................... 10
2.6.7 XXXXX ............................................... 10
2.6.8 Additional Documents ................................ 10
2.6.9 Before End of Term .................................. 10
2.7 Additional Provisions Related to Interest Rate Selection ..... 10
2.7.1 Increased Costs ..................................... 10
2.7.2 Illegality .......................................... 11
2.7.3 Additional Eurodollar Conditions .................... 11
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2.7.4 Variable Rate Advances .............................. 13
3. SECURITY FOR THE LOAN; LOAN AND SECURITY DOCUMENTS .................. 13
3.1 Security ..................................................... 13
3.1.1 Security Agreement .................................. 14
3.1.2 Borrower Ownership Interest Pledge and
Security Agreement .................................. 14
3.1.3 Collateral Assignment of Cenland Loan ............... 15
3.1.4 Pledge and Security Agreement ....................... 15
3.1.5 Collateral Assignment of Interest Rate
Protection Agreement ................................ 16
3.1.6 Borrower Subsidiaries and Loan Parties
Security Agreement .................................. 16
3.1.7 Participating Limited Partnership GPs Ownership
Interest Pledge and Security Agreement .............. 16
3.1.8 Xxxxxxx XX LLC Ownership Interest Pledge and
Security Agreement .................................. 16
3.1.9 Xxxxxxx XX Holding LLC Ownership Interest Pledge
and Security Agreement .............................. 17
3.1.10 Collateral Assignment by Xxxxxxx Xxxxx LLC of
Administrator LLC Loan .............................. 17
3.1.11 Xxxxxxx MLP Unit LLC Ownership Interest Pledge
and Security Agreement .............................. 17
3.1.12 Pledge of Ownership Interest in NK-Leyden
Loan, L.P ........................................... 17
3.1.13 Pledge of Ownership Interest in NK-Cenland
Loan, L.P ........................................... 17
3.1.14 Pledge of Ownership Interest in Subsidiary
Limited Partnerships ................................ 17
3.1.15 Pledge of Ownership Interest in NK-Dautec
Loan, L.P ........................................... 17
3.1.16 Pledge of Ownership Interest in T-Two
Partners, L.P ....................................... 18
3.1.17 Pledge of Ownership Interest in T-2 R
Certificate Corp .................................... 18
3.1.18 Pledge of Ownership Interest by MLP GP LLC of
General Partnership Interest in Borrower ............ 18
3.1.19 Pledge of Ownership Interest in MLP GP LLC .......... 18
3.1.20 Xxxxxxx Indemnification ............................. 18
3.1.21 Guaranties .......................................... 18
3.1.22 Environmental Compliance and Indemnification
Agreement ........................................... 19
3.1.23 Escrow Agreement Respecting Ground Lease
Extensions and Lease Options ........................ 19
3.1.24 Additional Documents ................................ 19
3.2 Loan Documents and Security Documents ........................ 19
4. CONTINUING AUTHORITY OF AUTHORIZED REPRESENTATIVES .................. 19
5. CONDITIONS PRECEDENT ................................................ 20
5.1 Closing Loan and Funding Loan Advance ........................ 20
5.1.1 Satisfactory Loan Documents and Related
Documents; Loan Agenda Items ........................ 20
5.1.2 Financial Information; No Material Change ........... 20
5.1.3 Warranties and Representations Accurate ............. 21
5.1.4 Validity and Sufficiency of Security Documents ...... 21
5.1.5 Payment Direction And Authorization ................. 21
5.1.6 Exchange Matters .................................... 21
5.1.7 Litigation .......................................... 22
5.1.8 Formation Documents and Entity Agreements ........... 22
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5.1.9 Compliance With Law ................................. 23
5.1.10 Compliance With Financial Covenants ................. 23
5.1.11 Individual Property Due Diligence ................... 23
5.1.12 Condition of Property ............................... 23
5.1.13 Insurance ........................................... 23
5.1.14 Third Party Consents and Agreements ................. 24
5.1.15 Management Agreements ............................... 24
5.1.16 Cash Management ..................................... 24
5.1.17 Loan Facility Rating ................................ 24
5.1.18 Interest Rate Protection Agreement .................. 24
5.1.19 Legal Opinions ...................................... 24
5.1.20 XXXXX ............................................... 24
5.1.21 No Default .......................................... 24
6. WARRANTIES AND REPRESENTATIONS ...................................... 25
6.1 Formation .................................................... 25
6.2 Proceedings; Enforceability .................................. 25
6.3 Conflicts .................................................... 25
6.4 Ownership and Taxpayer Identification Numbers ................ 25
6.5 Litigation ................................................... 26
6.6 Information .................................................. 26
6.7 Taxes ........................................................ 26
6.8 Financial Information ........................................ 26
6.9 Management Agreements ........................................ 27
6.10 Control Provisions ........................................... 27
6.11 Formation Documents .......................................... 27
6.12 Consummation of Exchange ..................................... 27
6.13 Bankruptcy Filings ........................................... 27
6.14 Options ...................................................... 28
6.15 Investment Company ........................................... 28
6.16 Holding Company .............................................. 28
6.17 Securitization Documents ..................................... 28
6.18 Individual Properties ........................................ 28
6.19 Use of Proceeds .............................................. 31
6.20 Insurance .................................................... 31
6.21 Deferred Compensation and ERISA .............................. 31
6.22 No Default ................................................... 31
6.23 Xxxxxxx Loans ................................................ 31
6.24 Integrated Documents ......................................... 32
6.25 Related Documents ............................................ 32
6.27 Other Loan Parties' Warranties and Representations ........... 32
7. AFFIRMATIVE COVENANTS ............................................... 32
7.1 Notices ...................................................... 32
7.2 Financial Statements; Reports; Officer's Certificates ........ 32
7.2.1 Annual Statements ................................... 32
7.2.2 Periodic Statements ................................. 33
7.2.3 Compliance Certificates ............................. 33
7.2.4 Data Requested ...................................... 35
7.2.5 Tax Returns ......................................... 36
7.2.6 Lease Notices 36
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7.2.7 Mortgage Notices .................................... 36
7.2.8 Ground Lessor/Remainder Interest Notices ............ 36
7.2.9 Entity Notices ...................................... 36
7.2.10 Notice of Distributions ............................. 36
7.2.11 Property Acquisition or Sale ........................ 36
7.2.12 Notices Regarding Payment Direction Letters ......... 36
7.2.13 Notice of Termination of Payment Direction Letter ... 36
7.2.14 Notices under Securitization Documents .............. 36
7.2.15 Notices and Reports re: Integrated Group ............ 37
7.2.16 Third Party Default Notices ......................... 37
7.2.17 Notice of Litigation ................................ 37
7.2.18 Notice of Hazardous Materials ....................... 37
7.3 Existence .................................................... 37
7.4 Payment of Taxes ............................................. 38
7.5 Insurance; Casualty, Taking .................................. 38
7.6 Inspection ................................................... 38
7.7 Loan Documents ............................................... 38
7.8 Further Assurances ........................................... 38
7.9 Books and Records ............................................ 39
7.10 Business and Operations ...................................... 39
7.11 Title ........................................................ 39
7.12 Estoppel ..................................................... 39
7.13 ERISA ........................................................ 40
7.14 Depository Accounts .......................................... 40
7.15 Cash Flow; Payment Direction Letters ......................... 41
7.16 Distributions ................................................ 43
7.17 Exercise of Ground Lease Extension Options and
Remainder Ground Lease Options ............................... 44
7.18 Control Preservation ......................................... 44
7.19 Costs and Expenses ........................................... 45
7.20 Appraisals ................................................... 45
7.20.1 Appraisal ........................................... 45
7.20.2 Costs of Appraisal .................................. 45
7.21 Indemnification .............................................. 45
7.22 Leasing Matters .............................................. 46
7.22.1 Agent's Approval Required ........................... 46
7.22.2 Borrower's Requests ................................. 46
7.23 Future Collateral Obligations ................................ 47
7.24 Debt Service Coverage Ratios . ............................... 49
7.24.1 Certain Definitions ................................. 49
7.24.2 Minimum Consolidated Debt Service Coverage .......... 51
7.24.3 Minimum Borrower Debt Service Coverage .............. 51
7.24.4 Cash Sweep Account Test ............................. 51
7.25 Consolidated Leverage Ratio .................................. 51
7.26 Minimum Liquidity ............................................ 52
7.27 Minimum Consolidated Net Worth ............................... 53
7.28 Economic Discontinuance ...................................... 53
7.29 Replacement Documentation .................................... 54
7.30 Other Covenants .............................................. 54
7.31 Related Documents ............................................ 55
7.32 T/I Fund Account ............................................. 55
7.33 Single-Purpose Entity ........................................ 56
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8. NEGATIVE COVENANTS .................................................. 56
8.1 No Changes to Borrower and other Loan Parties ................ 56
8.2 Restrictions on Liens ........................................ 57
8.3 Consolidations, Mergers, Sales of Assets, Issuance and
Sale of Equity ............................................... 57
8.4 Restrictions on Debt ......................................... 59
8.5 Respecting Individual Properties ............................. 60
8.6 Respecting Ground Lease Extension Options and
Remainder Ground Lease Options ............................... 60
8.7 Other Business ............................................... 60
8.8 Change of Control ............................................ 60
8.9 Forgiveness of Debt .......................................... 60
8.10 Affiliate Transactions ....................................... 60
8.11 Amendments; Terminations of Related Documents ................ 60
8.12 ERISA ........................................................ 60
8.13 Bankruptcy Filings ........................................... 60
8.14 Investment Company ........................................... 61
8.15 Holding Company .............................................. 61
8.16 Use of Proceeds .............................................. 61
8.17 Advances and Loans ........................................... 61
8.18 Distributions ................................................ 61
8.19 Restrictions on Investments .................................. 61
8.20 Contracts of a Material or Significant Nature ................ 62
8.21 Consulting or Management Fees ................................ 62
8.22 Negative Pledges, etc ........................................ 62
8.23 Xxxxxxx Business Transactions ................................ 62
8.24 Limitations On Certain Transactions .......................... 62
9. SPECIAL PROVISIONS .................................................. 62
9.1 Legal Requirements ........................................... 62
9.2 Distributions ................................................ 63
9.2.1 Notice of Intention to Distribute ................... 63
9.2.2 Conditions Must Be Satisfied ........................ 63
9.2.3 Current Information ................................. 63
9.3 Limited Recourse Provisions .................................. 63
9.3.1 Borrower Fully Liable ............................... 63
9.3.2 Certain Non-Recourse ................................ 63
9.3.3 Additional Matters .................................. 63
9.4 Payment of Obligations ....................................... 64
10. EVENTS OF DEFAULT ................................................... 64
10.1 Default and Events of Default ................................ 64
10.1.1 Failure to Pay the Loan ............................. 64
10.1.2 Failure to Make Other Payments ...................... 64
10.1.3 Note, Security Documents, and Other Loan Documents .. 64
10.1.4 Default under Other Agreements ...................... 64
10.1.5 Representations and Warranties ...................... 64
10.1.6 Affirmative Covenants ............................... 65
10.1.7 Negative Covenants .................................. 65
10.1.8 Financial Status and Insolvency ..................... 65
10.1.9 Loan Documents ...................................... 65
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10.1.10 Judgments ........................................... 65
10.1.11 Default of Other Specified Debt and Related
Documents ........................................... 66
10.1.12 ERISA ............................................... 66
10.1.13 Change of Control ................................... 66
10.1.14 Indictment; Forfeiture .............................. 66
10.1.15 Default of Other Obligations ........................ 66
10.1.16 Termination of Guaranty or Consent .................. 66
10.1.17 Generally ........................................... 67
10.2 Grace Periods and Notice ..................................... 67
10.2.1 No Notice or Grace Period ........................... 67
10.2.2 Nonpayment of Interest and Principal ................ 67
10.2.3 Other Monetary Defaults ............................. 67
10.2.4 Nonmonetary Defaults ................................ 67
11. REMEDIES ............................................................ 68
11.1 Remedies ..................................................... 68
11.1.1 Accelerate Debt ..................................... 68
11.1.2 Pursue Remedies ..................................... 68
11.2 Written Waivers .............................................. 68
11.3 Power of Attorney ............................................ 68
12. SECURITY INTEREST AND SET-OFF ....................................... 68
12.1 Security Interest ............................................ 68
12.2 Set-Off ...................................................... 69
12.3 Application .................................................. 69
12.4 Right to Freeze .............................................. 69
12.5 Additional Rights ............................................ 69
13. THE AGENT AND THE LENDERS ........................................... 69
13.1 Rights, Duties and Immunities of the Agent ................... 69
13.1.1 Appointment of Agent ................................ 70
13.1.2 Administration of Loan by Agent ..................... 70
13.1.3 Delegation of Duties ................................ 70
13.1.4 Exculpatory Provisions .............................. 70
13.1.5 Reliance by Agent ................................... 71
13.1.6 Notice of Default ................................... 71
13.1.7 Lenders' Credit Decisions ........................... 71
13.1.8 Agent's Reimbursement and Indemnification ........... 72
13.1.9 Agent in its Individual Capacity .................... 72
13.1.10 Successor Agent ..................................... 72
13.1.11 Duties in the Case of Enforcement ................... 72
13.2 Respecting Loans and Payments ................................ 73
13.2.1 Procedures for Loans ................................ 73
13.2.2 Nature of Obligations of Lenders .................... 73
13.2.3 Payments to Agent ................................... 74
13.2.4 Distribution of Liquidation Proceeds ................ 74
13.2.5 Adjustments ......................................... 75
13.2.6 Setoff .............................................. 75
13.2.7 Distribution by Agent ............................... 75
13.2.8 Delinquent Lender ................................... 75
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13.2.9 Holders ............................................. 76
13.3 Assignment and Participation ................................. 76
13.3.1 Conditions to Assignment by Lenders ................. 76
13.3.2 Certain Representations and Warranties .............. 77
13.3.3 Register ............................................ 78
13.3.4 Register ............................................ 78
13.3.5 Participations ...................................... 78
13.3.6 Disclosure .......................................... 78
13.3.7 Miscellaneous Assignment Provisions ................. 78
13.4 Administrative Matters ....................................... 79
13.4.1 Amendment, Waiver, Consent, Etc ..................... 79
13.4.2 Deemed Consent or Approval .......................... 79
13.5 Syndication Agent ............................................ 80
14. GENERAL PROVISIONS .................................................. 80
14.1 Notices ...................................................... 80
14.2 Limitations on Assignment .................................... 82
14.3 Further Assurances ........................................... 82
14.4 Payments ..................................................... 82
14.5 Parties Bound ................................................ 83
14.6 Governing Law; Consent to Jurisdiction; Mutual
Waiver of Jury Trial ......................................... 83
14.6.1 Substantial Relationship ............................ 83
14.6.2 Place of Delivery ................................... 83
14.6.3 Governing Law ....................................... 83
14.6.4 Consent to Jurisdiction ............................. 83
14.6.5 JURY TRIAL WAIVER ................................... 83
14.7 Survival ..................................................... 84
14.8 Cumulative Rights ............................................ 84
14.9 Claims Against Agent or Lenders .............................. 84
14.9.1 Borrower Must Notify ................................ 84
14.9.2 Remedies ............................................ 84
14.9.3 Limitations ......................................... 85
14.10 Regarding Consents ........................................... 85
14.11 Obligations Absolute ......................................... 85
14.12 Table of Contents, Title and Headings ........................ 85
14.13 Counterparts ................................................. 85
14.14 Satisfaction of Commitment ................................... 85
14.15 Time Of the Essence .......................................... 85
14.16 No Oral Change ............................................... 85
14.17 Monthly Statements ........................................... 86
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EXHIBITS
Exhibits ................................................................... 89
Exhibit A -- Definitions ................................................... 90
Exhibit B -- Sources and Uses .............................................. 111
Exhibit C -- Note .......................................................... 112
Exhibit D -- Authorized Representatives .................................... 116
Exhibit E -- Required Property, Hazard and Other Insurance ................. 117
Exhibit F -- Ownership Interests and Taxpayer Identification Numbers ....... 118
Exhibit G -- Compliance Certificate ........................................ 119
Exhibit H -- Form of Assignment and Acceptance ............................. 123
Exhibit I -- Lenders' Commitment ........................................... 126
Exhibit J -- Individual Properties ......................................... 127
Exhibit K -- Loan Agenda ................................................... 128
Exhibit L -- Non-Participating Limited Partnerships ........................ 149
Exhibit M -- Other Partnerships ............................................ 150
Exhibit N -- Participating Limiting Partnerships ........................... 151
Exhibit O -- Solicitation Statement ........................................ 154
Exhibit P -- Cash Flow Projections ......................................... 155
Exhibit Q -- GMAC Borrowers ................................................ 156
Exhibit R -- Accounts ...................................................... 157
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SCHEDULES
Schedule 2.6 ................................................................ 9
Schedule 6.4.3(i) ........................................................... 26
Schedule 6.4.4(ii) .......................................................... 26
Schedule 6.5 ................................................................ 28
Schedule 6.18.2(i) .......................................................... 28
Schedule 6.18.2(ii) ......................................................... 28
Schedule 6.18.2(iii) ........................................................ 28
Schedule 6.18.5(i) .......................................................... 29
Schedule 6.18.5(ii) ......................................................... 29
Schedule 6.18.5(iii) ........................................................ 29
Schedule 6.18.5(iv) ......................................................... 29
Schedule 6.18.6 ............................................................. 29
Schedule 6.18.7 ............................................................. 30
Schedule 6.18.11 ............................................................ 31
Schedule 6.23 ............................................................... 31
Schedule 6.24 ............................................................... 32
Schedule 7.22.3 ............................................................. 47
Schedule 8.4.3 .............................................................. 59
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LOAN AGREEMENT
This agreement ("Loan Agreement" or "Agreement") is made and entered into
as of the 30th day of January, 2002, by and between THE XXXXXXX MASTER LIMITED
PARTNERSHIP, a Delaware limited partnership having an address c/o Winthrop
Financial Associates, Seven Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxxxxxxx
("Borrower") and FLEET NATIONAL BANK, a national banking association, with a
place of business at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, 00000 and the
other lending institutions which are, or may become, parties to this Agreement
pursuant to Section 13.3 (the "Lenders") and FLEET NATIONAL BANK, a national
banking association, with a place of business at 000 Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx, 00000, as agent for itself and such other lending institutions
(the "Agent").
WITNESSETH:
1. BACKGROUND.
1.1 Defined Terms. Capitalized terms used in this Agreement are defined
either in Exhibit A, or in specific sections of this Agreement, or in another
Loan Document, as referenced in Exhibit A. Terms not otherwise defined in this
Agreement which are defined in the Solicitation Statement shall have the
meanings ascribed to them in the Solicitation Statement.
1.2 Borrower. Borrower is a limited partnership organized under the laws
of the State of Delaware of which the sole general partner is MLP GP LLC, a
Delaware limited liability company ("Borrower GP").
1.3 Exchange. Borrower has undertaken and completed the "Exchange", as set
forth in the Solicitation Statement and otherwise disclosed to the Agent prior
to the execution and delivery of this Agreement, pursuant to which Exchange the
following, among other things, shall occur:
1.3.1 Mergers by certain Xxxxxxx Partnerships into Participating
Limited Partnerships;
1.3.2 Transfer to Xxxxxxx MLP Unit LLC of the limited partnership
interests of Non-Participating Limited Partnerships by those limited
partners who elected to transfer such interests (such limited partners not
being Affiliates of any Xxxxxxx Group Entity) in exchange for Units.
1.3.3 Transfer to Xxxxxxx MLP Unit LLC by certain Xxxxxxx Group
Entities of their limited partnership interests in Non-Participating
Limited Partnerships and Other Partnerships in exchange for Units.
1.3.4 Transfer to Borrower by Xxxxxxx Stock LLC of its 100%
ownership interest in Xxxxxxx XX LLC in exchange for Units.
1.3.5 Transfer to Borrower by Xxxxxxx Stock LLC of its 50.01%
ownership interest in Xxxxxxx Capital LLC in exchange for Units.
1.3.6 Transfer to Borrower by Xxxxxxx RE Associates LLC of its 100%
ownership interest in NK-Leasehold II LLC in exchange for Units.
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1.3.7 Transfer to Borrower by Xxxxxxx RE Associates LLC of its 100%
ownership interest in NK-Remainder Interest LLC in exchange for Units.
1.3.8 Transfer to Borrower by Xxxxxxx Associates LLC of the
following in exchange for Units:
(i) A 100% membership interest in Xxxxxxx Xxxxx LLC;
(ii) A 96.22% limited partnership interest in NK-Leyden Loan
L.P. and a 100% membership interest in NK-Leyden GP LLC;
(iii) A 96.324% limited partnership interest in NK-Dautec
Loan, L.P. and a 100% membership interest in NK-Dautec GP LLC;
(iv) A 100% membership interest in each of NK First Loan E
Certificate LLC, NK First Loan F Certificate LLC, and NK First Loan
G Certificate LLC; and
(v) A 100% membership interest in each of NK-Cenland GP LLC
and NK-Cenland LP LLC.
1.4 Use of Loan Proceeds. Borrower has applied to Lenders for a loan of
TWO HUNDRED TWENTY FIVE MILLION DOLLARS ($225,000,000.00) ("Loan"), the proceeds
of which are to be used to make distributions to the partners of the Borrower as
described in the Solicitation Statement, to make payments to non-accredited
investors to effectuate the Exchange, to pay certain closing and all
transactional costs as approved by the Agent, to provide funding for a working
capital reserve, and to provide certain initial funding into the T/I Fund
Account, all in accordance with the schedule of sources and uses annexed hereto
as Exhibit B.
1.5 Guaranties and Indemnities.
1.5.1 As an inducement to Lenders to make the Loan, NK-Leasehold II
LLC, NK-Leyden LP LLC, NK-Leyden GP LLC, NK-Dautec GP LLC, NK-Cenland
Loan, L.P., NK-Cenland LP LLC, NK-Cenland GP LLC, NK First Loan E
Certificate LLC, NK First Loan F Certificate LLC, NK First Loan G
Certificate LLC, MLP Manager Corp., Xxxxxxx MLP Unit LLC, Borrower GP,
T-Two Partners, L.P., T-2 R Certificate Corp., Xxxxxxx XX LLC, Xxxxxxx
Xxxxx LLC, XX-XX Holdings LLC, Holding Subsidiary LLC, T-Two Corp., the
MLP Holders, Xxxxxxx Martall L.P., Xxxxxxx Segair L.P., Xxxxxxx Calcraf
L.P., and Xxxxxxx XX Holding LLC (severally and collectively called
"Guarantor") have agreed to furnish either recourse or non-recourse
guaranties to the Agent.
1.5.2 As an inducement to Lenders to make the Loan, Xxxxxxx XX
Holdings, LLC, a Delaware limited liability company, Xxxxxxx MLP Corp., a
Delaware corporation, Apollo Real Estate Investment Fund III, L.P., a
Delaware limited partnership, Vornado Realty, L.P., a Delaware limited
partnership, Vornado Xxxxxxx LLC, a Delaware limited liability company,
and VNK Corp., a Delaware limited liability company (severally and
collectively called "Xxxxxxx Indemnitor") have agreed to furnish certain
indemnities to the Agent.
1.6 Loan. Subject to all of the terms, conditions and provisions of this
Agreement, and of the agreements and instruments referred to herein, each of the
Lenders agrees severally to
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make a loan to the Borrower equal to such Lender's Commitment, and Borrower
agrees to accept and repay the Loan.
2. LOAN PROVISIONS.
2.1 Amount of Loan.
2.1.1 In no event shall the aggregate amount of the Loan and Total
Commitment exceed $225,000,000.00.
2.1.2 Any and all advances of proceeds of the Loan shall be made by
the Lenders pro rata in accordance with each Lender's Commitment
Percentage.
2.2 Term of Loan; Extension Rights. The Loan shall be for a term ("Initial
Term") commencing on the date hereof and ending on January 30, 2005 ("Maturity
Date"). The Initial Term may be extended for one year ("First Extended Term")
until January 30, 2006 ("First Extended Maturity Date") and thereafter may be
further extended for an additional one year ("Second Extended Term") until
January 30, 2007 ("Second Extended Maturity Date"), in each instance upon
satisfaction of the conditions set forth in Section 2.6 (hereinafter, the First
Extended Term and the Second Extended Term may be referred to herein sometimes
as the "Extended Term" as may be applicable)(hereinafter, the First Extended
Maturity Date and the Second Extended Maturity Date may be referred to herein
sometimes as the "Extended Maturity Date" as may be applicable).
2.3 Interest Rate and Payment Terms. The Loan shall be payable as to
interest and principal in accordance with the provisions of this Agreement and
the Note. This Agreement also provides for interest at a Default Rate, Late
Charges and prepayment rights and fees. All payments for the account of Lenders
shall be applied to the respective accounts of the Lenders in accordance with
each Lender's Commitment Percentage of the Loan. The Agent will disburse such
payments to the Lenders on the date of receipt thereof if received prior to
10:00 a.m. on such date and, if not, on the next Business Day. Any and all
interest rate selection and conversion provisions in this Agreement are to be
administered by the Agent and to be allocated on a pro rata basis to the portion
of the balance due under the Note held by each Lender based upon such Lender's
Commitment Percentage.
2.3.1 Borrower's Options. Principal amounts outstanding under the
Loan shall bear interest at the following rates, at Borrower's selection,
subject to the conditions and limitations provided for in this Agreement:
(i) Variable Rate or (ii) Effective LIBO Rate.
2.3.2 Selection To Be Made. Borrower shall select, and thereafter
may change the selection of, the applicable interest rate, from the
alternatives otherwise provided for in this Agreement, by giving Agent a
Notice of Rate Selection (in accordance with the requirements of Section
2.3.3, below): (i) prior to the Loan, (ii) prior to the end of each
Interest Period applicable to an Effective LIBO Rate Advance, or (iii) on
any Business Day on which Borrower desires to convert an outstanding
Variable Rate Advance to an Effective LIBO Rate Advance.
2.3.3 Notice. A "Notice of Rate Selection" shall be a written
notice, given by cable, tested telex, telecopier (with authorized
signature), or by telephone if immediately confirmed by such a written
notice, from an Authorized Representative of Borrower which: (i) is
irrevocable; (ii) is received by Agent not later than 10:00 o'clock A.M.
Eastern Time: (a) if an Effective LIBO Rate is selected, at least two (2)
Business Days prior to the first day of the Interest Period to which such
selection is to apply, (b) if a
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Variable Rate is selected, on the first day of the Interest Period to
which it applies; and (iii) as to each selected interest rate option, sets
forth the aggregate principal amount(s) to which such interest rate
option(s) shall apply and the Interest Period(s) applicable to each
Effective LIBO Rate Advance.
2.3.4 Conversion of Other Advances. At the end of each applicable
Interest Period, the applicable Effective LIBO Rate Advance shall be
converted to an Effective LIBO Rate Advance with an Interest Period of
thirty (30) days unless Borrower selects another option in accordance with
the provisions of this Agreement.
2.3.5 Telephonic Notice. Without in any way limiting Borrower's
obligation to confirm in writing any telephonic notice, Agent may act
without liability upon the basis of telephonic notice believed by Agent in
good faith to be from Borrower prior to receipt of written confirmation.
In each case Borrower hereby waives the right to dispute Agent's record of
the terms of such telephonic Notice of Rate Selection in the absence of
manifest error.
2.3.6 Limits On Options, One Selection Per Month. Each Effective
LIBO Rate Advance shall be in a minimum amount of $1,000,000. At no time
shall there be outstanding a total of more than six (6) Effective LIBO
Rate Advances combined at any time. If Borrower shall make more than one
(1) interest rate selection in any thirty (30) day period, excluding
conversions of outstanding advances made at the end of an applicable
Interest Period of any previously outstanding Effective LIBO Rate Advance,
Agent may impose and Borrower shall pay a reasonable processing fee for
each such additional selection.
2.3.7 Payment and Calculation of Interest. All interest shall be:
(a) payable in arrears commencing March 1, 2002 and on the first Business
Day of each month thereafter until the principal together with all
interest and other charges payable with respect to the Loan shall be fully
paid; and (b) calculated on the basis of a 360 day year and the actual
number of days elapsed. Each change in the Prime Rate shall simultaneously
change the Variable Rate payable under this Agreement. Interest at the
Effective LIBO Rate shall be computed from and including the first day of
the applicable Interest Period to, but excluding, the last day thereof.
2.3.8 Principal.
(i) Commencing on March 31, 2002 and continuing on the last
day of each calendar quarter thereafter, the Borrower shall pay
principal in quarterly installments of $562,500.00. The entire
principal balance of the Loan shall be due and payable in full on
the Maturity Date (or as may be applicable, any Extended Maturity
Date).
(ii) In addition to the scheduled payments of principal, as
provided above, the Borrower shall make the following mandatory
prepayments of principal (singly and collectively, the "Mandatory
Principal Prepayments") each of which shall be due and payable on
the later of (x) within five (5) Business Days of the event giving
rise to such Mandatory Principal Prepayment obligation (the
"Mandatory Prepayment Event") or (y) within three (3) Business Days
of written demand therefor by the Agent; provided, however, at the
request of the Borrower, the Agent agrees to hold the amount of any
such Mandatory Principal Prepayment in the Mandatory Principal
Payment Account (as defined in the Cash Management Agreement,
pledged to the Agent, on behalf of the Lenders, to
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secure the repayment of the Obligations, until the earlier of (x)
the expiration of any relevant Interest Period so that the
prepayment can be made without the Borrower incurring any costs
under Section 2.3.15. or (y) ninety (90) days:
(a) Except for a transfer in connection with an Economic
Discontinuance Sale, fifty (50%) percent of the Net Sales
Proceeds, as determined in the reasonable judgment of the
Agent, (x) received by any Participating Limited Partnership
from the sale, transfer, or other disposition of any
Individual Property or any portion thereof or (y) received by
the Borrower from the sale, transfer, dissolution, or other
disposition of the ownership interest in any Participating
Limited Partnership;
(b) Except for a transfer in connection with an Economic
Discontinuance Sale, fifty (50%) percent of the Net Sales
Proceeds, as determined in the reasonable judgment of the
Agent, (x) distributed to any limited partnership interest
held by the Borrower, any Borrower Subsidiary, or any other
Xxxxxxx Group Entity from the sale, transfer, or other
disposition of any Individual Property or any portion thereof
by a Non-Participating Limited Partnership, Partially Owned
Limited Partnership, or Subsidiary Limited Partnership (based
upon the aggregate percentage limited partnership interest in
such Non-Participating Limited Partnership, Partially Owned
Limited Partnership, or Subsidiary Limited Partnership owned
by the Borrower, any Borrower Subsidiary, and any other
Xxxxxxx Group Entity) or (y) received by the Borrower from the
sale, transfer, dissolution, or other disposition of the
ownership interest in any Non-Participating Limited
Partnership, Partially Owned Limited Partnership, or
Subsidiary Limited Partnership;
(c) One hundred (100%) percent of the Net Refinancing
Proceeds, as determined in the reasonable judgment of the
Agent, received by any Participating Limited Partnership on
account of any financing or refinancing of any Individual
Property;
(d) One hundred (100%) percent of the Net Refinancing
Proceeds, as determined in the reasonable judgment of the
Agent, distributed to any limited partnership interest held by
the Borrower, any Borrower Subsidiary, or any other Xxxxxxx
Group Entity from the financing or refinancing of any
Individual Property by a Non-Participating Limited
Partnership, Partially Owned Limited Partnership, or
Subsidiary Limited Partnership (based upon the aggregate
percentage limited partnership interest in such
Non-Participating Limited Partnership, Partially Owned Limited
Partnership, or Subsidiary Limited Partnership owned by the
Borrower, any Borrower Subsidiary, and any other Xxxxxxx Group
Entity);
(e) One hundred (100%) percent of the Net Sales
Proceeds, as determined in the reasonable judgment of the
Agent, received by any Participating Limited Partnership from
an Economic Discontinuance Sale of any Individual Property or
any portion thereof;
(f) One hundred (100%) percent of the Net Sales
Proceeds, as determined in the reasonable judgment of the
Agent, distributed to any
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limited partnership interest held by the Borrower, any
Borrower Subsidiary, or any other Xxxxxxx Group Entity from an
Economic Discontinuance Sale of any Individual Property or any
portion thereof by a Non-Participating Limited Partnership,
Partially Owned Limited Partnership, or Subsidiary Limited
Partnership (based upon the aggregate percentage limited
partnership interest in such Non-Participating Limited
Partnership, Partially Owned Limited Partnership, or
Subsidiary Limited Partnership owned by the Borrower, any
Borrower Subsidiary, and any other Xxxxxxx Group Entity);
(g) One hundred (100%) percent of the Net Proceeds, as
determined in the reasonable judgment of the Agent, received
by any Participating Limited Partnership from any casualty or
taking regarding any Individual Property or any portion
thereof which proceeds are not to be utilized within a
reasonable period of time following such event for the repair
or reconstruction thereof;
(h) One hundred (100%) percent of the Net Proceeds, as
determined in the reasonable judgment of the Agent,
distributed to any limited partnership interest held by the
Borrower, any Borrower Subsidiary or any other Xxxxxxx Group
Entity from any casualty or taking regarding any Individual
Property or any portion thereof owned by a Non-Participating
Limited Partnership, Partially Owned Limited Partnership, or
Subsidiary Limited Partnership which proceeds are not to be
utilized within a reasonable period of time following such
event for the repair or reconstruction thereof (based upon the
aggregate percentage limited partnership interest in such
Non-Participating Limited Partnership or Partially Owned
Limited Partnership owned by the Borrower, any Borrower
Subsidiary, and any other Xxxxxxx Group Entity);
(i) Fifty (50%) percent of the Net Sales Proceeds, as
determined in the reasonable judgment of the Agent, received
by the Borrower or any wholly-owned Borrower Subsidiary from
the sale, transfer, or other disposition of any asset (other
than a sale of any Individual Property) of the Borrower or any
wholly owned Borrower Subsidiary;
(j) Fifty (50%) percent of the Net Sales Proceeds, as
determined in the reasonable judgment of the Agent,
distributed to any limited partnership, membership or other
ownership interest held by the Borrower, any Borrower
Subsidiary, or any other Xxxxxxx Group Entity from the sale,
transfer, or other disposition of any asset (other than a sale
of any Individual Property) of any Non-Participating Limited
Partnership or any Partially Owned Limited Partnership or any
non wholly-owned Borrower Subsidiary (based upon the aggregate
percentage ownership interest in such Non-Participating
Limited Partnership or Partially Owned Limited Partnership or
non-wholly owned Borrower Subsidiary owned by the Borrower,
any Borrower Subsidiary, and any other Xxxxxxx Group Entity);
(k) One hundred (100%) percent of the amount of any
payment received under the Securitization Documents for the
account of the Grantor Trust T-2 Certificate and distributable
in accordance with the
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terms of the Securitization Documents to the holder of the
Grantor Trust T-2 Certificate; and
(l) One hundred (100%) percent of the amount of any
payment received under the Securitization Documents for the
account of the Class R Certificate and distributable in
accordance with the terms of the Securitization Documents to
the holder of the Class R Certificate.
2.3.9 Prepayment. Except for the payment of any applicable
Prepayment Fee, as hereinafter provided, the Loan or any portion thereof
may be prepaid in full or in part at any time upon fifteen (15) days prior
written notice to the Agent, without premium or penalty with respect to
Variable Rate Advances and, with respect to Effective LIBO Rate Advances
subject to the payment of any additional amounts provided for in Section
2.3.15. Any Mandatory Principal Prepayment and any other partial
prepayment of principal shall first be applied to the principal due in the
reverse order of maturity, and no such partial prepayment shall relieve
Borrower of the obligation to pay each installment of principal when due.
Any amounts prepaid may not be reborrowed.
(i) The Borrower shall pay the Agent on behalf of the Lenders
a "Prepayment Fee" (so referred to herein) as follows:
(a) subject to clause (ii) below, with respect to any
and all prepayments made on or before January 30, 2003,
Borrower shall pay a Prepayment Fee of one percent (1.0%) of
the principal amount so prepaid; and
(b) subject to clause (ii) below, with respect to any
and all prepayments made after January 30, 2003, but on or
before January 30, 2004, Borrower shall pay a Prepayment Fee
of one half of one percent (0.5%) of the principal amount so
prepaid; and
(c) with respect to any and all prepayments made after
January 30, 2004, Borrower shall not be required to pay any
Prepayment Fee.
(ii) Any applicable Prepayment Fee shall be payable in respect
of all prepayments of principal whether voluntary or involuntary
including, without limitation, prepayments made upon acceleration of
the Loan; provided, however, in connection with any Mandatory
Principal Prepayments, the Prepayment Fee shall only apply to (x)
any Mandatory Principal Prepayments after the Agent has received in
the aggregate Thirty-Million Dollars ($30,000,000.00) in Mandatory
Principal Prepayments and/or (y) any Mandatory Principal Prepayment
which is part of a related series of transactions to repay the Loan
in full. If by reason of an Event of Default Agent elects to declare
the Loan to be immediately due and payable, then any applicable
Prepayment Fee with respect to the Loan shall become due and payable
in the same manner as though Borrower had exercised such right of
prepayment.
2.3.10 Maturity. At maturity all accrued interest, principal and
other charges due with respect to the Loan shall be due and payable in
full and the principal balance and such other charges, but not unpaid
interest, shall bear interest at the Default Rate until so paid.
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2.3.11 Method of Payment; Date of Credit. All payments of interest,
principal and fees shall be made in lawful money of the United States in
immediately available funds, without counterclaim or setoff and free and
clear of, and without any deduction or withholding for, any taxes or other
payments: (a) by direct charge to an account of Borrower maintained with
Agent (or the then holder of the Loan), (b) by wire transfer to Agent, (c)
to such other bank or address as the Agent may designate in a written
notice to Borrower, or (d) as provided in the Cash Management Agreements.
Payments shall be credited on the Business Day on which immediately
available funds are received prior to one o'clock P.M. Eastern Time;
payments received after one o'clock P.M. Eastern Time shall be credited to
the Loan on the next Business Day. Payments which are by check, which
Agent may at its option accept or reject, or which are not in the form of
immediately available funds shall not be credited to the Loan until such
funds become immediately available to Agent, and, with respect to payments
by check, such credit shall be provisional until the item is finally paid
by the payor bank.
2.3.12 Xxxxxxxx. Agent may submit monthly xxxxxxxx reflecting
payments due; however, any changes in the interest rate which occur
between the date of billing and the due date may be reflected in the
billing for a subsequent month. Neither the failure of Agent to submit a
billing nor any error in any such billing shall excuse Borrower from the
obligation to make full payment of all Borrower's payment obligations when
due.
2.3.13 Default Rate. Agent shall have the option of imposing, and
Borrower shall pay upon billing therefor, an interest rate which is four
and one half percent (4.5%) per annum above the Variable Rate ("Default
Rate"): (a) following the occurrence and during the continuance of any
Event of Default, and (b) after Maturity. Borrower's right to select
pricing options shall cease following and during the continuance of any
Event of Default.
2.3.14 Late Charges. Borrower shall pay, upon billing therefor, a
"Late Charge" equal to five percent (5%) of the amount of any regularly
scheduled payment of principal (other than principal due at Maturity or
any Mandatory Principal Prepayment), interest, or both, which is not paid
within ten (10) days of the due date thereof (other than with respect to
any payment as to which the said ten (10) day period expires after the
implementation of the Default Rate). Late charges are: (a) except as
provided above, payable in addition to, and not in limitation of, the
Default Rate, (b) intended to compensate Agent for administrative and
processing costs incident to late payments, (c) are not interest, and (d)
shall not be subject to refund or rebate or credited against any other
amount due.
2.3.15 Make Whole Provision. Borrower shall pay to Agent,
immediately upon request and notwithstanding contrary provisions contained
in any of the Loan Documents, such amounts as shall, in the conclusive
judgment of Agent (in the absence of manifest error), compensate Agent and
the Lenders for the loss, cost or expense which they may reasonably incur
as a result of (i) any payment or prepayment, under any circumstances
whatsoever, whether voluntary or involuntary, of all or any portion of an
Effective LIBO Rate Advance on a date other than the last day of the
applicable Interest Period of an Effective LIBO Rate Advance, (ii) the
conversion, for any reason whatsoever, whether voluntary or involuntary,
of any Effective LIBO Rate Advance to a Variable Rate Advance on a date
other than the last day of the applicable Interest Period, (iii) the
failure of all or a portion of a Loan which was to have borne interest at
the Effective LIBO Rate pursuant to the request of Borrower to be made
under the Loan Agreement (except as a result of a failure by any Lender to
fulfill such Lender's obligations to fund), or (iv) the failure of
Borrower to borrow in accordance with any
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request submitted by it for an Effective LIBO Rate Advance. Such amounts
payable by Borrower shall be equal to any administrative costs actually
incurred plus any amounts required to compensate for any loss, cost or
expense incurred by reason of the liquidation or redeployment of deposits
or other funds acquired by Agent or any Lender to fund or maintain an
Effective LIBO Rate Advance.
2.4 Loan Fees; Agent's Fees.
2.4.1 Loan Fees. Borrower shall pay Agent a "Commitment Fee" in
accordance with the written agreement between the Borrower and the Agent,
such Commitment Fee to be for the benefit of any Lender only to the extent
agreed to by the Agent and such Lender.
2.4.2 Agent's Fees. Borrower shall pay to the Agent for its own
account an "Advisory Fee" and an "Agent's Fee" in accordance with the
written agreement between the Borrower and the Agent.
2.4.3 Extension Fees. Borrower shall pay to the Agent for the
account of the Lenders "Extension Fees" (so referred to herein) in amounts
representing one quarter of one percent (0.25%) of the then outstanding
principal balance of the Loan at the Maturity Date (and at the First
Extended Maturity Date, as applicable), on each occasion, in connection
with Borrower's exercise of its extension rights, and as a condition
precedent to the effectiveness thereof, in each instance, as provided in
Section 2.6.
2.5 Acceleration. The Agent may, and upon the request of the Required
Lenders shall, accelerate the Loan, after the occurrence and during the
continuance of an Event of Default. Upon such an acceleration, all principal,
accrued interest and costs and expenses shall be due and payable together with
interest on such principal at the Default Rate and any applicable Prepayment Fee
and any amounts due under Section 2.3.15.
2.6 Conditions to Extending Loan. Upon satisfaction of each of the
following conditions, Borrower may extend the Loan until the First Extended
Maturity Date, and thereafter, again upon satisfaction of each of the following
conditions, Borrower may further extend the Loan until the Second Extended
Maturity Date:
2.6.1 No Default. No Default shall exist on the date of the
Borrower's written notice for an extension as provided for below and on
the Maturity Date (or as may be applicable, the First Extended Maturity
Date).
2.6.2 Notice From Borrower. Borrower shall have given Agent written
notice of Borrower's request to exercise its extension right at least
sixty (60) days, but no more than ninety (90) days, before the Maturity
Date (or as may be applicable, the First Extended Maturity Date).
2.6.3 Covenant Compliance. No breach of any covenants imposed upon
Borrower or Guarantor shall exist including, without limitation, the
Financial Covenants;
2.6.4 Exercise of Remainder Ground Lease Options and Ground Lease
Extension Options. Borrower shall have, or shall have caused the
applicable Borrower Subsidiary to, timely duly exercise all Remainder
Ground Lease Options and Ground Lease Extension Options as to which the
final date to exercise such Remainder Ground Lease Options and Ground
Lease Extension Options is within thirteen months of the Maturity Date (or
with respect to any extension of the Loan for the Second Extended
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Term, within thirteen months of the First Extended Maturity Date) (as of
the Closing Date, the applicable Remainder Ground Lease Options and Ground
Lease Extension Options are listed on Schedule 2.6);
2.6.5 Conditions Satisfied. All of the conditions set forth in
Section 5.1 of this Agreement, to the extent applicable, shall continue to
be satisfied;
2.6.6 Extension Fee. The Extension Fee of 0.25% of the Loan referred
to in Section 2.4 shall have been paid at least five (5) days prior to the
Maturity Date (or as may be applicable, the First Extended Maturity Date)
and shall be returned to the Borrower if the Loan is not extended for any
reason;
2.6.7 XXXXX. The Borrower shall have provided to the Agent (i)
either evidence that in accordance with the Formation Documents of Apollo
Real Estate Investment Fund III, L.P., all necessary extensions and
consents have been granted such that any required liquidation or
dissolution of Apollo Real Estate Investment Fund III, L.P. shall not
occur until no earlier than six (6) months after the First Extended
Maturity Date or the Second Extended Maturity Date, as applicable or (ii)
a substitute Xxxxxxx Indemnitor for Apollo Real Estate Investment Fund
III, L.P., which substitute Xxxxxxx Indemnitor shall (x) be reasonably
acceptable to the Agent and the Required Lenders and (y) execute such
documentation as reasonably requested by the Agent to evidence the
assumption of the obligations of Apollo Real Estate Investment Fund III,
L.P. as a Xxxxxxx Indemnitor under the Loan Documents.
2.6.8 Additional Documents. Borrower and Guarantor shall have
executed and delivered to Agent such agreements and documents as Agent may
reasonably require to effectuate the extension, provided, however, none of
said requested agreements or documents shall provide for additional
collateral or include any substantive modification of the terms and
provisions of the Loan Documents; and
2.6.9 Before End of Term. Each of the foregoing conditions are
satisfied not later than, and on, the Maturity Date (or as applicable, the
First Extended Maturity Date).
Within twenty (20) days following receipt by Agent of Borrower's written notice
under clause 2.6.2 above requesting the extension accompanied by the items
described in Section 2.6, Agent shall notify Borrower in writing if all of the
conditions precedent to the extension, other than payment of the extension fee,
have been satisfied, or if further information or documents set forth in Section
2.6 are required, specifying such missing information or documents. If Agent
determines that the conditions to extension have been satisfied (or if the Agent
notified the Borrower as provided above of any outstanding information or
documents required by this Section 2.6, specifying such missing information or
documents, and the Borrower provides outstanding information or documents prior
to ten (10) days before the Maturity Date (or as may be applicable, the First
Extended Maturity Date)), other than payment of the Extension Fee, Agent shall
so notify Borrower and upon Agent's receipt of the Extension Fee not later than
five (5) days prior to the Maturity Date (or as may be applicable, the First
Extended Maturity Date), so long as no Default exists, the term of the Loan
shall be extended until the First Extended Maturity Date (or as may be
applicable, the Second Extended Maturity Date).
2.7 Additional Provisions Related to Interest Rate Selection.
2.7.1 Increased Costs. Subject to Section 2.7.3 hereafter, if, due
to any one or more of: (i) the introduction of any applicable law or
regulation or any change (other than any change by way of imposition or
increase of reserve requirements already referred to
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in the definition of Adjusted LIBO Rate) in the interpretation or
application by any authority charged with the interpretation or
application thereof of any law or regulation; or (ii) the compliance with
any guideline or request from any governmental central bank or other
governmental authority (whether or not having the force of law), there
shall be an increase in the cost to any Lender of agreeing to make or
making, funding or maintaining Effective LIBO Rate Advances, including
without limitation changes which affect or would affect the amount of
capital or reserves required or expected to be maintained by any Lender,
with respect to all or any portion of the Loan, or any corporation
controlling any Lender, on account thereof, then Borrower from time to
time shall, upon written demand by Agent, pay additional amounts
sufficient to indemnify any Lender against the increased cost. A
certificate as to the amount of the increased cost and the reason therefor
submitted to Borrower by Agent, in the absence of manifest error, shall be
conclusive and binding for all purposes.
2.7.2 Illegality. Notwithstanding any other provision of this
Agreement, if the introduction of or change in any law, treaty, statute,
regulation or interpretation thereof shall make it unlawful, or any
central bank or government authority shall assert by directive, guideline
or otherwise, that it is unlawful, for any Lender to make or maintain
Effective LIBO Rate Advances or to continue to fund or maintain Effective
LIBO Rate Advances then, on written notice thereof and demand by Agent to
Borrower, (a) the obligation of Agent to make Effective LIBO Rate Advances
and to convert or continue any Loan as Effective LIBO Rate Advances shall
terminate and (b) Borrower shall convert all principal outstanding under
this Agreement into Variable Rate Advances.
2.7.3 Additional Eurodollar Conditions. The selection by Borrower of
an Effective LIBO Rate and the maintenance of the Loan at such rate shall
be subject to the following additional terms and conditions:
(i) Availability. If, before or after Borrower has selected to
take or maintain an Effective LIBO Rate Advance, Agent notifies
Borrower that:
(a) dollar deposits in the amount and for the maturity
requested are not available to Lenders in the London interbank
market at the rate specified in the definition of Effective
LIBO Rate, or
(b) reasonable means do not exist for Agent to determine
the Effective LIBO Rate for the amounts and maturity
requested,
then the principal which would have been an Effective LIBO Rate
Advance shall be a Variable Rate Advance.
(ii) Payments Net of Taxes. All payments and prepayments of
principal and interest under this Agreement shall be made without
withholding or deduction for or on account of any present or future
tax, assessment or other governmental charge (including penalties,
interest and other liabilities related thereto) imposed upon or as a
result of such payment by any political subdivision or taxing
authority of any jurisdiction in which the Borrower is organized or
doing business ("Withholding Taxes") unless the withholding or
deduction of such Withholding Taxes is required by law. In that
event, the Borrower will pay to the Agent such additional amounts as
may be necessary in order that every net payment made hereunder,
after deduction or withholding for or on account of any Withholding
Taxes, will not be less than the amount to be paid hereunder, except
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that no such additional amounts shall be payable for or on account
of any tax, assessment or other governmental charge:
(a) that would not have been imposed but for the
existence of any present or former connection between the
Agent or the applicable Lender and the jurisdiction imposing
such Withholding Taxes including, without limitation, the
Agent or the applicable Lender having engaged in a trade or
business therein, or having or having had a permanent
establishment therein (other than the mere ownership of a
participation in the Loan or mere receipt of payment under
this Agreement);
(b) that would not have been imposed but for the failure
of the Agent or the applicable Lender to comply with income
tax laws and regulations of any such jurisdiction or any
political subdivision or taxing authority thereof or therein,
if such compliance is required to establish entitlement to an
exemption from such tax, assessment or other governmental
charge;
(c) that is based on the net income of the Agent or the
applicable Lender and would not have been imposed but for the
mere ownership of a participation in the Loan or the mere
receipt of payment under this Agreement;
(d) to which any person that is a transferee of the
Agent or any Lender is subject immediately following the
transfer or to which such transferee will become subject under
a tax law, regulation or other legal pronouncement or holding
that has been enacted, issued or announced as of the date of
the transfer, in either case except to the extent that the
transferor was or would have become subject to such
Withholding Taxes;
(e) any combination of (a), (b), (c) and (d) above (the
Withholding Taxes described in clauses (a) through (d) for
which no additional amounts are payable, are hereinafter
referred to as ("Excluded Taxes").
(iii) Each Lender organized under the laws of a jurisdiction
outside of the United States (a "Foreign Lender") shall provide to
the Borrower and the Agent two properly completed and executed
Internal Revenue Service Forms W-8BEN or other applicable forms,
certificates or documents prescribed by the Internal Revenue Service
of the United States certifying as to such Foreign Lender's
entitlement to exemption from United States withholding tax under an
applicable statute or tax treaty with respect to payments to be made
to such Foreign Lender hereunder ("Certificates of Exemption"). Each
Foreign Lender shall provide such Certificates of Exemption on or
before the Closing Date, and shall provide Certificates of Exemption
on or before the first business day of each taxable year of such
Foreign Lender thereafter. Each Foreign Lender that becomes a Lender
pursuant to Section 13.3 after the Closing Date shall provide
Certificates of Exemption on or before the date such Foreign Lender
becomes a Lender and on or before the first business day of each
taxable year of such Foreign Lender thereafter. Each Foreign Lender
further agrees to provide the Borrower and the Agent with new
Certificates of Exemption (x) upon the obsolescence of any letter,
form, certificate or document previously delivered by the Foreign
Lender to the Borrower and the Agent hereunder or (y) promptly
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after the occurrence of any event requiring a change in the status
of the Foreign Lender or in any of the other information provided on
the most recent letter, form, certificate or document previously
delivered by the Foreign Lender to the Borrower and the Agent
hereunder. If the Borrower shall provide written notice to the
Foreign Lender that new Certificates of Exemption are required, and
if the Foreign Lender does not submit them within 30 days following
the receipt of such notice and if the failure to do so increases the
amount the Borrower otherwise must pay to or on behalf of the
Foreign Lender, then the Borrower is relieved of the liability to
pay the Foreign Lender the increased amount caused solely by such
Foreign Lender's failure to provide such Certificates and shall be
permitted to deduct the increased withholding tax from the payment
due to such Foreign Lender. Notwithstanding anything to the contrary
in this clause (iii), the Borrower will remain liable to the Foreign
Lender for all amounts not caused by such Foreign Lender's failure
to provide new Certificates of Exemption.
(iv) Notwithstanding the foregoing, if a Foreign Lender that
originally provided Certificates of Exemption indicating that such
Foreign Lender was exempt from United States withholding tax
thereafter ceases to qualify for such exemption, the Borrower shall
be obligated for the payment of all Withholding Taxes resulting from
such subsequent non-exemption, but the Borrower shall have the right
to require such Foreign Lender to assign its pro rata share of the
Loan (including its pro rata share of the interest accrued thereon)
to one or more Eligible Assignees identified by the Borrower at a
purchase price equal to the principal of and accrued but unpaid
interest, costs, and fees (to the date of purchase) on such Foreign
Lender's pro rata share of the Loan. Until such Foreign Lender's pro
rata share of the Loan is assigned to an Eligible Assignee, such
Foreign Lender, if eligible for a partial exemption from or a
reduction in the rate of United States withholding tax under an
applicable statute or tax treaty with respect to payments to be made
to such Foreign Lender hereunder, shall provide to the Borrower and
the Agent two properly completed and executed Internal Revenue
Service Forms W-8BEN or other applicable forms, certificates or
documents prescribed by the Internal Revenue Service of the United
States certifying as to such Foreign Lender's entitlement to said
partial exemption or reduction ("Certificates of Partial
Exemption"), and the provisions of (iii) above shall continue to
apply to such Foreign Lender substituting the words "Certificates of
Partial Exemption" for "Certificates of Exemption" in (iii) above.
2.7.4 Variable Rate Advances. Each Variable Rate Advance shall
continue as a Variable Rate Advance until Maturity of the Loan, unless
sooner converted, in whole or in part, to an Effective LIBO Rate Advance,
subject to the limitations and conditions set forth in this Agreement.
3. SECURITY FOR THE LOAN; LOAN AND SECURITY DOCUMENTS.
3.1 Security. The Loan, together with interest thereon and all other
charges and amounts payable by, and all other obligations of, Borrower and the
other Loan Parties to the Agent and/or each of the Lenders, whenever incurred,
direct or indirect, absolute or contingent, arising under or with respect to
this Agreement, the Security Documents, or any other Loan Document
("Obligations") shall be secured by the following Collateral which Borrower
agrees to provide and maintain, or cause to be provided and maintained (whether
provided for each in separate agreements or combined with various other
agreements):
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3.1.1 Security Agreement. A first priority security agreement and
collateral assignment granted by the Borrower to the Agent, on behalf of
the Lenders, respecting all assets of the Borrower, whether now owned, now
due, or in which the Borrower has an interest, or hereafter, at any time
in the future, acquired, arising, to become due, or in which the Borrower
obtains an interest (other than the assets pledged to the Integrated Group
as provided for in the Integrated Documents), including, without
limitation, all of Borrower's right, title, and interest to and in the
Put-Call Option Agreement.
3.1.2 Borrower Ownership Interest Pledge and Security Agreement.
(i) First priority Ownership Interest Pledge and Security
Agreements granted by the Borrower to the Agent, on behalf of the
Lenders, with respect to all right, title, and interest of Borrower
to and in each of the following:
(a) Borrower's 100% limited partnership interests in
each of the Participating Limited Partnerships, as of the
Funding Date to be as set forth in Exhibit N annexed hereto;
(b) Borrower's 100% membership interest in Xxxxxxx XX
Holding LLC;
(c) Borrower's 100% membership interest in NK-Leasehold
II LLC;
(d) Borrower's 100% membership interest in NK-Remainder
Interest LLC;
(e) Borrower's 100% membership interest in NK-Leyden GP
LLC;
(f) Borrower's 96.22% limited partnership interest in
NK-Leyden Loan L.P.;
(g) Borrower's 100% membership interest in NK-Dautec GP
LLC;
(h) Borrower's 96.324% limited partnership interest in
NK-Dautec Loan, L.P.;
(i) Borrower's 100% membership interest in NK-Cenland GP
LLC;
(j) Borrower's 100% membership interest in NK-Cenland LP
LLC;
(k) Borrower's 100% membership interest in NK First Loan
E Certificate LLC;
(l) Borrower's 100% membership interest in NK First Loan
F Certificate LLC;
(m) Borrower's 100% membership interest in NK First Loan
G Certificate LLC;
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(n) Borrower's 100% membership interest in Xxxxxxx MLP
Unit LLC; and
(o) Borrower's 100% ownership interest in MLP Manager
Corp.
(ii) Ownership Interest Pledge and Security Agreements granted
by the Borrower to the Agent, on behalf of the Lenders, with respect
to all right, title, and interest of Borrower to and in each of the
following, such security interests to be effective upon the earliest
of (x) the repayment in full of the Integrated Obligations; (y) the
release of the lien held by the Integrated Group in any of the
following ownership interests; or (z) the acceleration of the
Obligations as a result of an Event of Default and the election by
the Agent to vest and perfect such security interests, each as
determined by the Agent:
(a) Borrower's 100% membership interest in Xxxxxxx Xxxxx
LLC;
(b) Borrower's 50.01% membership interest in Xxxxxxx
Capital LLC; and
(c) Borrower's 100% membership interest in Xxxxxxx XX
LLC.
3.1.3 Collateral Assignment of Cenland Loan. A first priority
Assignment respecting the Cenland Loan granted by NK-Cenland Loan, L.P. to
the Agent, on behalf of the Lenders, with respect to all of NK-Cenland
Loan, L.P.'s right, title, and interest to and in the Cenland Loan.
Included as part of the Assignment of Cenland Loan, NK-Cenland Loan, L.P.
shall endorse the original Cenland Note payable to Agent and deliver same
to Agent and NK-Cenland Loan, L.P. shall execute and deliver an Assignment
of the mortgage included in the Cenland Loan Documents to Agent in
recordable form.
3.1.4 Pledge and Security Agreement.
(i) A first priority Pledge and Security Agreement granted by
the Borrower, NK-Leasehold II LLC, NK-Leyden GP LLC, NK-Dautec GP
LLC, NK-Cenland Loan, L.P., NK-Cenland LP LLC, NK-Cenland GP LLC, NK
First Loan E Certificate LLC, NK First Loan F Certificate LLC, NK
First Loan G Certificate LLC, Xxxxxxx MLP Unit LLC, MLP Manager
Corp., NK-CR Holdings LLC, Holdings Subsidiary LLC, T-Two Corp.,
Xxxxxxx Martall L.P., Xxxxxxx Calcraf L.P., Xxxxxxx Segair L.P.,
T-Two Partners, L.P., T-2 R Certificate Corp., and Xxxxxxx XX
Holding LLC to the Agent, on behalf of the Lenders, respecting all
Accounts and the T/I Fund Account maintained by such Persons at
Fleet National Bank (or any successor thereto or affiliate thereof).
(ii) A Pledge and Security Agreement granted by Xxxxxxx XX LLC
and Xxxxxxx Xxxxx LLC to the Agent, on behalf of the Lenders,
respecting all Accounts maintained by such Borrower Subsidiaries at
Fleet National Bank (or any successor thereto or affiliate thereof),
such security interests to be effective upon the earliest of (x) the
repayment in full of the Integrated Obligations; (y) the release of
the lien held by the Integrated Group in the ownership interests of
Xxxxxxx XX LLC, or Xxxxxxx Xxxxx LLC, or (z) the
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acceleration of the Obligations as a result of an Event of Default
and the election by the Agent to vest and perfect such security
interests, each as determined by Agent (the Pledge and Security
Agreements referred to in clauses (i) and (ii), singly and
collectively the "Pledge and Security Agreement").
3.1.5 Collateral Assignment of Interest Rate Protection Agreement A
first priority Assignment of Interest Rate Protection Agreement granted by
the Borrower to the Agent, on behalf of the Lenders, respecting the
Interest Rate Protection Agreement.
3.1.6 Borrower Subsidiaries and Loan Parties Security Agreement.
(i) A first priority security agreement granted by Xxxxxxx MLP
Unit LLC, NK-Leasehold II LLC, NK-Leyden GP LLC, NK-Dautec GP LLC,
NK-Cenland Loan, L.P., NK-Cenland LP LLC, NK-Cenland GP LLC, MLP
Manager Corp., T-Two Partners, L.P.(other than the Grantor Trust T-2
Certificate and certain other assets under the Grantor Trust), and
T-2 R Certificate Corp. (other than the Class R Certificate and
certain other assets under the Grantor Trust) to the Agent, on
behalf of the Lenders, respecting all the assets of each such
Person, whether now owned, now due, or in which such Person has an
interest, or hereafter, at any time in the future, acquired,
arising, to become due, or in which such Person obtains an interest.
(ii) A security agreement granted by Xxxxxxx XX LLC and
Xxxxxxx Xxxxx LLC to the Agent, on behalf of the Lenders, respecting
all the assets of each of such Borrower Subsidiaries, whether now
owned, now due, or in which such Borrower Subsidiaries have an
interest, or hereafter, at any time in the future, acquired,
arising, to become due, or in which such Borrower Subsidiaries
obtain an interest, such security interests to be effective upon the
earliest of (x) the repayment in full of the Integrated Obligations;
(y) the release of the lien held by the Integrated Group in the
ownership interests of Xxxxxxx XX LLC, or Xxxxxxx Xxxxx LLC, or (z)
the acceleration of the Obligations as a result of an Event of
Default and the election by the Agent to vest and perfect such
security interests, each as determined by Agent.
3.1.7 Participating Limited Partnership GPs Ownership Interest
Pledge and Security Agreement. A first priority Ownership Interest Pledge
and Security Agreement granted by each of the Participating Limited
Partnership GPs as to which the applicable Participating Limited
Partnership is not a GMAC Borrower, to the Agent, on behalf of the
Lenders, with respect to all right, title, and interest of such
Participating Limited Partnership GPs to and in the general partner's
interest in each Participating Limited Partnership, respectively.
3.1.8 Xxxxxxx XX LLC Ownership Interest Pledge and Security
Agreement. An Ownership Interest Pledge and Security Agreement granted by
Xxxxxxx XX LLC to the Agent, on behalf of the Lenders, with respect to all
right, title, and interest of Xxxxxxx XX LLC to and in its 100% ownership
interest to and in Chader Manager LLC, such security interest to be
effective upon the earliest of (x) the repayment in full of the Integrated
Obligations; (y) the release of the lien held by the Integrated Group in
the said ownership interests; or (z) the acceleration of the Obligations
as a result of an Event of Default and the election by the Agent to vest
and perfect such security interest, each as determined by Agent.
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3.1.9 Xxxxxxx XX Holding LLC Ownership Interest Pledge and Security
Agreement. An Ownership Interest Pledge and Security Agreement granted by
Xxxxxxx XX Holding LLC to the Agent, on behalf of the Lenders, with
respect to all right, title, and interest of Xxxxxxx XX Holding LLC to and
in its 100% ownership interest in each of the Participating Limited
Partnership GPs as to which the applicable Participating Limited
Partnership is not a GMAC Borrower.
3.1.10 Collateral Assignment by Xxxxxxx Xxxxx LLC of Administrator
LLC Loan. An Assignment respecting the Administrator LLC Loan granted by
Xxxxxxx Xxxxx LLC to the Agent, on behalf of the Lenders, with respect to
all right, title, and interest of Xxxxxxx Xxxxx LLC to and in the
Administrator LLC Loan. Included as part of the Assignment of
Administrator LLC Loan, Xxxxxxx Xxxxx LLC shall endorse the original
Administrator LLC Note payable to Agent and deliver same to Agent, such
security interests to be effective upon the earliest of (x) the repayment
in full of the Integrated Obligations; (y) the release of the lien held by
the Integrated Group in the ownership interest of Xxxxxxx Xxxxx LLC, or
(z) the acceleration of the Obligations as a result of an Event of Default
and the election by the Agent to vest and perfect such security interests,
each as determined by Agent.
3.1.11 Xxxxxxx MLP Unit LLC Ownership Interest Pledge and Security
Agreement. A first priority Ownership Interest Pledge and Security
Agreement granted by Xxxxxxx MLP Unit LLC to the Agent, on behalf of the
Lenders, with respect to all right, title, and interest of Xxxxxxx MLP
Unit LLC to and in the following:
(i) Limited partnership interests in Non-Participating Limited
Partnerships, as of the Funding Date to be as set forth in Exhibit L
annexed hereto; and
(ii) Limited partnership interests in the Other Partnerships,
as of the Funding Date to be as set forth in Exhibit M annexed
hereto;
3.1.12 Pledge of Ownership Interest in NK-Leyden Loan, L.P. A first
priority Ownership Interest Pledge and Security Agreement granted by
NK-Leyden GP LLC to the Agent, on behalf of the Lenders, with respect to
all right, title, and interest of the 100% general partnership interest of
NK-Leyden GP LLC to and in NK-Leyden Loan L.P. (as the owner of the Leyden
Note)
3.1.13 Pledge of Ownership Interest in NK-Cenland Loan, L.P. A first
priority Ownership Interest Pledge and Security Agreement granted by
NK-Cenland LP LLC and NK-Cenland GP LLC to the Agent, on behalf of the
Lenders, with respect to all right, title, and interest of the 100%
limited partnership interest of NK-Cenland LP LLC and the 100% general
partnership interest of NK-Cenland GP LLC, respectively, to and in
NK-Cenland Loan L.P. (as the owner of the Cenland Loan).
3.1.14 Pledge of Ownership Interest in Subsidiary Limited
Partnerships. A first priority Ownership Interest Pledge and Security
Agreement granted by Xxxxxxx Martall L.P. to the Agent, on behalf of the
Lenders, with respect to all right, title, and interest of the 99% limited
partnership interest of Xxxxxxx Martall L.P. to and in the Subsidiary
Limited Partnerships.
3.1.15 Pledge of Ownership Interest in NK-Dautec Loan, L.P. A first
priority Ownership Interest Pledge and Security Agreement granted by
NK-Dautec GP LLC to the Agent, on behalf of the Lenders, with respect to
all right, title, and interest of the
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100% general partnership interest of NK-Dautec GP LLC, respectively, to
and in NK-Dautec Loan, L.P. (as the owner of the Dautec Note).
3.1.16 Pledge of Ownership Interest in T-Two Partners, L.P. A first
priority Ownership Interest Pledge and Security Agreement granted by NK-CR
Holdings LLC and Holdings Subsidiary LLC to the Agent, on behalf of the
Lenders, with respect to all right, title, and interest of the 99% limited
partnership interest of NK-CR Holdings LLC and the 100% general
partnership interest of Holdings Subsidiary LLC, respectively, to and in
T-Two Partners, L.P. (as the owner of the Grantor Trust T-2 Certificate).
3.1.17 Pledge of Ownership Interest in T-2 R Certificate Corp. A
first priority Ownership Interest Pledge and Security Agreement granted by
T-Two Corp. to the Agent, on behalf of the Lenders, with respect to all
right, title, and interest of T-Two Corp. to and in T-2 R Certificate
Corp.(as the owner of the Class R Certificate).
3.1.18 Pledge of Ownership Interest by MLP GP LLC of General
Partnership Interest in Borrower. A first priority Ownership Interest
Pledge and Security Agreement granted by MLP GP LLC to the Agent, on
behalf of the Lenders, with respect to all right, title, and interest of
MLP GP LLC with respect to its general partnership interest to and in the
Borrower.
3.1.19 Pledge of Ownership Interest in MLP GP LLC. A first priority
Ownership Interest Pledge and Security Agreement granted by the MLP
Holders to the Agent, on behalf of the Lenders, with respect to all right,
title, and interest of such Persons to and in the 100% ownership interest
in MLP GP LLC.
3.1.20 Xxxxxxx Indemnification. An indemnification agreement (the
"Xxxxxxx Indemnification") from the Xxxxxxx Indemnitor in favor of the
Agent and each of the Lenders concerning any and all loss or damage
occasioned or otherwise suffered by the Agent and/or the Lenders resulting
in any way from any claim, action, demand, or liability asserted (whether
or not suit is instituted) by, or related to, the obligations of the
Xxxxxxx Group Entities to, or collateral held by, the Integrated Group as
set forth in such Agreement.
3.1.21 Guaranties.
(i) The unconditional, continuing guaranty from each Guarantor
(except for Xxxxxxx XX LLC and Xxxxxxx Xxxxx LLC), pursuant to which
each Guarantor shall guaranty the prompt, punctual, and faithful
payment of the Loan and the performance of all Borrower's other
Obligations to the Agent and each of the Lenders under the Loan
Documents; provided, however, that any particular Guaranty may be on
a non-recourse basis as, and only to the extent, specifically
approved by the Agent and provided in any such Guaranty.
(ii) The unconditional, continuing guaranty from Xxxxxxx XX
LLC and Xxxxxxx Xxxxx LLC pursuant to which each Guarantor shall
guaranty the prompt, punctual, and faithful payment of the Loan and
the performance of all Borrower's other Obligations to the Agent and
each of the Lenders under the Loan Documents, such guaranty to be
effective upon the earliest of (x) the repayment in full of the
Integrated Obligations; (y) the release of the lien held by the
Integrated Group in the ownership interests of Xxxxxxx XX LLC or
Xxxxxxx Xxxxx LLC, or (z) the acceleration of the Obligations as a
result of an Event of Default and the election by the Agent to cause
the guaranty to be in full force and effect, each as
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determined by Agent (the guaranties referred to in clauses (i) and
(ii), singly and collectively the "Guaranty").
3.1.22 Environmental Compliance and Indemnification Agreement. A
compliance and indemnification agreement with respect to environmental
matters ("Environmental Indemnity") from Borrower in favor of the Agent
and each of the Lenders.
3.1.23 Escrow Agreement Respecting Ground Lease Extensions and Lease
Options. An escrow agreement ("Escrow Agreement Respecting Ground Lease
Extensions and Lease Options") pursuant to which the Borrower and certain
Net Lease Partnerships, respectively and as applicable, execute and
deliver in escrow to the Agent, on behalf of the Lenders, executed notices
and such other documents and agreements required to exercise all
extensions and other rights respecting the following, as determined in the
reasonable judgment of the Agent.
(i) Those ground lease options (singly and collectively the
"Remainder Ground Lease Options") relating to the respective
remainderman interests held by NK-Remainder Interest LLC or any
third party, as detailed in the Solicitation Statement and as
updated as of the Closing Date on Schedule 6.18.7; and
(ii) Those lease extension options (singly and collectively,
the "Ground Lease Extension Options") relating to all ground lessor
interests held by NK-Remainder Interest LLC or any third party as
detailed in the Solicitation Statement and as updated as of the
Closing Date on Schedule 6.18.6, whether with respect to a Ground
Lease in effect as of the date hereof and any other Ground Lease
which may be entered into hereafter, including any Ground Lease
entered into in connection with the exercise of a Remainder Ground
Lease Option.
3.1.24 Additional Documents. Any other documents, instruments and
agreements set forth on the Loan Agenda.
3.2 Loan Documents and Security Documents. The Loan shall be made,
evidenced, administered, secured and governed by all of the terms, conditions
and provisions of the "Loan Documents", each as the same may be hereafter
modified or amended, consisting of: (i) this Loan Agreement; (ii) a promissory
note in the form of Exhibit C, annexed hereto, payable to the Agent on behalf of
the Lenders in the original principal amount of up to TWO HUNDRED TWENTY-FIVE
MILLION DOLLARS ($225,000,000.00)(the "Note"); (iii) the various documents and
agreements referenced in Section 3.1, above; (iv) any Consents or Payment
Direction Letters executed by any Borrower Subsidiary or Xxxxxxx Group Entity;
(v) the Interest Rate Protection Agreement if issued by Fleet National Bank,
(vi) the Cash Management Agreements; and (vii) any other documents, instruments,
or agreements heretofore or hereafter executed to further evidence or secure the
Loan.
Each of the Loan Documents listed above is dated as of the date hereof.
The Loan Documents referenced in Section 3.1 (except Section 3.1.24) are
sometimes referred to herein, singly and collectively as the "Security
Documents".
4. CONTINUING AUTHORITY OF AUTHORIZED REPRESENTATIVES. Agent and each of
the Lenders are authorized to rely upon the continuing authority of the persons,
officers, signatories or agents hereafter designated ("Authorized
Representatives") to bind Borrower with
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respect to all matters pertaining to the Loan and the Loan Documents including,
but not limited to, the selection of interest rates, the submission of the
request for the Loan Advance and certificates with regard thereto. Such
authorization may be changed only upon written notice to Agent accompanied by
evidence, reasonably satisfactory to Agent, of the authority of the person
giving such notice. The present Authorized Representatives are listed on Exhibit
D. The Agent shall have a right of approval, not to be unreasonably withheld or
delayed, over the identity of the Authorized Representatives so as to assure
Agent and each of the Lenders that each Authorized Representative is a
responsible and senior official of Borrower.
5. CONDITIONS PRECEDENT.
5.1 Closing Loan and Funding Loan Advance. It shall be a condition
precedent of Lenders' obligation to close the Loan and to fund the proceeds of
the Loan (the "Loan Advance") that each of the following conditions precedent be
satisfied in full (as determined by each Lender in its discretion which
discretion shall be exercised in good faith having due regard for the advice of
the Agent), unless specifically waived in writing by all of the Lenders at or
prior to the date of the funding of the Loan Advance (the date of the closing of
the Loan shall be referred to herein as the "Closing Date" and the date of the
initial funding of the Loan shall be referred to herein as the "Funding Date"):
5.1.1 Satisfactory Loan Documents and Related Documents; Loan Agenda
Items. On the Funding Date, each of the Loan Documents and the Related
Documents shall be satisfactory in form, content and manner of execution
and delivery to Agent and Agent's counsel and all Loan Documents and
Related Documents shall be in full force and effect. Without limiting the
foregoing, the Agent shall have received each of the instruments,
documents, and agreements itemized on the Loan Agenda, each executed and
delivered in favor of, and/or in form and substance reasonably
satisfactory to, the Agent.
5.1.2 Financial Information; No Material Change.
(i) No change shall have occurred in the financial condition,
business, affairs, operations or control of Borrower, the Loan
Parties, and/or the Xxxxxxx Partnerships, since the date of their
respective financial statements or financial projections most
recently delivered to Agent, which change has had or could
reasonably be expected to have a Material Adverse Effect; and
Borrower and the other Loan Parties shall have furnished Agent such
other financial information, projections, and certifications as
reasonably requested by the Agent.
(ii) The absence of any material adverse change in the loan
syndication, financial or capital market conditions generally from
those currently in effect.
(iii) The Borrower shall have provided to the Agent a copy
certified by an officer of Borrower of a pro-forma balance sheet
after giving effect to the Exchange, the Loan and the intended
Distribution of a portion of the proceeds of the Loan, to evidence
that the Borrower is solvent, has assets having a fair value in
excess of the amount required to pay the Borrower's probable
liabilities on the Borrower's existing Debts as such become absolute
and mature, and has adequate capital for the conduct of the
Borrower's business and the ability to pay the Borrower's Debts from
time to time incurred in connection therewith as such Debts mature.
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(iv) A copy of the Fairness Opinion issued by Xxxxxxxx Xxxxx
Xxxxxx & Xxxxx Financial Advisors, Inc., in connection with the
Exchange.
5.1.3 Warranties and Representations Accurate. All warranties and
representations made by or on behalf of any of the Borrower and the other
Loan Parties, or any of them, to Agent or any of the Lenders shall be
true, accurate and complete in all material respects and, to the best of
the Borrower's Knowledge, shall not omit any material fact necessary to
make the same not misleading.
5.1.4 Validity and Sufficiency of Security Documents. The Security
Documents shall create a valid and perfected lien on the property
described therein ("Collateral") and each of the Security Documents and
related UCC filings shall have been duly recorded and filed to the
satisfaction of Agent and Agent's counsel, including, without limitation,
as follows:
(i) On the Funding Date, the Borrower and the other Loan
Parties shall have delivered to the Agent evidence of the completion
of all recordings and filings of, or with respect to, the Security
Documents or, in the case of UCC-1 financing statements, delivery of
such financing statements in proper form for recording, and shall
have taken all such other actions as may be necessary or, in the
reasonable opinion of the Agent, desirable to perfect the Liens and
security interests intended to be created by the Security Documents
in the Collateral covered thereby. Such filings, recordings and
other actions shall include, without limitation, in addition to the
UCC-1 financing statements, (x) the delivery to the Agent of the
certificates, if any, representing the capital stock being pledged
to Agent, on behalf of the Lenders, pursuant to the Security
Documents, together with signed, undated stock powers, (y) delivery
to the Agent of the certificates, if any, representing the
respective partnership and membership interests in each partnership
and limited liability company, the partnership or membership
interests in which are being pledged to Agent on behalf of the
Lenders pursuant to the Security Documents, and (z) delivery to the
Agent of all consents, acknowledgments, and approvals relating in
any way to the Security Documents as the Agent in its reasonable
discretion determines appropriate, including, without limitation,
those consents and approvals set forth in the Loan Agenda with
respect to the granting of the Security Documents and the
acknowledgment of the interests of the Agent and the Lenders created
therein (the "Consents"); and
(ii) on or prior to the Funding Date, the Agent shall have
received the results of a UCC, tax lien and judgment search in the
jurisdictions in which the Borrower, the Borrower Subsidiaries, and
any other Loan Parties, respectively, are organized, have assets, or
have their chief executive office, and the results of such search
shall indicate there are no judgments or Liens not permitted under
the Loan Documents.
5.1.5 Payment Direction And Authorization. Agent shall have received
evidence of such Payment Direction Letters set forth in the Loan Agenda in
order to evidence the intended management of the cash flow of the
Borrower, the Loan Parties (except the Excepted Loan Parties), and the
Borrower Subsidiaries.
5.1.6 Exchange Matters. Agent shall have received each of the
Exchange Documents and the Integrated Documents, each of which shall be
reasonably satisfactory in form and substance. On the Funding Date the
Exchange shall have been consummated and the Exchange Documents and
Integrated Documents shall be in full force and effect, and the
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Agent shall have received full and complete copies thereof, certified as
such by such Persons as Agent shall determine appropriate.
5.1.7 Litigation. On the Funding Date, there shall not be any
actions, suits or proceedings at law or in equity or by or before any
governmental instrumentality or other agency or regulatory authority by
any entity (private or governmental) pending or, to the best of the
Borrower's Knowledge, threatened with respect to the Exchange, the Loan,
the transactions contemplated in the Loan Documents or the transactions
contemplated in the Exchange Documents or any documentation executed in
connection therewith, or the Borrower, any other Loan Party, or any other
Borrower Subsidiary, which the Agent shall determine in good faith is
likely to have a Material Adverse Effect.
5.1.8 Formation Documents and Entity Agreements.
(i) On the Funding Date, the Agent shall have received a
certificate of the general partner, or managing member, as
applicable, of Borrower and each other Loan Party which is a
partnership or limited liability company, annexing and certifying as
to (a) the Formation Documents of such entity having been duly
executed, delivered and filed and remaining in full force and effect
and unmodified as of the date of such certificate (and annexing a
copy thereof), (b) due authorization, execution and delivery by such
entity of the Loan Documents and the Exchange Documents to which it
is a party, and (c) such entity being in good standing and
authorized to do business in each jurisdiction where the ownership
of its assets and operation of its business requires such
qualification, as each of the foregoing is set forth in Loan Agenda;
(ii) On the Funding Date, the Agent shall have received a
certificate of the manager of each Loan Party which is a limited
liability company annexing and certifying as to (a) resolutions of
such entity authorizing and approving the transactions contemplated
by the Loan Documents, and the Exchange Documents, and the execution
and delivery thereof by such entity in respect of the documents to
which it is a party and on behalf of the other entities in which
such limited liability company is a general partner or managing
member in respect of any of the Loan Documents, (b) signatures and
incumbency of all officers of such limited liability company
executing documentation on behalf of such entity or on behalf of any
entity as to which such limited liability company is a general
partner or managing member, as the case may be, in connection with
the transactions contemplated by the Loan Documents and the Exchange
Documents, (c) the Formation Documents of such entity having been
duly executed, delivered and filed and remaining in full force and
effect and unmodified as of the date of such certificate (and
annexing copies thereof) and (d) such entity being in good standing
and authorized to do business in each jurisdiction where the conduct
of its business and ownership of its assets requires such
qualification, as each of the foregoing is set forth in the Loan
Agenda.
(iii) On the Funding Date, the Agent shall have received a
certificate of the secretary of each Loan Party which is a
corporation annexing and certifying as to (a) corporate resolutions
of such entity authorizing and approving the transactions
contemplated by the Loan Documents and the Exchange Documents, and
the execution and delivery thereof by such entity in respect of the
documents to which it is a party and on behalf of the other entities
in which such corporation is a general partner or managing member in
respect of any of the Loan Documents, (b) signatures and incumbency
of all officers of such corporation executing documentation on
behalf of such entity or on behalf of any entity as to which such
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corporation is a general partner or managing member, as the case may
be, in connection with the transactions contemplated by the Loan
Documents and the Exchange Documents, (c) the Formation Documents of
such entity having been duly executed, delivered and filed and
remaining in full force and effect and unmodified as of the date of
such certificate (and annexing copies thereof) and (d) such entity
being in good standing and authorized to do business in each
jurisdiction where the conduct of its business and ownership of its
assets requires such qualification, including, as each of the
foregoing is set forth in the Loan Agenda.
5.1.9 Compliance With Law. There are no Legal Requirements which
prohibit or adversely limit the capacity or authority of the Borrower to
enter into the Loan or any Loan Party to execute the Loan Documents to
which it is a party, and perform the obligations of such Person with
respect thereto.
5.1.10 Compliance With Financial Covenants. Agent shall have
received an Officer's Certificate reflecting the Borrower's compliance
with the Financial Covenants and the terms and conditions hereof.
5.1.11 Individual Property Due Diligence. Agent shall have received
and completed a review of such due diligence as the Agent may require with
respect to any Individual Property, including, without limitation:
(i) Updated title reports with respect to the Individual
Properties owned (fee simple or land estate) or ground leased by any
Net Lease Partnership reflecting the owner thereof, the interest of
the Borrower Subsidiary therein, and any Mortgage Debt (the "Title
Reports");
(ii) Copies of all notes and mortgages evidencing any Mortgage
Debt on any Individual Property;
(iii) Copies of all Ownership Interest Agreements;
(iv) A third party certification as to the principal balance
due on all First Mortgage Debt as of December 31, 2001;
(v) The documentation establishing the remainderman interest
of NK-Remainder Interest LLC in certain of the Individual
Properties, as detailed in the Solicitation Statement and as updated
as of the Closing Date on Schedule 6.18.7;
(vi) The documentation establishing the ground lessor of
NK-Remainder Interest LLC in certain of the Individual Properties,
as detailed in the Solicitation Statement and as updated as of the
Closing Date on Schedule 6.18.6; and
(vii) To the extent required by the Agent for any Individual
Property, copies of all Leases.
5.1.12 Condition of Property. There shall have been no uninsured
unrepaired or unrestored damage or destruction by fire or otherwise to any
of the real or tangible personal property comprising or intended to
comprise the Individual Properties which could reasonably be expected to
have a Material Adverse Effect.
5.1.13 Insurance. Borrower shall have provided to Agent and each of
the Lenders evidence of the following insurance, each meeting the
requirements of the Agent: (i)
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reasonably satisfactory blanket liability insurance in favor of the
Borrower and each of the Borrower Subsidiaries, with the Agent and the
Lenders named as additional insureds; (ii) a reasonably satisfactory
report from the third party monitoring the insurance as to the hazard and
other insurance on the Individual Properties maintained by the respective
tenant thereof, evidencing compliance with Exhibit E and, as applicable,
the respective Lease of each Individual Property, and (iii) a reasonably
satisfactory third party contract regarding the monitoring of the
insurance to be obtained by tenants under Leases with respect to the
Individual Properties.
5.1.14 Third Party Consents and Agreements.
(i) The Agent shall have received the Consents and such other
third party consents and agreements as the Agent may require with
respect to the Exchange and the Loan, including, without limitation,
the consent to the Exchange from the GMAC Mortgage Holder and the
Grantor Trust Trustee.
(ii) The Agent shall have entered into an agreement with the
holders of the Affiliated T-1 Interests that such Affiliated T-1
Interests will not be voted or controlled in any manner adverse to
the interests of the Agent and the Lenders.
5.1.15 Management Agreements. The Agent shall have received copies
of the executed Amended and Restated Asset Management Agreement and
Contract to Provide Asset Management Services, each of which shall be
satisfactory as to form and substance.
5.1.16 Cash Management. The Borrower, each Borrower Subsidiary
(except for the Participating Limited Partnership GP's, the Borrower GP,
and Xxxxxxx MLP Corp.), and each other Loan Party (except the Excepted
Loan Parties) shall open a Depository Account, as provided for herein,
and, except for the GMAC Borrowers, the Participating Limited Partnership
GP's, the Borrower GP, Xxxxxxx MLP Corp., and the other Loan Parties
(which are not Borrower Subsidiaries), enter into a Cash Management
Agreement with the Agent.
5.1.17 Loan Facility Rating. To the extent requested by the Agent,
the Loan shall have received a rating from a credit rating agency, which
credit rating agency is reasonably acceptable to the Agent. The Borrower
agrees to take all action and provide all information as may be reasonably
requested by the Agent to assist the Agent in obtaining such rating.
5.1.18 Interest Rate Protection Agreement The Borrower shall have
entered into an Interest Rate Protection Agreement, from an issuer and in
form and substance reasonably acceptable to the Agent, which Interest Rate
Protection Agreement shall be collaterally assigned to the Agent, on
behalf of the Lenders, to secure the Obligations.
5.1.19 Legal Opinions. Agent shall have received and approved legal
opinion letters from counsel representing the Borrower and the other Loan
Parties which meet Agent's legal opinion requirements and covering such
matters incident to the transactions contemplated herein, including,
without limitation, the Exchange, as the Agent may reasonably request.
5.1.20 XXXXX. The Borrower shall have provided to the Agent evidence
that in accordance with the Formation Documents of Apollo Real Estate
Investment Fund III, L.P., all necessary extensions and consents have been
granted such that any required liquidation or dissolution of Apollo Real
Estate Investment Fund III, L.P. shall not occur until no earlier than six
(6) months after the Maturity Date.
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5.1.21 No Default. There shall not be any Default under any of the
Loan Documents.
6. WARRANTIES AND REPRESENTATIONS. Borrower warrants and represents to
Agent and each of the Lenders for the express purpose of inducing Lenders to
enter into this Agreement, to make the Loan Advance, and to otherwise complete
all of the transactions contemplated hereby that upon the date of the Loan
Advance and at all times thereafter until the Loan has been repaid and all
Obligations have been satisfied as follows:
6.1 Formation. The Borrower, each Borrower Subsidiary, each
Non-Participating Limited Partnership, and each Partially Owned Limited
Partnership has been duly formed and is validly existing and in good standing as
a corporation, partnership or limited liability company, as the case may be,
under the laws of the State of its formation. The Borrower, each Borrower
Subsidiary, each Non-Participating Limited Partnership, and each Partially Owned
Limited Partnership has the requisite corporate, partnership or company power
and authority, as applicable, to own its assets and conduct its businesses as
currently conducted and owned and as contemplated in the Solicitation Statement,
and to enter into and perform its obligations under each Loan Document and/or
Related Document to which it is a party. The Borrower, each Borrower Subsidiary,
each Non-Participating Limited Partnership, and each Partially Owned Limited
Partnership is in good standing and authorized to do business in each
jurisdiction where the ownership of its assets and/or the conduct of its
business requires such qualification except where the failure to be so qualified
would not have a Material Adverse Effect.
6.2 Proceedings; Enforceability. The Borrower, each Borrower Subsidiary,
each Non-Participating Limited Partnership, and each Partially Owned Limited
Partnership has taken all requisite corporate, partnership or company action, as
applicable, to authorize the execution, delivery and performance by such Person
of the Loan Documents and/or the Related Documents to which it is a party. Each
Loan Document and the Related Document to which it is a party which is required
to be executed and delivered on or prior to the date on which this
representation and warranty is being made has been duly authorized, executed and
delivered and constitutes the legal, valid and binding obligation of the
Borrower, each Borrower Subsidiary, each Non-Participating Limited Partnership,
and each Partially Owned Limited Partnership which is a party thereto,
enforceable against each such Person in accordance with its respective terms
except to the extent that the enforceability thereof may be limited by
applicable bankruptcy, insolvency and similar laws affecting rights of creditors
generally and to general principles of equity (regardless of whether enforcement
is sought in a proceeding in equity or at law).
6.3 Conflicts. Neither the execution, delivery and performance of the Loan
Documents and the Related Documents by the Borrower, any Borrower Subsidiary,
any Non-Participating Limited Partnership, or any Partially Owned Limited
Partnership or compliance by any such Person with the terms and provisions
thereof (including, without limitation, the granting of Liens pursuant to the
Security Documents), (i) will contravene any provision of any law, statute, rule
or regulation or any order, writ, injunction or decree of any court or
governmental instrumentality, (ii) will conflict with or result in any breach of
any of the terms, covenants or conditions of, or constitute a default under, or
result in the creation or imposition (or the obligation to create or impose) of
any Lien (except pursuant to the Security Documents) upon any of the property or
assets of any such Person pursuant to the terms of any indenture, mortgage, deed
of trust, credit agreement or loan agreement or any other agreement, contract or
instrument to which any such Person is a party or by which it or any of its
properties or assets is bound or to which it may be subject or (iii) will
violate any provision of any Formation Document of any such Person.
6.4 Ownership and Taxpayer Identification Numbers.
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6.4.1 All of the partners, owners, stockholders, and members,
respectively and as may be applicable, of the Borrower, the Borrower GP,
Xxxxxxx Capital LLC, NK-Leyden Loan, L.P. and NK-Dautec Loan, L.P. are
listed in Exhibit F. The exact correct name and organizational number(s)
and federal employer identification number(s) of the Borrower and each
Loan Party are accurately stated in Exhibits F, L, M, and N.
6.4.2 The Borrower is the owner of all of the ownership interests
set forth in Section 3.1.2, above, pledged by it to the Agent, on behalf
of the Lenders. Except for such ownership interests, the Borrower does not
directly hold any stock, membership, partnership or ownership interest in
any other Person.
6.4.3 Each Borrower and Borrower Subsidiary is the owner of all of
the ownership interests to be pledged to the Agent, on behalf of the
Lenders, pursuant to the Loan Documents. Except for such ownership
interests and except as shown on Schedule 6.4.3(i), the Borrower and the
Borrower Subsidiaries do not directly hold any stock, membership,
partnership or ownership interest in any other Person.
6.4.4 Except for the 100% ownership interest in T-Two Partners, L.P.
and T-2 R Certificate Corp., the ownership interests in the Borrower and
as shown on Schedule 6.4.4(ii), no Xxxxxxx Group Entity, directly or
indirectly, owns or controls any interest in any asset relating to the
Borrower or the Exchange or the business operations of the Borrower and
the Borrower Subsidiaries
6.5 Litigation. Except as set forth in Schedule 6.5, there are no actions,
suits or proceedings at law or in equity or by or before any governmental
instrumentality or other agency or regulatory authority by any entity (private
or governmental) pending or, to the best of Borrower's Knowledge, threatened
with respect to the Exchange, the Loan, the transactions contemplated in the
Loan Documents, the Related Documents, or the transactions contemplated in the
Exchange Documents or any documentation executed in connection therewith, or the
Borrower, any Borrower Subsidiary, any Non-Participating Limited Partnership, or
any each Partially Owned Limited Partnership which could reasonably be expected
to have a Material Adverse Effect.
6.6 Information. All factual information furnished by or on behalf of the
Borrower, any Borrower Subsidiary, any Non-Participating Limited Partnership, or
any Partially Owned Limited Partnership to the Agent and/or any of the Lenders
(including, without limitation, all information contained in the Loan Documents
and the Solicitation Statement) for purposes of or in connection with this
Agreement, the other Loan Documents or any transaction contemplated herein or
therein is, and all other such factual information hereafter furnished by or on
behalf of the Borrower, any Borrower Subsidiary, any Non-Participating Limited
Partnership, or any Partially Owned Limited Partnership to the Agent and/or any
of the Lenders will be, true and accurate in all material respects on the date
as of which such information is dated or certified and to the best of the
Borrower's Knowledge, not incomplete by omitting to state any fact necessary to
make such information not misleading in any material respect at such time in
light of the circumstances under which such information was provided.
6.7 Taxes. The Borrower, all Borrower Subsidiaries, all Non-Participating
Limited Partnerships, and all Partially Owned Limited Partnerships have made all
required tax filings and have paid all federal, state and local taxes applicable
to them and/or their respective assets, except if contested in accordance with
Section 9.1.
6.8 Financial Information. The financial statements of the Xxxxxxx Group
Entities (other than Vornado Realty Trust), the Xxxxxxx Partnerships, and the
Borrower (including, without
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limitation, the financial information as set forth in the Solicitation
Statement) provided to the Agent present fairly the financial conditions of each
at the dates of such statements of financial condition and the results of
operations for the periods covered thereby. The financial projections of the
Xxxxxxx Partnerships and the Borrower (including, without limitation, the
financial information as set forth in the Solicitation Statement) present a good
faith estimate of the projected financial condition of each at the reflected
dates and the projected results of operations for the periods covered thereby.
Since the dates of the relevant financial statements, no change has occurred
which could have or reasonably be expected to have a Material Adverse Effect.
6.9 Management Agreements. True and correct copies of the Amended and
Restated Management Agreement and the Contract to Provide Asset Management
Services have been delivered to the Agent, each of which is in full force and
effect and no material default has occurred thereunder. There are no other
management agreements or asset management agreements respecting the management
of the assets of the Borrower, any of the Borrower Subsidiaries, any
Non-Participating Limited Partnership, or any Partially Owned Limited
Partnership.
6.10 Control Provisions.
6.10.1 The Borrower, controls, directly or indirectly, and without
the requirement for consent of any other Person, the management of each
Borrower Subsidiary.
6.10.2 There are no provisions in any limited partnership agreement,
operating agreement, certificate of incorporation, bylaws or any other
agreement or instrument to which the Borrower or any Borrower Subsidiary
is party, under which any Person (other than the Borrower or a Borrower
Subsidiary) has the right to exercise the management or control rights,
powers or authority currently belonging to the Borrower or any Borrower
Subsidiary, except as set forth in (i) any mortgage, deed of trust or
similar security agreement encumbering any Individual Property upon
exercise of the rights and remedies upon default set forth in any of the
foregoing, (ii) the Integrated Documents upon exercise of the rights and
remedies upon default set forth therein, or (iii) the Formation Documents
of any Non-Participating Limited Partnership, or any Partially Owned
Limited Partnership.
6.11 Formation Documents. The Borrower has delivered or caused to be
delivered to the Agent true and complete copies of all Formation Documents of
the Loan Parties and other Borrower Subsidiaries, and all amendments thereto as
of the date hereof and as of the date of the Loan Advance.
6.12 Consummation of Exchange. The Exchange has been consummated in
compliance with all applicable laws and other Legal Requirements, and the
Exchange Documents do not make any untrue statement of a material fact or omit
to state any material facts necessary in order to make the statements made, in
light of the circumstances in which they are made, not misleading. The Exchange
Documents are in full force and effect and have not been amended. All necessary
governmental, regulatory and third-party approvals in connection with the
Exchange and the transactions contemplated therein have been obtained and remain
in full force and effect, and all applicable waiting periods have expired
without any action being taken by any competent authority which restrains,
prevents or imposes materially adverse conditions upon the consummation of the
Exchange. There does not exist any judgment, order, injunction or other
restraint prohibiting or imposing materially adverse conditions upon, or
materially delaying, or making economically unfeasible, the Exchange, including,
without limitation, in connection with the transfer of Units pursuant to and as
contemplated in the Exchange.
6.13 Bankruptcy Filings. Neither the Borrower, nor any Borrower
Subsidiary, nor any Non-Participating Limited Partnership, nor any Partially
Owned Limited Partnership is
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contemplating either a filing of a petition under any state or federal
bankruptcy or insolvency laws or the liquidation of all or a major portion of
its assets or property, and the Borrower has no Knowledge of any Person
contemplating the filing of any such petition against any of the Borrower, any
Borrower Subsidiary, any Non-Participating Limited Partnership, or any Partially
Owned Limited Partnership.
6.14 Options. No Person holds a right of first refusal or option to
purchase with respect to any item of Collateral, other than as set forth in the
Put-Call Option Agreement.
6.15 Investment Company. Neither the Borrower, nor any Borrower
Subsidiary, nor any Non-Participating Limited Partnership, nor any Partially
Owned Limited Partnership is an "investment company" or a company "controlled"
by an "investment company," within the meaning of the Investment Company Act of
1940, as amended.
6.16 Holding Company. Neither the Borrower, nor any Borrower Subsidiary,
nor any Non-Participating Limited Partnership, nor any Partially Owned Limited
Partnership is a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company," within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
6.17 Securitization Documents. (i) The Securitization Documents have not
been amended, terminated or rescinded in any material respect, and remain in
full force and effect; (ii) the collateral agent under the Securitization
Documents is the holder of the Securitized Notes and Securitized Mortgages;
(iii) T-Two Partners, L.P. is the sole and direct beneficial owner of the
Grantor Trust T-2 Certificate, free and clear of any Liens; (iv) T-2 R
Certificate Corp. is the sole and direct owner of the Class R Certificate, free
and clear of any Liens; (v) to the best of the Borrower's Knowledge, none of the
Net Lease Partnerships is in default under any Securitized Note or Securitized
Mortgage and the Borrower does not know of any event which, but for the passage
of time or the giving of notice, or both, would constitute a default under any
of such Securitized Note or Securitized Mortgage; and (vi) except for the
interest held by T-Two Partners, L.P. in the Grantor Trust T-2 Certificate, the
interest held by T-2 R Certificate Corp. in the Class R Certificate, and the
Affiliated T-1 Interests, no Loan Party, Borrower Subsidiary, or Xxxxxxx Group
Entity holds, either directly or indirectly, any interest in the Securitization
Documents. The interests held by VNK Corp., NK-CR B Cert LLC, NK-CR BB Cert LLC,
and NK-CR NR Cert LLC represent 100% of the ownership interest in the G, H, and
I certificates of the Grantor Trust T-1 Certificate.
6.18 Individual Properties.
6.18.1 Each of the Net Lease Partnerships possesses such Licenses
and Permits issued by the appropriate federal, state, or local regulatory
agencies or bodies necessary to own and operate each Individual Property,
except where the failure to possess any such License or Permit would not
have a Material Adverse Effect. The Net Lease Partnerships are in material
compliance with the terms and conditions of all such Licenses and Permits,
except where the failure so to comply would not, singly or in the
aggregate, result in a Material Adverse Effect. All of the Licenses and
Permits are valid and in full force and effect, except where the
invalidity of such Licenses and Permits or the failure of such Licenses
and Permits to be in full force and effect would not result in a Material
Adverse Effect. Neither the Borrower nor any of the Net Lease Partnerships
has received any notice of proceedings relating to the revocation or
modification of any such Licenses and Permits which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would result in a Material Adverse Effect.
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6.18.2 Except to the extent the failure of the following to be true
would not result in a Material Adverse Effect, (i) the Net Lease
Partnerships have either (x) fee simple title to the Individual
Properties, (y) a land estate interest for a specified number of years in
the Individual Properties, or (z) a leasehold estate interest in the
Individual Properties, as set forth in the relevant schedules to the
Solicitation Statement as updated by Schedule 6.18.2(i); (ii) the
interests of the Net Lease Partnerships in the Individual Properties are
not subject to any Liens securing the repayment of money except for those
securing the repayment of (x) the First Mortgage Debt, as set forth in the
relevant schedules to the Solicitation Statement, as updated by Schedule
6.18.2(ii), (y) the Other Second Mortgage Debt, as set forth in the
relevant schedules to the Solicitation Statement, as updated by Schedule
6.18.2(ii), or (z) the Securitized Notes, as set forth in the relevant
schedules to the Solicitation Statement, as updated by Schedule
6.18.2(ii); and (iii) except as set forth in the relevant schedules to the
Solicitation Statement, as updated by Schedule 6.18.2(iii), each land
estate remainderman interest and lessor interest under a Ground Lease is
not, directly or indirectly, owned or controlled by a Loan Party, Borrower
Subsidiary or Xxxxxxx Group Entity;
6.18.3 Except to the extent the failure of the following to be true
would not result in a Material Adverse Effect, (i) to the best of the
Borrower's Knowledge, each Individual Property is free of any Hazardous
Materials in violation of any Environmental Laws applicable to such
property; (ii) none of the Net Lease Partnerships or Borrower has received
any notice of a claim under or pursuant to any Environmental Laws
applicable to an Individual Property or under common law pertaining to
Hazardous Materials on or originating from any Individual Property; and
(iii) none of the Net Lease Partnerships or Borrower has received any
notice from any Governmental Authority claiming any material violation of
any Environmental Laws that is uncured or unremediated as of the date
hereof;
6.18.4 The mortgages and deeds of trust encumbering the Individual
Properties of any Net Lease Partnerships are not cross-defaulted or
cross-collateralized to any Individual Property owned by any other Net
Lease Partnerships.
6.18.5 Except to the extent the failure of the following to be true
would not result in a Material Adverse Effect, (i) with respect to the
Individual Properties, each Lease is in full force and effect, (ii) except
as set forth in Schedule 6.18.5(i), to the best of the Borrower's
Knowledge, none of the Net Lease Partnerships is in default in the
performance of any material obligation under any Lease and the Borrower
has no Knowledge of any circumstances which, with the passage of time or
the giving of notice, or both, would constitute an event of default by any
party under any of the Leases, (iii) except as set forth in Schedule
6.18.5(ii), to the best of the Borrower's Knowledge, no tenant is in
monetary default beyond 30 days or material nonmonetary default under its
Lease, (iv) except as otherwise expressly set forth in Schedule
6.18.5(iii), to the best of the Borrower's Knowledge, there are no
actions, voluntary or involuntary, pending against any tenant under a
Lease under any bankruptcy or insolvency laws, (v) none of the Leases and
none of the rents or other amounts payable thereunder has been assigned,
pledged or encumbered by any of the Net Lease Partnerships or any other
Person, except in connection with financing secured by the applicable
Individual Property, (vi) the basic terms and conditions of each Lease are
set forth in the Schedules annexed to the Solicitation Statement, as
updated by Schedule 6.18.5(iv) (the foregoing schedule, as updated from
time to time as provided herein, being referred to herein as the "Lease
Schedule"), and (vii) each Master Lease which was entered into, or
assumed, by any Net Lease Partnership has merged into the applicable
Sublease by operation of law, such that the tenant as to which the credit
rating is provided, is obligated directly to the applicable Net Lease
Partnership under the Lease for the payment of the rent due under the
Lease.
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6.18.6 Except to the extent the failure of the following to be true
would not result in a Material Adverse Effect, (i) each Ground Lease is
valid, binding and in full force and effect as against the applicable Net
Lease Partnerships and, to the best of the Borrower's Knowledge, the other
party thereto, (ii) except for tenants under the Leases and except in
connection with security relating to the Mortgage Debt, none of the Ground
Leases is subject to any pledge, lien, assignment, license or other
agreement granting to any third party any interest therein or any right to
the use or occupancy of any premises leased thereunder, (iii) no payments
under any Ground Lease are delinquent and no notice of default thereunder
has been sent or received by any Loan Party which has not been cured or
waived prior to the date hereof, and to the best of the Borrower's
Knowledge, there does not exist under any of the Ground Leases any default
by any Net Lease Partnerships or any event which merely with notice or
lapse of time or both, would constitute such a default by any of the Net
Lease Partnerships, and (iv) the basic terms and conditions of each Ground
Lease are set forth in the Schedules annexed to the Solicitation
Statement, as updated by Schedule 6.18.6 and Schedule 2.6, including,
without limitation, all such Ground Lease Extension Options (x) which have
been exercised as of the Closing Date and (y) as to which the final date
to exercise such Ground Lease Extension Option is within the next twelve
(12) months (including all applicable dates by which notices must be
provided in connection with the exercise of same) (the foregoing schedule,
as updated from time to time as provided herein, being referred to as the
"Ground Lease Extension Option Schedule").
6.18.7 Except to the extent the failure of the following to be true
would not result in a Material Adverse Effect, (i) each Ownership Interest
Agreement relating to a Remainder Ground Lease Option is valid, binding
and in full force and effect as against the applicable Net Lease
Partnerships and, to the best of the Borrower's Knowledge, the other party
thereto, (ii) except for tenants under the Leases and except in connection
with security relating to the Mortgage Debt, none of the Remainder Ground
Lease Options is subject to any pledge, lien, assignment, license or other
agreement granting to any third party any interest therein or any right to
the use or occupancy of any premises leased thereunder, (iii) no payments
under any Ownership Interest Agreement relating to a Remainder Ground
Lease Option are delinquent and no notice of default thereunder has been
sent or received by any Loan Party which has not been cured or waived
prior to the date hereof, and to the best of the Borrower's Knowledge,
there does not exist under any of the Ownership Interest Agreements
relating to the Remainder Ground Lease Options any default by any Net
Lease Partnerships or any event which merely with notice or lapse of time
or both, would constitute such a default by any of the Net Lease
Partnerships, and (iv) the basic terms and conditions of each Remainder
Ground Lease Option are set forth in the Schedules annexed to the
Solicitation Statement, as updated by Schedule 6.18.7 and Schedule 2.6,
including, without limitation, all such Remainder Ground Lease Options (x)
which have been exercised as of the Closing Date and (y) as to which the
final date to exercise such Remainder Ground Lease Option is within the
next twelve (12) months (including all applicable dates by which notices
must be provided in connection with the exercise of same) (the foregoing
schedule, as updated from time to time as provided herein, being referred
to as the "Remainder Ground Lease Option Schedule").
6.18.8 The Schedules to the Solicitation Statement, as updated by
Schedule 6.18.2(ii), accurately detail in all material respects the
approximate amount, term, and interest rate applicable to all Mortgage
Debt (with respect to the Grantor Trust T-1 Certificate, the holders of
all certificates with respect thereto) encumbering the Individual
Properties (the foregoing schedule, as updated from time to time as
provided herein, the "Mortgage Debt Schedule"). No notice of default
thereunder has been sent or received by any Loan Party which has not been
cured or waived prior to the date hereof, and to the best of the
Borrower's Knowledge, there does not exist with respect to any Mortgage
Debt any
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default by any Net Lease Partnerships or any event which merely with
notice or lapse of time or both, would constitute such a default by any of
the Net Lease Partnerships. Except for ownership of the E Certificate
Representing First Mortgage Interest (in the GMAC Mortgage Loan), the F
Certificate Representing First Mortgage Interest (in the GMAC Mortgage
Loan), the G Certificate Representing First Mortgage Interest (in the GMAC
Mortgage Loan), the Grantor Trust T-2 Certificate, the Class R Certificate
and the Affiliated T-1 Interests, neither the Borrower, any Loan Party,
any Borrower Subsidiary, nor any Xxxxxxx Group Entity owns, directly or
indirectly, any material interest in any Mortgage Debt.
6.18.9 Each of the Net Lease Partnerships is a partnership for
federal income tax purposes and does not constitute a publicly traded
partnership within the meaning of Section 7704 of the Code.
6.18.10 Each of the Net Lease Partnerships possesses valid owner's
policy title insurance from title insurers of recognized financial
responsibility on each of the Individual Properties in amounts not less
than the original purchase price of such properties, and such title
insurance is in full force and effect.
6.18.11 Except as set forth in Schedule 6.18.11, as to any of the
Individual Properties, there is not pending the exercise of any Economic
Discontinuance Rights by any tenants.
6.19 Use of Proceeds. The proceeds of the Loan shall be used solely and
exclusively as provided in Section 1.4. No portion of the proceeds of the Loan
shall be used by the Borrower directly or indirectly, and whether immediately,
incidentally or ultimately (i) to purchase or carry any margin stock or to
extend credit to others for the purpose thereof or to repay or refund
indebtedness previously incurred for such purpose, or (ii) for any purpose which
would violate or in inconsistent with the provisions of regulations of the Board
of Governors of the Federal Reserve System including, without limitation,
Regulations G, T, U and X thereof.
6.20 Insurance. Except to the extent the failure of the following to be
true would not result in a Material Adverse Effect, (i) to the best of the
Borrower's Knowledge, the Individual Properties are insured by insurers of
recognized financial responsibility against such losses and risks in compliance
with the requirements of the Leases and as set forth in Exhibit E, hereto, such
insurance maintained by the tenants under the Leases; (ii) the Borrower has a
monitoring system in place to periodically verify whether the tenants under the
Leases have in place insurance as required by the applicable Lease; and (iii)
the Borrower has satisfactory liability insurance in favor of the Borrower and
each of the Borrower Subsidiaries in compliance with the requirements of the
Agent in effect on the date hereof.
6.21 Deferred Compensation and ERISA. Neither the Borrower nor any
Borrower Subsidiary has any pension, profit sharing, stock option, insurance or
other arrangement or Plan for employees covered by ERISA except as may be
designated to Agent in writing by Borrower from time to time and no Reportable
Event has occurred and is now continuing with respect to any such ERISA Plan.
The granting of the Loan, the performance by Borrower, the Borrower
Subsidiaries, and/or any of the Non-Participating Limited Partnerships or any of
the Partially Owned Limited Partnerships of their respective obligations under
the Loan Documents and such Persons' conducting of their respective operations
do not and will not violate any provisions of ERISA.
6.22 No Default. There is no Default on the part of Borrower or any of the
other Loan Parties under this Agreement or any of the other Loan Documents and
no event has occurred and is continuing which would constitute a Default under
any Loan Document.
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6.23 Xxxxxxx Loans. NK-Cenland Loan, L.P. is the holder of the Cenland
Loan, Xxxxxxx Xxxxx LLC is the holder of the Administrator LLC Loan,
NK-Leasehold II LLC is the holder of the NK Leasehold Second Mortgage Loan,
NK-Leyden Loan, L.P. is the holder of the Leyden Note and NK-Dautec Loan, L.P.
is the holder of the Dautec Note. Schedule 6.23 accurately details the
approximate amount, term, and interest rate applicable to each of the Xxxxxxx
Loans. To the best of the Borrower's Knowledge, there does not exist with
respect to any such loan any default by any obligor thereunder or any event
which merely with notice or lapse of time or both, would constitute such a
default by any obligor under any Xxxxxxx Loan.
6.24 Integrated Documents. (i) True and correct copies of the Integrated
Documents have been delivered to the Agent, each of which is in full force and
effect; (ii) Schedule 6.24 sets forth the only Collateral as to which a pledge
has been granted to the Integrated Group to secure the Integrated Obligations;
(iii) to the best of the Borrower's Knowledge, there does not exist with respect
to the Integrated Obligations any default by any obligor thereunder or any event
which merely with notice or lapse of time or both, would constitute such a
default by any obligor thereunder; (iv) no notice of default thereunder,
indemnification claim, or claim for payment of any amount due thereunder has
been received by any Loan Party or any Xxxxxxx Group Entity; or threatened by,
or on behalf of, the Integrated Group, (v) the Borrower has no Knowledge of any
event which could lead to any such default, indemnification claim or claim, and
(vi) neither the Borrower nor any Borrower Subsidiary is obligated for the
repayment of the Integrated Obligations, other than Xxxxxxx XX LLC, Xxxxxxx
Capital LLC, and Xxxxxxx Xxxxx LLC.
6.25 Related Documents. To the extent not provided for otherwise in this
Article 6, true and correct copies of all other Related Documents have been
delivered to the Agent, each of which is in full force and effect and no
material default has occurred thereunder.
6.26 Repayment of Capital Trust Loan. The obligations of NK-CR Holdings
LLC to Capital Trust under those certain loan documents dated as of August 7,
1998 shall be repaid in full and all liens granted to Capital Trust in
connection therewith shall be released.
6.27 Other Loan Parties' Warranties and Representations. Borrower has no
reason to believe that any warranties or representations made in writing by any
of the Loan Parties to the Agent or any of the Lenders are untrue, incomplete or
misleading in any material respect.
7. AFFIRMATIVE COVENANTS. Borrower covenants and agrees that from the date
hereof and so long as any indebtedness is outstanding hereunder, or any of the
Loan or other Obligations remains outstanding, as follows: 7.1 Notices. Borrower
shall, with reasonable promptness, but in all events within five (5) days after
it has actual Knowledge thereof, notify Agent and each of the Lenders in writing
of the occurrence of any act, event or condition which constitutes a Default or
Event of Default under any of the Loan Documents. Such notification shall
include a written statement of any remedial or curative actions which Borrower
proposes to undertake and/or to cause any of the other Loan Parties to undertake
to cure or remedy such Default or Event of Default.
7.2 Financial Statements; Reports; Officer's Certificates. Borrower shall
furnish or cause to be furnished to Agent as set forth herein from time to time,
the following financial statements, reports, certificates, and other
information, all in form, manner of presentation and substance acceptable to
Agent and each of the Lenders:
7.2.1 Annual Statements.
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(i) Within ninety (90) days after the close of each fiscal
year of the Borrower, the consolidated statements of financial
condition of the Borrower and all non-consolidated Borrower
Subsidiaries as at the end of such fiscal year and the related
consolidated statements of income and retained earnings and
statements of changes in financial position for such fiscal year, in
each case, commencing with the Fiscal Year ending December 31, 2002,
setting forth comparative figures (commencing with the financial
statement for the Fiscal Year ending December 31, 2003) for the
preceding fiscal year and certified by Imowitz, Xxxxxx & Co. LLP or
other independent certified public accountants of recognized
national standing reasonably acceptable to the Agent, in each case
together with a report of such accounting firm stating that in the
course of its regular audit of the financial statements of such
Party, which audit was conducted in accordance with GAAP,
consistently applied, such accounting firm obtained no knowledge of
any Default or Event of Default which has occurred and is continuing
or, if in the opinion of such accounting firm such a Default or
Event of Default has occurred and is continuing, a statement as to
the nature thereof; such financial statements to include and to be
supplemented by such detail and supporting data and schedules as
Agent may from time to time reasonably determine;
(ii) Within ninety (90) days after the close of each fiscal
year of the Borrower, the statements of financial condition of each
Borrower Subsidiary as at the end of such fiscal year and the
related statements of income and retained earnings and statements of
changes in financial position for such fiscal year, in each case,
commencing with the Fiscal Year ending December 31, 2002, setting
forth comparative figures for the preceding fiscal year, internally
prepared in accordance with GAAP, all in form and manner of
presentation acceptable to Agent, such financial statements to
include and to be supplemented by such detail and supporting data
and schedules as Agent may from time to time reasonably determine,
together with an Officer's Certificate from the Borrower certifying
that such financial statements are true, accurate, and complete in
all material respects and that no Default or Event of Default has
occurred and is continuing.
7.2.2 Periodic Statements Within sixty (60) days after the close of
each calendar quarter (except for the quarter ending on December 31), the
following: (i) the consolidated statements of financial condition of the
Borrower and all non-consolidated Borrower Subsidiaries, internally
prepared in accordance with GAAP, consistently applied, as at the end of
such quarterly period and the related consolidated statements of income
and retained earnings and statements of changes in financial position for
such quarterly period and for the elapsed portion of the Fiscal Year ended
with the last day of such quarterly period, in each case commencing with
the Fiscal Year ending December 31, 2002, setting forth comparative
figures (commencing with the financial statements for the Fiscal Year
ending December 31, 2003) for the related periods in the prior fiscal
year, subject to normal year-end audit adjustments, all in form and manner
of presentation acceptable to Agent, such financial statements to include
and to be supplemented by such detail and supporting data and schedules as
Agent may from time to time reasonably determine, (ii) an Officer's
Certificate from the Borrower certifying that such financial statements
are true, accurate, and complete in all material respects and that no
Default or Event of Default has occurred and is continuing, and (iii) an
updated Cash Flow Projection specifically identifying, without limitation,
(a) any changes to the Cash Flow Projections provided in the then prior
Officer's Certificate and (b) any Distributions by the Borrower
Subsidiaries projected during the next one-hundred and eighty (180) days.
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7.2.3 Compliance Certificates. Within sixty (60) days (or ninety
(90) days in the case of the fourth fiscal quarter) after the close of
each quarterly accounting period in each Fiscal Year of the Borrower, a
Compliance Certificate in form of Exhibit G, annexed hereto, together with
an Officer's Certificate from the Borrower providing and otherwise
certifying with respect to the following:
(i) the compliance by the Borrower with the Financial
Covenants, with such supporting detail as is deemed necessary by the
Agent to verify the calculations incorporated therein;
(ii) any changes to the Lease Schedule, including, without
limitation, specific identification of (a) any Leases which will
expire within one (1) calendar year from the date of the respective
Officer's Certificate and the applicable dates and conditions by and
upon which such term may be extended, (b) any material defaults then
existing under any Lease of which the Borrower has Knowledge not
included in a prior Officer's Certificate or Lease Schedule, (c) any
Leases as to which the term thereof has expired since the date of
the then prior Officer's Certificate, without the extension thereof,
of which the Borrower has Knowledge, (d) any Leases as to which the
tenant has vacated the subject premises since the date of the then
prior Officer's Certificate, of which the Borrower has Knowledge,
(e) any Leases or commitments to lease entered into since the date
of the then prior Officer's Certificate, and (f) an updated summary
of any pending exercise by any tenant under a Lease of Economic
Discontinuance Rights from the date of the then prior Officer's
Certificate, including, without limitation, (i) the identity of the
subject Individual Property, (ii) the date by which the relevant Net
Lease Partnership must reject the Rejectable Offer, and (iii) the
current calculation of the applicable Rejection Test with such
supporting detail as is deemed necessary by the Agent to verify the
calculations incorporated therein;
(iii) any changes to the Ground Lease Extension Option
Schedule, including, without limitation, (a) specific identification
of all Ground Lease Extension Options (i) which have been exercised
since the date of the then prior Officer's Certificate, and (ii) as
to which the final date for exercising such Ground Lease Extension
Option is within the twelve (12) months following the date of the
Officer's Certificate (including all applicable dates by which
notices must be provided in connection with the exercise of same),
and (b) any defaults then existing under any Ground Lease not
included in a prior Officer's Certificate or Ground Lease Extension
Option Schedule;
(iv) any changes to the Remainder Ground Lease Options
Schedule, including, without limitation, (a) specific identification
of all Remainder Ground Lease Options (i) which have been exercised
since the date of then prior Officer's Certificate and (ii) as to
which the final date for exercising such remainder Ground Lease
Option is within the twelve (12) months following the date of the
Officer's Certificate (including all applicable dates by which
notices must be provided in connection with the exercise of same),
(b) any defaults then existing under any Ownership Interest
Agreement relating to a Remainder Ground Lease Option not included
in a prior Officer's Certificate or Remainder Ground Lease Option
Schedule, and (c) a listing of any remainderman interests or ground
lessor interests in Ground Leases (i) acquired by the Borrower, a
Borrower Subsidiary, or a Xxxxxxx Group Entity since the date of the
then prior Officer's Certificate, together with specific detail as
to the nature of the interest acquired and the Person to whom the
interest was transferred, and (ii) as to which an agreement has been
entered into since the date of the then prior Officer's Certificate
for the acquisition thereof by the
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Borrower, a Borrower Subsidiary, or a Xxxxxxx Group Entity, together
with the primary terms of such agreement;
(v) any changes to the Mortgage Debt Schedule, including,
without limitation, (a) any prepayments made on any Mortgage Debt
since the date of the then prior Officer's Certificate, (b) specific
identification of all Mortgage Debt which matures within the twelve
(12) months following the date of the Officer's Certificate, (c) any
refinancing of such Mortgage Debt which has occurred (or for which
an application has been made or a loan commitment received) since
the date of the then prior Officer's Certificate, together with a
summary of the use and disbursement of the proceeds thereof, (d) any
defaults then existing under any Mortgage Debt not included in a
prior Officer's Certificate or Mortgage Debt Schedule, and (e) the
current calculation of the Mortgage Debt Test with such supporting
detail as is deemed necessary by the Agent to verify the
calculations incorporated therein;
(vi) a listing of any Individual Properties (a) sold by the
applicable Net Lease Partnership since the date of the then prior
Officer's Certificate, together with specific detail as to the use
and disbursement of the proceeds of the sale, and (b) as to which an
agreement has been entered into since the date of the then prior
Officer's Certificate for the sale thereof, together with the
primary terms of such agreement;
(vii) a listing of any material assets acquired, or as to
which an agreement to acquire has been entered into, by the
Borrower, any Borrower Subsidiary or any Loan Party (except the
Excepted Loan Parties) since the date of the then prior Officer's
Certificate, together with the primary terms of such acquisition or
agreement;
(viii) any changes to Schedule 6.23 including, without
limitation, (a) any payments made on account of the Xxxxxxx Loans
since the date of the then prior Officer's Certificate and (b) any
defaults then existing under any Xxxxxxx Loans not included in a
prior Officer's Certificate or Schedule 6.23;
(ix) a listing of any Non-Participating Limited Partnerships
as to which consent has been obtained since the date of the then
prior Officer's Certificate from a sufficient percentage of the
limited partners thereof to merge such Non-Participating Limited
Partnership into a Participating Limited Partnership;
(x) except as disclosed in such Officer's Certificate, to the
extent of the knowledge of such officer, a certification that all
insurance premiums in respect of insurance policies covering the
properties owned (directly or indirectly) by the Net Lease
Partnerships have been paid or are not past due more than sixty (60)
days, all debt service payments in respect of any Mortgage Debt of
any Net Lease Partnership have been made and all real estate taxes
and other impositions relating to any Net Lease Partnership or its
related assets have been paid; and
(xi) a summary of the status of any pending insurance claims
or condemnation award proceedings.
7.2.4 Data Requested. Within a reasonable period of time and from
time to time such other financial data or information as Agent may
reasonably request with respect to the Individual Properties, the
Exchange, the Borrower, any other Borrower Subsidiary, and/or the other
Loan Parties (except the Excepted Loan Parties), including, but not
limited to, rent
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rolls, aged receivables, aged payables, leases, budgets, forecasts,
reserves, cash flow projections, deposit accounts, mortgage information,
physical condition of the Individual Properties and pending lease
proposals.
7.2.5 Tax Returns. Upon Agent's request, copies of all federal and
state tax returns of the Borrower and, to the extent prepared and filed,
the other Borrower Subsidiaries.
7.2.6 Lease Notices. Concurrently with the giving thereof, and
within ten (10) Business Days of receipt thereof, copies of all notices,
other than routine correspondence, given or received by the Borrower, any
Net Lease Partnership or other Borrower Subsidiary with respect to any
Lease.
7.2.7 Mortgage Notices. Concurrently with the giving thereof, and
within ten (10) Business Days of receipt thereof, copies of all notices,
other than routine correspondence, given or received by the Borrower, any
Net Lease Partnership, or other Borrower Subsidiary with respect to any
Mortgage Debt.
7.2.8 Ground Lessor/Remainder Interest Notices. Concurrently with
the giving thereof, and within ten (10) Business Days of receipt thereof,
copies of all notices, other than routine correspondence, given or
received by the Borrower, any Net Lease Partnership or other Borrower
Subsidiary (including, without limitation, NK-Remainder Interest LLC) with
respect to any Ownership Interest Agreement, Ground Lease Extension
Option, and/or Remainder Ground Lease Option.
7.2.9 Entity Notices. Concurrently with the issuance thereof, copies
of all written notices (excluding routine correspondence) given to the
partners, owners, stockholders, and/or members, respectively, of the
Borrower and/or the Non-Participating Limited Partnerships and/or any
Partially Owned Limited Partnerships.
7.2.10 Notice of Distributions. Concurrently with the giving
thereof, and within ten (10) Business Days of receipt thereof, copies of
all notices of Distributions to the extent given by any Borrower
Subsidiaries to the Borrower. The Borrower shall provide the Agent with
immediate written notice in the event that Borrower or any Borrower
Subsidiaries determines (or reasonably should be able to determine) that
the Cash Flow Projections are no longer accurate and could reasonably be
expected to have a Material Adverse Effect.
7.2.11 Property Acquisition or Sale. Within ten (10) Business Days
of receipt thereof, copies of all proposed contracts, agreements, or
offers in any way relating to a proposed sale or acquisition of any
material asset by the Borrower or any Borrower Subsidiary.
7.2.12 Notices Regarding Payment Direction Letters. Within ten (10)
Business Days of receipt thereof, copies of all notices (excluding routine
correspondence) received by the Borrower, any Borrower Subsidiary or any
other Loan Party (except the Xxxxxxx Indemnitor and the MLP Holders) from
any Paying Agent or any other Person who has agreed to the direction of
the payment of funds as provided for in a Payment Direction Letter.
7.2.13 Notice of Termination of Payment Direction Letter. Promptly,
and in any event within ten (10) Business Days after an officer of the
Borrower obtains Knowledge thereof, written notice of the termination of
any Payment Direction Letter, together with
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evidence of the satisfactory reinstatement or replacement thereof in
accordance with the terms and conditions hereof.
7.2.14 Notices under Securitization Documents. Within ten (10)
Business Days of receipt thereof, copies of all notices received by the
Borrower, any other Borrower Subsidiary or any other Loan Party (except
the Xxxxxxx Indemnitor and the MLP Holders) from any agent, trustee or
servicer under the Securitization Documents, including, without
limitation, any notice to the holder of the Grantor Trust T-2 Certificate
as to the request that such holder exercise any direction, consent or
approval rights in such holder's favor as provided for in the
Securitization Documents.
7.2.15 Notices and Reports re: Integrated Group.
(i) Within ten (10) Business Days of receipt thereof, copies
of all notices received by the Borrower, any other Borrower
Subsidiary or any other Xxxxxxx Group Entity with respect to a
default under the Integrated Documents, a claim for indemnification
or other payment thereunder, or other non-performance and/or
exercise (or intended exercise) of the rights of the Integrated
Group thereunder.
(ii) Immediately upon the forwarding of any reports required
under the Integrated Documents to the Integrated Group, copies of
any such reports.
(iii) Immediately after the Borrower obtains Knowledge
thereof, notice of (a) the release of any collateral held by the
Integrated Group to secure the Integrated Obligations, or (b) the
termination of the "Non-Transfer Period" as set forth in the
Integrated Documents.
7.2.16 Third Party Default Notices. Immediately upon notice or
receipt thereof by the Borrower, the Loan Parties (except the Excepted
Loan Parties), and/or the Borrower Subsidiaries, copies of all notices of
default, other non-performance, and/or exercise (or intended exercise)
relating in any way to any one or more of the Related Documents.
7.2.17 Notice of Litigation. Promptly, and in any event within ten
(10) Business Days after Borrower obtains Knowledge thereof, written
notice of any pending or, to the best of the Borrower's Knowledge,
threatened action, suit or proceeding at law or in equity or by or before
any governmental instrumentality or other agency or regulatory authority
by any entity (private or governmental) relating in any way to the
Exchange, the Loan, the transactions contemplated in the Loan Documents
(including, without limitation, with regard to all Distributions), the
Related Documents, or the transactions contemplated in the Exchange
Documents or any documentation executed in connection therewith, or
relating to the Borrower, any other Loan Party, or any other Borrower
Subsidiary, which could reasonably be expected to have a Material Adverse
Effect.
7.2.18 Notice of Hazardous Materials Promptly, and in any event
within ten (10) Business Days after Borrower obtains Knowledge thereof,
written notice of (i) any Release (as defined in the Environmental
Indemnity) or Threat of Release (as defined in the Environmental
Indemnity) of Hazardous Materials on, in, under or affecting all or any
portion of any Individual Property or (ii) the violation of any
Environmental Law, in each case which could reasonably be expected to have
a Material Adverse Effect.
7.3 Existence. Borrower shall do or cause to be done all things necessary
to (i) preserve, renew and keep in full force and effect (x) the partnership,
company or corporate existence, as
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applicable, of each Borrower Subsidiary and (y) the material rights, licenses,
permits and franchises of each Borrower Subsidiary, (ii) comply with all laws
and other Legal Requirements applicable to it and its assets, business and
operations, and (iii) to the extent applicable, at all times maintain, preserve
and protect all material franchises and trade names and all the remainder of its
property used or useful in the conduct of its business, and keep its assets in
good working order and repair, ordinary wear and tear excepted, and from time to
time make, or cause to be made, all reasonably necessary repairs, renewals,
replacements, betterments and improvements thereto.
7.4 Payment of Taxes. Borrower shall duly pay and discharge, and cause
each Borrower Subsidiary, Non-Participating Limited Partnership, or Partially
Owned Limited Partnership to duly pay and discharge, before the same shall
become overdue, all taxes, assessments, impositions, and other governmental
charges payable by it or with respect to the Individual Properties, to the
extent that same are not paid by the tenants under the respective Leases, except
if contested in accordance with Section 9.1.
7.5 Insurance; Casualty, Taking.
7.5.1 Borrower shall at all times maintain or cause the appropriate
Person to maintain in full force and effect the following insurance: (i)
to the best of the Borrower's Knowledge, the Individual Properties shall
be insured by insurers of recognized financial responsibility against such
losses and risks in compliance with the Leases and the requirements set
forth in Exhibit E hereto, such insurance maintained by the tenants under
the Leases; (ii) the Borrower shall have a monitoring system in place to
periodically verify whether the tenants under the Leases have in place
insurance as required by the applicable Lease; and (iii) the Borrower
shall have satisfactory liability insurance in favor of the Borrower and
each of the Borrower Subsidiaries in compliance with the requirements in
effect of the date hereof.
7.5.2 In the event of any damage or destruction to any Individual
Property (or to the extent now or hereafter applicable, any Collateral) by
reason of fire or other hazard or casualty, Borrower shall give immediate
written notice thereof to Agent. If there is any condemnation for public
use of any Individual Property (or to the extent now or hereafter
applicable, any Collateral), Borrower shall give immediate written notice
thereof to Agent. Further, Borrower shall upon the request of the Agent
provide to the Agent with a report as to the status of any insurance
adjustment, condemnation claim, or restoration resulting from any casualty
or taking.
7.6 Inspection. Borrower shall cause the Borrower Subsidiaries to permit
the Agent and the Lenders and its/their agents, representatives and employees to
inspect the Individual Properties and the Collateral at reasonable hours upon
reasonable notice, except to the extent prohibited or otherwise limited in the
subject Leases.
7.7 Loan Documents. Borrower (i) shall observe, perform and satisfy all
the terms, provisions, covenants and conditions to be performed by it under, and
to pay when due all costs, fees and expenses, and other Obligations of the
Borrower to the extent required under, the Loan Documents and (ii) shall cause
the other Borrower Subsidiaries to observe, perform and satisfy all the terms,
provisions, covenants and conditions to be performed by such Person under, and
to pay when due all costs, fees and expenses, and other Obligations to the
extent required under, the Loan Documents.
7.8 Further Assurances. Borrower shall and shall cause the Borrower
Subsidiaries to execute and deliver to the Agent and the other Lenders such
documents, instruments, certificates, assignments and other writings, and do
such other acts, necessary or desirable in the reasonable
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judgment of the Agent, to evidence, preserve and/or protect the Collateral at
any time securing or intended to secure the Obligations and do and execute all
and such further lawful acts, conveyances and assurances as the Agent may
reasonably require for the better and more effective carrying out of the intents
and purposes of this Agreement and the other Loan Documents.
7.9 Books and Records. Borrower shall and shall cause the Borrower
Subsidiaries to keep and maintain in accordance with GAAP (or such other
accounting basis reasonably acceptable to the Agent), proper and accurate books,
records and accounts reflecting all of the financial affairs of the Borrower and
such other Persons and all items of income and expense in connection with their
respective business and operations and in connection with any services,
equipment or furnishings provided in connection with the operation of the
business of the Borrower and such Persons, whether such income or expense is
realized thereby or by any other Person. The Agent shall have the right, not
more than once each quarter (unless an Event of Default shall have occurred and
be continuing in which case as often as the Agent shall determine), during
normal business hours and upon reasonable notice, to examine such books, records
and accounts of the Borrower and the Borrower Subsidiaries at the office of the
Person maintaining such books, records, and accounts and to make such copies or
extracts thereof as the Agent shall desire. Borrower shall maintain all of its
business records at the address specified at the beginning of this Agreement,
subject to change upon advance written notification to the Agent. The Agent may
discuss the financial and other affairs of the Borrower, the Borrower
Subsidiaries, Non-Participating Limited Partnerships, and Partially Owned
Limited Partnerships with any of their respective partners, owners, and any
accountants (as to accountants, prior to the occurrence of an Event of Default
and following the cure of any Event of Default, upon prior approval of the
Borrower, not to be unreasonably withheld, and at the cost and expense of the
Agent and the Lenders) hired by Borrower, it being agreed that Agent and each of
the Lenders shall use best efforts to not divulge information obtained from such
examination to others except in connection with Legal Requirements and in
connection with administering the Loan, enforcing its rights and remedies under
the Loan Documents and in the conduct, operation and regulation of its banking
and lending business (which may include, without limitation, the transfer of the
Loan or of participation interests therein). Any assignee or transferee of the
Loan, co-lender, or any holder of a participation interest in the Loan shall be
entitled to deal with such information in the same manner and in connection with
any subsequent transfer of its interest in the Loan or of further participation
interests therein.
7.10 Business and Operations. Borrower shall (and shall cause the Borrower
Subsidiaries to) (i) continue to engage in the type of businesses presently
conducted by them as of the Closing Date, respectively, as and to the extent the
same are necessary for the ownership of, and preservation of the value and
utility of, the Collateral and the Individual Properties, and (ii) be qualified
to do business and in good standing under the laws of each jurisdiction, and
otherwise to comply with all Legal Requirements, as and to the extent the same
are required for the ownership, maintenance, management and operation of the
assets of such Person except where the failure to be so qualified could not
reasonably be expected to have a Material Adverse Effect.
7.11 Title. Borrower shall and shall cause the Borrower Subsidiaries to
warrant and defend (x) the title to each item of Collateral owned by such Person
and every part thereof, subject only to the Liens (if any) permitted hereunder,
(y) the validity and priority of the Liens and security interests held by the
Agent pursuant to the Loan Documents, in each case against the claims of all
Persons whomsoever, and (z) the title to and in the Individual Properties,
subject only to the Mortgage Debt. Borrower shall be responsible, jointly and
severally, to reimburse Agent and the Lenders for any losses, costs, damages or
expenses (including reasonable attorneys' fees and court costs) incurred by the
Agent and/or any of the Lenders if an interest in any item of Collateral, other
than as permitted hereunder, is claimed by another Person.
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7.12 Estoppel. Borrower shall (and shall cause the Borrower Subsidiaries
to), within ten (10) days after a request therefor from the Agent, which request
shall not be made by Agent more than once each quarter during each Fiscal Year,
furnish to the Agent a statement, duly acknowledged and certified, setting forth
(i) the amount then owing by Borrower in respect of the Obligations, (ii) the
date through which interest on the Loan has been paid, (iii) any offsets,
counterclaims, credits or defenses to the payment by the Borrower or any
Borrower Subsidiary to the Obligations and (iv) whether any written notice of
Default from Agent to the Borrower or any of the Borrower Subsidiaries is then
outstanding and acknowledging that this Agreement and the other Loan Documents
are in full force and effect and unmodified, or if modified, giving the
particulars of such modification.
7.13 ERISA. Borrower shall (and shall cause each of the Borrower
Subsidiaries to) as soon as possible and, in any event, within ten (10) days
after any Borrower, Borrower Subsidiary or any ERISA Affiliate knows or has
reason to know of the occurrence of any of the following which could have or
reasonably be expected to have a Material Adverse Effect, deliver to Agent a
certificate of the an executive officer of the Borrower setting forth details as
to such occurrence and the action, if any, that the applicable Borrower or
Borrower Subsidiary or such ERISA Affiliate is required or proposes to take,
together with any notices required or proposed to be given to or filed with or
by such Borrower, Borrower Subsidiary, the ERISA Affiliate, the PBGC, a Plan
participant or the Plan administrator with respect thereto: (i) that a
Reportable Event has occurred; (ii) that an accumulated funding deficiency has
been incurred or an application may be or has been made to the Secretary of the
Treasury for a waiver or modification of the minimum funding standard (including
any required installment payments) or an extension of any amortization period
under Section 412 of the Code with respect to a Plan; (iii) that a contribution
required to be made to a Plan has not been timely made; (iv) that a Plan has
been or may be terminated, reorganized, partitioned or declared insolvent under
Title IV of ERISA; (v) that a Plan has an Unfunded Current Liability giving rise
to a lien under ERISA or the Code; (vi) that proceedings may be or have been
instituted to terminate or appoint a trustee to administer a Plan; (vii) that a
proceeding has been instituted pursuant to Section 515 of ERISA to collect a
delinquent contribution to a Plan; (viii) that such Borrower, Borrower
Subsidiary, or ERISA Affiliate will or may incur any liability (including any
indirect, contingent, or secondary liability) to or on account of the
termination of or withdrawal from a Plan under Section 4062, 4063, 4064, 4069,
4201, 4204 or 4212 of ERISA or with respect to a Plan under Section 401(a)(29),
4971, 4975 or 4980 of the Code or Section 409 or 502(i) or 502(l) of ERISA; (ix)
or that such Borrower or Borrower Subsidiary may incur any material liability
pursuant to any employee welfare benefit plan (as defined in Section 3(l) of
ERISA) that provides benefits to retired employees or other former employees
(other than as required by Section 601 of ERISA) or any employee pension benefit
plan (as defined in Section 3(2) of ERISA). The Borrower shall (and shall cause
the Borrower Subsidiaries to) deliver to Agent a complete copy of the annual
report (Form 5500) of each Plan required to be filed with the Internal Revenue
Service. In addition to any certificates or notices delivered to Agent pursuant
to the first sentence hereof, copies of any material notices received by any
Borrower, a Borrower Subsidiary, or any ERISA Affiliate with respect to any Plan
shall be delivered to Agent no later than ten (10) days after the date such
report has been filed with the Internal Revenue Service or such notice has been
received by such Borrower or Borrower Subsidiary or ERISA Affiliate, as
applicable.
7.14 Depository Accounts. Borrower shall (and shall cause each of the
Borrower Subsidiaries and the other Loan Parties (except the Excepted Loan
Parties) to) (i) maintain all operating and other depository accounts, if any,
with Fleet National Bank (or any successor thereto) (singly and collectively,
including the Depository Accounts, the "Accounts"), such Accounts as of the date
hereof listed on Exhibit R, annexed hereto, unless otherwise agreed by Agent in
writing, except for the accounts maintained by any of the Borrower Subsidiaries
in connection with the GMAC Mortgage Loan, (ii) except for the Participating
Limited Partnership GP's, the Borrower GP, and Xxxxxxx MLP Corp., maintain a
minimum of one depository account for each such Person)
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with Fleet National Bank (or any successor thereto) (singly and collectively,
the "Depository Accounts"), unless otherwise agreed by Agent in writing, (iii)
except for the GMAC Borrowers, the Participating Limited Partnership GP's, the
Borrower GP, Xxxxxxx MLP Corp., and the other Loan Parties (which are not
Borrower Subsidiaries) execute and deliver such cash management agreements
(singly and collectively "Cash Management Agreements") as Agent shall deem
customary and appropriate to provide for terms and conditions satisfactory to
the Agent with respect to the use and disbursement of funds in any Account, and
(iv) with respect to the GMAC Borrowers, execute and deliver such Account
disbursement authorizations as the Agent shall deem customary and appropriate to
provide for the disbursement by the Agent of any funds in the Depository Account
in the name of any GMAC Borrower to the Depository Account in the name of the
Borrower after and during the continuance of any period in which the Borrower
fails to comply with the Cash Sweep Account Test or any Event of Default. Each
of the Accounts (except those in the name of any Participating Limited
Partnership, any Partially Owned Limited Partnership, Xxxxxxx Capital LLC, or
Xxxxxxx Asset Management LLC) shall be subject to the Pledge and Security
Agreement.
7.15 Cash Flow; Payment Direction Letters.
7.15.1 The Borrower agrees that appropriate procedures satisfactory
to the Agent will be put in place such that (i) any Distributions by any
Borrower Subsidiary payable to the Borrower shall be directly deposited in
the designated Depository Account in the name of the Borrower, (ii) any
Distributions or other revenues or payments payable to NK-CR Holdings LLC,
Holdings Subsidiary LLC, or T-2 Corp. on account of the Grantor Trust T-2
Certificate or the Class R Certificate shall be paid to, or as directed
by, the Agent, to be applied toward the repayment of the Obligations, and
(iii) except for the Non-Participating Limited Partnerships, the Partially
Owned Limited Partnerships, NK-Leyden Loan, L.P., or NK-Dautec Loan, L.P.,
any other Distributions or other revenues or payments received by the
Borrower or any Borrower Subsidiary or any other Loan Party (except the
Excepted Loan Parties) shall be directly deposited in a designated
Depository Account in the name of such Person (any such amounts payable to
any Participating Limited Partnership GP shall be deposited in the
Depository Account of MLP Manager Corp.).
7.15.2 Subject to the obligations of Borrower or any Borrower
Subsidiary under the Mortgage Debt and to the obligations of Xxxxxxx XX
LLC, Xxxxxxx Capital LLC and Xxxxxxx Xxxxx LLC under the Integrated
Documents, the Borrower agrees that appropriate procedures satisfactory to
the Agent will be put in place such that during any period in which the
Borrower fails to comply with the Cash Sweep Account Test, any
Distributions or other revenues or payments received by any Borrower
Subsidiary (other than NK-Leyden Loan, L.P. and NK-Dautec Loan, L.P.)
shall be directly deposited in a designated Depository Account in the name
of the Borrower. Further, during any period in which the Borrower fails to
comply with the Cash Sweep Account Test, withdrawals shall be permitted
from such Depository Accounts only for the purpose of (i) Distributions by
any Borrower Subsidiary pursuant to the terms of Section 7.16, hereof or
(ii) payment of such costs and other obligations in accordance with the
Cash Management Agreement.
7.15.3 The Borrower agrees that appropriate procedures satisfactory
to the Agent will be put in place such that after the occurrence and
during the continuance of an Event of Default, subject to any limitations
provided for with respect to any Mortgage Debt or the Integrated Documents
(as to Xxxxxxx XX LLC, Xxxxxxx Capital LLC and Xxxxxxx Xxxxx LLC): (i) any
Distributions and other revenues due or payable to any Borrower Subsidiary
(except NK-Leyden Loan, L.P. or NK-Dautec Loan, L.P.) shall be paid
directly in to the designated Depository Account in the name of the
Borrower or as otherwise directed by the Agent, and (ii) any Distributions
by any Borrower Subsidiary payable to the Borrower shall
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be directly deposited in the designated Depository Account in the name of
the Borrower or as otherwise directed by the Agent. Further, subject to
any limitations provided for with respect to any Mortgage Debt or the
Integrated Documents (as to Xxxxxxx XX LLC, Xxxxxxx Capital LLC and
Xxxxxxx Xxxxx LLC), after the occurrence and during the continuance of an
Event of Default, Agent shall have the right to receive any and all such
Distributions or other revenues and make application thereof to the
Obligations.
7.15.4 The use and disbursement of all funds in the Depository
Accounts and the Accounts shall be subject to the terms and provisions
hereof and the Cash Management Agreement.
7.15.5 The Borrower agrees that to the extent that the Borrower, any
Borrower Subsidiary (except NK-Leyden Loan, L.P. or NK-Dautec Loan, L.P.)
or any other Loan Party (except the Excepted Loan Parties) receives
directly any Distributions or revenues or other payments which are
required to be deposited as provided for herein, the Borrower shall, and
shall cause any Borrower Subsidiary (except NK-Leyden Loan, L.P. or
NK-Dautec Loan, L.P.) or any other Loan Party (except the Excepted Loan
Parties) to, deposit such funds in the applicable designated Depository
Account.
7.15.6 Borrower shall (and shall cause the other Borrower
Subsidiaries (except NK-Leyden Loan, L.P. or NK-Dautec Loan, L.P.) and
Loan Parties (except the Excepted Loan Parties)) to maintain in place
during the term of the Loan such direction letters and agreements as the
Agent may from time to time require in order to effectuate the terms and
provisions hereof relating to the management of the cash flow of the
Borrower, the Borrower Subsidiaries (except NK-Leyden Loan, L.P. or
NK-Dautec Loan, L.P.) and the Loan Parties (except the Excepted Loan
Parties) (together with the Paying Agent Agreements and the Consents (to
the extent that the Consents provide for the management of cash flow), the
"Payment Direction Letters"), including, without limitation, and provided
that such Payment Direction Letters are consistent with Sections 7.15.1,
7.15.2, and 7.15.3, and the following:
(i) to each tenant under a Lease for any Individual Property
to pay rent, purchase prices, and any other amounts payable under
such Lease to the holder (or servicer) of the First Mortgage Debt
thereon;
(ii) for each Participating Limited Partnership, with each
holder (or servicer) of the First Mortgage Debt on any Individual
Property to pay excess proceeds after debt service to the applicable
(x) for each Individual Property which secures a Securitized Note,
the Paying Agent pursuant to the applicable Paying Agent Agreement
or (y) for any other Individual Property, to the designated
Depository Account in the name of the applicable Participating
Limited Partnership or, subject to the terms of Sections 7.15.1,
7.15.2, and 7.15.3, as otherwise may be directed by the Agent;
(iii) with each Paying Agent for any Individual Property to
pay amounts due under the applicable Securitized Note to the Grantor
Trust;
(iv) for each Participating Limited Partnership, with each
Paying Agent to pay amounts in excess of those required to be paid
to the Grantor Trust to a designated Depository Account in the name
of the applicable Participating Limited Partnership or, subject to
the terms of Sections 7.15.1, 7.15.2, and 7.15.3, as otherwise
directed by the Agent;
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(v) with each Borrower Subsidiary to pay any Distribution or
other amount due to the Borrower into a designated Depository
Account in the Borrower's name or, subject to the terms of Sections
7.15.1, 7.15.2, and 7.15.3, as otherwise directed by the Agent;
(vi) with the Grantor Trust to pay any payments to be made on
the Grantor Trust T-2 Certificate to, or as directed by, the Agent;
(vii) with the REMIC Trustee under the Pooling Agreement to
pay any payments to be made on the Class R Certificate to, or as
directed by, the Agent;
(viii) with the obligors with respect to the Cenland Loan, the
Administrator LLC Loan, the NK Leasehold Second Mortgage Loan, and
the Amended and Restated Asset Management Agreement, to pay any
amounts received with respect thereto into a designated Depository
Account in the name of the Borrower or the Borrower Subsidiary
entitled to the payment thereof, or, subject to the terms of
Sections 7.15.1, 7.15.2, and 7.15.3, as otherwise directed by the
Agent;
(ix) during any period in which the Borrower does not meet the
Cash Sweep Account Test, such additional Payment Direction Letters
so as to direct payment of all funds due, or Distributions payable,
to the Borrower and any Borrower Subsidiaries (except NK-Leyden
Loan, L.P. or NK-Dautec Loan, L.P.) into the designated Depository
Account in the name of the Borrower or, subject to the terms of
Sections 7.15.1, 7.15.2, and 7.15.3, as otherwise directed by the
Agent;
(x) after the occurrence and during the continuance of an
Event of Default, such additional Payment Direction Letters so as to
direct payment of all funds due, or Distributions payable, to the
Borrower and any Borrower Subsidiaries (except NK-Leyden Loan, L.P.
or NK-Dautec Loan, L.P.) into the designated Depository Account in
the name of the Borrower or, subject to the terms of Sections
7.15.1, 7.15.2, and 7.15.3, as otherwise directed by the Agent; and
(xi) such other Payment Direction Letters as Agent may direct
from time to time in accordance with the provisions of this
Agreement and the other Loan Documents.
7.15.7 The Borrower shall (and shall cause the other Loan Parties
(except the Excepted Loan Parties) and the Borrower Subsidiaries (except
NK-Leyden Loan, L.P. or NK-Dautec Loan, L.P.) to) keep in effect all
Payment Direction Letters, including, without limitation, any
replacements, substitutions, or renewals thereof as the Agent shall
reasonably deem appropriate from time to time.
7.15.8 Notwithstanding the terms and provisions hereof, the Agent
and the Borrower acknowledge and agree that with respect to any GMAC
Borrower and any Individual Property owned by a GMAC Borrower, (i) the
cash flow and lock-box arrangements established in connection with such
GMAC Mortgage Loan shall remain in effect, shall not be altered or
modified by the terms and provisions hereof, and shall supersede any
inconsistent or conflicting provision hereof or of any other Loan
Document, and (ii) to the extent that the Borrower has agreed to, or to
cause any such GMAC Borrower to, direct the payment of any revenues or
payments received by a GMAC Borrower, such agreement shall only relate to
such revenues or payments received by a GMAC Borrower after the release of
such funds from the lock-box arrangement established pursuant to the GMAC
Mortgage Loan.
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7.16 Distributions
7.16.1 Subject to the requirements set forth in clause (h)(xvi) of
the definition of "Single-Purpose Entity" contained herein, the Borrower
shall cause the Borrower Subsidiaries to make the maximum amount of all
Distributions to the Borrower at the earliest opportunity permitted under
the respective Formation Documents of each of the Borrower Subsidiaries,
but not less often than quarterly or within three (3) Business Days of the
receipt of any funds relating to a Mandatory Prepayment Event and shall
take all actions necessary (and as may be directed by the Agent) to
preserve and maintain the Distribution scheme provided for herein.
7.16.2 During any period in which the Borrower fails to comply with
the Cash Sweep Account Test or after the occurrence and during the
continuance of an Event of Default, the Borrower shall cause each Borrower
Subsidiary (except NK-Leyden Loan, L.P. or NK-Dautec Loan, L.P.) to pay as
a Distribution to the Borrower any and all funds and other amounts
available from time to time in the Depository Account of such Borrower
Subsidiary.
7.16.3 The Borrower shall cause the Borrower Subsidiaries to deposit
all Distributions made or payable to the Borrower in a designated
Depository Account in the name of the Borrower or, subject to the terms of
Section 7.15, as otherwise directed by the Agent.
7.17 Exercise of Ground Lease Extension Options and Remainder Ground Lease
Options. Borrower shall (and shall cause the Net Lease Partnerships, as
applicable, to) do the following with respect to the Ground Lease Extension
Options and the Remainder Ground Lease Options:
7.17.1 With respect to all Ground Lease Extension Options, unless
otherwise approved in writing by the Agent, the Borrower shall provide
evidence to the Agent of the due exercise of each and every Ground Lease
Extension Option at least thirty (30) days prior to the last date for such
exercise (being no less than ninety (90) days prior to the subject Ground
Lease term expiration date). In the event that the Borrower fails to
provide such evidence to the Agent in a timely fashion, the Agent shall be
authorized to exercise the rights provided for in the Escrow Agreement
Respecting Ground Lease Extensions and Lease Options with respect thereto.
7.17.2 With respect to all Remainder Ground Lease Options, unless
otherwise approved in writing by the Agent, the Borrower shall provide
evidence to the Agent of the due exercise of each and every Remainder
Ground Lease Option, together with the exercise of such options with
respect to the applicable proposed Ground Lease to establish an initial
term thereof which will expire no earlier than six (6) months after the
expiration of the Extended Term, at least thirty (30) days prior to the
last date for such exercise (being no less than ninety (90) days prior to
the termination of the subject land estate interest). In the event that
the Borrower fails to provide such evidence to the Agent in a timely
fashion, the Agent shall be authorized to exercise the rights provided for
in the Escrow Agreement Respecting Ground Lease Extensions and Lease
Options with respect thereto.
7.17.3 Borrower shall provide the Agent with all instruments,
documents, and agreements requested by the Agent with respect to foregoing
provisions of this Section 7.17.
7.18 Control Preservation. The Borrower shall or shall cause Xxxxxxx XX
LLC and any wholly-owned Subsidiary of Xxxxxxx XX LLC to (i) make all capital
contributions and expense
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reimbursements that such Persons may be required to make at any time and from
time to time under the terms of the operating agreements or other organizational
documents of each of the limited liability companies, corporations or
partnerships which, directly or indirectly, own or control an interest in the
general partner of any Non-Participating Limited Partnership, any Partially
Owned Limited Partnership or Other Partnership, and (ii) take all actions as may
be necessary to prevent any other partner, officer, member or members of any of
those limited liability companies, corporations or partnerships from exercising
any or all of the management or control rights presently held in their
respective capacities, to establish direct or indirect control of the general
partner of any Non-Participating Limited Partnership, Partially Owned Limited
Partnership or Other Partnership.
7.19 Costs and Expenses. Borrower shall pay all costs and expenses
(excluding salaries or wages of employees of Agent) reasonably incurred by Agent
in connection with the implementation and syndication of the Loan and the
administration of the Loan, and reasonably incurred by the Agent or any of the
Lenders in connection with the enforcement of the Agent's and Lenders' rights
under the Loan Documents, including, without limitation, legal fees and
disbursements, appraisal fees, inspection fees, plan review fees, travel costs
and fees and out-of-pocket costs of independent engineers and consultants.
Borrower's obligations to pay such costs and expenses shall include, without
limitation, all attorneys' fees and other costs and expenses for preparing and
conducting litigation or dispute resolution arising from any breach by Borrower
or the Loan Parties of any covenant, warranty, representation or agreement under
any one or more of the Loan Documents. Unless an Event of Default has occurred
and is then continuing, the Agent shall use its best efforts to notify the
Borrower prior to the incurrence of any such cost or expense if the aggregate
amount of such costs and expenses in any one calendar year will exceed
$25,000.00; provided, however, that the failure shall provide such notice shall
not affect in any manner whatsoever on the Borrower's obligations hereunder.
7.20 Appraisals
7.20.1 Appraisal. Agent shall have the right at its option, from
time to time, to order an appraisal of one or more of the Individual
Properties prepared at Agent's direction by an appraiser selected by Agent
(the "Appraisal"). An appraiser selected by Agent shall be an MAI member
with not less than ten (10) years experience appraising commercial
properties in the respective area(s) of the Individual Properties and
otherwise qualified pursuant to provisions of applicable laws and
regulations under and pursuant to which Agent operates).
7.20.2 Costs of Appraisal. Borrower shall pay for the costs of each
Appraisal and each updated Appraisal only (i) after the occurrence and
during the continuance of an Event of Default or (ii) during any period in
which the Agent has reasonably determined that Borrower has failed to
satisfy the Cash Sweep Account Test; provided that Borrower shall not be
required to pay for more than one (1) Appraisal of each Individual
Property in any twelve (12) month period.
7.21 Indemnification. Borrower shall at all times, both before and after
repayment of the Loan, at its sole cost and expense defend, indemnify, exonerate
and save harmless Agent and each of the Lenders and all those claiming by,
through or under Agent and each of the Lenders ("Indemnified Party") (to the
extent not paid by Borrower in this Section 7.21 or under the applicable
provisions of this or any other Loan Document) against and from all damages,
losses, liabilities, obligations, penalties, claims, litigation, demands,
defenses, judgments, suits, proceedings, costs, disbursements or expenses of any
kind whatsoever, including, without limitation, attorneys' fees and experts'
fees and disbursements, which may at any time (including, without limitation,
before or after discharge or foreclosure of the Security Documents) be imposed
upon, incurred by or asserted or awarded against the Indemnified Party and
arising from or out of:
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(i) any liability for damage to person or property arising out
of any violation of any Legal Requirement with respect to the
Borrower, any Borrower Subsidiary, any Loan Party or any Individual
Property, or
(ii) any and all liabilities, damages, penalties, costs, and
expenses, relating in any manner to any brokerage or finder's fees
in respect of the Loan, or
(iii) as a result of litigation that may arise in connection
with the Borrower's activities or payment of any fees to the
Borrower GP, or
(iv) any act, omission, negligence or conduct at any
Individual Property, or arising or claimed to have arisen, out of
any act, omission, negligence or conduct of Borrower or any tenant,
occupant or invitee thereof which is in any way related to any
Individual Property.
Notwithstanding the foregoing, an Indemnified Party shall not be entitled
to indemnification in respect of claims arising from acts of its own gross
negligence or willful misconduct to the extent that such gross negligence
or willful misconduct is determined by the final judgment of a court of
competent jurisdiction, not subject to further appeal, in proceedings to
which such Indemnified Party is a proper party.
7.22 Leasing Matters.
7.22.1 Agent's Approval Required.
(i) Except as provided for herein, the Net Lease Partnerships
shall not require the approval of the Agent or the Lenders for any
proposed Lease of an Individual Property.
(ii) Agent's prior written approval shall be required in each
instance as to any proposed Lease which represents the conversion of
a substantially single-tenant Individual Property to a substantially
multi-tenant Individual Property.
(iii) Agent's prior written approval shall be required in each
instance as to any proposed Lease for 25,000 or more rentable square
feet, but less than 75,000 rentable square feet, unless the Borrower
evidences to the Agent that (x) the rental rate under the proposed
Lease is equal to or greater than the rental rate for the first
renewal term in the Lease in effect for the subject Individual
Property as of the Closing Date and (y) the investment rating, if
any, of the new tenant is equal to or higher than the investment
grade rating for the tenant under such existing Lease.
(iv) Agent's and Required Lenders prior written approval shall
be required in each instance as to any proposed Lease for 75,000 or
more rentable square feet.
(v) For any Lease requiring approval hereunder, the approval
shall relate to: (i) the economic and other terms of the Lease; (ii)
each tenant under a proposed Lease; (iii) each guarantor, if any, of
a tenant's obligations under a proposed Lease; (iv) any modification
or amendment to the Lease, if such modification or amendment relates
to the amount of rent payable thereunder, the term of the Lease, the
Economic Discontinuance Rights provided for therein, or any other
term which may have a material impact on the value of the Individual
Property
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or the rental payments due under the Lease; and (v) any termination,
cancellation or surrender of the Lease.
7.22.2 Borrower's Requests. Any request by Borrower for an approval
from Agent with respect to leasing matters shall be sent to the Agent and
shall be accompanied, at a minimum, by the following: (i) the proposed
lease or amendment or modification thereof complete with all applicable
schedules and exhibits; (ii) a complete copy of any proposed guaranty;
(iii) comprehensive financial information with respect to the proposed
tenant and, if applicable, the proposed guarantor (as to new leases or
amendments or modifications to existing leases involving material economic
changes); and (iv) an executive summary of the terms and conditions of the
proposed lease and, if applicable, the proposed guaranty.
7.22.3 Response. The Agent (and the Required Lenders, as applicable)
shall act on requests from Borrower for any approval required under
Section 7.23.1 in a commercially reasonable manner and shall use
commercially reasonable efforts to respond to any such request within (a)
fifteen (15) Business Days for approvals required under Section 7.23.1(ii)
and (iii) above, and (b) twenty (20) Business Days for approvals required
under Section 7.23.1(iv) above, in each instance following Agent's receipt
thereof with all required supporting information. Agent's response may
consist of an approval or disapproval of the request, or a conditional
approval thereof subject to specified conditions, or a request for further
data or information, or any combination thereof. If Agent (and the
Required Lenders, as applicable) fails to respond to any such request
within such prescribed time period, such request shall be deemed approved
by the Agent (and the Required Lenders, as applicable). In order to
expedite the processing of requests for such approvals, Borrower agrees to
provide Agent with as much advance information as is possible in a
commercially reasonable manner in advance of Borrower's formal request for
an approval. Borrower has submitted to Agent and Agent has approved a
standard lease form annexed hereto as Schedule 7.22.3 ("Form Lease").
Whenever reasonably possible all Borrower's requests for lease approvals
shall be accompanied by an express description of any material deviations
from the Form Lease, other than those deviations from the Form Lease which
relate to the location or nature of the subject Individual Property.
7.23 Future Collateral Obligations. The Borrower acknowledges that the
determination by the Agent as to the Collateral was based upon an analysis of
the assets owned by the Borrower, the Borrower Subsidiaries, the pro-rata
portion of the assets owned by the Non-Participating Partnerships and Partially
Owned Limited Partnerships, and the assets owned by Xxxxxxx Group Entities that
are parties to the Security Documents. The Borrower shall (and shall cause any
other Loan Party(except for the Xxxxxxx Indemnitor or the MLP Holders) or any
other Borrower Subsidiary to) agree to the following undertaking:
7.23.1 In the event that at any time the Borrower, any Loan Party
(except any Xxxxxxx Indemnitor or the MLP Holders), or any Borrower
Subsidiary acquires or obtains any interest in any asset relating to the
Borrower or the Exchange or the business operations of the Borrower and
the Borrower Subsidiaries, including, without limitation, (i) the fee,
remainderman or ground lessor interest in any Individual Property, (ii)
any interest in the Securitization Documents, (iii) any limited or general
partnership interests in Non-Participating Limited Partnerships, Partially
Owned Limited Partnership or Other Partnership, or (iv) any interest in
any Mortgage Debt, the Borrower shall notify the Agent in writing and,
except with respect to any interest in an Individual Property owned by a
GMAC Borrower or any general partnership interest in a GMAC Borrower,
shall execute, or cause the applicable Loan Party, or Borrower Subsidiary
to execute, such documents as shall be reasonably requested by the Agent
to confirm, or establish, that the interest so
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acquired or obtained is included within the Collateral and to effectuate
the terms and provisions of this Agreement with respect thereto.
7.23.2 The Borrower agrees that without the prior consent of the
Agent, no other Xxxxxxx Group Entity or MLP Holder will acquire or obtain
any interest in any asset related to the operation, ownership or
management of the Individual Properties or any of the other assets of the
Borrower or the Borrower Subsidiaries unless such Person shall execute
such documents as shall be reasonably requested by the Agent to confirm,
or establish, that the interest so acquired or obtained is included within
the Collateral (or if such Person cannot grant such security interest to
the Agent, that the ownership interest in the entity holding such asset is
included within the Collateral) and to effectuate the terms and provisions
of this Agreement with respect thereto; provided, however, that nothing
contained herein shall prohibit any Xxxxxxx Group Entity or MLP Holder
from acquiring additional limited partnership interests in Borrower and
any such limited partnership interests of Borrower so acquired shall not
be required to be included within the Collateral.
7.23.3 In the event that at any time a Non-Participating Limited
Partnership is merged into a Participating Limited Partnership, the
Borrower shall notify the Agent in writing and shall execute, or cause the
applicable Borrower Subsidiary to execute, such documents as shall be
reasonably requested by the Agent to confirm, or establish, that the
limited partnership interests and, except for a GMAC Borrower, the general
partnership interests in such Participating Limited Partnership are
included within the Collateral (subject to any existing Liens associated
with any such asset) and to effectuate the terms and provisions of this
Agreement with respect thereto.
7.23.4 In the event that at any time the Borrower shall establish or
acquire a Person such that such Person is a Borrower Subsidiary, the
Borrower shall notify the Agent in writing and shall execute, or cause the
applicable Borrower Subsidiary to execute, such documents as shall be
reasonably requested by the Agent to confirm, or establish, that the
ownership interests in such Borrower Subsidiary and the assets of such
Subsidiary (other than (i) the assets of Net Lease Partnerships and (ii)
the assets of any general partner of a GMAC Borrower) are included within
the Collateral (subject to any existing Liens associated with any such
asset) and to effectuate the terms and provisions of this Agreement with
respect thereto.
7.23.5 In the event that at any time the Borrower or any Borrower
Subsidiary acquires or obtains any interest in any asset (other than an
Individual Property), the Borrower shall notify the Agent in writing and,
except with respect to any general partnership interest in a GMAC
Borrower, shall execute, or cause the applicable Borrower Subsidiary to
execute, such documents as shall be reasonably requested by the Agent to
confirm, or establish, that the asset so acquired or obtained is included
within the Collateral (subject to any existing Liens associated with any
such asset) and to effectuate the terms and provisions of this Agreement
with respect thereto (if the value of the asset acquired is less than
$2,000,000.00, the notification and documentation will be provided
annually).
7.23.6 In the event that at any time due to the rejection of a
Rejectable Offer, the applicable Lease terminates and the applicable Net
Lease Partnership is the owner of an Individual Property without any
Mortgage Debt thereon, at the option of the Agent, the Net Lease
Partnership shall grant to the Agent, on behalf of the Lenders, a mortgage
or deed of trust interest in and to said Individual Property; provided,
however, in the event of a subsequent Permitted Refinance, or other
refinance with the written consent of the Agent, of the Individual
Property, the Agent shall release the said mortgage or deed of trust to
the refinanced loan subject to the payment of the Mandatory Principal
Payment relating thereto.
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7.23.7 In the event that at any time due to the acceptance of a
Rejectable Offer, a so called "Exchange Property" is conveyed to the
applicable Net Lease Partnership so that it is the owner of the "Exchange
Property" without any Mortgage Debt thereon, at the option of the Agent,
the Net Lease Partnership shall grant to the Agent, on behalf of the
Lenders, a mortgage or deed of trust interest in and to said Individual
Property; provided, however, in the event of the subsequent Permitted
Refinance, or other refinance with the written consent of the Agent, of
the "Exchange Property", the Agent shall release the said mortgage or deed
of trust to the refinanced loan subject to the payment of the Mandatory
Principal Prepayment relating thereto.
7.23.8 Upon the payment in full of the Mortgage Debt on any
Individual Property or if at any time any Individual Property is free and
clear of all Mortgage Debt, at the option of the Agent, the applicable Net
Lease Partnership shall grant to the Agent, on behalf of the Lenders, a
mortgage or deed of trust interest in and to said Individual Property;
provided, however, in the event of the subsequent Permitted Refinance, or
other refinance with the consent of the Agent of the Individual Property,
the Agent shall release the said mortgage or deed of trust to the
refinanced loan subject to the payment of the Mandatory Principal
Prepayment relating thereto.
7.23.9 The Borrower agrees to provide to the Agent written notice of
any of the events described in this Section 7.23 within five (5) Business
Days of Knowledge thereof by the Borrower and further agrees to execute
and deliver any documents as reasonably requested by the Agent to
effectuate the terms and provisions hereof within five (5) Business Days
of the Agent's request therefor.
7.24 Debt Service Coverage Ratios.
7.24.1 Certain Definitions.
(i) "Calculation Date" shall mean the last day of each
calendar quarter commencing with March 31, 2002.
(ii) "Calculation Period" shall mean each successive
twelve (12) month period ending on a Calculation
Date, except that for a period prior to December
31, 2001, "Calculation Period" shall mean the
period commencing on January 1, 2002 and ending on
the Calculation Date.
(iii) "Borrower Debt Service" shall mean (A) the sum of
the aggregate actual principal and interest paid
or payable respecting all Debt of the Borrower,
including, without limitation, all principal and
interest payments required with respect to the
Loan, less (B) with respect to interest payments
required with respect to the Loan, the amount paid
to the Borrower or the Agent pursuant to any
Interest Rate Protection Agreement relating to
interest due during the subject Calculation
Period.
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(iv) "Borrower Debt Service Coverage" shall mean the
ratio for the Calculation Period of: (A) Borrower
Net Cash Flow to (B) Borrower Debt Service.
(v) "Borrower Net Cash Flow" shall mean that portion
of the Consolidated Net Cash Flow which is
available to the Borrower, as Distributions or
otherwise, from the Borrower Subsidiaries (after
payment of that portion of the Consolidated Debt
Service and operating costs and expenses
specifically attributable to the Borrower's
Subsidiaries) or from other of the Borrower's
Investments attributable to the Borrower, all of
the foregoing as reasonably determined by the
Agent in a manner consistent with the procedures
and methods utilized by the Agent in analyzing the
financial information provided by the Borrower
prior to closing.
(vi) "Consolidated Debt Service Coverage" shall mean
the ratio for the Calculation Period of: (A)
Consolidated Net Cash Flow to (B) Consolidated
Debt Service.
(vii) "Consolidated Net Cash Flow" shall mean the sum of
(i) all cash revenues from the aggregate of all of
the Borrower's Subsidiaries and regularly
scheduled principal and interest from the Xxxxxxx
Loans, including, without limitation, all rents,
management fees, ground rent, common area
maintenance charges, insurance premium and tax
reimbursements and proceeds from rental
interruption insurance, less the aggregate of (ii)
all operating costs and expenses (excluding
Borrower Debt Service) of the Borrower and the
Borrower's Subsidiaries related to such
investments, amounts reserved for taxes and
insurance, replacement reserves, and capital
expenditures, all of the foregoing as reasonably
determined by the Agent in a manner consistent
with the procedures and methods utilized by the
Agent in analyzing the financial information
provided by the Borrower prior to closing.
(viii) "Consolidated Debt Service" shall mean (A) the
sum of the aggregate actual principal and interest
paid or payable respecting all Debt of the
Borrower and the Borrower's Subsidiaries,
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on a consolidated basis, during the Calculation
Period less (B) with respect to interest payments
required with respect to the Loan, the amount paid
to the Borrower or the Agent pursuant to any
Interest Rate Protection Agreement relating to
interest due during the subject Calculation
Period.
7.24.2 Minimum Consolidated Debt Service Coverage. During the
Initial Term, the Consolidated Debt Service Coverage for each Calculation
Period determined on each Calculation Date shall be not less than 1.05:1.
During any Extended Term, the Consolidated Debt Service Coverage for each
Calculation Period determined on each Calculation Date shall be not less
than 1.10:1. Borrower's compliance with the Consolidated Debt Service
Coverage covenant shall be tested by the Agent on the Calculation Date
with results based upon the most recent Calculation Period results, as
reasonably determined by the Agent in a manner consistent with the
procedures and methods utilized by the Agent in analyzing the financial
information provided by the Borrower prior to closing. If such
Consolidated Debt Service Coverage covenant shall not be satisfied on any
Calculation Date, Borrower shall prepay a sufficient amount of principal
outstanding on the Loan such that if such principal reduction had been
made on the first day of the Calculation Period the Consolidated Debt
Service Coverage covenant would have been satisfied. It shall be an Event
of Default if Borrower fails to make such a prepayment not later than the
first to occur of: (i) ten (10) Business Days after notice from Agent to
Borrower properly requesting the payment, or (ii) if Borrower has failed
to give Agent sufficient reports to enable Agent to make the necessary
calculations, forty-five (45) days following the applicable Calculation
Date, provided the Borrower shall have an additional five days to supply
additional information to the Agent from the date the Agent notifies the
Borrower that the initial reports have been deemed insufficient by the
Agent.
7.24.3 Minimum Borrower Debt Service Coverage. During the Initial
Term, the Borrower Debt Service Coverage for each Calculation Period
determined on each Calculation Date shall be not less than 1.65:1. During
any Extended Term, the Borrower Debt Service Coverage for each Calculation
Period determined on each Calculation Date shall be not less than 2.00:1.
Borrower's compliance with the Borrower Debt Service Coverage covenant
shall be tested by the Agent on the Calculation Date with results based
upon the most recent Calculation Period results, as reasonably determined
by the Agent in a manner consistent with the procedures and methods
utilized by the Agent in analyzing the financial information provided by
the Borrower prior to closing. If such Borrower Debt Service Coverage
covenant shall not be satisfied on any Calculation Date, Borrower shall
prepay a sufficient amount of principal outstanding on the Loan such that
if such principal reduction had been made on the first day of the
Calculation Period the Borrower Debt Service Coverage covenant would have
been satisfied. It shall be an Event of Default if Borrower fails to make
such a prepayment not later than the first to occur of: (i) ten (10)
Business Days after notice from Agent to Borrower properly requesting the
payment, or (ii) if Borrower has failed to give Agent sufficient reports
to enable Agent to make the necessary calculations, forty-five (45) days
following the applicable Calculation Date, provided the Borrower shall
have an additional five days to supply additional information to the Agent
from the date the Agent notifies the Borrower that the initial reports
have been deemed insufficient by the Agent.
7.24.4 Cash Sweep Account Test. Without limiting the provisions of
Section 7.24.3, the Agent, in determining the Borrower's compliance with
the Borrower Debt Service Coverage covenant set forth in Section 7.24.3,
shall also determine whether the
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Borrower has complied with the following test (the "Cash Sweep Account
Test"): (i) during the Initial Term, the Borrower Debt Service Coverage
for each Calculation Period determined on each Calculation Date shall be
not less than 2.00:1; (ii) during any Extended Term, the Borrower Debt
Service Coverage for each Calculation Period determined on each
Calculation Date shall be not less than 2.25:1.
7.25 Consolidated Leverage Ratio. The quotient resulting from dividing (i)
Borrower's allocable share of the aggregate amount of all Debt respecting the
Borrower's Investments (including, without limitation, the outstanding balance
of the Loan and the outstanding balance of any outstanding Securitized Notes {or
the proportionate interest therein} held by any entity as to which the Agent has
not been granted a lien on the ownership interests therein, but excluding the
amount of all Securitized Notes owned by an entity as to which the Agent has
been granted a lien on the ownership interests therein) by (ii) the Aggregate
Investment Capitalization of the Borrower's allocable share of all the
Borrower's Investments (the "Consolidated Leverage Ratio"), all as reasonably
determined by the Agent in a manner consistent with the procedures and methods
utilized by the Agent in analyzing the financial information provided by the
Borrower prior to closing, shall at all times be less than the following during
the relevant periods indicated:
------------------------------------------------------------------------------------------------------------------
Relevant period Consolidated Leverage
Ratio
------------------------------------------------------------------------------------------------------------------
Closing through December 31, 2002 65.0%
------------------------------------------------------------------------------------------------------------------
January 1, 2003 through December 31, 2003 62.5%
------------------------------------------------------------------------------------------------------------------
January 1, 2004 through December 31, 2004 60.0%
------------------------------------------------------------------------------------------------------------------
January 1, 2005 through December 31, 2005, as may be applicable 57.5%
during any First Extended Term
------------------------------------------------------------------------------------------------------------------
January 1, 2006 through the December 31, 2006, as may be 55.0%
applicable during any Second Extended Term.
------------------------------------------------------------------------------------------------------------------
The Borrower's compliance with the Consolidated Leverage Ratio covenant shall be
tested by the Agent on the Calculation Date with results based upon the then
current financial information, as reasonably determined solely by the Agent. If
such Consolidated Leverage Ratio covenant shall not be satisfied on any
Calculation Date, Borrower shall prepay a sufficient amount of principal
outstanding on the Loan such that if such principal reduction had been made on
the Calculation Date the Consolidated Leverage Ratio covenant would have been
satisfied on such Calculation Date. It shall be an Event of Default if Borrower
fails to make such a prepayment not later than the first to occur of: (i) ten
(10) Business Days after Notice from Agent to Borrower properly requesting the
payment, or (ii) if Borrower has failed to give Agent and each of the Lenders
sufficient reports to enable Agent to make the necessary calculations,
forty-five (45) days following the applicable Calculation Date, provided the
Borrower shall have an additional five days to supply additional information to
the Agent from the date the Agent notifies the Borrower that the initial reports
have been deemed insufficient by the Agent.
7.26 Minimum Liquidity. The sum of all of the Borrower's and the
Borrower's Subsidiaries Liquid Assets (excluding, however, the Liquid Assets of
any Borrower Subsidiary as to which there exists a default or event of default
on any Mortgage Debt of such Borrower Subsidiary) must at all times be at least
$5,000,000.00, all of the foregoing as reasonably determined by the Agent in a
manner consistent with the procedures and methods utilized by the Agent in
analyzing the financial information provided by the Borrower prior to closing.
Any
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amounts in excess of the Required T/I Amount (calculated for this purpose only
based upon the Projected Leasing Costs for the following twelve month period
only) contained in the T/I Fund Account shall be included in the calculation of
the Borrower's minimum required Liquid Assets. If such Minimum Liquidity shall
not be satisfied on any date of testing, Borrower shall arrange for an infusion
of Liquid Assets in an amount necessary to satisfy the requirements of this
Section 7.26. It shall be an Event of Default if Borrower fails to arrange for
any required additional Liquid Assets not later than ten (10) Business Days
after Notice from Agent to Borrower notifying the Borrower of the Borrower's
noncompliance.
7.27 Minimum Consolidated Net Worth. The Borrower's Minimum Consolidated
Net Worth shall at all times be equal to or greater than the greater of (i)
three (3) times the outstanding balance of the Loan or (ii) $675,000,000.00.
"Minimum Consolidated Net Worth" shall mean the consolidated net worth of the
Borrower and Borrower Subsidiaries using the Aggregate Investment Capitalization
for all Borrower's Investments, plus all cash and cash equivalents of the
Borrower and the Borrower Subsidiaries, less the allocable share of all
liabilities respecting both the Individual Properties and the liabilities of the
Borrower Subsidiaries, as reasonably determined by the Agent in a manner
consistent with the procedures and methods utilized by the Agent in analyzing
the financial information provided by the Borrower prior to closing. The
Borrower's compliance with the Minimum Consolidated Net Worth covenant shall be
tested by the Agent on each Calculation Date with results based upon the then
current financial information, as reasonably determined by the Agent in a manner
consistent with the procedures and methods utilized by the Agent in analyzing
the financial information provided by the Borrower prior to closing. If such
Minimum Consolidated Net Worth covenant shall not be satisfied on any
Calculation Date, Borrower shall prepay a sufficient amount of principal
outstanding on the Loan such that if such principal reduction had been made on
the Calculation Date the Minimum Consolidated Net Worth covenant would have been
satisfied on such Calculation Date. It shall be an Event of Default if Borrower
fails to make such a prepayment not later than the first to occur of: (i) ten
(10) Business Days after Notice from Agent to Borrower properly requesting the
payment, or (ii) if Borrower has failed to give Agent and each of the Lenders
sufficient reports to enable Agent to make the necessary calculations,
forty-five (45) days following the applicable Calculation Date, provided the
Borrower shall have an additional five days to supply additional information to
the Agent from the date the Agent notifies the Borrower that the initial reports
have been deemed insufficient by the Agent.
7.28 Economic Discontinuance.
7.28.1 Within ten (10) Business Days of receipt thereof, the
Borrower shall cause the applicable Participating Limited Partnership to
provide to the Agent a copy of each Rejectable Offer received by any
Participating Limited Partnership, and concurrently with the giving
thereof, and within five (5) Business Days of receipt thereof copies of
any subsequent notices received with respect thereto, whether from the
tenant exercising the Economic Discontinuance Rights, the applicable
holder of the remainderman interest in the subject Individual Property,
the applicable ground lessor, the applicable sublessee, the applicable
master lessor, or any other Person.
7.28.2 No later than forty-five (45) days prior to the last day for
the Participating Limited Partnership to reject the Rejectable Offer, the
Borrower shall provide to the Agent in writing the determination by the
Borrower as to whether it requests the approval of the acceptance or
rejection of the Rejectable Offer, which notice shall include the
Officer's Certificate required in accordance with Section 7.28.4 or
7.28.5, below, with supporting detail necessary for the Agent to verify
the calculations incorporated therein.
7.28.3 Except as otherwise provided for herein, in connection with
the exercise by a tenant of the Economic Discontinuance Rights, the
Borrower shall not, and shall cause
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each Participating Limited Partnership not to grant, approve, reject or
object to any requested consent or approval, including, without
limitation, the acceptance or rejection of a so called "Exchange Offer",
without the written approval of the Agent.
7.28.4 Subject to the compliance with any applicable terms relating
to the Mortgage Debt and, if applicable, the Ownership Interest Agreement,
(i) the Borrower may accept any Rejectable Offer if (a) any required
Mandatory Principal Prepayment relative thereto is to be paid to the Agent
upon the consummation of the Economic Discontinuance Sale, (b) no Default
or Event of Default is then occurring or will occur as a result of the
consummation of the subject Economic Discontinuance Sale, (c) the Borrower
is in compliance with the Cash Sweep Account Test and will not fail to be
in compliance therewith as a result of the consummation of the subject
Economic Discontinuance Sale, and (d) the Borrower submits to the Agent an
Officer's Certificate reflecting a pro-forma calculation that the Borrower
will be in compliance with the Financial Covenants and the Cash Sweep
Account Test after the consummation of the subject Economic Discontinuance
Sale, or (ii) the Borrower shall accept the Rejectable Offer if approved
in writing by the Agent;
7.28.5 Subject to the compliance with any applicable terms relating
to the Mortgage Debt and, if applicable, the Ownership Interest Agreement,
(i) the Borrower may reject any Rejectable Offer if (a) the Borrower is in
compliance with the Rejection Test and will not fail to be in compliance
therewith as a result of the consequences of the rejection of the
Rejectable Offer, (b) no Default or Event of Default is then occurring or
will occur as a result of the consequences of the rejection of the
Rejectable Offer, (c) the Borrower is in compliance with the Cash Sweep
Account Test and will not fail to be in compliance therewith as a result
of the consequences of the rejection of the Rejectable Offer, and (d) the
Borrower submits to the Agent an Officer's Certificate reflecting a
pro-forma calculation that the Borrower will be in compliance with the
Financial Covenants, the Cash Sweep Account Test, and the Rejection Test
after giving effect to the financial consequences of the rejection of the
Rejectable Offer or (ii) the Borrower shall reject the Rejectable Offer if
approved in writing by the Agent;
7.28.6 As used herein, the "Rejection Test" shall mean that the
aggregate outstanding Mortgage Debt on all ED Properties (assuming for
purposes of this calculation, that the subject Rejectable Offer is
rejected and included therein) shall be less than the XX Xxxx Flow. The
Term "XX Xxxx Flow" shall mean the projected Free Cash Flow for the
succeeding twelve (12) month period, excluding (a) all cash flow from all
ED Properties, and (b) all cash flow from any Individual Property after
the date on which the existing term of the lease for such Individual
Property expires, unless an applicable extension option shall have been
exercised.
7.28.7 Notwithstanding the terms and provisions hereof, the Agent
and the Borrower agree and acknowledge that with respect to any Individual
Property which is subject to a GMAC Mortgage Loan, unless the applicable
GMAC Mortgage Loan has been repaid in full or is repaid in full prior to
the rejection of any such Rejectable Offer, the Borrower must cause each
applicable GMAC Borrower to accept any such Rejectable Offer.
7.29 Replacement Documentation. Upon receipt of an affidavit of an officer
of Agent as to the loss, theft, destruction or mutilation of the Note or any
other Security Document which is not of public record, and, in the case of any
such loss, theft, destruction or mutilation, upon surrender and cancellation of
such Note or other Security Document, Borrower will issue, in lieu thereof, a
replacement Note or other security document in the same principal amount and
otherwise of like tenor upon receipt by Borrower of a suitable indemnity.
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7.30 Other Covenants. The Borrower hereby represents and warrants that no
Collateral is in the possession of any third party bailee (such as at a
warehouse). In the event that the Borrower and/or any of the other Loan Parties,
after the date hereof, intends to store or otherwise deliver any Collateral or
other personal property in which the Agent has been granted a security interest
to such a bailee, then the Borrower shall receive the prior written consent of
the Agent and such bailee must acknowledge in writing that the bailee is holding
such Collateral or such other personal property for the benefit of the Agent and
the Lenders.
7.31 Related Documents.
7.31.1 The Borrower will, or will cause each Borrower Subsidiary to,
comply with the terms and provisions of all of the Related Documents.
7.31.2 Upon the occurrence of a default under the Integrated
Documents, the Borrower shall notify the Agent of the Borrower's intention
to cause each of the Participating Limited Partnerships to terminate the
Amended and Restated Asset Management Agreement and, if approved by the
Agent, the Borrower shall so cause each of the Participating Partnerships
to terminate the Amended and Restated Asset Management Agreement .
7.31.3 Upon the expiration of the Non-Transfer Period as set forth
in the Integrated Loan Documents or upon the ownership of all of the
membership interests in Xxxxxxx Capital LLC by the Borrower, a Borrower
Subsidiary or any Xxxxxxx Group Entities, the Borrower shall cause Xxxxxxx
Capital LLC and Xxxxxxx Asset Management LLC to execute and deliver to the
Agent, on behalf of the Lenders, the Guaranty, together with such
documents as may be reasonably requested by the Agent to grant to the
Agent, on behalf of the Lenders, a security interest in all of the assets
of such Borrower Subsidiaries, including, without limitation, a pledge of
any Depository Accounts and Accounts, a pledge of the ownership interest
in Xxxxxxx Asset Management LLC, a pledge of the Amended and Restated
Asset Management Agreement, and a pledge of the Contract to Provide Asset
Management Services.
7.32 T/I Fund Account.
7.32.1 The Borrower shall create for the benefit of Agent (on behalf
of the Lenders) a reserve account (the "T/I Fund Account") for the purpose
of creating a reserve for projected tenant improvements, leasing
commissions and related costs for Net Lease Partnerships (the "Permitted
Leasing Costs").
7.32.2 The Borrower shall deposit with Agent in the T/I Fund Account
on the Funding Date an amount no less than Five-Million ($5,000,000.00)
Dollars. Thereafter, the Borrower shall deposit with the Agent in the T/I
Fund Account One-Million ($1,000,000.00) Dollars quarterly commencing on
March 31, 2002 and continuing on the last day of each calendar quarter
thereafter, until there is on deposit in the T/I Fund Account the Required
T/I Amount. Once there is on deposit in the T/I Fund Account an amount
equal to or more than the Required T/I Amount, the only quarterly deposits
required to be made by the Borrower in the T/I Fund Account shall be the
lesser of (i) One-Million ($1,000,000.00) Dollars or (ii) the amount
necessary to increase the amount on deposit to be equal to the Required
T/I Amount.
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7.32.3 Provided that (i) no Default or Event of Default exists and
is continuing, and (ii) the Borrower is in compliance with the Cash Sweep
Account Test, the Borrower may withdraw funds from the T/I Fund Account as
follows:
(i) Upon the written request of the Borrower, any amount by
which the balance in the T/I Fund Account exceeds the Required T/I
Amount; and
(ii) As necessary, the Borrower may request disbursements from
the T/I Fund Account provided:
(a) The Borrower shall have delivered a written request
for the disbursement to the Agent, which request shall (1)
specify the Permitted Leasing Costs for the period in which
the disbursement is requested, (2) set forth the amount of the
requested disbursement, and (3) if the requested disbursement
exceeds Five Thousand Dollars ($5,000), include an invoice or
signed contract specifying that the work has been done or the
cost incurred;
(b) Such disbursement is used to pay the actual cost of
a Permitted Leasing Cost; and
(c) The Permitted Leasing Cost is in compliance with the
then current Annual Leasing Cost Budget.
7.32.4 The T/I Fund Account shall be an interest bearing account
maintained at the Agent. The T/I Fund Account shall be subject to the
Pledge and Security Agreement.
7.32.5 As used herein, the "Required T/I Amount" shall be an amount
as reasonably determined from time to time by the Agent reflecting the
projected Permitted Leasing Costs for the following twenty-four (24) month
period. The Agent shall advise the Borrower in writing of any change in
the Required T/I Amount. As used herein, the "Annual Leasing Cost Budget"
shall be a budget submitted annually by the Borrower to the Agent
reflecting the projected Permitted Leasing Costs for the next year, with
appropriate itemization on a consolidated (and not Individual Property)
basis as required by the Agent, which annual budget shall be subject to
the approval of the Agent, which approval shall not be unreasonably
withheld.
7.32.6 Provided no Event of Default shall have occurred and be
continuing, upon the satisfaction in full of all the Obligations, Agent
shall release the sums remaining in the T/I Fund Account, if any, to
Borrower.
7.33 Single-Purpose Entity.
7.33.1 The Borrower shall cause each Borrower Subsidiary to be a
Single-Purpose Entity and to comply with the terms and provisions hereof
with respect thereto.
7.33.2 The Borrower shall cause Xxxxxxx MLP Corp., the sole manager
of the Borrower GP, to maintain at least one director which is an
Independent Person. The unanimous consent of the directors of Xxxxxxx MLP
Corp. (including the vote of said Independent Person) shall be required in
order to file, or consent to the filing of, a bankruptcy or insolvency
petition or otherwise institute insolvency proceedings for the Borrower
GP, the Borrower, or any Borrower Subsidiary.
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8. NEGATIVE COVENANTS. Borrower covenants and agrees that from the date
hereof and so long as any indebtedness is outstanding hereunder, or any of the
Loan or other obligation remains outstanding, the Borrower shall not (and shall
not suffer or permit the other Loan Parties (except the Excepted Loan Parties),
and/or the Borrower Subsidiaries to):
8.1 No Changes to Borrower and other Loan Parties. Without the prior
written consent of the Agent, which consent will not be unreasonably withheld,
after not less than thirty (30) days' prior written notice (with reasonable
particularity of the facts and circumstances attendant thereto):(i) change its
jurisdiction of organization, (ii) change its organizational structure or type,
(iii) change its legal name, or (iv) change the organizational number (if any)
assigned by its jurisdiction of formation or its federal employer identification
number (if any).
8.2 Restrictions on Liens. Create, incur, assume or suffer to exist any
Lien upon or with respect to any property or assets (real or personal, tangible
or intangible, including, without limitation, the Individual Properties),
whether now owned or hereafter acquired, or sell any such property or assets
subject to an understanding or agreement, contingent or otherwise, to repurchase
such property or assets (including sales of accounts receivable with recourse)
or assign any right to receive income or permit the filing of any financing
statement under the UCC or any other similar notice of Lien under any similar
recording or notice statute, or grant rights with respect to, or otherwise
encumber or create a security interest in, such property or assets (including,
without limitation, any item of Collateral) or any portion thereof or any other
revenues therefrom or the proceeds payable upon the sale, transfer or other
disposition of such property or asset or any portion thereof, or permit or
suffer any such action to be taken, except the following (singly and
collectively, "Permitted Liens"):
8.2.1 Liens created by the Loan Documents;
8.2.2 Liens for taxes, assessments or other governmental charges not
yet delinquent or which are being diligently contested in good faith and
by appropriate proceedings, if (x) reasonable reserves in an amount not
less than the tax, assessment or governmental charge being so contested
shall have been established in a manner reasonably satisfactory to the
Agent or deposited in cash (or cash equivalents) with the Agent to be held
during the pendency of such contest, or such contested amount shall have
been duly bonded in accordance with applicable law, (y) no risk of sale,
forfeiture or loss of any interest in any Individual Property or the
Collateral or any part thereof arises during the pendency of such contest
and (z) such contest does not have and could not reasonably be expected to
have a Material Adverse Effect;
8.2.3 Liens in respect of property or assets imposed by law, which
were incurred in the ordinary course of business and do not secure Debt,
such as carriers', warehousemen's, materialmen's and mechanics' liens and
other similar Liens arising in the ordinary course of business, and (x)
which do not in the aggregate materially detract from the value of any
property or assets or have, and could not reasonably be expected to have,
a Material Adverse Effect or (y) which are being contested in good faith
by appropriate proceedings, which proceedings have the effect of
preventing the forfeiture or sale of the property or assets subject to any
such Lien;
8.2.4 Liens existing as of the Closing Date in favor of (a) the
Integrated Group to secure the Integrated Obligations, and/or (b) the
holders of the Mortgage Debt;
8.2.5 A Lien on an Individual Property which may be granted to
secure a Permitted Refinance; and
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8.2.6 To the extent that the Borrower or any Borrower Subsidiary or
any Loan Party (except the Excepted Loan Parties) acquires any other
asset, any Lien as to which the acquisition of such asset is subject.
8.3 Consolidations, Mergers, Sales of Assets, Issuance and Sale of Equity.
(i) Dissolve, terminate, liquidate, consolidate with or merge with or into any
other Person, (ii) issue, sell, lease, transfer or assign to any Persons or
otherwise dispose of (whether in one transaction or a series of transactions)
any portion of its assets (whether now owned or hereafter acquired), including,
without limitation, any securities, membership or partnership interests, or
other interests of any kind in any other Loan Party (except the Excepted Loan
Parties) or Borrower Subsidiary, directly or indirectly (whether by the issuance
of rights of, options or warrants for, or securities convertible into, any such
security, membership or partnership interests or other interests of any kind),
(iii) withdraw from or resign as general partner or managing member of any
Person, including, without limitation, any withdrawal or resignation of: (x)
Borrower GP as the general partner of the Borrower, (y) any Participating
Limited Partnership GP as the general partner of a Participating Limited
Partnership, or (z) the general partner of each Non-Participating Limited
Partnership, which general partner is subject to the control, directly and
indirectly, of Xxxxxxx XX LLC, (iv) permit another Person to merge with or into
it, (v) acquire all or substantially all the capital stock, membership or
partnership interests or assets of any other Person, or (vi) take any action
which could have the effect, directly or indirectly, of diluting the economic
interest of any Loan Party (except the Excepted Loan Parties) in any other Loan
Party (except the Excepted Loan Parties) or Borrower Subsidiary; except the
following:
8.3.1 Transfers pursuant to the Security Documents and other
agreements in favor of Agent on behalf of the Lenders;
8.3.2 Transfers pursuant to the Integrated Documents;
8.3.3 Transfers or mergers to facilitate a Permitted Investment (to
the extent required, the Agent shall release any security interest which
it may have thereon to effectuate such transfer or merger);
8.3.4 Mergers of any Non-Participating Limited Partnership into a
Participating Limited Partnership in accordance with the terms and
conditions hereof;
8.3.5 Mergers, consolidations, transfers and sales between and among
Loan Parties (except the Excepted Loan Parties) of partnership interests,
membership interests or capital stock, so long as after giving effect to
any such merger, consolidation, transfer or sale, the Agent shall have a
security interest, directly or through its security interest in the
partnership interests, membership interests or capital stock of another
Loan Party (except the Excepted Loan Parties), in the partnership
interests, membership interests or capital stock of the Loan Party (except
the Excepted Loan Parties) which is the survivor of such merger or
consolidation or the recipient of such partnership interests, membership
interests or capital stock transferred and/or sold, provided that in no
event may any such merger, consolidation, transfer or sale cause a Change
of Control or otherwise adversely affect the interests of the Agent and/or
the Lenders, as determined solely by the Agent;
8.3.6 Sales of any Individual Property in connection with an
Economic Discontinuance Sale, subject to the terms and conditions of
Section 7.29 and payment of the required Mandatory Principal Prepayment
related thereto (to the extent required, the Agent shall release any
security interest which it may have thereon to effectuate such sale);
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8.3.7 Sales of any Individual Property (other than in connection
with an Economic Discontinuance Sale) or the 100% ownership interest of
the Borrower in any Participating Partnership or, with the prior consent
of the Agent, any other ownership interest of the Borrower in any
Participating Partnership; provided (a) the Agent receives the Mandatory
Principal Payment required under Section 2.3.8 above, (b) the purchaser is
an unaffiliated third party, and (c) the Borrower submits to the Agent an
Officer's Certificate reflecting a pro-forma calculation that the Borrower
will be in compliance with the Financial Covenants and the Cash Sweep
Account Test considering the consequences of the sale (to the extent
required, the Agent shall release any security interest which it may have
thereon to effectuate such sale);
8.3.8 Sales or dispositions in the ordinary course of business of
worn, obsolete or damaged items of personal property or fixtures which are
suitably replaced (to the extent required, the Agent shall release any
security interest which it may have thereon to effectuate such sale or
disposition);
8.3.9 Leases to the extent provided for herein; and
8.3.10 Transactions, whether outright or as security, for which
Agent's prior written consent has been obtained.
8.4 Restrictions on Debt. (i) Create, incur or assume any Debt, or make
any voluntary prepayments of any Debt in respect of which it is an obligor, (ii)
enter into, acquiesce, suffer or permit any amendment, restatement or other
modification of the documentation evidencing and/or securing any Debt under
which it is an obligor, or (iii) increase the amount of any Debt existing as of
the Closing Date; except with respect to the following (singly and collectively,
"Permitted Debt"):
8.4.1 The Obligations;
8.4.2 The following Debt existing as of the Closing Date in the
amount disclosed to the Agent hereunder
(i) (x) the Mortgage Debt (none of which is recourse to the
Borrower, except for the type of recourse obligation set forth in
Section 8.4.5, below), and
(ii) (y) the Integrated Obligations (none of which is recourse
to (x) the Borrower and (y) any Borrower Subsidiary, other than
Xxxxxxx XX LLC, Xxxxxxx Capital LLC, and Xxxxxxx Xxxxx LLC);
8.4.3 Debt described in Schedule 8.4.3 annexed hereto;
8.4.4 Any refinancing of any Mortgage Debt provided such refinancing
is in accordance with the terms and provisions of the applicable
Securitized Mortgages or Other Second Mortgage Debt, without amendment or
waiver of the said terms and conditions (a "Permitted Refinance");
provided, however, that no refinancing of any Debt otherwise permitted
hereunder shall be allowed unless and until:
(i) the Agent has received at least thirty (30) days' prior
written notice of any intended refinancing, which notice shall
detail with specificity the terms and conditions of any such
refinancing and shall include complete copies of any loan
application and loan commitment respecting such proposed
refinancing, together with such other materials and information as
the Agent shall reasonably request;
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(ii) no Default or Event of Default shall have occurred and
then be continuing; and
(iii) Borrower has provided the Agent with such instruments,
documents, agreements, certifications, and opinions as the Agent
shall reasonably require with respect thereto.
8.4.5 With respect to any Mortgage Debt, obligations under (i)
limited guaranties by the Borrower as to usual and customary exceptions to
non-recourse provisions (e.g., fraud and misappropriation of funds)
provided that such limited guaranties are evidenced by documentation
approved by the Agent and (ii) indemnifications by the Borrower as to
usual Hazardous Materials issues relating to the subject Individual
Property provided that such indemnifications are evidenced by
documentation customary for transactions of that type;
8.4.6 Indebtedness incurred in the ordinary course of business for
the purchase of goods or services which are payable, without interest,
within thirty (30) days of billing; and
8.4.7 Transactions, whether secured or unsecured, for which Agent's
prior written consent has been obtained.
8.5 Respecting Individual Properties. Permit or otherwise suffer to occur
any event such that the representations and warranties of the Borrower set forth
in Section 6.18 would be untrue or misleading in any material respect.
8.6 Respecting Ground Lease Extension Options and Remainder Ground Lease
Options. Permit any of the Ground Lease Extension Options and/or Remainder
Ground Lease Options, including, without limitation, any conditions precedent
therein, to lapse, expire, or otherwise remain unexercised, or otherwise permit
the expiration of any Ownership Interest Agreement, without the express prior
written consent of the Agent.
8.7 Other Business. Enter into any line of business or make any material
change in the nature of its business, purposes or operations, except as
otherwise specifically permitted by this Agreement or the other Loan Documents.
8.8 Change of Control. Permit or otherwise suffer to occur any Change of
Control.
8.9 Forgiveness of Debt. Cancel or otherwise forgive or release any Debt
owed to it by any Person, except upon receipt of adequate consideration.
8.10 Affiliate Transactions. On and after the Closing Date, enter into, or
be a party to, any transaction with any Person who is an Affiliate of the
Borrower, or any Borrower Subsidiary, or any Loan Party, except for (i) the
Amended and Restated Asset Management Agreement and the Contract to Provide
Asset Management Services, (ii) any property management contract for an
Individual Property which is no longer subject to a triple net lease with a
management fee not to exceed three (3%) percent of gross revenue per year, and
(iii) any construction management contract for improvements to be made to any
Individual Property or Permitted Investment acquisition with a construction
management fee not to exceed five (5%) percent of the gross cost of the
construction of improvements, provided that this Section 8.10 shall not apply to
transactions between and among Loan Parties or to transactions between Loan
Parties and Borrower Subsidiaries.
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8.11 Amendments; Terminations of Related Documents. Enter into, acquiesce
in, suffer or permit any amendment, restatement or other modification or
termination of any of the Related Documents, without the express prior written
consent of the Agent (other than the Formation Documents of any Excepted Loan
Party).
8.12 ERISA. Except for Code Section 401(k) plans, establish or be
obligated to contribute to any Plan.
8.13 Bankruptcy Filings. File a petition under any state or federal
bankruptcy or insolvency laws or the liquidation of all or a major portion of
its assets or property.
8.14 Investment Company. Become an "investment company" or a company
"controlled" by an "investment company," within the meaning of the Investment
Company Act of 1940, as amended.
8.15 Holding Company. Become a "holding company," or a "subsidiary
company" of a "holding company," or an "affiliate" of a "holding company" or of
a "subsidiary company" of a "holding company," within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
8.16 Use of Proceeds. Permit the proceeds of the Loan, or any other
accommodation at any time made hereunder, to be used for any purpose which
entails a violation of, or is inconsistent with, Regulation T, U or X of the
Board of Governors of the Federal Reserve, or for any purpose other than those
set forth in Section 1.4.
8.17 Advances and Loans. Except for loans from the Borrower to any
Borrower Subsidiary, directly or indirectly, lend money or credit or make
advances to any Person.
8.18 Distributions. (i) Authorize, declare, or pay any Distributions on
behalf of the Borrower, except for Permitted Distributions or (ii) take any
action which would amend, modify, or terminate any Distribution due, or the
terms of any Formation Document relating to Distributions due, to the Borrower
or any Borrower Subsidiary. The term "Permitted Distributions" shall mean (i)
the Distribution by the Borrower of a portion of the proceeds of the Loan as
provided for in Section 1.4, hereof, and (ii) so long as (x) no Default or Event
of Default exists and is continuing, or would be created thereby, (y) the
Borrower is in compliance with the Cash Sweep Account Test and will remain in
compliance after the said Distribution, and (z) all payments then due have been
paid into the T/I Fund Account, subject to requirements set forth in Section
9.2, hereof, any Distributions by the Borrower in accordance with its Formation
Documents.
8.19 Restrictions on Investments. Make or permit to exist or to remain
outstanding any Investment except which is or results in ("Permitted
Investments"):
(i) marketable direct or guaranteed general obligations of the
United States of America which mature within one year from the date
of purchase;
(ii) bank deposits, certificates of deposit and banker's
acceptances, or other obligations in or of the Lenders or banks
located within and chartered by the United States of America or a
state and having assets of over $500,000,000.00; and
(iii) the Borrower's Subsidiaries, subject in all instances to
the terms of this Agreement;
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(iv) the acquisition of any asset related to the operation,
ownership or management of the Individual Properties or any of the
other assets of the Borrower or the Borrower Subsidiaries; and
(v) the acquisition of any asset deemed by the Borrower to
provide beneficial tax consequences for the limited partners of the
Borrower, but not to exceed the investment of more than One-Million
Dollars ($1,000,000.00) in any Fiscal Year.
All such Investments shall be made by the Borrower in a manner which
assures that Agent shall have and maintain a perfected first lien security
interest therein.
8.20 Contracts of a Material or Significant Nature. Except for contracts
otherwise complying with this Agreement, not enter into any other contracts,
agreements or purchase orders which would involve the expenditure of more than
$1,000,000.00 in any instance or $1,000,000.00 in the aggregate without Agent's
prior written consent, which consent shall not be unreasonably withheld or
delayed, but which consent may be conditioned upon a demonstration by Borrower
to Agent's reasonable satisfaction that the contract, agreement or purchase
order is reasonable and that the Party entering into such contract has adequate
resources to pay and perform the same.
8.21 Consulting or Management Fees. Permit the payment of any asset
management fees in excess of $1,000,000.00 in any Fiscal Year to any Person or
enter into any agreement providing asset management services to the Borrower or
any Borrower Subsidiary which provides for the payment of asset management fees
in excess of $1,000,000.00 in any Fiscal Year, except pursuant to (i) the
Amended and Restated Asset Management Agreement, (ii) the Contract to Provide
Asset Management Services, and (iii) any property management contract for an
Individual Property which is no longer subject to a triple net lease on terms
and conditions customary in the relevant market area..
8.22 Negative Pledges, etc. Enter into any agreement subsequent to the
Closing Date (other than a Loan Document) which (a) prohibits the creation or
assumption of any Lien upon any of the Collateral, including, without
limitation, any hereafter acquired property, (b) specifically prohibits the
amendment or other modification of this Agreement or any other Loan Document, or
(c) could reasonably be expected to have a Material Adverse Effect.
8.23 Xxxxxxx Business Transactions. Conduct any business activities that
relate, directly or indirectly, to the Net Lease Partnerships, their properties
or assets through any Person other than a Borrower Subsidiary, except pursuant
to the structure of ownership existing as of the Closing Date and disclosed to
the Agent in the Solicitation Statement and the other Exchange Documents.
8.24 Limitations On Certain Transactions. Take any action or otherwise
engage in any of the following transactions, without the express prior written
consent of the Agent (except as specifically provided below):
8.24.1 exercise any right, remedy, power, privilege, or discretion
pursuant to the Put-Call Option Agreement;
8.24.2 exercise any right, remedy, power, privilege, or discretion
pursuant to any Discounted Payment Option; or
8.24.3 with respect to the Participating Limited Partnerships,
exercise any right, remedy, power privilege or discretion as the holder of
the Grantor Trust T-2 Certificate or
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the Class R Certificate pursuant to the Securitization Documents, which
consent will not be unreasonably withheld.
9. SPECIAL PROVISIONS.
9.1 Legal Requirements. Borrower, any Borrower Subsidiary, any
Non-Participating Limited Partnership, or any Partially Owned Limited
Partnership may contest in good faith any claim, demand, levy or assessment
under any Legal Requirements or taxes owed by any person or entity if: (i) the
contest is based upon a material question of law or fact raised by such Person
in good faith; (ii) such Person properly commences and thereafter diligently
pursues the contest; (iii) the contest will not materially impair the ability to
ultimately comply with the contested Legal Requirement should the contest not be
successful; (iv) reasonable reserves in an amount necessary to undertake and pay
for such contest and any corrective or remedial action then or thereafter
reasonably likely to be necessary shall have been established in a manner
satisfactory to the Agent or deposited in cash (or cash equivalents) with the
Agent to be held during the pendency of such contest, or such contested amount
shall have been duly bonded in accordance with applicable law; (v) if the
contest relates to a Legal Requirement under Environmental Law, the conditions
set forth in the Environmental Indemnity relating to such contests shall be
satisfied; (vi) no risk of sale, forfeiture or loss of any interest in any
Individual Property or the Collateral or any part thereof arises during the
pendency of such contest; and (vii) such contest does not have and could not
reasonably be expected to have a Material Adverse Effect.
9.2 Distributions.
9.2.1 Notice of Intention to Distribute. At least ten (10) Business
Days prior to making any Distribution to its partners, Borrower shall
submit to Agent a written statement of its intent to make such
Distribution accompanied by an Officer's Certificate reflecting a
pro-forma calculation that the Borrower will be in compliance with the
Financial Covenants and the Cash Sweep Account Test after the proposed
Distribution, together with such other documentation and information as
Agent may reasonably require ("Notice of Intention to Distribute") in
order to verify that Borrower is entitled to make a Distribution as
provided for herein.
9.2.2 Conditions Must Be Satisfied. If the Agent objects to such
proposed Distribution on the basis that the conditions thereto are not
satisfied, or that further information is required, Agent may, by written
notice to Borrower given within ten (10) Business Days following receipt
of Borrower's Notice of Intention to Distribute, prohibit the proposed
Distribution until such time as the Agent is reasonably satisfied that the
conditions have been satisfied.
9.2.3 Current Information. Once Agent has received a Notice of
Intention to Distribute and a Distribution has been made in accordance
with the foregoing, subsequent Notices of Intention to Distribute
submitted within the next 12 months shall not require the submission of
new financial information if Borrower submits a sworn affidavit and
unconditional representation that there have been no material adverse
changes, unless Agent has a good faith basis for requiring the same.
9.3 Limited Recourse Provisions.
9.3.1 Borrower Fully Liable. Borrower shall be fully liable for the
Loan and the Obligations of Borrower to each of the Lenders.
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9.3.2 Certain Non-Recourse. The Loan shall be on a non-recourse
basis to all limited partners of Borrower, except to the extent provided
for in any Loan Document executed by any such limited partner on its own
behalf.
9.3.3 Additional Matters. Nothing contained in this non-recourse
provisions or elsewhere shall: (i) limit the right of Agent or any of the
Lenders to obtain injunctive relief or to pursue equitable remedies under
any of the Loan Documents, excluding only any injunctive relief ordering
payment of obligations by any Person or entity for which personal
liability does not otherwise exist; or (ii) limit the liability of any
attorney, law firm, accountant or other professional who or which renders
or provides any written opinion or certificate to Agent or any of the
Lenders in connection with the Loan even though such person or entity may
be a limited partner of Borrower.
9.4 Payment of Obligations. Upon the payment in full of the Obligations,
in immediately available funds, including, without limitation, all unreimbursed
costs and expenses of the Agent and of each Lender for which the Borrower is
responsible, the Agent shall release any security and other collateral
interests, including, without limitation, the Payment Direction Letters, rights
of setoff and right to freeze granted to the Agent as provided for herein and
under the other Loan Documents and shall execute and deliver such documents and
termination statements as Borrower or any other Loan Party reasonably requests
to evidence such termination and release. However, such release by the Agent
shall not be deemed to terminate or release any Person from any obligation or
liability under the Loan Documents which specifically by its terms survives the
payment in full of the Obligations.
10. EVENTS OF DEFAULT. The following provisions deal with Default, Events
of Default, notice, grace and cure periods, and certain rights of Agent
following an Event of Default.
10.1 Default and Events of Default. The term "Default" as used herein or
in any of the other Loan Documents shall mean an Event of Default, or any fact
or circumstance which constitutes, or upon the lapse of time, or giving of
notice, or both, could constitute, an Event of Default. The occurrence of any of
the following events, respectively, shall, subject to the giving of any notice
or the expiration of any applicable grace period referred to in Section 10.2
without the cure thereof, constitute an "Event of Default" herein. Upon the
occurrence of any Event of Default described in Section 10.1.8, any and all
Obligations shall become due and payable without any further act on the part of
the Agent. Upon the occurrence of any other Event of Default, the Agent may
declare any and all Obligations immediately due and payable. The occurrence and
continuance of any Event of Default shall also constitute, without notice or
demand, a default under all other agreements between the Agent and/or the
Lenders and the Borrower and instruments and papers heretofore, now, or
hereafter given the Agent and/or the Lenders by the Borrower.
10.1.1 Failure to Pay the Loan. The failure by the Borrower to pay
when due any principal of, interest on, or fees in respect of, the Loan.
10.1.2 Failure to Make Other Payments. The failure by the Borrower
to pay when due (or upon demand, if payable on demand) any payment
Obligation other than any payment Obligation on account of the principal
of, or interest on, or fees in respect of, the Loan.
10.1.3 Note, Security Documents, and Other Loan Documents. Any other
default in the performance of any term or provision of any Note, or of the
Security Documents, or of any of the other Loan Documents, or a breach, or
other failure to satisfy, any other term, provision, condition or warranty
under the Note, the Security Documents, or any other Loan Document,
regardless of whether any then undisbursed portion of the Loan is
sufficient to
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cover any payment of money required thereby, and the specific grace
period, if any, allowed for the default in question shall have expired
without such default having been cured.
10.1.4 Default under Other Agreements. The occurrence of any breach
of any covenant or Obligation imposed by, or of any default under, any
agreement (including any Loan Document) between the Agent and/or the
Lenders and the Borrower, the other Loan Parties, and/or the Net Lease
Partnerships or instrument given by the Borrower and such Persons to the
Agent and/or the Lenders and the expiry, without cure, of any applicable
grace period (notwithstanding that the Agent and/or the Lenders may not
have exercised all or any of its/their rights on account of such breach or
default).
10.1.5 Representations and Warranties. If any representation or
warranty made by the Borrower or by any of the other Loan Parties or the
Borrower Subsidiaries in the Loan Documents was untrue or misleading in a
manner which could reasonably be expected to have a Material Adverse
Effect.
10.1.6 Affirmative Covenants. The breach of any covenant contained
in Article 7 herein, including, without limitation, the Financial
Covenants.
10.1.7 Negative Covenants. The breach of any covenant contained in
Article 8 herein.
10.1.8 Financial Status and Insolvency.
A. Borrower shall: (i) admit in writing its inability to pay
its debts generally as they become due; (ii) file a petition in bankruptcy
or a petition to take advantage of any insolvency act; (iii) make an
assignment for the benefit of creditors; (iv) consent to, or acquiesce in,
the appointment of a receiver, liquidator or trustee of itself or of the
whole or any substantial part of its properties or assets; (v) file a
petition or answer seeking reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under the Federal
Bankruptcy laws or any other applicable law; (vi) have a court of
competent jurisdiction enter an order, judgment or decree appointing a
receiver, liquidator or trustee of Borrower, or of the whole or any
substantial part of the property or assets of Borrower, and such order,
judgment or decree shall remain unvacated or not set aside or unstayed for
sixty (60) days; (vii) have a petition filed against it seeking
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under the Federal Bankruptcy laws or any
other applicable law and such petition shall remain undismissed for sixty
(60) days; (viii) have, under the provisions of any other law for the
relief or aid of debtors, any court of competent jurisdiction assume
custody or control of Borrower or of the whole or any substantial part of
its property or assets and such custody or control shall remain
unterminated or unstayed for sixty (60) days; or (ix) have an attachment
or execution levied against any substantial portion of the property of
Borrower or against any substantial portion of the Collateral which is not
discharged or dissolved by a bond within thirty (30) days; or
B. any such event set forth in subsection A above shall occur
with respect to (i) a Participating Limited Partnership only if the
Subsidiary Bankruptcy Test has been triggered, (ii) any Xxxxxxx
Indemnitor, or (iii) any Borrower Subsidiary other than a Net Lease
Partnership;
10.1.9 Loan Documents. If any Loan Document for any reason other
than the satisfaction in full of all Obligations shall cease to be in full
force and effect (other than in accordance with its terms), thereby
preventing the Agent and/or the Lenders from obtaining
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the practical realization of the benefits thereof, or if any Loan Document
shall be declared null and void or any Loan Party shall claim or declare
any such Loan Document to no longer be in full force and effect or is null
and void, or if the Liens and security interests purported to be created
by any of the Loan Documents shall cease to be valid, perfected, first
priority (except as otherwise expressly provided herein) security
interests;
10.1.10 Judgments. One or more judgments or decrees shall be entered
against Borrower or any Loan Party (except for the MLP Holders, the
Non-Participating Limited Partnerships, or the Partially Owned Limited
Partnerships) or Borrower Subsidiary involving a liability (not paid or
fully covered by a reputable and solvent insurance company) and such
judgments and decrees either shall be final and non-appealable or shall
not be vacated, discharged or stayed or bonded pending appeal for any
period of sixty (60) consecutive days, and the aggregate amount of all
such judgments exceeds $750,000.00;
10.1.11 Default of Other Specified Debt and Related Documents. If a
Default or Event of Default (regardless of how or if defined) shall occur
in any one or more of the following, as to which Default or Event of
Default the holder has accelerated the obligations due thereunder and
commenced exercising its rights upon such Default or Event of Default:
(i) The Integrated Obligations; and/or
(ii) Any Mortgage Debt, but only if the Mortgage Debt Test has
been triggered.
10.1.12 ERISA. (i) If any Plan shall fail to satisfy the minimum
funding standard required for any plan year or part thereof or a waiver of
such standard or extension of any amortization period is sought or granted
under Section 412 of the Code, any Plan shall have had or is likely to
have a trustee appointed to administer such Plan, any Plan is, shall have
been or is likely to be terminated or to be the subject of termination
proceedings under ERISA, any Plan shall have an Unfunded Current
Liability, a contribution required to be made to a Plan has not been
timely made, the Borrower or any Borrower Subsidiary or any ERISA
Affiliate has incurred or is likely to incur a liability to or on account
of a Plan under Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069,
4201, 4204 or 4212 of ERISA or Section 401(a)(29), 4971, 4975 or 4980 of
the Code, or the Borrower or any Borrower Subsidiary has incurred or is
likely to incur liabilities pursuant to one or more employee welfare
benefit plans (as defined in Section 3(l) of ERISA) that provide benefits
to retired employees or other former employees (other than as required by
Section 601 of ERISA) or employee pension benefit plans (as defined in
Section 3(2) of ERISA) and any of the foregoing could have a Material
Adverse Effect; (ii) if there shall result from any such event or events
the imposition of a lien, the granting of a security interest, or a
liability or a material risk of incurring a liability which could have, or
reasonably be expected to have, a Material Adverse Effect; or (iii) if
which lien, security interest or liability, individually, and/or in the
aggregate, in the opinion of the Agent could have, or reasonably be
expected to have, a Material Adverse Effect.
10.1.13 Change of Control. If a Change of Control shall occur.
10.1.14 Indictment; Forfeiture. The indictment of, or institution of
any legal process or proceeding against, the Borrower, any other Loan
Party (except for an Excepted Loan Party), and/or any Borrower Subsidiary
under any applicable law where the relief, penalties, or remedies sought
or available include the forfeiture of any property of Borrower and/or any
other such Person and/or the imposition of any stay or other order, the
effect of which could reasonably be expected to have a Material Adverse
Effect.
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10.1.15 Default of Other Obligations. Any failure by the Borrower to
pay at maturity, or within any applicable grace period, any obligation for
borrowed money, or in respect of any capitalized lease, or any failure to
observe or perform any material term, covenant or agreement contained in
any agreement by which the Borrower is bound, evidencing or securing
borrowed money, or in respect of any capitalized lease, such that the
holder or holders thereof or of any obligations issued thereunder have
accelerated the maturity thereof.
10.1.16 Termination of Guaranty or Consent. The termination or
attempted termination of (i) any Guaranty by any Guarantor of the
Obligations, or (ii) Xxxxxxx Indemnification by any Xxxxxxx Indemnitor.
10.1.17 Generally. A default by Borrower in the performance of any
term, provision or condition of this Agreement to be performed by
Borrower, or a breach, or other failure to satisfy, any other term
provision, condition, covenant or warranty under this Agreement and such
default remains uncured beyond any applicable specific grace period
provided for in this Agreement, or as set forth in Section 10.2. below;
10.2 Grace Periods and Notice. As to each of the foregoing events the
following provisions relating to grace periods and notice shall apply:
10.2.1 No Notice or Grace Period. Except for any grace or notice
period specifically provided for in any referenced section of this
Agreement, there shall be no grace period and no notice provision with
respect to the payment of principal at maturity and no grace period and no
notice provision with respect to defaults related to the voluntary filing
of bankruptcy or reorganization proceedings or an assignment for the
benefit of creditors, or with respect to a breach of warranty or
representation as set forth in Section 10.1.5, or with respect to the
breach of any of the affirmative covenants set forth in Sections 7.24,
7.25, 7.26, and 7.27.
10.2.2 Nonpayment of Interest and Principal. As to the nonpayment of
interest, installments of principal, and in connection with a Mandatory
Principal Prepayment prior to maturity there shall be a ten (10) Business
Day grace period without any requirement of notice from Agent.
10.2.3 Other Monetary Defaults. All other monetary defaults shall
have a five (5) Business Day grace period following notice from Agent.
10.2.4 Nonmonetary Defaults.
(i) As to non-monetary default under Section 7.2, 7.5.1, 7.17,
7.22, 7.23, or 7.28, or with respect to the breach of any of the
negative covenants set forth in Article 8, there shall be a ten (10)
day grace period following notice from Agent of such default;
(ii) As to non-monetary default under Section 7.16.1 or 7.32
there shall be a five (5) day grace period following notice from
Agent of such default;
(iii) As to any other non-monetary default, unless there is a
specific shorter or longer grace period provided for in this Loan
Agreement or in another Loan Document, there shall be a thirty (30)
day grace period following notice from Agent or, if such default
would reasonably require more than thirty (30) days to cure
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or remedy, such longer period of time not to exceed a total of
ninety (90) days from Agent's notice as may be reasonably required
so long as Borrower shall commence reasonable actions to remedy or
cure the default within thirty (30) days following such notice and
shall diligently prosecute such curative action to completion within
such ninety (90) day period. However, where there is an emergency
situation in which there is danger to person or property such
curative action shall be commenced as promptly as possible. As to
breaches of warranties and representations (other than those related
to financial information) there shall be a thirty (30) day grace
period following notice from Agent.
11. REMEDIES.
11.1 Remedies. Upon the occurrence and during the continuance of an Event
of Default, whether or not the indebtedness evidenced by the Note and secured by
the Security Documents shall be due and payable or Agent shall have instituted
any foreclosure or other action for the enforcement of the Security Documents or
the Note, Agent may, and shall upon the direction of the Required Lenders, in
addition to any other remedies which Agent may have hereunder or under the other
Loan Documents, or otherwise, and not in limitation thereof, and in Agent's sole
and absolute discretion:
11.1.1 Accelerate Debt. Agent may, and with the direction of the
Required Lenders shall, declare the indebtedness evidenced by the Note and
secured by the Security Documents immediately due and payable (provided
that in the case of a voluntary petition in bankruptcy filed by Borrower
or an involuntary petition in bankruptcy filed against Borrower (after
expiration of the grace period, if any, set forth in Section 10.1.8), such
acceleration shall be automatic).
11.1.2 Pursue Remedies. Agent may, and with the direction of the
Required Lenders shall, pursue any and all remedies provided for
hereunder, under any one or more of the other Loan Documents, and/or
otherwise. In the event that the Agent exercises the rights under the
Security Documents to exercise the rights of the Borrower under the
Put-Call Option Agreement, the Borrower shall issue or cause the issuance
of sufficient limited partnership interests in the Borrower to effectuate
the terms and provisions thereof.
11.2 Written Waivers. Except as otherwise provided in Section 13.4, if a
Default or an Event of Default is waived by the Required Lenders, in its sole
discretion, pursuant to a specific written instrument executed by an authorized
officer of Agent, the Default or Event of Default so waived shall be deemed to
have never occurred.
11.3 Power of Attorney. For the purpose of exercising the rights granted
by this Article 11, as well as any and all other rights and remedies of Agent
under the Loan Documents, Borrower hereby irrevocably constitutes and appoints
Agent (or any agent designated by Agent) its true and lawful attorney-in-fact,
with full power of substitution, upon the occurrence and during the continuance
of any Event of Default, to execute, acknowledge and deliver any instruments and
to do and perform any acts in the name and on behalf of Borrower. In connection
with the foregoing power of attorney, the Borrower hereby grants unto the Agent
(acting through any of its officers) full power to do any and all things after
the occurrence and during the continuance of an Event of Default necessary or
appropriate in connection with the exercise of such powers as fully and
effectually as the Borrower might or could do, hereby ratifying all that said
attorney shall do or cause to be done by virtue of this Agreement. The foregoing
power of attorney shall not be affected by any disability or incapacity suffered
by the Borrower and shall survive the same. All powers conferred upon the Agent
by this Agreement, being coupled with an interest, shall be irrevocable until
this Agreement is terminated by a written instrument executed by a duly
authorized officer of the Agent.
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12. SECURITY INTEREST AND SET-OFF.
12.1 Security Interest. Borrower hereby grants to the Agent and each of
the Lenders, a continuing lien, security interest and right of setoff as
security for all of the Obligations to Agent and each of the Lenders, whether
now existing or hereafter arising, upon and against all Depository Accounts,
Accounts, deposits, credits, collateral and property, now or hereafter in the
possession, custody, safekeeping or control of Agent or any of the Lenders or
any entity under the control of FleetBoston Financial Corporation and its
successors and assigns, or in transit to any of them.
12.2 Set-Off. After the occurrence and during the continuance of any Event
of Default, any such Depository Accounts, Accounts, deposits, balances or other
sums credited by or due from Agent, any affiliate of Agent or FleetBoston
Financial Corporation or any of the Lenders, or from any such affiliate of any
of the Lenders, to Borrower may to the fullest extent not prohibited by
applicable law at any time or from time to time, without regard to the
existence, sufficiency or adequacy of any other collateral, and without notice
or compliance with any other condition precedent now or hereafter imposed by
statute, rule of law or otherwise, all of which are hereby waived, be set off,
appropriated and applied by Agent against any or all of Borrower's Obligations
irrespective of whether demand shall have been made, in such manner as Agent in
its sole and absolute discretion may determine. Within three (3) Business Days
of making any such set off, appropriation or application, Agent agrees to notify
Borrower thereof, provided the failure to give such notice shall not affect the
validity of such set off or appropriation or application. ANY AND ALL RIGHTS TO
REQUIRE AGENT OR ANY OF THE LENDERS TO EXERCISE ITS RIGHTS OR REMEDIES WITH
RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE LOAN, PRIOR TO EXERCISING ITS
RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER PROPERTY OF THE
BORROWER OR ANY GUARANTOR, ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY
WAIVED.
12.3 Application Each of the Lenders agrees with each other Lender that
with respect to this Agreement or under any other Loan Document (a) if an amount
to be set off is to be applied to indebtedness of the Borrower or any other Loan
Party to such Lender, other than the Obligations evidenced by the Note due to
such Lender, such amount shall be applied ratably to such other indebtedness and
to the Obligations evidenced by the Note due to such Lender, and (b) if such
Lender shall receive from the Borrower or any other Loan Party, whether by
voluntary payment, exercise of the right of setoff, counterclaim, cross action,
enforcement of the claim evidenced by the Note due to such Lender by proceedings
against the Borrower or any other Loan Party at law or in equity or by proof
thereof in bankruptcy, reorganization, liquidation, receivership or similar
proceedings, or otherwise, and shall retain and apply to the payment of the Note
due to such Lender any amount in excess of its ratable portion of the payments
received by all of the Lenders with respect to Obligations under the Note due to
all of the Lenders, such Lender will make such disposition and arrangements with
the other Lenders with respect to such excess, either by way of distribution,
pro tanto assignment of claims, subrogation or otherwise as shall result in each
Lender receiving in respect of the Note its proportionate payment as
contemplated by this Agreement; provided that if all or any part of such excess
payment is thereafter recovered from such Lender, such disposition and
arrangements shall be rescinded and the amount restored to the extent of such
recovery, but without interest.
12.4 Right to Freeze. The Agent and each of the Lenders shall also have
the right, at its option, upon the occurrence and during the continuance of any
event which would entitle the Agent and each of the Lenders to set off or debit
as set forth in Section 12.2, to freeze, block or segregate any such deposits,
balances and other sums so that Borrower may not access, control or draw upon
the same.
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12.5 Additional Rights. The rights of Agent, the Lenders and each
affiliate of Agent and each of the Lenders under this Article 12 are in addition
to, and not in limitation of, other rights and remedies, including other rights
of set off, which Agent or any of the Lenders may have.
13. THE AGENT AND THE LENDERS
13.1 Rights, Duties and Immunities of the Agent.
13.1.1 Appointment of Agent. Each Lender hereby irrevocably
designates and appoints Fleet National Bank as Agent of such Lender to act
as specified herein and in the other Loan Documents, and each such Lender
hereby irrevocably authorizes the Agent to take such actions, exercise
such powers and perform such duties as are expressly delegated to or
conferred upon the Agent by the terms of this Loan Agreement and the other
Loan Documents, together with such other powers as are reasonably
incidental thereto. The Agent agrees to act as such upon the express
conditions contained in this Article 13. The Agent shall not have any
duties or responsibilities except those expressly set forth herein or in
the other Loan Documents, nor shall it have any fiduciary relationship
with any Lender, and no implied covenants, responsibilities, duties,
obligations or liabilities shall be read into this Loan Agreement or
otherwise exist against the Agent. The provisions of this Article 13 are
solely for the benefit of the Agent and the Lenders, and the Borrower
shall not have any rights as a third party beneficiary of any of the
provisions hereof.
13.1.2 Administration of Loan by Agent. The Agent shall be
responsible for administering the Loan on a day-to-day basis. In the
exercise of such administrative duties, the Agent shall use the same
diligence and standard of care that is customarily used by the Agent with
respect to similar loans held by the Agent solely for its own account.
Each Lender delegates to the Agent the full right and authority on its
behalf to take the following specific actions in connection with its
administration of the Loan:
(i) to fund the Loan in accordance with the provisions of the Loan
Documents, but only to the extent of immediately available funds provided
to the Agent by the respective Lenders for such purpose;
(ii) to receive all payments of principal, interest, fees and other
charges paid by, or on behalf of, the Borrower and, except for fees to
which the Agent is entitled pursuant to the Loan Documents or otherwise,
to distribute all such funds to the respective Lenders as provided for
hereunder;
(iii) to keep and maintain complete and accurate files and records
of all material matters pertaining to the Loan, and make such files and
records available for inspection and copying by each Lender and its
respective employees and agents during normal business hours upon
reasonable prior notice to the Agent; and
(iv) to do or omit doing all such other actions as may be reasonably
necessary or incident to the implementation, administration and servicing
of the Loan and the rights and duties delegated hereinabove.
13.1.3 Delegation of Duties. The Agent may execute any of its duties
under this Loan Agreement or any other Loan Document by or through its
agents or attorneys-in-fact, and shall be entitled to the advice of
counsel concerning all matters pertaining to its rights and duties
hereunder or under the Loan Documents. The Agent shall not be responsible
for
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the negligence or misconduct of any agents or attorneys-in-fact selected
by it with reasonable care.
13.1.4 Exculpatory Provisions. Neither the Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates
shall be liable for any action lawfully taken or omitted to be taken by it
or them under or in connection with this Loan Agreement or the other Loan
Documents, except for its or their gross negligence or willful misconduct.
Neither the Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates shall be responsible for or have any duty
to ascertain, inquire into, or verify (i) any recital, statement,
representation or warranty made by the Borrower or any of its officers or
agents contained in this Loan Agreement or the other Loan Documents or in
any certificate or other document delivered in connection therewith; (ii)
the performance or observance of any of the covenants or agreements
contained in, or the conditions of, this Loan Agreement or the other Loan
Documents; (iii) the state or condition of any properties of the Borrower
or any other obligor hereunder constituting Collateral for the Obligations
of the Borrower hereunder, or any information contained in the books or
records of the Borrower; (iv) the validity, enforceability,
collectibility, effectiveness or genuineness of this Loan Agreement or any
other Loan Document or any other certificate, document or instrument
furnished in connection therewith; or (v) the validity, priority or
perfection of any lien securing or purporting to secure the Obligations or
the value or sufficiency of any of the Collateral.
13.1.5 Reliance by Agent. The Agent shall be entitled to rely, and
shall be fully protected in relying, upon any notice, consent,
certificate, affidavit, or other document or writing believed by it to be
genuine and correct and to have been signed, sent or made by the proper
person or persons, and upon the advice and statements of legal counsel
(including, without, limitation, counsel to the Borrower), independent
accountants and other experts selected by the Agent. The Agent shall be
fully justified in failing or refusing to take any action under this Loan
Agreement or any other Loan Document unless it shall first receive such
advice or concurrence of the Required Lenders as it deems appropriate or
it shall first be indemnified to its satisfaction by the Lenders against
any and all liability and expense which may be incurred by it by reason of
the taking or failing to take any such action. The Agent shall in all
cases be fully protected in acting, or in refraining from acting, under
this Loan Agreement and the other Loan Documents in accordance with any
written request of the Required Lenders, and each such request of the
Required Lenders, and any action taken or failure to act by the Agent
pursuant thereto, shall be binding upon all of the Lenders; provided,
however, that the Agent shall not be required in any event to act, or to
refrain from acting, in any manner which is contrary to the Loan Documents
or to applicable law.
13.1.6 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
unless the Agent has actual knowledge of the same or has received notice
from a Lender or the Borrower referring to this Loan Agreement, describing
such Default or Event of Default and stating that such notice is a "notice
of default". In the event that the Agent obtains such actual knowledge or
receives such a notice, the Agent shall give prompt notice thereof to each
of the Lenders. The Agent shall take such action with respect to such
Default or Event of Default as shall be reasonably directed by the
Required Lenders. Unless and until the Agent shall have received such
direction, the Agent may (but shall not be obligated to) take such action,
or refrain from taking such action, with respect to any such Default or
Event of Default as it shall deem advisable in the best interest of the
Lenders.
13.1.7 Lenders' Credit Decisions. Each Lender acknowledges that it
has, independently and without reliance upon the Agent or any other
Lender, and based on the financial statements prepared by the Borrower and
such other documents and information
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as it has deemed appropriate, made its own credit analysis and
investigation into the business, assets, operations, property, and
financial and other condition of the Borrower and has made its own
decision to enter into this Loan Agreement and the other Loan Documents.
Each Lender also acknowledges that it will, independently and without
reliance upon the Agent or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make
its own credit decisions in determining whether or not conditions
precedent to Closing any Loan hereunder have been satisfied and in taking
or not taking any action under this Loan Agreement and the other Loan
Documents.
13.1.8 Agent's Reimbursement and Indemnification. The Lenders agree
to reimburse and indemnify the Agent, ratably in proportion to their
respective Commitments, for (i) any amounts not reimbursed by the Borrower
for which the Agent is entitled to reimbursement by the Borrower under
this Loan Agreement or the other Loan Documents, (ii) any other expenses
incurred by the Agent on behalf of the Lenders in connection with the
preparation, execution, delivery, administration, amendment, waiver and/or
enforcement of this Loan Agreement and the other Loan Documents, and (iii)
any liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind and nature
whatsoever which may imposed on, incurred by or asserted against the Agent
in any way relating to or arising out of this Loan Agreement or the other
Loan Documents or any other document delivered in connection therewith or
any transaction contemplated thereby, or the enforcement of any of the
terms hereof or thereof, provided that no Lender shall be liable for any
of the foregoing to the extent that they arise from the gross negligence
or willful misconduct of the Agent. If any indemnity furnished to the
Agent for any purpose shall, in the opinion of the Agent, be insufficient
or become impaired, the Agent may call for additional indemnity and cease,
or not commence, to do the action indemnified against until such
additional indemnity is furnished.
13.1.9 Agent in its Individual Capacity. With respect to its
Commitment as a Lender, and the Loans made by it and the Note issued to
it, the Agent shall have the same rights and powers hereunder and under
any other Loan Document as any Lender and may exercise the same as though
it were not the Agent, and the term "Lender" or "Lenders" shall, unless
the context otherwise indicates, include the Agent in its individual
capacity. The Agent and its subsidiaries and affiliates may accept
deposits from, lend money to, and generally engage in any kind of
commercial or investment banking, trust, advisory or other business with
the Borrower or any subsidiary or affiliate of the Borrower as if it were
not the Agent hereunder.
13.1.10 Successor Agent. The Agent may resign at any time by giving
thirty (30) days' prior written notice to the Lenders and Borrower. The
Required Lenders, for good cause, may remove Agent at any time by giving
thirty (30) days' prior written notice to the Agent, the Borrower and the
other Lenders. Upon any such resignation or removal, the Required Lenders
shall have the right to appoint a successor Agent. If no successor Agent
shall have been so appointed by the Required Lenders and accepted such
appointment within thirty (30) days after the retiring Agent's giving
notice of resignation or the Required Lenders' giving notice of removal,
as the case may be, then the retiring Agent may appoint, on behalf of the
Borrower and the Lenders, a successor Agent. Each such successor Agent
shall be a financial institution which meets the requirements of an
Eligible Assignee. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations hereunder and under the other Loan
Documents. After any retiring Agent's resignation hereunder, the
provisions of this Article 13 shall continue in effect for its benefit
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in respect of any actions taken or omitted to be taken by it while it was
acting as the Agent hereunder.
13.1.11 Duties in the Case of Enforcement. In case one or more
Events of Default have occurred and shall be continuing, and whether or
not acceleration of the Obligations shall have occurred, the Agent shall,
at the request, or may, upon the consent, of the Required Lenders, and
provided that the Lenders have given to the Agent such additional
indemnities and assurances against expenses and liabilities as the Agent
may reasonably request, proceed to enforce the provisions of this Loan
Agreement and the other Loan Documents respecting the foreclosure, the
sale, or other disposition of all or any part of the Collateral and the
exercise of any other legal or equitable rights or remedies as it may have
hereunder or under any other Loan Document or otherwise by virtue of
applicable law, or to refrain from so acting if similarly requested by the
Required Lenders. The Agent shall be fully protected in so acting or
refraining from acting upon the instruction of the Required Lenders, and
such instruction shall be binding upon all the Lenders. The Required
Lenders may direct the Agent in writing as to the method and the extent of
any such foreclosure, sale or other disposition or the exercise of any
other right or remedy, the Lenders hereby agreeing to indemnify and hold
the Agent harmless from all costs and liabilities incurred in respect of
all actions taken or omitted in accordance with such direction, provided
that the Agent need not comply with any such direction to the extent that
the Agent reasonably believes the Agent's compliance with such direction
to be unlawful or commercially unreasonable in any applicable
jurisdiction. The Agent may, in its discretion but without obligation, in
the absence of direction from the Required Lenders, take such interim
actions as it believes necessary to preserve the rights of the Lenders
hereunder and in and to any Collateral securing the Obligations, including
but not limited to petitioning a court for injunctive relief, appointment
of a receiver or preservation of the proceeds of any Collateral. Each of
the Lenders acknowledges and agrees that no individual Lender may
separately enforce or exercise any of the provisions of any of the Loan
Documents, including without limitation the Note, other than through the
Agent.
13.2 Respecting Loans and Payments.
13.2.1 Procedures for Loans. Agent shall give written notice to each
Lender of each request for a Loan, or conversion of an existing Loan from
a Variable Rate Advance to an Effective LIBO Rate Advance, by facsimile
transmission, hand delivery or overnight courier, not later than 11:00
a.m. (Boston time) (i) two (2) Business Days prior to any Effective LIBO
Rate Advance or conversion to an Effective LIBO Rate Advance, or (ii) one
(1) Business Day prior to any Variable Rate Advance. Each such notice
shall be accompanied by a written summary of the request for a Loan and
shall specify (a) the date of the requested Loan, (b) the aggregate amount
of the requested Loan, (c) each Lender's pro rata share of the requested
Loan, and (d) the applicable interest rate selected by Borrower with
respect to such Loan, or any portion thereof, together with the applicable
Interest Period, if any, selected, or deemed selected, by Borrower. Each
Lender shall, before 11:00 a.m. (Boston time) on the date set forth in any
such request for a Loan, make available to Agent, at an account to be
designated by Agent at Fleet National Bank in Boston, Massachusetts, in
same day funds, each Lender's ratable portion of the requested Loan. After
Agent's receipt of such funds and upon Agent's determination that the
applicable conditions to making the requested Loan have been fulfilled,
Agent shall make such funds available to Borrower as provided for in this
Loan Agreement. Within a reasonable period of time following the making of
each Loan, but in no event later than ten (10) Business Days following
such Loan, Agent shall deliver to each Lender a copy of Borrower's request
for Loan. Promptly after receipt by Agent of written request from any
Lender, Agent shall deliver to the requesting Lender the accompanying
certifications and such other instruments,
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documents, certifications and approvals delivered by or on behalf of
Borrower to Agent in support of the requested Loan.
13.2.2 Nature of Obligations of Lenders. The obligations of the
Lenders hereunder are several and not joint. Failure of any Lender to
fulfill that its obligations hereunder shall not result in any other
Lender becoming obligated to advance more than its Commitment Percentage
of the Loan, nor shall such failure release or diminish the obligations of
any other Lender to fund its Commitment Percentage provided herein.
13.2.3 Payments to Agent. All payments of principal of and interest
on the Loans or the Note shall be made to the Agent by the Borrower or any
other obligor or guarantor for the account of the Lenders in immediately
available funds as provided in the Note and this Loan Agreement. Except as
otherwise expressly provided herein, the Agent agrees promptly to
distribute to each Lender, on the same Business Day upon which each such
payment is made, such Lender's proportionate share of each such payment in
immediately available funds excluding Liquidation Proceeds which shall be
distributed in accordance with Section 13.2.4 below. The Agent shall upon
each distribution promptly notify Borrower of such distribution and each
Lender of the amounts distributed to it applicable to principal of, and
interest on, the proportionate share held by the applicable Lender. Each
payment to the Agent under the first sentence of this Section shall
constitute a payment by the Borrower to each Lender in the amount of such
Lender's proportionate share of such payment, and any such payment to the
Agent shall not be considered outstanding for any purpose after the date
of such payment by the Borrower to the Agent without regard to whether or
when the Agent makes distribution thereof as provided above. If any
payment received by the Agent from the Borrower is insufficient to pay
both all accrued interest and all principal then due and owing, the Agent
shall first apply such payment to all outstanding interest until paid in
full and shall then apply the remainder of such payment to all principal
then due and owing, and shall distribute the payment to each Lender
accordingly.
13.2.4 Distribution of Liquidation Proceeds. Subject to the terms
and conditions hereof, the Agent shall distribute all Liquidation Proceeds
in the order and manner set forth below:
First: To the Agent, towards any fees and any expenses for which the
Agent is entitled to reimbursement under this Agreement or the
other Loan Documents not theretofore paid to the Agent.
Second: To all applicable Lenders in accordance with their
proportional share based upon their respective Commitment
Percentages until all Lenders have been reimbursed for all
expenses which such Lenders have previously paid to the Agent
and not theretofore paid to such Lenders.
Third: To all Lenders in accordance with their proportional share
based upon their respective Commitment Percentages until all
Lenders have been paid in full all principal and interest due
to such Lenders under the Loan, with each Lender applying such
proceeds for purposes of this Agreement first against the
outstanding principal balance due to such Lender under the
Loan and then to accrued and unpaid interest due under the
Loan.
Fourth: To all applicable Lenders in accordance with their
proportional share based upon their respective Commitment
Percentages until all Lenders have been paid in full all other
amounts due to such Lenders under the Loan including, without
limitation, any costs and expenses incurred directly by such
Lenders
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to the extent such costs and expenses are reimbursable to such
Lenders by the Borrower under the Loan Documents.
Fifth: To Fleet National Bank (or any successor thereto) with respect
to the Obligations specifically arising on account of the
Interest Rate Protection Agreement, if issued by Fleet
National Bank.
Sixth: To the Borrower or such third parties as may be entitled to
claim Liquidation Proceeds.
13.2.5 Adjustments. If, after Agent has paid each Lender's
proportionate share of any payment received or applied by Agent in respect
of the Loan and other Obligations, that payment is rescinded or must
otherwise be returned or paid over by Agent, whether pursuant to any
bankruptcy or insolvency law, sharing of payments clause of any loan
agreement or otherwise, such Lender shall, at Agent's request, promptly
return its proportionate share of such payment or application to Agent,
together with the Lender's proportionate share of any interest or other
amount required to be paid by Agent with respect to such payment or
application.
13.2.6 Setoff. If any Lender (including the Agent), acting in its
individual capacity, shall exercise any right of setoff against a deposit
balance or other account of the Borrower held by such Lender on account of
the obligations of the Borrower under this Loan Agreement, such Lender
shall remit to the Agent all such sums received pursuant to the exercise
of such right of setoff, and the Agent shall apply all such sums for the
benefit of all of the Lenders hereunder in accordance with the terms of
this Loan Agreement.
13.2.7 Distribution by Agent. If in the opinion of the Agent
distribution of any amount received by it in such capacity hereunder or
under the Note or under any of the other Loan Documents might involve any
liability, it may refrain from making distribution until its right to make
distribution shall have been adjudicated by a court of competent
jurisdiction or has been resolved by the mutual consent of all Lenders. In
addition, the Agent may request full and complete indemnity, in form and
substance satisfactory to it, prior to making any such distribution. If a
court of competent jurisdiction shall adjudge that any amount received and
distributed by the Agent is to be repaid, each person to whom any such
distribution shall have been made shall either repay to the Agent its
proportionate share of the amount so adjudged to be repaid or shall pay
over to the same in such manner and to such Persons as shall be determined
by such court.
13.2.8 Delinquent Lender. If for any reason any Lender shall fail or
refuse to abide by its obligations under this Loan Agreement, including
without limitation its obligation to make available to Agent its pro rata
share of any Loans, expenses or setoff (a "Delinquent Lender") and such
failure is not cured within ten (10) days of receipt from the Agent of
written notice thereof, then, in addition to the rights and remedies that
may be available to Agent, other Lenders, the Borrower or any other party
at law or in equity, and not at limitation thereof, (i) such Delinquent
Lender's right to participate in the administration of, or decision-making
rights related to, the Loans, this Loan Agreement or the other Loan
Documents shall be suspended during the pendency of such failure or
refusal, and (ii) a Delinquent Lender shall be deemed to have assigned any
and all payments due to it from the Borrower, whether on account of
outstanding Loans, interest, fees or otherwise, to the remaining
non-delinquent Lenders for application to, and reduction of, their
proportionate shares of all outstanding Loans until, as a result of
application of such assigned payments the Lenders' respective pro rata
shares of all outstanding Loans shall have returned to those in effect
immediately prior to such delinquency and without giving effect to the
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nonpayment causing such delinquency. The Delinquent Lender's
decision-making and participation rights and rights to payments as set
forth in clauses (i) and (ii) hereinabove shall be restored only upon the
payment by the Delinquent Lender of its pro rata share of any Loans or
expenses as to which it is delinquent, together with interest thereon at
the Default Rate from the date when originally due until the date upon
which any such amounts are actually paid.
The non-delinquent Lenders shall also have the right, but not the
obligation, in their respective, sole and absolute discretion, to acquire for no
cash consideration (pro rata, based on the respective Commitments of those
Lenders electing to exercise such right) the Delinquent Lender's Commitment to
fund future Loans (the "Future Commitment"). Upon any such purchase of the pro
rata share of any Delinquent Lender's Future Commitment, the Delinquent Lender's
share in future Loans and its rights under the Loan Documents with respect
thereto shall terminate on the date of purchase, and the Delinquent Lender shall
promptly execute all documents reasonably requested to surrender and transfer
such interest, including, if so requested, an Assignment and Acceptance. Each
Delinquent Lender shall indemnify Agent and each non-delinquent Lender from and
against any and all loss, damage or expenses, including but not limited to
reasonable attorneys' fees and funds advanced by Agent or by any non-delinquent
Lender, on account of a Delinquent Lender's failure to timely fund its pro rata
share of a Loan or to otherwise perform its obligations under the Loan
Documents.
13.2.9 Holders. The Agent may deem and treat the Lender designated
in the Register as the proportionate owner of such interest in the Note
for all purposes hereof unless and until a written notice of the
assignment, transfer or endorsement thereof, as the case may be, shall
have been filed with the Agent. Any request, authority or consent of any
Person who, at the time of making such request or giving such authority or
consent, is the holder of any designated interest in the Note shall be
conclusive and binding on any subsequent holder, transferee or endorsee,
as the case may be, of such interest in the Note or of any Note or Notes
issued in exchange therefor.
13.3 Assignment and Participation.
13.3.1 Conditions to Assignment by Lenders. Except as provided
herein, each Lender may assign to one or more Eligible Assignees all or a
portion of its interests, rights and obligations under this Loan Agreement
(including all or a portion of its Commitment Percentage and Commitment
and the same portion of the Loans at the time owing to it and the portion
of the Note held by it), upon satisfaction of the following conditions:
(a) each of the Agent and the Borrower shall have given its prior written
consent to such assignment, which consent shall not be unreasonably
withheld, delayed or conditioned by either the Agent or the Borrower
(provided that, in the case of the Borrower, such consent shall not be
required if a Default or Event of Default shall have occurred and be
continuing and provided, further, such consent shall not be required from
either the Agent or the Borrower in connection with any assignment as to
which (i) the assignee is an existing Lender (other than a Delinquent
Lender) or (ii) an Affiliate or a Related Fund of the assigning Lender);
(b) each such assignment shall be of a constant, and not a varying,
percentage of all the assigning Lender's rights and obligations under this
Loan Agreement, (c) each assignment shall be in an amount that is at least
$1,000,000.00 and is a whole multiple of $1,000,000.00 (provided, such
minimum amount shall not apply if the assigning Lender is assigning its
entire remaining interest in the Loan), (d) each Lender which is a Lender
at the time of such assignment shall retain, free of any such assignment,
an amount of its Commitment of not less than $1,000,000.00 (provided, such
minimum amount shall not apply if the assigning Lender is assigning its
entire remaining interest in the Loan), (e) unless an Event of Default
shall have occurred and be continuing, the Agent, in its individual
capacity as a Lender, shall
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retain, free of any such assignment, an amount of its Commitment of not
less than $25,000,000.00, and (f) the parties to such assignment shall
execute and deliver to the Agent, for recording in the Register (as
hereinafter defined), an Assignment and Acceptance, substantially in the
form of Exhibit H hereto (an "Assignment and Acceptance"). Upon such
execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, which
effective date shall be at least five (5) Business Days after the
execution thereof (or such shorter period of time as may be agreed to by
the Agent), (x) the assignee thereunder shall be a party hereto and, to
the extent provided in such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder, and (y) the assigning Lender shall, to
the extent provided in such assignment and upon payment to the Agent of
the registration fee referred to in Section 13.3.3, be released from its
obligations under this Loan Agreement.
13.3.2 Certain Representations and Warranties. Limitations,
Covenants. By executing and delivering an Assignment and Acceptance, the
parties to the assignment thereunder confirm to and agree with each other
and the other parties hereto as follows:
(a) other than the representation and warranty that it is the legal
and beneficial owner of the interest being assigned thereby free and clear
of any adverse claim, unless specifically agreed in writing otherwise by
the assigning Lender, the assigning Lender makes no representation or
warranty, express or implied, and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection
with this Loan Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Loan Agreement,
the other Loan Documents or any other instrument or document furnished
pursuant hereto or the attachment, perfection or priority of any security
interest or mortgage;
(b) unless specifically agreed in writing otherwise by the assigning
Lender, the assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower and its affiliates, related entities or subsidiaries or any other
person primarily or secondarily liable in respect of any of the
Obligations, or the performance or observance by the Borrower or any other
Person primarily or secondarily liable in respect of any of the
Obligations of any of their obligations under this Loan Agreement or any
of the other Loan Documents or any other instrument or document furnished
pursuant hereto or thereto;
(c) such assignee confirms that it has received a copy of this Loan
Agreement, together with copies of the most recent financial statements
provided by the Borrower as required by the terms of this Loan Agreement,
together with such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance;
(d) unless specifically agreed in writing otherwise by the assigning
Lender, such assignee will, independently and without reliance upon the
assigning Lender, the Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under this Loan Agreement;
(e) such assignee represents and warrants that it is an Eligible
Assignee;
(f) such assignee appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under this Loan
Agreement and the other Loan
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Documents as are delegated to the Agent by the terms hereof or thereof,
together with such powers as are reasonably incidental thereto;
(g) such assignee agrees that it will perform in accordance with
their terms all of the obligations that by the terms of this Loan
Agreement are required to be performed by it as a Lender; and
(h) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance.
13.3.3 Register. The Agent shall maintain a copy of each Assignment
and Acceptance delivered to it and a register or similar list (the
"Register") for the recordation of the names and addresses of the Lenders
and the Commitment Percentage of, and principal amount of the Loans owing
to the Lenders from time to time. The entries in the Register shall be
conclusive, in the absence of manifest error, and the Borrower, the Agent
and the Lenders may treat each person whose name is recorded in the
Register as a Lender hereunder for all purposes of this Loan Agreement.
The Register shall be available for inspection by the Borrower and the
Lenders at any reasonable time and from time to time upon reasonable prior
notice. Upon each such recordation, the assigning Lender agrees to pay to
the Agent a registration fee in the sum of ($3,500.00), except there shall
be no such registration fee if the assignment is to an Affiliate or
Related Fund of the assigning Lender.
13.3.4 Register. Upon its receipt of an Assignment and Acceptance
executed by the parties to such assignment, the Agent shall (a) record the
information contained therein in the Register, and (b) give prompt notice
thereof to the Borrower and the Lenders (other than the assigning Lender).
13.3.5 Participations. Each Lender may sell participations to one or
more banks or other financial institutions in all or a portion of such
Lender's rights and obligations under this Loan Agreement and the other
Loan Documents; provided that (a) each such participation shall be in a
minimum amount of $1,000,000.00 (provided, such minimum amount shall not
apply to participations with Affiliates or Related Funds of the assigning
Lender), (b) each participant shall meet the requirements of an Eligible
Assignee, (c) any such sale or participation shall not affect the rights
and duties of the selling Lender hereunder to the Borrower, and (d) the
only rights granted to the participant pursuant to such participation
arrangements with respect to waivers, amendments or modifications of the
Loan Documents shall be the rights to approve waivers, amendments or
modifications that would reduce the principal of or the interest rate on
any Loans, extend the term or increase the amount of the Commitment of
such Lender as it relates to such participant, reduce the amount of any
commitment fees to which such participant is entitled or extend any
regularly scheduled payment date for principal or interest.
13.3.6 Disclosure. The Borrower agrees that in addition to
disclosures made in accordance with standard and customary banking
practices any Lender may disclose information obtained by such Lender
pursuant to this Loan Agreement to assignees, pledgees, or participants
and potential assignees, pledgees, or participants hereunder (other than a
competitor of the Borrower); provided that such assignees, pledgees, or
participants or potential assignees or participants shall agree (a) to
treat in confidence such information unless such information otherwise
becomes public knowledge, (b) not to disclose such information to a third
party, except as required by law or legal process and (c) not to make use
of such information for purposes of transactions unrelated to such
contemplated assignment or participation.
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13.3.7 Miscellaneous Assignment Provisions. Any assigning Lender
shall retain its rights to be indemnified pursuant to Section 7.21 with
respect to any claims or actions arising prior to the date of such
assignment. If any assignee Lender is not incorporated under the laws of
the United States of America or any state thereof, it shall, prior to the
date on which any interest or fees are payable hereunder or under any of
the other Loan Documents for its account, deliver to the Borrower and the
Agent Certificates of Exemption, as provided in Section 2.7.3. Anything
contained in this Section 13.3.7 to the contrary notwithstanding, any
Lender may at any time pledge all or any portion of its interest and
rights under this Loan Agreement (including all or any portion of its
Notes) (i) to any of the twelve Federal Reserve Banks organized under ss.4
of the Federal Reserve Act, 12 U.S.C. ss.341, (ii) in case of any Lender
that is a fund, to any holders of obligations owed or securities issued by
such Lender or to any trustee for or other representative of such holders,
or (iii) as approved by the Agent. No such pledge or the enforcement
thereof shall release the pledgor Lender from its obligations hereunder or
under any of the other Loan Documents.
13.4 Administrative Matters.
13.4.1 Amendment, Waiver, Consent, Etc. Except as otherwise provided
herein or as to any term or provision hereof which provides for the
consent or approval of the Agent, no term or provision of this Loan
Agreement or any other Loan Document may be changed, waived, discharged or
terminated, nor may any consent required or permitted by this Loan
Agreement or any other Loan Document be given, unless such change, waiver,
discharge, termination or consent receives the written approval of the
Required Lenders.
Notwithstanding the foregoing, the unanimous written approval of all the
Lenders (other than a Defaulting Lender) shall be required with respect to any
proposed amendment, waiver, discharge, termination, or consent which:
(i) has the effect of (a) extending the final scheduled maturity or
the date of any amortization payment of any Loan or Note, (b) reducing the
rate or extending the time of payment of interest or fees thereon, (c)
increasing or reducing the principal amount thereof, or (d) otherwise
postponing or forgiving any indebtedness thereunder,
(ii) releases or discharges any material portion of the Collateral
other than in accordance with the express provisions of the Loan
Documents,
(iii) amends, modifies or waives any provisions of this Section
13.4,
(iv) amends, modifies or waives any of the Financial Covenants,
(v) reduces the percentage specified in the definition of Required
Lenders,
(vi) except as otherwise provided in the Loan Agreement, changes the
amount of any Lender's Commitment or Commitment Percentage,
(vii) releases or waives any guaranty of the Obligations or
indemnifications provided in the Loan Documents,
(viii) modifies any prepayment events (mandatory or optional) or the
application of proceeds from such events, or
(ix) modifies the provisions of Section 13.2.4 as to the disposition
of Liquidation Proceeds,
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and provided, further, that without the consent of the Agent, no such action
shall amend, modify or waive any provision of this Article or any other
provision of any Loan Document which relates to the rights or obligations of the
Agent.
13.4.2 Deemed Consent or Approval. With respect to any requested
amendment, waiver, consent or other action which requires the approval of
the Required Lenders or all of the Lenders, as the case may be, in
accordance with the terms of this Loan Agreement, or if the Agent is
required hereunder to seek, or desires to seek, the approval of the
Required Lenders or all of the Lenders, as the case may be, prior to
undertaking a particular action or course of conduct, the Agent in each
such case shall provide each Lender with written notice of any such
request for amendment, waiver or consent or any other requested or
proposed action or course of conduct, accompanied by such detailed
background information and explanations as may be reasonably necessary to
determine whether to approve or disapprove such amendment, waiver, consent
or other action or course of conduct. The Agent may (but shall not be
required to) include in any such notice, printed in capital letters or
boldface type, a legend substantially to the following effect:
"THIS COMMUNICATION REQUIRES IMMEDIATE RESPONSE. FAILURE TO RESPOND WITHIN
TEN (10) CALENDAR DAYS FROM THE RECEIPT OF THIS COMMUNICATION SHALL
CONSTITUTE A DEEMED APPROVAL BY THE ADDRESSEE OF THE ACTION REQUESTED BY
THE BORROWER OR THE COURSE OF CONDUCT PROPOSED BY THE AGENT AND RECITED
ABOVE,"
and if the foregoing legend is included by the Agent in its communication, a
Lender shall be deemed to have approved or consented to such action or course of
conduct for all purposes hereunder if such Lender fails to object to such action
or course of conduct by written notice to the Agent within ten (10) calendar
days of such Lender's receipt of such notice.
13.5 Syndication Agent. Notwithstanding the provisions of this Agreement
or of the other Loan Documents, the Syndication Agent shall have no powers,
rights, duties, responsibilities or liabilities with respect to this Agreement
and the other Loan Documents. To the extent requested by the Agent, the
Syndication Agent has coordinated, or will coordinate, the initial syndication
of the Loan and the assignment of interests in the Loan.
14. GENERAL PROVISIONS.
14.1 Notices. Any notice or other communication in connection with this
Loan Agreement, the Note, the Security Documents, or any of the other Loan
Documents, shall be in writing, and (i) deposited in the United States Mail,
postage prepaid, by registered or certified mail, or (ii) hand delivered by any
commercially recognized courier service or overnight delivery service such as
Federal Express, or (iii) sent by facsimile transmission if a FAX Number is
designated below addressed:
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If to Borrower:
Xxxxxxx Master Limited Partnership
000 Xxxxxxx Xxxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxx, Executive Vice President
FAX Number: (000) 000-0000
And
Xxxxxxx Master Limited Partnership
0 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx Xxxxxxx, Senior Vice President
FAX Number: (000) 000-0000
with copies by regular mail or such hand delivery or facsimile transmission to:
Post & Xxxxxxx, LLP
000 Xxxxxxx Xxxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esquire
FAX Number: (000) 000-0000
And
Rosenman & Colin LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx X. Xxxxxx, Esquire
FAX Number: (000) 000-0000
And
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx, Esquire
FAX Number: (000) 000-0000
If to Agent:
Fleet National Bank, N.A.
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxx, Director
FAX Number: (000) 000-0000 And
Attention: Commercial Real Estate Loan
Administration Manager,
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with copies by regular mail or such hand delivery or facsimile transmission to:
Xxxxxx & Xxxxxxxxxx LLP
Xxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esquire
FAX Number: (000) 000-0000
If to Fleet National Bank:
Fleet National Bank, N.A.
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxx, Director
FAX Number: (000) 000-0000
And
Attention: Commercial Real Estate Loan
Administration Manager,
with copies by regular mail or such hand delivery or facsimile transmission to:
Xxxxxx & Xxxxxxxxxx LLP
Xxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esquire
FAX Number: (000) 000-0000
If to the Co-Lender, to the addresses set forth on the signature page or to such
addresses as set forth in the Assignment and Acceptance.
Any such addressee may change its address for such notices to such other address
in the United States as such addressee shall have specified by written notice
given as set forth above. All periods of notice shall be measured from the
deemed date of delivery.
A notice shall be deemed to have been given, delivered and received for
the purposes of all Loan Documents upon the earliest of: (i) if sent by such
certified or registered mail, on the third Business Day following the date of
postmark, or (ii) if hand delivered at the specified address by such courier or
overnight delivery service, when so delivered or tendered for delivery during
customary business hours on a Business Day, or (iii) if so mailed, on the date
of actual receipt as evidenced by the return receipt, or (iv) if so delivered,
upon actual receipt, or (v) if facsimile transmission is a permitted means of
giving notice, upon receipt as evidenced by confirmation.
14.2 Limitations on Assignment. Borrower may not assign this Agreement or
the monies due thereunder without the prior written consent of all of the
Lenders in each instance, but in such event Lenders may nevertheless at their
option make the Loan under this Agreement to Borrower or to those who succeed to
the title of Borrower and all sums so advanced by Lenders shall be deemed a Loan
Advance under this Agreement and not to be modifications thereof and shall be
secured by all of the Collateral given at any time in connection herewith.
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14.3 Further Assurances. Borrower shall upon request from Agent from time
to time execute, seal, acknowledge and deliver such further instruments or
documents which Agent may reasonably require to better perfect and confirm its
rights and remedies hereunder, under the Note, under the Security Documents and
under each of the other Loan Documents.
14.4 Payments.
(i) All payments shall be applied first to the payment of all fees,
expenses and other amounts due to the Agent (excluding principal and interest)
and, to the extent reimbursement is provided for herein, the Lenders, then to
accrued interest, and the balance on account of outstanding principal; provided,
however, that after an Event of Default, Liquidation Proceeds will be applied to
the Obligations of Borrower to Agent and the Lenders as otherwise provided for
herein.
(ii) Any payments required by this Agreement, the Note or any of the
other Loan Documents, or any other instruments or agreements executed in
connection herewith or therewith, may (but not before the due date thereof) be
deducted by each Lender from the amount, if any, not already advanced, and the
same shall be deemed to be a Loan Advance, or may be deducted from any Loan
Advance due hereunder. Any attorneys' fees, appraisal charge, inspection fee, or
any other expense payable by Borrower as herein provided for, or incurred in
connection with the drafting of the Loan Documents and other instruments
evidencing or securing the Obligations and all other Loan Documents may if not
paid within thirty (30) days of written demand therefor, be likewise deducted
from the amounts, if any, not already advanced or from any Loan Advance payable
to Borrower and, in any event, charged as a Loan Advance hereunder.
14.5 Parties Bound. The provisions of this Agreement and of each of the
other Loan Documents shall be binding upon and inure to the benefit of Borrower
and the Agent and each of the Lenders and their respective successors and
assigns, except as otherwise prohibited by this Agreement or any of the other
Loan Documents.
This Agreement is a contract by and among Borrower, the Agent and each of
the Lenders for their mutual benefit, and no third person shall have any right,
claim or interest against either Agent, any of the Lenders or Borrower by virtue
of any provision hereof.
14.6 Governing Law; Consent to Jurisdiction; Mutual Waiver of Jury Trial.
14.6.1 Substantial Relationship. It is understood and agreed that
all of the Loan Documents were negotiated, executed and delivered in The
Commonwealth of Massachusetts, which Commonwealth the parties agree has a
substantial relationship to the parties and to the underlying transactions
embodied by the Loan Documents.
14.6.2 Place of Delivery. Borrower agrees to furnish to Agent at the
Agent's office in Boston, Massachusetts all further instruments,
certifications and documents to be furnished hereunder.
14.6.3 Governing Law. This Agreement and each of the other Loan
Documents shall in all respects be governed, construed, applied and
enforced in accordance with the internal laws of The Commonwealth of
Massachusetts without regard to principles of conflicts of law.
14.6.4 Consent to Jurisdiction. Borrower hereby consents to personal
jurisdiction in any state or Federal court located within The Commonwealth
of Massachusetts.
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14.6.5 JURY TRIAL WAIVER. BORROWER, AGENT, AND EACH OF THE LENDERS
MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON THIS LOAN
AGREEMENT, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS LOAN AGREEMENT
OR ANY OTHER LOAN DOCUMENTS CONTEMPLATED TO BE EXECUTED IN CONNECTION
HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY, INCLUDING, WITHOUT
LIMITATION, ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS OR
ACTIONS OF AGENT OR ANY LENDER RELATING TO THE ADMINISTRATION OF THE LOAN
OR ENFORCEMENT OF THE LOAN DOCUMENTS, AND AGREE THAT NEITHER PARTY WILL
SEEK TO CONSOLIDATE ANY SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY
TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. EXCEPT AS PROHIBITED BY LAW, EACH
PARTY HEREBY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY
LITIGATION ANY SPECIAL, INDIRECT, SPECULATIVE, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL
DAMAGES. BORROWER CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
AGENT OR ANY LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT AGENT OR
ANY LENDER WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER. THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR EACH
OF THE PARTIES HERETO TO ENTER INTO THE TRANSACTIONS CONTEMPLATED HEREBY.
14.7 Survival. All representations, warranties, covenants and agreements
of Borrower, or a Loan Party, herein or in any other Loan Document, or in any
notice, certificate, or other paper delivered by or on behalf of Borrower or a
Loan Party pursuant hereto are significant and shall be deemed to have been
relied upon by Agent and each of the Lenders notwithstanding any investigation
made by Agent or any of the Lenders or on its behalf and shall survive the
delivery of the Loan Documents and the making of the Loan pursuant thereto. No
review or approval by Agent or the Lenders or any of their representatives, of
any opinion letters, certificates by professionals or other item of any nature
shall relieve Borrower or anyone else of any of the obligations, warranties or
representations made by or on behalf of Borrower or a Loan Party, or any one or
more of them, under any one or more of the Loan Documents.
14.8 Cumulative Rights. All of the rights of Agent and the Lenders
hereunder and under each of the other Loan Documents and any other agreement now
or hereafter executed in connection herewith or therewith, shall be cumulative
and may be exercised singly, together, or in such combination as Agent may
determine in its sole good faith judgment.
14.9 Claims Against Agent or Lenders.
14.9.1 Borrower Must Notify. The Agent and each of the Lenders shall
not be in default under this Agreement, or under any other Loan Document,
unless a written notice specifically setting forth the claim of Borrower
shall have been given to Agent and each of the Lenders within thirty (30)
days after Borrower first had actual Knowledge or actual notice of the
occurrence of the event which Borrower alleges gave rise to such claim and
Agent or any of the Lenders does not remedy or cure the default, if any
there be, with reasonable promptness thereafter. Such actual Knowledge or
actual notice shall refer to what was actually known by, or expressed in a
written notification furnished to, any of the persons or officials
referred to in Exhibit D as Authorized Representatives.
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14.9.2 Remedies. If it is determined by the final order of a court
of competent jurisdiction, which is not subject to further appeal, that
Agent or any of the Lenders has breached any of its obligations under the
Loan Documents and has not remedied or cured the same with reasonable
promptness following notice thereof, Agent's and each of the Lenders'
responsibilities shall be limited to: (i) where the breach consists of the
failure to grant consent or give approval in violation of the terms and
requirements of a Loan Document, the obligation to grant such consent or
give such approval and to pay Borrower's reasonable costs and expenses
including, without limitation, reasonable attorneys' fees and
disbursements in connection with such court proceedings; and (ii) the case
of any such failure to grant such consent or give such approval, or in the
case of any other such default by Agent or any of the Lenders, where it is
also so determined that Agent or any of the Lenders acted in bad faith,
the payment of any actual, direct, compensatory damages sustained by
Borrower as a result thereof plus Borrower's reasonable costs and
expenses, including, without limitation, reasonable attorneys' fees and
disbursements in connection with such court proceedings.
14.9.3 Limitations. In no event, however, shall Agent and each of
the Lenders be liable to Borrower or to any Loan Party or anyone else for
other damages such as, but not limited to, indirect, speculative, special,
exemplary, punitive or consequential damages whatever the nature of the
breach by Agent or any of the Lenders of its obligations under this Loan
Agreement or under any of the other Loan Documents. In no event shall
Agent or any of the Lenders be liable to Borrower or to any Loan Party or
anyone else unless a written notice specifically setting forth the claim
of Borrower shall have been given to Agent and each of the Lenders within
the time period specified above.
14.10 Regarding Consents. Except to the extent expressly provided herein,
any and all consents to be made hereunder by the Agent, Required Lenders, or
Lenders shall be in the discretion of the Party to whom consent rights are given
hereunder.
14.11 Obligations Absolute. Except to the extent prohibited by applicable
law which cannot be waived, the Obligations of Borrower and the obligations of
the Guarantor and the other Loan Parties under the Loan Documents shall be joint
and several, absolute, unconditional and irrevocable and shall be paid strictly
in accordance with the terms of the Loan Documents to which such Loan Party is a
party under all circumstances whatsoever, including, without limitation, the
existence of any claim, set off, defense or other right which Borrower or any
Loan Party may have at any time against Agent or any of the Lenders whether in
connection with the Loan or any unrelated transaction.
14.12 Table of Contents, Title and Headings. Any Table of Contents, the
titles and the headings of sections are not parts of this Loan Agreement or any
other Loan Document and shall not be deemed to affect the meaning or
construction of any of its or their provisions.
14.13 Counterparts. This Loan Agreement and each other Loan Document may
be executed in several counterparts, each of which when executed and delivered
is an original, but all of which together shall constitute one instrument. In
making proof of this agreement, it shall not be necessary to produce or account
for more than one such counterpart which is executed by the party against whom
enforcement of such loan agreement is sought.
14.14 Satisfaction of Commitment. The Loan being made pursuant to the
terms hereof and of the other Loan Documents is being made in satisfaction of
Agent's and each of the Lenders' obligations under the Commitment dated December
4, 2001. The terms, provisions and conditions of this Agreement and the other
Loan Documents supersede the provisions of the Commitment.
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14.15 Time Of the Essence. Time is of the essence of each provision of
this Agreement and each other Loan Document.
14.16 No Oral Change. This Loan Agreement and each of the other Loan
Documents may only be amended, terminated, extended or otherwise modified by a
writing signed by the party against which enforcement is sought (except no such
writing shall be required for any party which, pursuant to a specific provision
of any Loan Document, is required to be bound by changes without such party's
assent). In no event shall any oral agreements, promises, actions, inactions,
knowledge, course of conduct, course of dealings or the like be effective to
amend, terminate, extend or otherwise modify this Loan Agreement or any of the
other Loan Documents.
14.17 Monthly Statements. While Agent may issue invoices or other
statements on a monthly or periodic basis (a "Statement"), it is expressly
acknowledged and agreed that: (i) the failure of Agent to issue any Statement on
one or more occasions shall not affect Borrower's obligations to make payments
under the Loan Documents as and when due; (ii) the inaccuracy of any Statement
shall not be binding upon Lenders and so Borrower shall always remain obligated
to pay the full amount(s) required under the Loan Documents as and when due
notwithstanding any provision to the contrary contained in any Statement; (iii)
all Statements are issued for information purposes only and shall never
constitute any type of offer, acceptance, modification, or waiver of the Loan
Documents or any of Lenders' rights or remedies thereunder; and (iv) in no event
shall any Statement serve as the basis for, or a component of, any course of
dealing, course of conduct, or trade practice which would modify, alter, or
otherwise affect the express written terms of the Loan Documents.
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IN WITNESS WHEREOF this Agreement has been duly executed and delivered as
a sealed instrument at Boston, Massachusetts, as of the date first written
above.
BORROWER: THE XXXXXXX MASTER LIMITED PARTNERSHIP, a
Delaware limited partnership
By: MLP GP LLC, its General Partner
By: Xxxxxxx MLP Corp., its Manager
By: /s/ Xxxx Xxxxxxx
-------------------------------------
Xxxx Xxxxxxx, Senior Vice President
AGENT: FLEET NATIONAL BANK
By: /s/ Xxxxx X. Xxx
-------------------------------------
Xxxxx X. Xxx
Duly Authorized
LENDER: FLEET NATIONAL BANK
By: /s/ Xxxxx X. Xxx
-------------------------------------
Xxxxx X. Xxx
Duly Authorized
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LENDER: PB Capital Corporation
Address:
000 Xxxxxxx Xxxxxx, 00xx Xx By: /s/ Xxxxxxx Xxxxxxx
Xxx Xxxx, XX 00000 ------------------------------
Xxxxxxx Xxxxxxx
Vice President
Attention: Xxxxxx Xxxx
Fax No: (000) 000-0000
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EXHIBITS:
Section
Reference
Number
------
Exhibit A - Definitions .................................................... 1.1
Exhibit B - Use of Proceeds ................................................ 1.4
Exhibit C - Note ........................................................... 3.2
Exhibit D - Authorized Representatives ....................................... 4
Exhibit E - Required Property, Hazard and Other Insurance .... 5.1.13, 6.20, 7.5
Exhibit F - Ownership Interests and Taxpayer Identification
Numbers ...................................................... 6.4.1
Exhibit G - Compliance Certificated ...................................... 7.2.3
Exhibit H - Form of Assignment and Acceptance ........................... 13.3.1
Exhibit I - Lenders' Commitment ...................................... Exhibit A
Exhibit J - Individual Properties .................................... Exhibit A
Exhibit K - Loan Agenda .............................................. Exhibit A
Exhibit L - Non-Participating Limited Partnerships ................... Exhibit A
Exhibit M - Other Partnerships ....................................... Exhibit A
Exhibit N - Participating Limited Partnerships ....................... Exhibit A
Exhibit O - Solicitation Statement ................................... Exhibit A
Exhibit P - Cash Flow Projections .................................... Exhibit A
Exhibit Q - GMAC Borrowers . ......................................... Exhibit A
Exhibit R - Accounts ...................................................... 7.14
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EXHIBIT A TO LOAN AGREEMENT
DEFINITIONS
Accounts as defined in Section 7.14.
Adjusted LIBO Rate. The Term "Adjusted LIBO Rate" means for each Interest Period
the rate per annum obtained by dividing (i) the LIBO Rate for such Interest
Period, by (ii) a percentage equal to one hundred percent (100%) minus the
maximum reserve percentage applicable during such Interest Period under
regulations issued from time to time by the Board of Governors of the Federal
Reserve System for determining the maximum reserve requirements (including,
without limitation, any basic, supplemental, marginal and emergency reserve
requirements) for Agent (or of any subsequent holder of a Note which is subject
to such reserve requirements) in respect of liabilities or assets consisting of
or including Eurocurrency liabilities (as such term is defined in Regulation D
of the Board of Governors of the Federal Reserve System) having a term equal to
the Interest Period.
Administrator LLC shall mean Administrator LLC, a Delaware limited liability
company, the beneficial interest in which is owned by the Integrated Group.
Administrator LLC Note shall mean that certain non-negotiable promissory note
dated November 20, 1997 in the original principal amount of $40,000,000.00 made
by Administrator LLC and held by Xxxxxxx Xxxxx LLC.
Administrator LLC Loan shall mean the certain loan arrangement established by
Xxxxxxx Xxxxx LLC in favor of Administrator LLC as evidenced by Administrator
LLC Note, the Administrator LLC Pledge, together with, and all other
instruments, documents, and agreements relative thereto, as same may be amended,
modified, supplemented, or replaced from time to time.
Administrator LLC Pledge shall mean that certain pledge agreement dated November
20, 1997 given by Administrator LLC to Xxxxxxx Xxxxx LLC, respecting the 49.99%
ownership interest of Administrator LLC to and in Xxxxxxx Capital LLC.
Advisory Fee as defined in Section 2.4.
Affiliate shall mean, as to any Person, any other Person that, directly or
indirectly, is in control of, is controlled by or is under common control with
such Person or is a director or officer of such Person. For purposes of this
definition, control of a Person shall mean the power, direct or indirect, (i) to
vote 10% or more of the securities having ordinary voting power for the election
of directors of such Person or (ii) to direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise.
Affiliated T-1 Interests shall mean the G, H and I certificates of the Grantor
Trust T-1 Certificate held by VNK Corp., NK-CR B Cert LLC, NK-CR BB Cert LLC,
and NK-CR NR Cert LLC., being 100% of the ownership interest thereof.
Agent. Fleet National Bank, acting as agent for the Lenders.
Agent Fee as defined in Section 2.4.
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Xxxxxxxxx Xxxxxxxxxx Capitalization shall mean, with respect to the Borrower's
Investments, the value of the non real estate assets, as calculated by the
Borrower plus the value of the underlying real estate assets. The underlying
real estate assets will be valued based upon a 10 year discounted cash flow. The
discount rate will be 9% and the reversionary capitalization rate will be 11%.
The cash flow will be based upon in place rental income through the expiration
of the primary term of the lease. At primary term maturity of a given lease, the
lease rate will be the renewal lease rate if the renewal rent is less than
Market Rent. If the renewal rate is greater than the Market Rent, the post
primary term income stream will be based on the Market Rent, with a deduction
equal to 35% of nine months Market Rent at the primary term expiration date.
Agreement as defined in the Preamble.
Amended and Restated Asset Management Agreement shall mean that certain Amended
and Restated Asset Management Agreement dated January 12, 2000 among and between
Xxxxxxx Asset Management LLC and the Net Lease Partnerships and the Other
Partnerships, as may be amended, modified, supplemented, or replaced from time
to time.
Authorized Representatives as defined in Section 4 and listed on Exhibit D.
Banking Day. The term "Banking Day" means a day on which banks are not required
or authorized by law to close in the city in which Agent's principal office is
situated.
Borrower as defined in the Preamble.
Borrower Debt Service as defined in Section 7.24.1(iii).
Borrower Debt Service Coverage as defined in Section 7.24.1(iv).
Borrower GP shall mean MLP GP LLC, a Delaware limited liability company, the
sole manager of which is Xxxxxxx MLP Corp..
Borrower Net Cash Flow as defined in Section 7.24.1(v).
Borrower Subsidiaries shall mean all of the Subsidiaries of the Borrower, and
all Subsidiaries of Subsidiaries of the Borrower, including, without limitation,
the following (but specifically not including any Non-Participating Limited
Partnerships, and any Partially Owned Limited Partnership):
A. Participating Limited Partnership;
B. Participating Limited Partnership GPs;
X. Xxxxxxx GP Holding LLC, a Delaware limited liability company
(being the parent of the Participating Limited Partnership GP's);
X. Xxxxxxx GP LLC, a Delaware limited liability company, together
with all Subsidiaries of Xxxxxxx XX LLC;
X. Xxxxxxx Xxxxx LLC, a Delaware limited liability company;
X. Xxxxxxx Capital LLC, a Delaware limited liability company;
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X. Xxxxxxx Asset Management LLC, a Delaware limited liability
company (being a Subsidiary of Xxxxxxx Capital LLC);
H. NK-Leasehold II LLC, a Delaware limited liability company;
I. NK-Remainder Interest LLC, a Delaware limited liability company;
J. NK-Leyden GP LLC, a Delaware limited liability company;
K. NK-Leyden Loan, L.P., a Delaware limited partnership,
L. NK-Dautec Loan, L.P., a Delaware limited partnership;
M. NK-Dautec GP LLC, a Delaware limited liability company;
N. NK-Cenland GP LLC, a Delaware limited liability company;
O. NK-Cenland LP LLC, a Delaware limited liability company;
P. NK-Cenland Loan, L.P., a Delaware limited partnership (a
subsidiary of NK-Cenland LP LLC and NK-Cenland GP LLC)
Q. NK First Loan E Certificate LLC, a Delaware limited liability
company;
R. NK First Loan F Certificate LLC, a Delaware limited liability
company;
S. NK First Loan G Certificate LLC, a Delaware limited liability
company;
X. Xxxxxxx MLP Unit LLC;
U. MLP Manager Corp., a Delaware corporation;
V. Alsey Associates L.P., , a Delaware limited partnership;
X. Xxxxx Associates L.P., , a Delaware limited partnership; and
X. Jermor Associates L.P., , a Delaware limited partnership.
Borrower's Investments shall mean the aggregate of all of the Borrower's and
Borrower Subsidiaries' investments and other assets, on a consolidated basis
(including but not limited to those investments known, prior to the Exchange, as
the controlled LP's and the equity share of the non-controlled LP's), all as
disclosed by the Borrower to the Agent.
Business Day shall mean any day of the year on which offices of Agent are not
required or authorized by law to be closed for business in Boston,
Massachusetts. If any day on which a payment is due is not a Business Day, then
the payment shall be due on the next day following which is a Business Day, and
such extension of time shall be included in computing interest and fees in
connection with such payment. Further, if there is no corresponding day for a
payment in the given calendar month (i.e., there is no "February 30th"), the
payment shall be due on the last Business Day of the calendar month.
Calculation Date as defined in Section 7.24.1(i).
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Calculation Period as defined in Section 7.24.1(ii).
Cash Flow Projections shall mean a detailed schedule of all cash Distributions
projected to be made to the Borrower from the Borrower Subsidiaries within the
next one hundred and eight (180) days, as detailed on Exhibit P, being the Cash
Flow Projections as of the Closing Date based upon information then available to
the Borrower, and subject to change as shall be detailed in the respective
Officer's Certificate to be provided to the Agent as set forth herein.
Cash Management Agreements as defined in Section 7.14.
Cash Sweep Account Test as defined in Section 7.24.4.
Cenland shall mean Cenland Associates Limited Partnership, a Delaware limited
partnership, being one of the Other Partnerships.
Cenland Loan shall mean the loan arrangement between NK-Cenland Loan, L.P. and
Cenland in the original principal amount of $1,550,000.00, as evidenced by the
Cenland Loan Documents.
Cenland Loan Documents shall mean and refer to a certain promissory note in the
original principal amount of $1,550,000.00 dated January 1, 1999 made by Cenland
in favor of NK-Cenland Loan L.P., and held by the Borrower, a certain unrecorded
second priority mortgage dated January 1, 1999 given by Cenland to NK-Cenland
Loan L.P. respecting 26 properties owned by Cenland, and any and all other
documents executed in connection therewith, as same may be amended, modified,
supplemented, or replaced from time to time.
Certificates of Exemption as defined in Section 2.7.3.
Certificates of Partial Exemption as defined in Section 2.7.3.
Change of Control shall mean the occurrence of any of the following, as
determined solely by the Agent (for purposes of this definition, ownership of
interests in the Borrower that are subject to a Lien permitted under the
Security Documents shall be deemed beneficially owned by the pledgor thereof):
A. A change in the identity of any general partner, managing member,
and/or any material change in the effective control of any general partner
or managing member of any Loan Parties (other than the Borrower, Borrower
GP, any MLP Holder or any Xxxxxxx Group Entity) and/or any Borrower
Subsidiary, such that effective control is not in the Borrower (except as
to any change in the effective control of any Loan Party which is released
as provided for herein from its obligations under the Loan Documents);
B. A change in the identity of the general partner of the Borrower and/or
any material change in the effective control of the general partner of the
Borrower, from the identity and control structure existing as of the
Funding Date;
C. A change in the identity of any general partner, managing member,
and/or effective control of any general partner or managing member of any
Loan Parties which is a Xxxxxxx Group Entity, such that effective control
is not in any other Xxxxxxx Group Entity;
D. The death or disability of both of Xxxxxxx Xxxxxx and Xxxxx Xxxxxxxxx,
or the failure of both of Xxxxxxx Xxxxxx and Xxxxx Xxxxxxxxx, at any time
to exercise that authority and discharge those management responsibilities
with respect to the Borrower as are exercised and discharged by such
Person at the execution of this Agreement; provided, however, the
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death or disability of both Xxxxxxx Xxxxxx and Xxxxx Xxxxxxxxx shall not
be a default hereunder if within thirty (30) days of the death or
disability of the second to die or become disabled, the Borrower provides
the Agent with evidence satisfactory to the Agent of acceptable
replacement or substitute management of the Borrower and the Borrower
Subsidiaries;
E. Apollo Real Estate Investment Fund III, L.P. shall cease to own,
directly or indirectly, at least a 20% beneficial ownership interest in
the Borrower;
F. Vornado Realty Trust shall cease to own, directly or indirectly, at
least a 10% beneficial ownership interest in the Borrower; or
G. Vornado Realty Trust and/or Apollo Real Estate Investment Fund III,
L.P. and/or WEM Brynmawr Associates LLC shall cease to own, directly or
indirectly, in the aggregate, at least a 51 % beneficial ownership
interest in the Borrower.
Class R Certificate shall have the meaning provided in the Pooling Agreement.
Closing Date as defined in Section 5.1.
Code shall mean the Internal Revenue Code of 1986, as amended from time to time,
and the regulations promulgated and rulings issued thereunder. Section
references to the Code are to the Code, as in effect at the date of this
Agreement and any subsequent provisions of the Code, amendatory thereof,
supplemental thereto or substituted therefor.
Collateral as defined in Section 5.1.4.
Commitment shall mean, with respect to each Lender, the amount set forth on
Exhibit I hereto as the amount of such Lender's commitment to make advances to
the Borrower, as may be amended from time to time by the Agent as provided in
Article 13.
Commitment Fee as defined in Section 2.4.
Commitment Percentage shall mean, with respect to each Lender, the percentage
set forth on Exhibit I hereto as such Lender's percentage of the aggregate
Commitments of all of the Lenders, as may be amended from time to time by the
Agent as provided in Article 13.
Consolidated Debt Service as defined in Section 7.24.1(viii).
Consolidated Debt Service Coverage as defined in Section 7.24.1(vi).
Consolidated Leverage Ratio as defined in Section 7.25.
Consolidated Net Cash Flow as defined in Section 7.24.1(vii).
Consents as defined in Section 5.1.4(i).
Contract to Provide Asset Management Services shall mean that certain Asset
Management Agreement dated as of January 1, 2002, by and between Xxxxxxx Asset
Management LLC and Winthrop Financial Associates, as may be amended, modified,
supplemented, or replaced from time to time.
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Dautec Note shall mean that certain promissory note in the original principal
amount of $1,175,000.00 dated May 1, 2000 made by Dautec Associates Limited
Partnership, a Connecticut limited partnership, and held by NK-Dautec Loan,
L.P., together with any and all other instruments, documents, and agreements
executed in connection therewith, as same may be amended, modified,
supplemented, or replaced from time to time.
Debt shall mean, with respect to any Person, without duplication, (i) all
indebtedness of such Person for borrowed money, (ii) all indebtedness of such
Person for the deferred purchase price of property or services (other than
property and services purchased, and expense accruals and deferred compensation
items arising, in the ordinary course of business), (iii) all obligations of
such Person evidenced by notes, bonds, debentures or other similar instruments
(other than performance, surety and appeal bonds arising in the ordinary course
of business), (iv) all indebtedness of such Person created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession
or sale of such property), (v) all obligations of such Person under leases which
have been, or should be, in accordance with generally accepted accounting
principles, recorded as capital leases, to the extent required to be so
recorded, (vi) all reimbursement, payment or similar obligations of such Person,
contingent or otherwise, under acceptance, letter of credit or similar
facilities (other than letters of credit in support of trade obligations or in
connection with workers' compensation, unemployment insurance, old-age pensions
and other social security benefits in the ordinary course of business), (vii)
all Debt in the nature of that referred to in clauses (i) through (vi) above
which is guaranteed directly or indirectly by such Person, or in effect
guaranteed directly or indirectly by such Person through an agreement (A) to pay
or purchase such Debt or to advance or supply funds for the payment or purchase
of such Debt, (B) to purchase, sell or lease (as lessee or lessor) property, or
to purchase or sell services, primarily for the purpose of enabling the debtor
to make payment of such Debt or to assure the holder of such Debt against loss
in respect of such Debt, (C) to supply funds to or in any other manner invest in
the debtor (including any agreement to pay for property or services irrespective
of whether such property is received or such services are rendered) or (D)
otherwise to assure a creditor against loss in respect of such Debt, (viii) any
obligation, contingent or otherwise, of such Person guaranteeing or having the
economic effect of guaranteeing any indebtedness referred to in clause (i)
through (iv) above of any Person, either directly or indirectly, and (ix) all
Debt referred to in clauses (i) through (vi) above secured by (or for which the
holder of such Debt has an existing right, contingent or otherwise, to be
secured by) any Lien, security interest or other charge or encumbrance upon or
in property (including, without limitation, accounts and contract rights) owned
by such Person, even though such Person has not assumed or become liable for the
payment of such Debt.
Default as defined in Section 10.1.
Default Rate as defined in Section 2.3.13.
Delinquent Lender as defined in Section 13.2.8.
Depository Accounts as defined in Section 7.14.
Discounted Payment Option shall mean the options provided for in Securitization
Documents for the prepayment at a reduced amount of any of the Securitized
Notes.
Distribution shall mean, with respect to any Person, that such Person has paid a
dividend or returned any equity capital to its stockholders, members or partners
or made any other distribution, payment or delivery of property (other than
common stock or partnership or membership interests of such Person) or cash to
its stockholders, members or partners as such, or redeemed, retired, purchased
or otherwise acquired, directly or indirectly, for a consideration any shares of
any class of its capital
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stock or any membership or partnership interests (or any options or warrants
issued by such Person with respect to its capital stock or membership or
partnership interests), or shall have permitted any of its Subsidiaries to
purchase or otherwise acquire for a consideration any shares of any class of the
capital stock or any membership or partnership interests of such Person (or any
options or warrants issued by such Person with respect to its capital stock or
membership or partnership interests). Without limiting the foregoing,
"Distributions" with respect to any Person shall also include all payments made
by such Person with respect to any stock appreciation rights, plans, equity
incentive or achievement plans or any similar plans, and any proceeds of a
dissolution or liquidation of such Person.
Dollars shall mean lawful money of the United States.
Economic Discontinuance Rights shall mean the right of a tenant under a Lease
relative to any Individual Property to terminate the Lease prior to the
expiration of the primary term of the Lease by making a Rejectable Offer to the
applicable Net Lease Partnership, all of the foregoing as and when provided for
in the Lease relative to such Individual Property. If the Rejectable Offer is
accepted by the Net Lease Partnership, the Individual Property is to be sold to
the said tenant for the amount as set forth in the Lease. If the Rejectable
Offer is rejected by the Net Lease Partnership, the Lease terminates as set
forth in the Lease.
Economic Discontinuance Sale shall mean the sale of an Individual Property to a
tenant upon the acceptance of a Rejectable Offer by the applicable Net Lease
Partnership.
XX Xxxx Flow as defined in Section 7.29.6.
ED Properties shall mean all Individual Properties as to which a Participating
Limited Partnership has rejected the Rejectable Offer made by a tenant pursuant
to the tenant's exercise of its Economic Discontinuance Rights. An Individual
Property shall no longer be considered an ED Property at such time as such
Individual Property evidences a minimum ratio of cash flow to debt service (as
determined by the Agent based solely on revenues and debt service of such
Individual Property based on leases executed in accordance with the requirements
of Section 7.22), of no less than 1.30 to 1.0.
Effective LIBO Rate. The term "Effective LIBO Rate" means the per annum rate
equal to the aggregate of (x) the greater of (a) Adjusted LIBO Rate or (b) three
(3%) percent, plus (y) 550 basis points.
Effective LIBO Rate Advance. The term "Effective LIBO Rate Advance" means any
principal outstanding under this Agreement which pursuant to this Agreement
bears interest at the Effective LIBO Rate.
Eligible Assignee shall mean any of (a) a commercial bank organized under the
laws of the United States, or any State thereof or the District of Columbia, and
having total assets in excess of $1,000,000,000; (b) a savings and loan
association or savings bank organized under the laws of the United States, or
any State thereof or the District of Columbia, and having a net worth of at
least $100,000,000, calculated in accordance with generally accepted accounting
principles; (c) a commercial bank organized under the laws of any other country
which is a member of the Organization for Economic Cooperation and Development
(the "OECD"), or a political subdivision of any such country, and having total
assets in excess of $1,000,000,000, provided that such bank is acting through a
branch or agency located in the country in which it is organized or another
country which is also a member of the OECD; (d) the central bank of any country
which is a member of the OECD; and (e) any other assignee that, in the
reasonable judgment of the Agent, is a reputable
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institutional investor with substantial experience in lending and originating
loans similar to the Loan, or in purchasing, investing in or otherwise holdings
such loans, having a financial net worth of at least $100,000,000 and (f) any
Lender Affiliate or a Related Fund of a Lender. For the purposes hereof, "Lender
Affiliate" shall mean, (a) with respect to any Person who would otherwise be an
Eligible Assignee under clauses (a) - (e), above (a "Qualified Assignee"), (i)
an Affiliate of such Qualified Assignee or (ii) any entity (whether a
corporation, partnership, trust or otherwise) that is engaged in making,
purchasing, holding or otherwise investing in bank loans and similar extensions
of credit in the ordinary course of its business and is administered (including
as placement agent therefor) or managed by a Qualified Assignee or an Affiliate
of such Qualified Assignee and (b) with respect to any Lender that is a fund
which invests in bank loans and similar extensions of credit, any other fund
that invests in bank loans and similar extensions of credit and is managed by
the same investment advisor as such Lender or by an Affiliate of such investment
advisor(i.e., a Related Fund of such Lender). Further, for the purposes hereof,
"Related Fund" shall mean, with respect to a Lender which is a fund that invests
in loans, any other such fund managed by the same investment advisor as such
Lender or by an Affiliate of such Lender or such advisor. Neither the Borrower
nor an affiliate of the Borrower shall be Eligible Assignee.
Environmental Indemnity as defined in Section 3.1.22.
Environmental Laws as defined in the Environmental Indemnity.
ERISA shall mean the Employee Retirement Income Security Act of 1974, as amended
from time to time, and the regulations promulgated and rulings issued
thereunder. Section references to ERISA are to ERISA, as in effect at the date
of this Agreement and any subsequent provisions of ERISA, amendatory thereof,
supplemental thereto or substituted therefor.
ERISA Affiliate shall mean each person (as defined in Section 3(9) of ERISA)
which together with either Borrower or a Borrower Subsidiary would be deemed to
be a "single employer" within the meaning of Section 414(b), (c), (m) or (o) of
the Code.
Escrow Agreement Respecting Ground Lease Extensions and Lease Options as defined
in Section 3.1.23.
Event of Default as defined in Section 10.1.
Excepted Loan Parties shall mean each Xxxxxxx Indemnitor, any Non-Participating
Limited Partnership, any Partially Owned Limited Partnerships, and the MLP
Holders.
Exchange as defined in Section 1.3.
Exchange Documents shall mean, singly and collectively, all instruments,
documents, and agreements evidencing and otherwise effecting the Exchange.
Excluded Taxes as defined in Section 2.7.3.
Extended Maturity Date as defined in Section 2.2.
Extended Term as defined in Section 2.2.
Extension Fee as defined in Section 2.4.
Financial Covenants shall mean those covenants of the Borrower set forth in
Sections 7.24, 7.25, 7.26 and 7.27.
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First Extended Maturity Date as defined in Section 2.2.
First Extended Term as defined in Section 2.2.
First Mortgage Debt shall mean, from time to time, any obligations of a Net
Lease Partnership secured by a first mortgage or first deed of trust on one or
more Individual Properties, as of the Closing Date as set forth in the relevant
schedules to the Solicitation Statement, as updated by Schedule 6.18.2(ii). The
GMAC Mortgage Loan is a First Mortgage Debt.
Fiscal Year shall mean each twelve month period commencing on January 1 and
ending on December 31.
Foreign Lender as defined in Section 2.7.3.
Form Lease. As defined in Section 7.22.3.
Formation Documents shall mean, singly and collectively, the partnership
agreements, joint venture agreements, limited partnership agreements, limited
liability company or operating agreements and certificates of limited
partnership and certificates of formation, articles (or certificate) of
incorporation and by-laws and any similar agreement, document or instrument of
any Person.
Free Cash Flow shall mean for any four (4) fiscal quarters of the Borrower the
Borrower Net Cash Flow for such period less (i) the Borrower Debt Service for
such period and less (ii) any deposits made or required to be made into the T/I
Fund Account during such period.
Funding Date as defined in Section 5.1.
GAAP shall mean generally accepted accounting principles in the United States of
America as of the date applicable.
GMAC Borrower shall mean any Net Lease Partnership obligated on a GMAC Mortgage
Loan. The GMAC Borrowers as of the Closing Date are listed in Exhibit Q.
GMAC Mortgage Holder shall mean GMAC Commercial Mortgage Corporation and/or, as
assignee, Norwest Bank Minnesota, N.A.
GMAC Mortgage Loan shall mean the pool of first mortgage loans securitized by
the GMAC Mortgage Holder on certain of the Individual Properties listed in
Schedule 6.18.2 (ii).
Governmental Authority shall mean any court, board, agency, commission, office
or authority of any nature whatsoever for any governmental xxxx (xxxxxxx, xxxxx,
xxxxxx, xxxxxxxx, xxxxxxxxx, xxxx or otherwise) whether now or hereafter in
existence.
Grantor Trust shall mean the trust created pursuant to the Grantor Trust
Agreement, together with any replacement thereof or successor thereto.
Grantor Trust Agreement shall mean that certain Second Amended and Restated
Grantor Trust Agreement dated April 1, 1999 among and between NK-CR T1 Seller
LLC, T-Two Partners, L.P., Midland Loan Services, Inc., as Servicer, and LaSalle
National Bank, as Grantor Trust Trustee, all as provided therein, as may be
amended, modified, supplemented, or replaced from time to time.
Grantor Trust Trustee, presently LaSalle National Bank, shall have the meaning
provided in the Grantor Trust Agreement.
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Grantor Trust T-1 Certificate shall have the meaning provided in the Grantor
Trust Agreement.
Grantor Trust T-2 Certificate shall have the meaning provided in the Grantor
Trust Agreement.
Ground Leases shall mean, from time to time, any Ground Lease relative to an
Individual Property as to which a Net Lease Partnership is the ground lessee,
including, without limitation, any ground lease which shall be entered into in
connection with the exercise by a Net Lease Partnership of a Remainder Ground
Lease Option.
Ground Lease Extension Options as defined in Section 3.1.23(ii).
Ground Lease Extension Option Schedule as defined in Section 6.18.6
Guaranty as defined in Section 3.1.21.
Guarantor as defined in Section 1.5.1.
Hazardous Materials shall mean and include asbestos, flammable materials,
explosives, radioactive substances, polychlorinated biphenyls, radioactive
substances, other carcinogens, oil and other petroleum products, pollutants or
contaminants that could be a detriment to the environment, and any other
hazardous or toxic materials, wastes, or substances which are defined,
determined or identified as such in any past, present or future federal, state
or local laws, rules, codes or regulations, or any judicial or administrative
interpretation of such laws, rules, codes or regulations.
Indemnified Party as defined in Section 7.21.
Independent shall mean, when used with respect to any Person, a Person who (i)
is in fact independent, (ii) does not have any direct financial or indirect
financial interest (other than amounts payable to such Person for serving as a
director) in the Borrower, any Borrower Subsidiary, or any Loan Party or in any
Affiliate of any thereof or in any constituent partner or member of the
Borrower, any Borrower Subsidiary, or any Loan Party or any Affiliate of any
thereof and (iii) is not connected with the Borrower, any Borrower Subsidiary,
or any Loan Party or any Affiliate thereof or any constituent partner of the
Borrower, any Borrower Subsidiary, or any Loan Party or any Affiliate of any
thereof as an officer, employee, promoter, underwriter, trustee, partner,
director, or person performing similar functions. Any such Person shall not be
deemed to fail to comply with the requirements of clause (iii), above, solely
due to such Person serving as an Independent director of Xxxxxxx MLP Corp.
Whenever it is herein provided that any Independent Person's opinion or
certificate shall be provided, such opinion or certificate shall state that the
Person executing the same has read this definition and is Independent within the
meaning hereof.
Individual Property and Individual Properties shall mean, from time to time,
with respect to each Participating Limited Partnership, Non-Participating
Limited Partnership, Subsidiary Limited Partnership, and Partially Owned Limited
Partnership, each real estate property owned by such entity, together with all
improvements, fixtures, equipment, and personalty relating to such property,
with the Individual Properties as of the date hereof being listed on the
Schedule to the Solicitation Statement as updated by Exhibit J hereto,
Initial Term as defined in Section 2.2.
Integrated Documents shall mean the Indemnification Agreement dated as of
November 20, 1997 between certain Xxxxxxx Entities and the Integrated Group, the
Amended and Restated Cash Participation Agreement dated as of January 1, 2002
between certain Xxxxxxx Group Entities and the Integrated Group, and any and
other agreements entered into relative thereto to establish,
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evidence or secure the Integrated Obligations, as such may be amended, modified,
supplemented or replaced from time to time.
Integrated Group shall mean Administrator LLC, a Delaware limited liability
company, as agent for the former principals of the general partners of the
Xxxxxxx Partnerships, and any of such principals.
Integrated Obligations shall mean the obligations of certain of the Xxxxxxx
Group Entities to the Integrated Group under the Integrated Documents, such
obligations arising originally out of the acquisition of certain of the assets
of the Borrower and the Borrower Subsidiaries from the Integrated Group.
Interest Period.
(A) The term "Interest Period" means with respect to each Effective LIBO
Rate Advance: a period of one (1), two (2), three (3), or six (6) consecutive
months, subject to availability, as selected, or deemed selected, by Borrower at
least two (2) Business Days prior to the Loan, or if an advance is already
outstanding, at least two (2) Business Days prior to the end of the current
Interest Period; provided, however, that until the earlier to occur of (x)
February 15, 2002 or (y) that date on which full syndication of the Loan occurs,
as determined solely and exclusively by Agent, each such period shall be deemed
to be selected as consecutive one (1) week periods. Each such Interest Period
shall commence on the Business Day so selected, or deemed selected, by Borrower
and shall end on the numerically corresponding day in the first, second, third,
or sixth month thereafter, as applicable; provided, however: (i) if there is no
such numerically corresponding day, such Interest Period shall end on the last
Business Day of the applicable month, (ii) if the last day of such an Interest
Period would otherwise occur on a day which is not a Business Day, such Interest
Period shall be extended to the next succeeding Business Day; but (iii) if such
extension would otherwise cause such last day to occur in a new calendar month,
then such last day shall occur on the next preceding Business Day.
(B) The term "Interest Period" shall mean with respect to each Variable
Rate Advance consecutive periods of one (1) day each.
(C) No Interest Period may be selected which would end beyond the then
Maturity Date of the Loan (including as may actually be extended to any Extended
Maturity Date). If the last day of an Interest Period would otherwise occur on a
day which is not a Business Day, such last day shall be extended to the next
succeeding Business Day, except as provided above in clause (A) relative to an
Effective LIBO Rate Advance.
Interest Rate Protection Agreement shall mean (i) any interest rate protection
agreements, now or hereafter executed by and between Borrower and Fleet National
Bank or another financial institution acceptable to the Agent, and any and all
existing or future extensions, renewals, modifications and amendments thereto,
including, without limitation, the ISDA Master Agreement, the Schedule to the
Master Agreement, and any and all confirmations for individual transactions
executed under the foregoing agreements, or any other interest rate agreement
related in any way to the Loan, but only to the extent assigned to the Agent, on
behalf of the Lenders, to secure the Obligations and (ii) that certain Interest
Rate Protection Cash Collateral Pledge Agreement dated as of the date hereof, by
and between the Borrower and the Agent.
Investment shall mean the acquisition of any real or tangible personal property
or of any stock or other security, any loan, advance, bank deposit, money market
fund, contribution to capital, extension of credit (except for accounts
receivable arising in the ordinary course of business and payable in accordance
with customary terms), or purchase or commitment or option to purchase or
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otherwise acquire real estate or tangible personal property or stock or other
securities of any party or any part of the business or assets comprising such
business, or any part thereof.
Knowledge shall mean with respect to the Borrower and the Borrower Subsidiaries,
the knowledge of any of Xxxxxxx Xxxxxx, Xxxxx Xxxxxxxxx, Xxxx Xxxxxxx, or
Xxxxxxx Xxxxxxx, or any Person who shall at any time replace any of the
foregoing.
Late Charge as defined in Section 2.3.14.
Lease shall mean any lease relative to all or any portion of an Individual
Property, whether a direct lease or a lease resulting from a merger by operation
of law of a Master Lease and a Sublease.
Lease Schedule as defined in Section 6.18.5.
Legal Requirements shall mean all applicable federal, state, county and local
laws, by-laws, rules, regulations, codes and ordinances, and the requirements of
any governmental agency or authority having or claiming jurisdiction with
respect thereto, including, but not limited to, all Environmental Laws, and
those applicable to zoning, subdivision, building, health, fire, safety,
sanitation, the protection of the handicapped, and environmental matters and
shall also include all orders and directives of any court, governmental agency
or authority having or claiming jurisdiction with respect thereto.
Lenders as defined in the Preamble.
Leyden Note shall mean that certain promissory note in the original principal
amount of $1,905,000.00 dated March 31, 1999 made by Leyden Associates Limited
Partnership, a Connecticut limited partnership, and held by NK-Leyden Loan,
L.P., together with any and all other instruments, documents, and agreements
executed in connection therewith, as same may be amended, modified,
supplemented, or replaced from time to time.
LIBO Rate. The term "LIBO Rate" means, as applicable to any Effective LIBO Rate
Advance, the rate per annum as determined on the basis of the offered rates for
deposits in Dollars, for a period of time comparable to the period of time that
such Effective LIBO Rate Advance is expected to be outstanding which appears on
the "Telerate Page 3750" as of 11:00 a.m. London time on the day that is two (2)
London Banking Days preceding the first day of such Effective LIBO Rate Advance;
provided, however, if the rate described above does not appear on the Telerate
System on any applicable interest determination date, the LIBO Rate shall be the
rate (rounded upward, if necessary, to the nearest one hundred-thousandth of a
percentage point), determined on the basis of the offered rates for deposits in
Dollars for a period of time comparable to the period of time that such
Effective LIBO Rate Advance is expected to be outstanding which are offered by
four major banks in the London interbank market at approximately 11:00 a.m.
London time, on the day that is two (2) London Banking Days preceding the first
day of such Effective LIBO Rate Advance as selected by Agent. The principal
London office of each of the four major London banks will be requested to
provide a quotation of its Dollar deposit offered rate as described in the
preceding sentence. If at least two (2) such quotations are provided, the rate
for that date will be the arithmetic mean of the quotations. If fewer than two
(2) quotations are provided as requested, the rate for that date will be
determined on the basis of the rates quoted for loans in Dollars to leading
European banks for a period of time comparable to such Effective LIBO Rate
Advance offered by major banks in New York City at approximately 11:00 a.m. New
York City time, on the day that is two (2) London Banking Days preceding the
first day of the period of time that such Effective LIBO Rate Advance is
expected to be outstanding.
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Lien shall mean any mortgage, deed of trust, lien, pledge, hypothecation,
assignment, security interest, or any other encumbrance, charge or transfer,
including, without limitation, any conditional sale or other title retention
agreement, any financing lease having substantially the same economic effect as
any of the foregoing, and mechanic's, materialmen's and other similar liens and
encumbrances.
Licenses and Permits shall mean all licenses, permits, authorizations and
agreements issued by or agreed to by any governmental authority, including, but
not limited to, building permits, occupancy permits and such special permits,
variances and other relief as may be required pursuant to Legal Requirements
which may be applicable to the Individual Property or the Exchange.
Liquid Assets shall mean the sum of the following unencumbered (other than by
Liens held by the Agent on behalf of the Lenders) assets: (i) all cash
(denominated in United States dollars), (ii) any demand deposits, (iii)
marketable securities consisting of short-term (maturity of one year or less)
obligations issued or guaranteed as to principal and interest by the United
States of America, (iv) short-term certificates of deposit, with a maturity of
one year or less, issued by any bank organized under the laws of the United
States of America having total assets in excess of $1,000,000,000.00, and (v)
any other securities acceptable to the Agent as evidenced by the Agent's written
approval.
Liquidation Proceeds. Amounts received by the Agent and/or the Lenders in the
exercise of the rights and remedies under the Loan Documents (including, but not
limited to, all rents, profits and other proceeds received by the Agent and/or
the Lenders from the liquidation of, or exercising rights upon the occurrence of
an Event of Default relative to, any Collateral, but not including any amount
bid at a foreclosure sale or on behalf of the Agent or otherwise credited to the
Borrower in, any deed-in-lieu of foreclosure or similar transaction).
Loan as defined in Section 1.4.
Loan Advance as defined in Section 5.1.
Loan Agenda shall mean that Document Agenda respecting the establishment of the
Loan annexed hereto as Exhibit K.
Loan Agreement as defined in the Preamble.
Loan Documents as defined in Section 3.2.
Loan Party and Loan Parties shall mean, singly and collectively, the Borrower,
the Borrower GP, any Borrower Subsidiary which is a party to any Loan Document,
the Guarantor, any Xxxxxxx Group Entity which is a party to any Loan Document,
and any Subsidiary and Affiliate of any of the foregoing which is also a party
to any Loan Document.
London Banking Day. The term "London Banking Day" means any day on which
dealings in deposits in Dollars are transacted in the London interbank market.
MLP Holders shall mean Xxxxxxx MLP Corp. and Vornado MLP GP L.L.C., being the
holders of 100% of the membership interest in MLP GP LLC.
Mandatory Prepayment Event as defined in Section 2.3.8(ii).
Mandatory Principal Prepayments as defined in Section 2.3.8(ii).
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Market Rent shall mean, at any point of determination, the then current rentals
being charged to new tenants for comparable quality space located on comparable
quality property within the subject geographic area of the subject Individual
Property, taking into account and giving effect to, without limitation, such
considerations as size, location of the Individual Property, lease term and
level and quality of building construction and space improvements, tenant
allowances, and rent concessions, all as reasonably determined by the Agent.
Master Lease shall mean any master lease entered into, or assumed by, a Net
Lease Partnership relative to an Individual Property, pursuant to which the
lessee thereunder entered into a Sublease with a Tenant, each of which Master
Leases has by operation of law merged into the applicable Sublease.
Material Adverse Effect shall mean a material adverse effect on (i) the
business, assets, prospects, operations or financial or other condition of any
of the Borrower or, taken as a whole, the Borrower Subsidiaries and the Loan
Parties, including, without limitation, all Distributions to be made pursuant to
Cash Flow Projections (ii) the ability of any of the Borrower, the Loan Parties,
or the Borrower Subsidiaries to perform any material Obligations or to pay any
Obligations which it is obligated to pay in accordance with the terms hereof or
of any other Loan Document, (iii) the rights of, or benefits available to, the
Agent and/or any of the Lenders under any Loan Document or (iv) any Lien given
to Agent and/or any of the Lenders on any material portion of the Collateral or
the priority of any such Lien.
Maturity shall mean the Maturity Date, or, if the Maturity Date has been
extended pursuant to the provisions of the Loan Agreement, the applicable
Extended Maturity Date, or in any instance, upon acceleration of the Loan, if
the Loan has been accelerated by Lenders upon an Event of Default.
Maturity Date as defined in Section 2.2.
Merger Subsidiary as defined in the Solicitation Statement.
Minimum Consolidated Net Worth as defined in Section 7.27.
Mortgage Debt shall mean, singly and collectively, the First Mortgage Debt, the
Other Second Mortgage Debt, and the Securitized Notes.
Mortgage Debt Schedule as defined in Section 6.18.8.
Mortgage Debt Test shall mean shall be deemed to be triggered if either (i) the
Borrower is not in compliance with the Cash Sweep Account Test or (ii) the
aggregate equity (as determined by the Agent based upon then current valuations)
in excess of all liens on the Individual Properties of all Net Lease
Partnerships as to which a Default or Event of Default (regardless of how or if
defined) has occurred and the holder has accelerated the obligations due
thereunder and commenced exercising its rights upon such Default or Event of
Default, is greater than $10,000,000.00, assuming for purposes hereof that such
an event has occurred for the subject Mortgage Debt.
Net Lease Partnerships shall mean, singly and collectively, the Participating
Limited Partnerships, the Non-Participating Limited Partnerships, the Subsidiary
Limited Partnerships, and the Partially Owned Limited Partnerships being the
owners, land estate holders, or ground lessors of the Individual Properties.
Net Proceeds shall mean the gross proceeds received from any insurance recovery
or condemnation award relating to any casualty or taking of any asset less the
aggregate of (i) obligations due to the holders of Mortgage Debt thereon,
including, without limitation, any prepayment penalties or fees,
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and (ii) all reasonable costs and expenses incurred in the collection of such
amounts, including, but not limited to, reasonable attorney's fees, payable to
third-parties who are not a Borrower Subsidiary, a Xxxxxxx Group Entity or an
Affiliate thereof.
Net Refinancing Proceeds shall mean the gross proceeds received from the closing
of the financing or refinancing of a specified asset less the aggregate of (i)
obligations due to the holders of Mortgage Debt thereon, including, without
limitation, any prepayment penalties or fees, and (ii) reasonable closing costs
payable to third-parties who are not a Borrower Subsidiary, a Xxxxxxx Group
Entity or an Affiliate thereof.
Net Sales Proceeds shall mean the gross sale proceeds received from the closing
of the sale of a specified asset less the aggregate of (i) obligations due to
the holders of Mortgage Debt thereon, including, without limitation, any
prepayment penalties or fees, (ii) usual closing adjustments, and (iii)
reasonable closing costs payable to third-parties who are not a Borrower
Subsidiary, a Xxxxxxx Group Entity or an Affiliate thereof.
Xxxxxxx Group Entity (Entities) shall mean Apollo Real Estate Investment Fund
III, L.P., a Delaware limited partnership, Vornado Realty Trust, a Maryland real
estate investment trust, and Xxxxxxx Xxxxxx and Xxxxx Xxxxxxxxx, being senior
executives of Winthrop Financial Associates, A Limited Partnership, together
with any Affiliates of each of such Persons (other than the Borrower or any
Borrower Subsidiary).
Xxxxxxx Indemnification as defined in Section 3.1.20.
Xxxxxxx Indemnitor as defined in Section 1.5.2.
Xxxxxxx Loans shall mean, jointly and severally, the Cenland Loan, the
Administrator LLC Loan, the NK Leasehold Second Mortgage Loan, the Leyden Note
and the Dautec Note.
Xxxxxxx Partnerships as defined in the Solicitation Statement.
NK Leasehold Second Mortgage Loan shall mean that certain mortgage loan
arrangement held by NK-Leasehold II LLC, evidenced by among other things, a
certain promissory note dated December 21, 1984 made by Crostex Associates
Limited Partnership in the original principal amount of $2,214,788 (balance of
$5,591,671 as of December 31, 2001) and a certain subordinated, second priority
mortgage dated December 21, 1984 respecting the premises located at 0000 X.
Xxxxxxx Xxxxxxxxxx, Xxxxxx, Xxxxx owned by Crostex Associates Limited
Partnership.
Non-Participating Limited Partnerships shall mean, as further described in the
Solicitation Statement, those Schedule 2 Partnerships that do not participate in
the Exchange, as detailed in Exhibit L.
Note shall mean the Note payable to Agent on behalf of the Lenders in the
original principal amount of Two Hundred Twenty Five Million Dollars
($225,000,000.00).
Notice of Intention to Distribute an defined in Section 9.2.1.
Notice of Rate Selection as defined in Section 2.3.3.
Obligations as defined in Section 3.1.
Officer's Certificate shall mean a certificate delivered to the Agent by the
Borrower, a Borrower Subsidiary, or a Guarantor, as the case may be,
respectively, which is signed by an authorized officer
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thereof (or an authorized officer of the direct or indirect managing general
partner or managing member, as applicable, of the Borrower, Borrower Subsidiary,
or Guarantor, if and as applicable).
Other Partnerships shall mean those limited partnerships as to which minority
interest are to be owned by the Borrower as detailed in Exhibit M.
Other Second Mortgage Debt shall mean, from time to time, any obligations of a
Net Lease Partnership secured by a junior mortgage or deed of trust on one or
more Individual Properties, as of the Closing Date as set forth in the relevant
schedules to the Solicitation Statement, as updated by Schedule 6.18.2(ii);
provided, however, the Securitized Notes shall not be included within the
definition of Other Second Mortgage Debt.
Ownership Interest Agreements shall mean all of the agreements establishing any
Remainder Ground Lease Option or Ground Lease Extension Option in favor of a Net
Lease Partnership in an Individual Property, including the Ground Leases.
Partially Owned Limited Partnerships shall mean and refer to Xxxxxxx Avenue
Limited Partnership (as to which a 55% limited partnership interest and 100%
general partnership interest is owned by Xxxxxxx Calcraf L.P.) and LCB Limited
Partnership (as to which a 53% limited partnership interest and 100% general
partnership interest is owned by Xxxxxxx Segair L.P.)
Participating Limited Partnerships shall mean, singly and collectively, from
time to time, those limited partnerships which are wholly-owned and controlled
by the Borrower, into which all of the Schedule 1 Partnerships and certain of
the Schedule 2 Partnerships merged as part of the Exchange, or may merge after
the date hereof. A Participating Limited Partnership is referred to in the
Solicitation Statement as a Merger Subsidiary. As of the Funding Date, the
Participating Limited Partnerships shall be those limited partnerships listed on
Exhibit N.
Participating Limited Partnership GPs shall mean, singly and collectively, from
time to time, those limited liability companies or corporations which are
wholly-owned and controlled by the Borrower and which are the general partners
for each of the Participating Limited Partnerships, respectively, as part of the
Exchange or thereafter.
Paying Agent shall mean Midland Loan Services, Inc., together with any other
agent or replacement agent under a Paying Agent Agreement.
Paying Agent Agreements shall mean those agreements entered into with the Paying
Agent for each Net Lease Partnership obligated on a Securitized Note pursuant to
which the Paying Agent agreed to collect payments due on the Securitized Notes
and make disbursements on behalf of the Grantor Trust.
Payment Direction Letters as defined in Section 7.15.6, including, without
limitation, the Payment Agent Agreements.
PBGC shall mean the Pension Benefit Guaranty Corporation established pursuant to
Section 4002 of ERISA, or any successor thereto.
Permitted Debt as defined in Section 8.4.
Permitted Distributions as defined in Section 8.18.
Permitted Investments as defined in Section 8.19.
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Permitted Leasing Costs as defined in Section 7.32.1.
Permitted Liens as defined in Section 8.2.
Permitted Refinance as defined in Section 8.4.4.
Person shall mean any individual, corporation, partnership, joint venture,
estate, trust, unincorporated association or limited liability company, any
federal, state, county or municipal government or any bureau, department or
agency thereof and any fiduciary acting in such capacity on behalf of any of the
foregoing.
Plan shall mean any multiemployer or single-employer plan as defined in Section
4001 of ERISA, which is maintained or contributed to by (or to which there is an
obligation to contribute of) the Borrower or any Borrower Subsidiary or an ERISA
Affiliate, and each such plan for the five year period immediately following the
latest date on which such Person or an ERISA Affiliate maintained, contributed
to or had an obligation to contribute to such plan.
Pledge and Security Agreement as defined in Section 3.1.4.
Pooling Agreement shall mean that certain Pooling Agreement dated April 1, 1999,
among the Grantor Trust, the Servicer and LaSalle National Bank, as the REMIC
Trustee, as may be amended, modified, supplemented, or replaced from time to
time.
Prepayment Fee as defined in Section 2.3.9.
Prime Rate. The term "Prime Rate" means the greater of (a) the variable per
annum rate of interest so designated and publicly announced from time to time by
Fleet National Bank (or any successor thereto) as its prime rate, or (b) five
percent (5%). The Prime Rate is a reference rate and does not necessarily
represent the lowest or best rate being charged to any customer.
Put-Call Option Agreement shall mean that certain Put-Call Option Agreement
dated January 1, 2002, among the Borrower, NK-CR Holdings LLC, and Holding
Subsidiary LLC, as may be amended, modified, supplemented, or replaced from time
to time, pursuant to which, among other things, the Borrower is granted an
option to acquire a 100% ownership interest in T-Two Partners, L.P., being the
holder of the Grantor Trust T-2 Certificate.
Register as defined in Section 13.3.3.
Rejectable Offer shall mean the rejectable offer of any tenant pursuant to a
Lease respecting any Individual Property to purchase the respective Individual
Property at a predetermined price, as and when may be specifically provided in
any such Lease respecting any Individual Property.
Rejection Test as defined in Section 7.28.6.
Related Documents shall mean, singly and collectively, the Formation Documents,
the Put-Call Option Agreement, each Ownership Interest Agreement, the Amended
and Restated Asset Management Agreement, the Contract to Provide Asset
Management Services, the Securitization Documents, the Integrated Documents, the
Payment Direction Letters, the documents establishing and evidencing any
Mortgage Debt, and the documents establishing and evidencing each Xxxxxxx Loan.
Remainder Ground Lease Options as defined in Section 3.1.23(i).
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Remainder Ground Lease Option Schedule as defined in Section 6.18.7.
REMIC Trustee presently LaSalle National Bank, shall have the meaning provided
in the Pooling Agreement.
Reportable Event shall mean an event described in Section 4043(b) of ERISA with
respect to a Plan other than those events as to which the 30-day notice period
is waived under subsection .13, .14, .16, .18, .19 or .20 of PBGC Regulation
Section 2615, or as otherwise now or hereafter defined in ERISA.
Required Lenders. As of any date, the Lenders holding greater than fifty percent
(50%) of the outstanding principal amount due under the Note on such date; and
if no such principal is outstanding, the Lenders whose aggregate Commitments
constitute greater than fifty percent (50%) of the Total Commitment.
Required T/I Amount as defined in Section 7.32.5.
Schedule 1 Partnerships as defined in the Solicitation Statement.
Schedule 2 Partnerships as defined in the Solicitation Statement.
Second Extended Maturity Date as defined in Section 2.2.
Second Extended Term as defined in Section 2.2.
Securitization Documents shall mean any and all documentation executed and
delivered relative to the securitization of the so called contract rights
relative to certain of the Individual Properties, including, without limitation,
the Grantor Trust Agreement, the Pooling Agreement, the Paying Agent Agreement,
the Securitized Notes, the Securitized Mortgages, the Grantor Trust T-1
Certificate, the Grantor Trust T-2 Certificate, and the Class R Certificate, as
such have been amended as of April 1, 1999.
Securitized Mortgages shall mean the junior Liens on certain of the Individual
Properties which secure the Securitized Notes.
Securitized Notes shall mean the individual notes for each applicable Net Lease
Partnership held by the Grantor Trust.
Security Documents as defined in Section 3.2.
Servicer presently Midland Loan Services, Inc., shall have the meaning provided
in the Grantor Trust Agreement.
Solicitation Statement shall mean that Consent Solicitation Statement/Offering
Circular dated October 23, 2001, attached hereto as Exhibit O, all and singular
the terms and conditions of which (including, without limitation, all schedules,
exhibits, and definitions) are specifically incorporated herein by reference,
and which sets forth, among other things, a description of the Exchange.
Single-Purpose Entity shall mean, with respect to a Person, that such Person has
Formation Documents which contain generally the following provisions (with such
variations as required by the provisions of the First Mortgage Debt) , and has
agreed to abide by such terms and conditions:
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(a) Such Person shall not engage in any business or activity other than
acquiring by merger the assets and liabilities of the applicable Net Lease
Partnership.
(b) Such Person shall not acquire or own any material assets other than
(i) the real property owned by the Participating Limited Partnership on the date
of the Exchange, and (ii) such incidental personal property as may be necessary
for the operation of such real property.
(c) Such Person shall not fail to preserve its existence as an entity duly
organized, validly existing and in good standing (if applicable) under the laws
of the jurisdiction of its organization or formation and under the applicable
laws of any state or states in which the ownership of its assets or the conduct
of its business requires such qualification.
(d) Such Person shall not incur any Debt, except as provided herein.
(e) Such Person shall not merge into or consolidate with any person or
entity or dissolve, terminate or liquidate in whole or in part, transfer or
otherwise dispose of all or substantially all of its assets or change its legal
structure.
(f) Such Person shall not own any subsidiary or make any investment in any
person or entity.
(g) Such Person shall not file or consent to the filing of any petition,
either voluntary or involuntary, to take advantage of any applicable insolvency,
bankruptcy, liquidation or reorganization statute, or make an assignment for the
benefit of creditors.
(h) Such Person shall agree to abide by the following covenants in its
management and operation:
(i) To maintain its records, books of account and bank accounts
separate and apart from those of the Participating Limited Partnership
GPs, any affiliates of the Participating Limited Partnership GPs and any
other Person;
(ii) Not to commingle assets with those of the Participating Limited
Partnership GPs or any other Person;
(iii) Not to maintain its assets in such a manner that it will be
costly or difficult to segregate, ascertain or identify its individual
assets from those of any other Person;
(iv) To maintain separate financial statements and to file its own
tax returns;
(v) To pay its own liabilities out of its own funds;
(vi) To observe all corporate, partnership or limited liability
company formalities;
(vii) To maintain an arm's-length relationship with its Affiliates;
(viii) To pay the salaries of its own employees and maintain a
sufficient number of employees in light of its contemplated business
operations;
(ix) Not to guarantee or become obligated for the debts of any other
entity or hold out its credit as being available to satisfy the
obligations of others, except as provided for herein;
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(x) Not to acquire obligations or securities of its partners,
members or shareholders;
(xi) To allocate and charge fairly and reasonably any overhead for
shared office space or any common employee or overhead shared with
affiliates;
(xii) To use separate stationery, invoices and checks;
(xiii) Not to pledge its assets for the benefit of any other entity
or make any loans or advances to any entity, including any Participating
Limited Partnership GP or any affiliate thereof, except as provided for
herein;
(xiv) To hold itself out to the public as a legal entity separate
and distinct from any other Person and to conduct its business solely in
its own name in order not (A) to mislead others as to the identity with
which such other Person is transacting business, or (B) to suggest that
such Person is responsible for the debts of any third party (including the
Participating Limited Partnership GPs or any affiliate thereof or any
other Person);
(xv) To correct any known misunderstanding regarding its separate
identity; and
(xvi) To maintain adequate capital and cash on hand for the normal
obligations reasonably foreseeable in a business of its size and character
and in light of its contemplated business operations.
State shall mean the State or Commonwealth in which the subject of such
reference or any part thereof is located.
Sublease shall mean any sublease entered into, or assumed by, a lessee under a
Master Lease relative to an Individual Property, each of which Subleases has by
operation of law merged into the applicable Master Lease.
Subsidiary shall mean, with respect to any Person, any corporation, association,
limited liability company, partnership or other business entity of which
securities or other ownership interests representing more than 50% of either (x)
the beneficial ownership interest or (y) ordinary voting power are, at the time
as of which any determination is being made, owned or controlled, directly or
indirectly, by such Person.
Subsidiary Bankruptcy Test shall be deemed to be triggered if either (i) the
Borrower is not in compliance with the Cash Flow Sweep Test or (ii) the
aggregate equity (as determined by the Agent based upon then current valuations)
in excess of all liens on the Individual Properties of all Participating Limited
Partnerships as to which any event set forth in Subsection 10.1.8.A. has
occurred and continues to occur, is greater than $10,000,000.00, in each case
assuming for purposes hereof, that such an event has occurred for the subject
Participating Limited Partnership.
Subsidiary Limited Partnership shall mean and refer to Xxxxx Associates Limited
Partnership, Jermor Associates Limited Partnership, and Alsey Associates Limited
Partnership (as to each of which a 99% limited partnership interest is owned by
Xxxxxxx Martall L.P.).
Syndication Agent shall mean Fleet Securities, Inc.
T/I Fund Account as defined in Section 7.32.1.
Title Reports as defined in Section 5.1.11(i).
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Total Commitment. The sum of the Commitments of the Lenders, as in effect from
time to time.
UCC or the Uniform Commercial Code means the Uniform Commercial Code in effect
in a State.
Unfunded Current Liability of any Plan means the amount, if any, by which the
actuarial present value of the accumulated plan benefits under the Plan as of
the close of its most recent plan year exceeds the fair market value of the
assets allocable thereto, each determined in accordance with Statement of
Financial Accounting Standards No. 35, based upon the actuarial assumptions used
by the Plan's actuary in the most recent annual valuation of the Plan.
United States and U.S. shall each mean the United States of America.
Units shall mean, as described in the Solicitation Statement, units of limited
partnership interest in the Borrower.
Variable Rate. The term "Variable Rate" means a per annum rate equal at all
times to the Prime Rate plus 350 basis points, with changes therein to be
effective simultaneously without notice or demand of any kind with any change in
the Prime Rate.
Variable Rate Advance. The term "Variable Rate Advance" means any principal
amount outstanding under this Agreement which pursuant to this Agreement bears
interest at the Variable Rate.
Withholding Taxes as defined in Section 2.7.3.
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The exhibits and schedules to this document are attached as separate exhibits to
this Form 10 or omitted.
