Certain information in this document has been omitted from this exhibit because it is both (i) not material 28722485.v7 LOAN AGREEMENT Dated as of June 10, 2022 Between COMPLEX THERAPEUTICS LLC, as Borrower and OPG HERMES INVESTMENTS (DE) LLC, as...
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[***] Certain information in this document has been omitted from this exhibit because it is both (i) not material 28722485.v7 LOAN AGREEMENT Dated as of June 10, 2022 Between COMPLEX THERAPEUTICS LLC, as Borrower and OPG HERMES INVESTMENTS (DE) LLC, as Lender Property: 18408-18412 Oxnard Street, Los Angeles, California Loan Amount: $55,000,000 and (ii) is the type that the Registrant treats as private or confidential.
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-iii- 28722485.v7 EXHIBITS & SCHEDULES Exhibit A - Legal Description of Property Exhibit B - Form of Major Trade Contractor Consent Exhibit C - Form of Officer’s Certificate Exhibit D - Initial Approved Annual Budget Exhibit E - Form of Requisition Letter Exhibit F - Intentionally Omitted Exhibit G - Intentionally Omitted Exhibit H - Intentionally Omitted Exhibit I - Intentionally Omitted Exhibit J - Intentionally Omitted Exhibits K-1 to K-4 - Forms of U.S. Tax Compliance Certificate Exhibit L - Initial Construction Budget Exhibit M - Initial Construction Schedule Schedule I - Existing Construction Documents Schedule II - Organizational Structure Schedule III - List of Material Agreements Schedule IV - List of Design Professionals Schedule V - Construction Permits Schedule VI - List of REAs Schedule VII - Exception to Physical Condition Representation
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28722485.v7 LOAN AGREEMENT THIS LOAN AGREEMENT, dated as of June 10, 2022 (as amended, restated, replaced, supplemented or otherwise modified from time to time, this “Agreement”), is made by and between OPG HERMES INVESTMENTS (DE) LLC, a Delaware limited liability company (together with its successors and assigns, “Lender”), and COMPLEX THERAPEUTICS LLC, a Delaware limited liability company (“Borrower”). RECITALS WHEREAS, Borrower desires to obtain the Loan (as hereinafter defined) from Lender; and WHEREAS, Lender is willing to make the Loan to Borrower, subject to and in accordance with the terms and conditions of this Agreement and the other Loan Documents (as hereinafter defined). NOW THEREFORE, in consideration of the making of the Loan by Lender and the covenants, agreements, representations and warranties set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby covenant, agree, represent and warrant as follows: ARTICLE I DEFINITIONS; PRINCIPLES OF CONSTRUCTION SECTION 1.1. Definitions. For all purposes of this Agreement, except as otherwise expressly required or unless the context clearly indicates a contrary intent: “Acceptable Counterparty” means a counterparty to an Interest Rate Cap Agreement, or the guarantor of such counterparty’s obligations under an Interest Rate Cap Agreement (provided that the form and substance of such guaranty is acceptable to Lender) that has a long-term unsecured debt rating of not less than “A” by S&P and “A2” from Moody’s, which rating shall not include a “t” or otherwise reflect a termination risk. “Acceptable LLC” has the meaning set forth in the definition of Special Purpose Entity. “Account Collateral” has the meaning set forth in Section 3.6 hereof. “Accounts” means, collectively, the Clearing Account, the Cash Management Account, and each of the Reserve Accounts. “Act” has the meaning set forth in the definition of Special Purpose Entity. “Additional Advance” has the meaning set forth in Section 2.1.3 hereof. “Advance Date” means, with respect to each Additional Advance, the date on which such Additional Advance is disbursed to Borrower pursuant to this Agreement. “Advance Item” means, individually and collectively as the context may require, Approved Project Expenditures and Interest and Carry Costs. “Affiliate” means, as to any Person, any other Person that (a) directly or indirectly owns twenty percent (20%) or more of the Equity Interests in such Person, and/or (b) is in Control of, is Controlled by
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-2- 28722485.v7 or is under common Control with such Person, and/or (c) is a director, partner, officer or employee of such Person, and/or (d) is the spouse, issue, parent or officer of such Person. “Affiliated Manager” means any Manager that is an Affiliate of Borrower. “Agreement” has the meaning set forth in the introductory paragraph hereto. “Alternate Rate” means, with respect to each Interest Accrual Period, the per annum rate of interest of the Alternate Rate Index determined as of the Determination Date immediately preceding the commencement of such Interest Accrual Period plus the Alternate Rate Spread; provided that in no event will the Alternate Rate be less than the Minimum Rate. “Alternate Rate Index” means a floating rate index determined by Lender in its sole but good faith discretion (a) that is commonly accepted by market participants in commercial real estate loans as an alternative to Term SOFR and (b) that is publicly recognized by the International Swaps and Derivatives Association (ISDA) as an alternative to Term SOFR; provided that in no event will the Alternate Rate Index be less than the Rate Index Floor. “Alternate Rate Loan” means the Loan at such time as interest thereon accrues at a rate of interest based upon the Alternate Rate. “Alternate Rate Spread” means, in connection with any conversion of the Loan from (a) a Term SOFR Loan to an Alternate Rate Loan, the difference (expressed as the number of basis points) of (i) Term SOFR as of the Determination Date for which Term SOFR was last applicable to the Loan plus the Spread minus (ii) the Alternate Rate Index as of such Determination Date, or (b) a Prime Rate Loan to an Alternate Rate Loan, the difference (expressed as the number of basis points) of (i) the Prime Rate Index as of the Determination Date for which the Prime Rate Index was last applicable to the Loan plus the Prime Rate Spread minus (ii) the Alternate Rate Index as of such Determination Date; provided, however, that in either such case, if such difference is a negative number, then the Alternate Rate Spread shall be zero. “Applicable Rate Index” means (i) Term SOFR for so long as the Loan is a Term SOFR Rate Loan, (ii) the Alternate Rate Index for so long as the Loan is an Alternate Rate Loan or (iii) the Prime Rate Index for so long as the Loan is a Prime Rate Loan. “Appraisal” means a written statement setting forth an opinion of the market value of the Property that (i) has been independently and impartially prepared by an appraiser directly engaged by Lender, (ii) complies with all applicable federal and state laws and regulations dealing with appraisals or valuations of real property, including the minimum appraisal standards for national banks promulgated by the Comptroller of the Currency pursuant to Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, as amended (FIRREA), (iii) has been prepared on “as-stabilized” basis, (iv) has been prepared not more than sixty (60) days prior to the relevant date and (v) has been reviewed as to form and content and approved by Lender, in its reasonable discretion. “Approved Accounting Method” means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (or agencies with similar functions of comparable stature and authority within the accounting profession), or in such other statements by such entity as may be in general use by significant segments of the U.S. accounting profession, to the extent such principles are applicable to the facts and circumstances on the date of determination, consistently applied.
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-3- 28722485.v7 “Approved Annual Budget” has the meaning set forth in Section 5.1.1(f)(iv) hereof. “Approved Bank” means a bank or other financial institution that has a minimum long term unsecured debt rating of at least “A” by S&P or “A2” by Moody’s. “Approved Extraordinary Expenses” has the meaning set forth in Section 3.1.(b) hereof. “Approved Project Expenditures” means all Costs (other than Interest and Carry Costs) incurred by Borrower with respect to the Project (a) in accordance with the Construction Budget or the applicable Approved Annual Budget, as applicable, or (b) as may otherwise be reasonably approved by Lender from time to time. “Architect” means Xxxxx Xxxx, Inc., the architect engaged by (or on behalf of) Borrower with respect to the design and construction of the Project, together with any successor or additional architect engaged by (or on behalf of) Borrower in accordance with Section 5.1.3(k). “Architect Agreement” means that certain AIA Document B101-Standard Form of Agreement Between Owner and Architect, dated February 25, 2021 and any other agreements for architectural services which Borrower may enter into with any Architect in accordance with Section 5.1.3(k), as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time in accordance with the terms and conditions of this Agreement. “Architect Consent” means any consents and agreements required pursuant to the terms of this Agreement to be executed and delivered by an Architect to Lender with respect to any Architect Agreements entered into by and between Borrower and any Architect, which, in each case, shall be, in form and substance reasonably acceptable to Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time in accordance with the terms and conditions of this Agreement. “As-Stabilized Loan-to-Value Ratio” means as of the date of its calculation, the ratio of (a) the sum of (x) the Outstanding Principal Balance as of the date of such calculation, and (y) the Mezzanine Loan Outstanding Principal Balance as of the date of such calculation, to (b) the “as-stabilized” value of the Property, as determined by an Appraisal ordered by Lender. “Assignment of Agreements” means that certain Assignment of Agreements, Plans, Licenses and Permits, dated as of the Closing Date, by Borrower in favor of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time. “Assignment of General Contractor Agreement” means that certain Assignment of General Contractor Agreement, Consent of General Contractor and Subordination of Fees, dated as of the Closing Date, executed and delivered by Borrower and General Contractor to Lender, as the same may be amended, replaced, supplemented or otherwise modified from time to time in accordance with the terms thereof. “Assignment of Interest Rate Cap Agreement” has the meaning set forth in Section 2.2.7(a) hereof. “Assignment of Management Agreement” means any Assignment of Management Agreement and Subordination of Management Fees, entered into among Lender, Borrower and Manager in accordance with the terms of this Agreement, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.
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-4- 28722485.v7 “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution. “Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule. “Bankruptcy Action” means with respect to any Person (a) such Person filing a voluntary petition under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (b) the filing of an involuntary petition against such Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; (c) such Person filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other Federal or state bankruptcy or insolvency law; or soliciting or causing to be solicited petitioning creditors for any involuntary petition from any Person; (d) the appointment of a custodian, receiver, trustee, or examiner for such Person or any portion of the Property; (e) such Person making an assignment for the benefit of creditors, or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due, or (f) such Person commencing (or have commenced against it) a proceeding for the dissolution or liquidation of it. “Bankruptcy Code” means 11 U.S.C. § 101 et seq., as the same may be amended from time to time. “Bond” means a payment bond and a performance bond (i) in the form of AIA Document A312, or in such other form as may be reasonably acceptable to Lender, (ii) with dual obligee riders that name Lender as a co-obligee with Borrower, and (iii) issued by a surety reasonably satisfactory to Lender. “Borrower” has the meaning set forth in the introductory paragraph hereto, together with its successors and permitted assigns. “Borrower Party” means, individually and collectively, (i) Borrower, SPE Component Entity (if any), Guarantor, Mezzanine Borrower, Mezzanine Borrower SPE Component Entity (if any), Master Tenant, and any Affiliated Manager, (ii) any Affiliate of any of the foregoing, and (iii) any officers, directors, employees, or agents of any of the foregoing. “Building A” has the meaning set forth in the Master Lease. “Building B” has the meaning set forth in the Master Lease. “Business Day” means any day other than a Saturday, Sunday or any other day on which national banks in New York, New York, are not open for business. “Carry Costs Guaranty” means that certain Carry Costs Guaranty, dated as of the Closing Date, from Guarantor to and for the benefit of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time. “Cash Expenses” means, for any period, the operating expenses for the operation of the Property as set forth in the Construction Budget or the then-effective Approved Annual Budget or, to the extent an annual budget has not been approved by Lender in accordance with the terms of this Agreement, to the extent that such expenses are actually incurred by Borrower (excluding (i) any deposits into the Tax Reserve Account and the Insurance Reserve Account that are being applied by Lender for payment of Taxes and
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-5- 28722485.v7 Insurance Premiums, as applicable, in accordance with the terms of this Agreement, (ii) any expenses which Master Tenant reimburses Borrower for pursuant to the Master Lease, and (iii) any expenses that Master Tenant pays in accordance with the express terms of the Master Lease, provided, that, in the case of the immediately preceding clause (iii), there is no event of default by Master Tenant under the Master Lease. “Cash Management Account” means the deposit account established pursuant to the Cash Management Agreement. “Cash Management Agreement” means that certain Cash Management Agreement, dated as of the Closing Date by and among Cash Management Bank, Borrower and Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time. “Cash Management Bank” means, initially, Signature Bank, or such other bank or banks selected by Lender to maintain the Cash Management Account (or any Reserve Accounts to the extent they are not subaccounts of the Cash Management Account). “Cash Management Event” means the existence of any of the following: (a) the Closing Date; (b) an Event of Default; (c) any Bankruptcy Action with respect to Borrower, Mezzanine Borrower, Master Tenant, Guarantor, or any Affiliated Manager; or (d) the determination by Lender at any time that the Debt Yield is not at least eight and one-half percent (8.5%) (provided, that in the event of a failure of Borrower to deliver the information and documentation required under Section 5.1.1(f) by the required delivery date hereunder, at Lender’s option the Debt Yield will be presumed to be less than the levels required above unless and until such information and documentation are provided to Lender and demonstrate otherwise). “Cash Management Period” means the period commencing upon the occurrence of a Cash Management Event and terminating upon the occurrence of a Cash Management Termination Event with respect to all then existing Cash Management Events. “Cash Management Termination Event” means the occurrence of any of the following: (a) in the event the related Cash Management Event occurred as a result of an Event of Default, such Event of Default shall no longer exists (without implying that Borrower has a right to cure an Event of Default), no other Default or Event of Default then exists, and Lender shall not have otherwise accelerated the Loan, moved for a receiver, commenced foreclosure proceedings, or otherwise begun exercising remedies; (b) (i) in the event that the related Cash Management Event occurred as a result of a Bankruptcy Action relating to Borrower, Mezzanine Borrower, Master Tenant or Guarantor, as applicable, such Bankruptcy Action no longer exists and there has been no Material Adverse Effect as a result thereof, and (ii) in the event that the related Cash Management Event occurred as a result of a Bankruptcy Action relating to any Affiliated Manager, the replacement of such Affiliated Manager in accordance with the terms and conditions of this Agreement, and (c) with respect to the Cash Management Event described in clause (a) or (d) of the definition thereof, (i) Substantial Completion shall have occurred and (ii) Lender has determined that the Debt Yield is at least eight and one-half percent (8.5%) for two (2) consecutive calendar quarters. “Casualty” has the meaning set forth in Section 6.2 hereof. “Cause” means, with respect to an Independent Director or Independent Manager, (a) acts or omissions by such Person that constitute fraud, bad faith, gross negligence or willful disregard of such Person’s duties under the applicable agreements, (b) that such Person has engaged in or has been charged with, or has been convicted of, fraud or other acts constituting a felony under any law applicable to such Person, (c) that such Independent Director or Independent Manager is unable to perform his or her duties as an Independent Director or Independent Manager due to death, disability, or incapacity, or (d) that such
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-6- 28722485.v7 Independent Director or Independent Manager no longer meets the definition of “Independent Director” or “Independent Manager”. “Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty; (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority; or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (i) all requests, rules, guidelines or directives thereunder or issued in connection with the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act or any amendments thereto after the Closing Date, and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued. “Change Order” means any amendment, supplement or other modification from and after the Closing Date in any respect to (i) the Plans and Specifications, (ii) the Construction Schedule, (iii) the Construction Budget or (iv) any Construction Contract. “Clearing Account” means the deposit account established pursuant to the Clearing Account Agreement. “Clearing Account Agreement” means any deposit account control agreement entered into among Clearing Bank, Borrower, Manager (if any) and Lender in accordance with the terms of this Agreement, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time. “Clearing Bank” means a bank or banks selected by Borrower and approved in writing by Lender in Lender’s sole discretion. “Closing Certificate” means that certain Closing Certificate executed by Borrower as of the Closing Date. “Closing Date” means the date of this Agreement. “Closing Date Minimum Equity Requirement” means the direct and indirect owners in Borrower, in the aggregate, have invested at least $50,059,031 of cash equity in the Property (including the acquisition cost thereof) as determined by Lender. “Closing Date Term SOFR” means 1.19944%. “Code” means the Internal Revenue Code of 1986, as amended, as it may be further amended from time to time, and any successor statutes thereto, and applicable U.S. Department of Treasury regulations issued pursuant thereto in temporary or final form. “Co-Lender Agreement” has the meaning set forth in Section 10.29(b) hereof. “Combined Advance” means, as of any date, (a) the Additional Advance being made or to be made by Lender pursuant to this Agreement, plus (b) the Mezzanine Loan Additional Advance being made or to be made by Mezzanine Lender pursuant to the Mezzanine Loan Agreement.
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-7- 28722485.v7 “Commercially Reasonable Efforts” means, with respect to Borrower or Guarantor, as applicable, the continuous and diligent use of all commercially reasonable efforts in good faith taking into account the interests of Lender, including, if commercially reasonable, the commencement and prosecution of litigation or other enforcement of Borrower’s and/or Guarantor’s rights under applicable agreements, at law or in equity. The use of commercially reasonable efforts shall require Borrower and Guarantor to disregard the interests of its Affiliates. Borrower’s or Guarantor’s lack of funds to pay for usual and customary reasonable legal and other costs and expenses related to Borrower’s or Guarantor’s efforts to perform shall not excuse Borrower or Guarantor from fully pursuing such efforts. “Complete” means, with respect to the Approved Project Expenditures, that (i) Substantial Completion has occurred, (ii) all Punchlist Items have been completed, (iii) the Property is free of all mechanics’, materialmen’s, and other similar Liens (or such liens have otherwise been bonded over to Lender’s reasonable satisfaction), (iv) Master Tenant has commenced paying full unabated rent with respect to the entire Property, including without limitation “Building A” and “Building B” (as each such term is defined in the Master Lease), (v) Lender has received evidence acceptable to Lender that all Legal Requirements and all private restrictions and covenants relating to the Property have been complied with or satisfied and that all necessary approvals from Governmental Authorities with respect to the Improvements have been obtained, (vi) Lender has received copies of all warranties from suppliers covering materials, equipment and appliances included within the applicable component of the work, and (vii) the conditions set forth in Section 2.1.19 have been satisfied to the satisfaction of Lender. The terms “Completed” and “Completion” shall have the same meaning when used in the Loan Documents. “Completion Due Date” means December 1, 2023. “Completion Guaranty” means that certain Completion Guaranty Agreement, dated as of the Closing Date, from Guarantor to and for the benefit of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time. “Condemnation” means a temporary or permanent taking by any Governmental Authority as the result or in lieu or in anticipation of the exercise of the right of condemnation or eminent domain, of all or any part of the Property, or any interest therein or right accruing thereto, including any right of access thereto or any change of grade affecting the Property or any part thereof. “Conforming Changes” means, with respect to either the use or administration of Term SOFR or the use, administration, adoption or implementation of any Alternate Rate Index or the Prime Rate Index, any technical, administrative or operational changes (including, without limitation, changes to the definitions of “Business Day”, “Determination Date”, “Interest Accrual Period”, “Payment Date” “U.S. Government Securities Business Day”, preceding and succeeding business day conventions, rounding of amounts, timing and frequency of determining rates and making payments of interest, the applicability and length of lookback periods, and other technical, administrative or operational matters) that Lender decides in good faith, from time to time, may be appropriate to reflect the adoption and implementation of any such rate or to permit the use and administration thereof by Lender in a manner substantially consistent with market practice for floating rate loans held on Lender’s balance sheet and secured by U.S. commercial real estate assets (or, if Lender decides that adoption of any portion of such market practice is not administratively feasible or if Lender determines that no market practice for the administration of any such rate exists, in such other manner of administration as Lender decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents). “Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.
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-8- 28722485.v7 “Construction Budget” means the construction and development budget prepared by, or on behalf of, Borrower for the construction and development of the Project, as the same may be adjusted due to changes or reallocations made in accordance with Section 2.1.7 and Section 5.1.3(c) hereof, and which, (A) shall contain Line Items with respect to the Approved Project Expenditures and setting forth (i) the Line Items for all direct and indirect Costs estimated to be incurred in connection with the Completion of the Approved Project Expenditures (including the Contingency with respect to the Approved Project Expenditures), and (ii) whether each such Line Item constitutes a Hard Cost or a Soft Cost, (B) shall contain a Line Item with respect to the estimated Interest and Carry Costs and setting forth the Line Items for all direct and indirect Costs estimated to be incurred in connection with the payment in full of the Interest and Carry Costs and (C) in any event (i) sets forth Borrower’s estimates for budgeted construction categories of all items of direct and indirect Costs to be incurred or payable with respect to the foregoing (including monthly interest on the Loan) and (ii) specifies each direct and indirect Cost that is to be funded from proceeds of each of the Loan, as the same may be amended, restated, replaced, supplemented or otherwise modified in accordance with the terms of this Agreement. The initial Construction Budget is attached hereto as Exhibit L. “Construction Consultant” means CBRE, Inc., or such other Person as may be designated and engaged by Lender in its sole discretion from to time as construction consultant to advise, consult and render reports to Lender concerning the status of the development and construction of the Project. “Construction Contract” means the Architect Agreement, the General Contractor Agreement, each Major Trade Contract, any other Trade Contract to which Borrower, General Contractor or an Affiliate of Borrower is a party, and each agreement to which a Design Professional is party, in each case, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time to time in accordance with the terms and conditions of this Agreement. “Construction Documents” means, collectively, all Construction Contracts, the Plans and Specifications, the Construction Budget, the Construction Permits and all Change Orders, as the same may be amended, replaced, supplemented or otherwise modified from time to time in accordance with the terms and conditions of this Agreement. “Construction Drawings” means the drawings, calculations and final specifications acceptable for permitting, bidding and construction of the Required Improvements. “Construction Permits” means, collectively, all authorizations, consents and approvals, licenses and permits given or issued by Governmental Authorities which are required, from time to time, for the development and construction of the Project substantially in accordance with all Legal Requirements and the Plans and Specifications, as the same may be amended, replaced, supplemented, assigned or otherwise modified from time to time in accordance with the terms of this Agreement and applicable Legal Requirements. “Construction Schedule” means a schedule for the projected progress of the development and construction of the Project, setting forth a construction progress schedule reflecting, among other things, the anticipated dates of completion, which shall include a trade-by-trade breakdown of the estimated periods of commencement and completion of the specific work to be completed in connection with the completion of the Project substantially in accordance with the Plans and Specifications and Legal Requirements, as the same may be amended, restated, replaced, supplemented, updated or otherwise modified from time to time in accordance with the terms of this Agreement. The initial Construction Schedule is attached hereto as Exhibit M.
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-9- 28722485.v7 “Contingency” means the contingency line item set forth in the Construction Budget, initially in the amount of $3,106,237 and available for Costs, pursuant to this Agreement, subject to compliance at all times with the Lien Law. “Contractor” means any contractor, subcontractor, sub-subcontractor, supplier or provider of labor, materials, equipment and/or services in connection with the construction of the Project or any Design Professional. “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of management, policies or activities of a Person, whether through ownership of voting securities, by contract or otherwise. “Controlled” and “Controlling” shall have correlative meanings. “Cost Saving” has the meaning set forth in Section 2.1.11(d) hereof. “Costs” means, collectively, all costs and expenses of constructing the Project (or, with respect to Reimbursable Costs, all costs and expenses of construction of the Project prior to the Closing Date, not to exceed $33,432,725) and operating the Property (including, without limitation, all Approved Project Expenditures and Interest and Carry Costs) through the Maturity Date whether or not set forth in the Construction Budget or the Approved Annual Budget. “Debt” means the Outstanding Principal Balance, together with all interest accrued and unpaid thereon, and all other sums (including the Prepayment Premium) due from Borrower under the Loan Documents to which it is a party. “Debt Service” means, with respect to any particular period of time, scheduled principal and/or interest payments due under this Agreement. “Debt Yield” means, as of any date of determination, the amount (expressed as a percentage) determined by dividing the UNOI by the sum of (a) the Outstanding Principal Balance and (b) the Mezzanine Loan Outstanding Principal Balance. “Default” means the occurrence of any event hereunder or under any other Loan Document which, but for the giving of notice or passage of time, or both, would be an Event of Default. “Default Rate” means a rate per annum equal to the lesser of (a) the Maximum Legal Rate and (b) five percent (5%) above the Interest Rate. “Deficiency” means, as of any date of determination, the amount by which the sum of (i) such portion of the Loan and the Mezzanine Loan (so long as Mezzanine Lender is not in default of its obligations to fund Mezzanine Loan Additional Advances thereunder), in each case, as remains to be advanced as of such date in respect of Approved Project Expenditures (but only to the extent such unadvanced amounts are permitted (or would be permitted, upon satisfaction of applicable conditions precedent) pursuant to the Loan Documents to be applied to the applicable Costs and excluding undisbursed amounts in the Construction Budget for Interest and Carry Costs and other sums to be advanced to pay non-construction costs such as marketing costs), plus (ii) amounts that are guaranteed pursuant to the Equity Funding Guaranty (provided that no claim is then being pursued by Lender in respect of any of the Guarantees and Guarantor is not then in default or in breach of any of its obligations in respect of any of the Guarantees) with respect to Approved Project Expenditures, plus (iii) any unused Deficiency Collateral as of such date, is less than the actual sum, as estimated by Lender or Construction Consultant in its good faith judgment, which will be required to Complete the Project substantially in accordance with the Plans and Specifications (taking into account all Landlord Requested Changes and all Tenant Requested Changes (each such term
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-10- 28722485.v7 as defined in the Master Lease), in each case, approved in accordance with the Master Lease and the Loan Documents, and as the Plans and Specifications may otherwise be amended as provided herein), in substantial accordance with the then current Construction Schedule (as the same may be amended as provided herein), and all Legal Requirements and this Agreement, and to pay all unpaid Costs in connection therewith, in each case, exclusive of any Interest and Carry Costs and other sums to be advanced to pay non-construction costs such as marketing expenses. Such estimate shall be binding and conclusive, provided that it is made in good faith and absent manifest error. “Deficiency Account” has the meaning set forth in Section 2.1.12(b) hereof “Deficiency Collateral” has the meaning set forth in Section 2.1.12(b) hereof. “Design Drawings” means the drawings and outline specifications that illustrate and describe the refinement of the design of the Required Improvements, establishing the scope, relationships, forms, size, materials, systems and appearance of the Required Improvements by means of plans, sections and elevations, typical construction details and equipment layouts. “Design Professionals” means, collectively, all architects, engineers, consultants, and similar professionals retained by or on behalf of Borrower or its Affiliates in connection with the design of the Project (including the Architect), all of which shall be licensed professionals in the State (if so required by the Legal Requirements) and shall be subject to approval by Lender prior to such engagement in connection with the Project, not to be unreasonably withheld, conditioned or delayed. Lender has approved the Design Professions listed on Schedule IV. “Determination Date” means, with respect to any determination of the Applicable Rate Index applicable to an Interest Accrual Period, the date that is two (2) U.S. Government Securities Business Days preceding the first day of the applicable Interest Accrual Period. “Downgraded Counterparty” means a counterparty to an Interest Rate Cap Agreement, or the guarantor of such counterparty’s obligations under an Interest Rate Cap Agreement that has a long-term unsecured debt rating of “A-“ or lower by S&P and “A3” or lower from Moody’s. “Draw Request” has the meaning set forth in Section 2.1.5(a) hereof. “EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority; (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent. “EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway. “EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution. “Eligible Account” means a separate and identifiable account from all other funds held by the holding institution that is either (a) an account or accounts maintained with a federal or state-chartered depository institution or trust company which complies with the definition of Eligible Institution or (b) a
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-11- 28722485.v7 segregated trust account or accounts maintained with a federal or state chartered depository institution or trust company acting in its fiduciary capacity which, in the case of a state chartered depository institution or trust company, is subject to regulations substantially similar to 12 C.F.R. § 9.10(b), having in either case a combined capital and surplus of at least $50,000,000.00 and is subject to supervision or examination by federal and state authority. An Eligible Account will not be evidenced by a certificate of deposit, passbook or other instrument. “Eligible Institution” means a depository institution or trust company insured by the Federal Deposit Insurance Corporation the short term unsecured debt obligations or commercial paper of which are rated at least “A-1” by S&P, “P-1” by Moody’s, and “F-1+” by Fitch in the case of accounts in which funds are held for thirty (30) days or less or, in the case of letters of credit or accounts in which funds are held for more than thirty (30) days, the long term unsecured debt obligations of which are rated at least “A” by Fitch and S&P and “A2” by Moody’s. “Embargoed Person” means any Person (a) that is subject to trade restrictions under United States law, including the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701 et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any Executive Orders or regulations promulgated under any such United States laws, with the result that transacting business with such Person (whether directly or indirectly) is or would be prohibited by law; (b) that is listed in the annex to, or who is otherwise subject to the provisions of, Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001, and relating to Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (as amended or supplemented, the “Executive Order”) or any other Prescribed Laws; (c) that is owned or Controlled by, or acting for or on behalf of, any person or entity that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order or any other Prescribed Laws; (d) with whom a Person is prohibited from dealing or otherwise engaging in any transaction by any terrorism or money laundering law, including the Executive Order and any other Prescribed Laws; (e) who commits, threatens or conspires to commit or supports “terrorism” as defined in the Executive Order or any other Prescribed Laws; (f) that is named as a “specially designated national and blocked person” on the most current list published by the U.S. Treasury Department Office of Foreign Assets Control at its official website or at any replacement website or other replacement official publication of such list; (g) that is named on any other list of terrorists, terrorist organizations or narcotics traffickers maintained pursuant to any of the Rules and Regulations of OFAC, or on any similar lists maintained by the United States Department of State, the United States Department of Commerce or any other Governmental Authority or pursuant to any Executive Order of the President of the United States of America; (h) that has been previously indicted for or convicted of any felony involving a crime or crimes of moral turpitude or for any violation of Prescribed Laws, or is currently under investigation by any Governmental Authority for alleged criminal activity; or (i) who is an Affiliate of a Person listed in clauses (a) through (h) above. “Engineer” means each engineer with respect to the Project on the date hereof, together with any successor or additional engineers engaged by (or on behalf of) Borrower or its Affiliate to perform any structural, mechanical, electrical and/or soil engineering services with respect to all or any portion of the Project. “Engineer Agreement” means each agreement for engineering services which Borrower has entered into or may enter into with any Engineer in accordance with Section 5.1.3(k), as the same may be amended, replaced, supplemented or otherwise modified from time to time in accordance with the terms hereof. “Engineer Consent” means any consents and agreements required pursuant to the terms of this Agreement to be executed and delivered by an Engineer to Lender with respect to any Engineer Agreements
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-12- 28722485.v7 entered into by and between Borrower and any Engineer, which, in each case, shall be, in form and substance reasonably acceptable to Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time in accordance with the terms and conditions of this Agreement. “Environmental Indemnity” means that certain Environmental Indemnity Agreement, dated as of the Closing Date, executed by Borrower and Guarantor in connection with the Loan for the benefit of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time. “Environmental Report” means that certain Phase I Environmental Site Assessment Report, dated as of May 6, 2022, prepared by Partner Engineering and Science, Inc., as Project No. 22-366205.1. “Equity Funding Guaranty” means that certain Guaranty of Equity Obligations, dated as of the Closing Date, from Guarantor to and for the benefit of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time. “Equity Interests” means (a) partnership interests (general or limited) in a partnership; (b) membership interests in a limited liability company; (c) shares or stock interests in a corporation, and (d) the beneficial ownership interests in a trust. “ERISA” means the Employee Retirement Income Security Act of 1974, as amended. “Estimated Interest and Carry Available Amount” has the meaning set forth in Section 2.1.9(d) hereof. “Estimated Interest and Carry Costs” has the meaning set forth in Section 2.1.9(d) hereof. “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time. “Event of Default” has the meaning set forth in Section 7.1 hereof. “Excess Cash Flow” has the meaning set forth in Section 3.1(b) hereof. “Excess Cash Flow Reserve Account” has the meaning set forth in Section 3.1(b) hereof. “Exchange Act” means the Securities and Exchange Act of 1934, as amended. “Excluded Taxes” means any of the following Taxes imposed on or with respect to a Lender or required to be withheld or deducted from a payment to a Lender: (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Lender being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof), or (ii) that are Other Connection Taxes; (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or commitment, or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.2.3(a), amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office; (c) Taxes attributable to such Lender’s failure to comply with Section 2.2.3(b); and (d) any withholding Taxes imposed under FATCA.
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-13- 28722485.v7 “Excusable Delay” means any delay or number of delays due to conditions beyond the reasonable control of Borrower and/or its Affiliates (in each case, so long as Borrower continuously and diligently uses all Commercially Reasonable Efforts to mitigate the effect thereof), including, without limitation, strikes, stays, judgments, orders, decrees, labor disputes, governmental restrictions, acts of God, the elements, enemy action, civil commotion, fire, casualty, accidents, shortages of, or inability to obtain, labor, utilities or material, actual or threatened health emergency (including, without limitation, epidemic, pandemic (including, for the avoidance of doubt, the ongoing COVID-19 pandemic), famine, disease, plague, quarantine, and other health risk); provided, however, that (i) any lack of funds in and of itself shall not be deemed to be a condition beyond the reasonable control of Borrower and (ii) any failure by any contractor or sub-contractor to perform its obligations under any contractor or sub-contractor agreement in and of itself shall not be deemed to be a condition beyond the reasonable control of Borrower (unless due to the bankruptcy or insolvency of such contractor or sub-contractor); provided that in no event shall Excusable Delay exceed sixty (60) consecutive calendar days or ninety (90) days in the aggregate. “Executive Order” has the meaning set forth in the definition of “Embargoed Person”. “Existing Construction Documents” means, collectively, the Construction Documents in effect as of the Closing Date, as more particularly described on Schedule I hereto. “Extension Option” has the meaning set forth in Section 2.3.1 hereof. “Extension Shortfall” has the meaning set forth in Section 2.3.1(k) hereof. “Extension Term” has the meaning set forth in Section 2.3.1 hereof. “Extraordinary Expenses” has the meaning set forth in Section 5.1.1(f)(iv). “FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code. “Financial Covenant Requirements” means, collectively, the Guarantor Net Worth and Liquid Assets (each such term as defined in the Recourse Guaranty) requirements set forth in the Recourse Guaranty. “Fitch” means Fitch, Inc. “Foreign Lender” means (a) if Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction other than that in which Borrower is resident for tax purposes. “General Contractor” means (i) Xxxxxx Construction Company or (ii) any other bondable general contractor or construction manager, as the case may be, licensed in the State, engaged by Borrower or its Affiliate with respect to the construction of the Project and approved by Lender, such approval not to be unreasonably withheld, conditioned or delayed, and for which Lender has received a general contractor in the form of the Assignment of General Contractor Agreement.
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-14- 28722485.v7 “General Contractor Agreement” means (i) that certain AIA Document A133-Standard Form Agreement Between Owner and Construction Manager as Constructor, dated as of October 26, 2020, between Borrower and General Contractor, as amended by those two (2) certain Guaranteed Maximum Price Amendments, dated as of December 17, 2020, as further amended by that certain Guaranteed Maximum Price Amendment, dated as of December 31, 2020, as further amended by that certain Guaranteed Maximum Price Amendment, dated as of January 27, 2021, by those two (2) certain Guaranteed Maximum Price Amendment, dated March 5, 2021, as further amended by that certain Guaranteed Maximum Price Amendment, dated as of March 30, 2021, as further amended by that certain Guaranteed Maximum Price Amendment, dated as of April 20, 2021, as further amended by that certain Guaranteed Maximum Price Amendment, dated as of April 26, 2021, as further amended by that certain Guaranteed Maximum Price Amendment, dated as of May 13, 2021, as further amended by that certain Guaranteed Maximum Price Amendment, dated as of May 21, 2021, as further amended by that certain Guaranteed Maximum Price Amendment, dated as of May 27, 2021, as further amended by that certain Guaranteed Maximum Price Amendment, dated as of June 20, 2021, as further amended by that certain Guaranteed Maximum Price Amendment, dated as of July 23, 2021, as further amended by that certain Guaranteed Maximum Price Amendment, dated as of August 25, 2021, and as further amended by that certain Guaranteed Maximum Price Amendment, dated as of September 15, 2021, (b) any other documentation executed by and between Borrower and General Contractor evidencing or relating to the guaranteed maximum price thereunder and (c) any guaranty of General Contractor’s obligations under the General Contractor Agreement provided by any Person, and (ii) any general contractor or other agreement which may be entered into by (or on behalf of) Borrower or its Affiliate with any successor or additional or other General Contractor subject to the requirements of Section 5.1.3(k), as each of the foregoing in (i) and (ii) may be amended, restated, replaced, supplemented or otherwise modified from time to time in accordance with the terms and conditions of this Agreement. “Governmental Authority” means any court, board, agency, bureau, department, commission, office or other authority of any nature whatsoever for any governmental xxxx (xxxxxxx, xxxxx, xxxxxx, xxxxxxxx, xxxxxxxxx, xxxx or otherwise), whether now or hereafter in existence. “Guarantor” means Instil Sponsor, together with its successors and permitted assigns. “Guarantees” means, collectively, the Recourse Guaranty, the Carry Cost Guaranty, the Completion Guaranty and the Equity Funding Guaranty, each dated as of the Closing Date, from Guarantor to and for the benefit of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time. “Hard Costs” means, collectively, all costs and expenses constituting Costs of the Project set forth in the Construction Budget which are denominated in the Construction Budget as “Hard Costs”. “HVCRE” means any loan classified as a Highly Volatile Commercial Real Estate Loan by the Basel Committee on Banking Regulations and Supervisory Practices (or any successor or similar authority) including the rules, guidelines and directives promulgated pursuant to Basel III. “Improvements” has the meaning set forth in the granting clause of the Security Instrument. “In Balance” has the meaning set forth in Section 2.1.11(a) hereof. “Increased Costs” has the meaning set forth in Section 2.2.5(a) hereof. “Indebtedness” means for any Person, on a particular date, the sum (without duplication) at such date of (a) all indebtedness or liability of such Person (including amounts for borrowed money and
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-15- 28722485.v7 indebtedness in the form of mezzanine debt and preferred equity); (b) obligations of such Person that are evidenced by bonds, debentures, notes, or other similar instruments; (c) obligations of such Person for the deferred purchase price of property or services (including trade obligations for which such Person is liable); (d) obligations of such Person under letters of credit; (e) obligations of such Person under acceptance facilities; (f) all guaranties, endorsements (other than for collection or deposit in the ordinary course of business) and other contingent obligations to purchase, to provide funds for payment, to supply funds, to invest in any Person or entity, or otherwise to assure a creditor against loss; (g) obligations secured by any liens granted by such Person, whether or not the obligations have been assumed or are those of any other Person, and (h) without duplication of the foregoing, any contingent obligations of such Person (determined in accordance with the Approved Accounting Method). “Indemnified Party” has the meaning set forth in Section 10.13(b) hereof. “Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of Borrower under any Loan Document, and (b) to the extent not otherwise described in clause (a), Other Taxes. “Independent” means, when used with respect to any Person, a Person that: (a) does not have any direct financial interest or any material indirect financial interest in Borrower or in any Affiliate of Borrower; (b) is not connected with Borrower or any Affiliate of Borrower as an officer, employee, promoter, underwriter, trustee, partner, member, manager, creditor, director, supplier, customer, or person performing similar functions; and (c) is not a member of the immediate family of a Person defined in clause (a) or (b) above. “Independent Accountant” means a “Big Four” accounting firm or another accounting firm of nationally recognized, certified public accountants which is Independent and which is selected by Borrower and reasonably acceptable to Lender. “Independent Director” or “Independent Manager” means, of any Special Purpose Entity, or if such Special Purpose Entity is a limited partnership, the general partner of such Special Purpose Entity, an individual who has prior experience as an independent director, independent manager or independent member with at least three years of employment experience and who is provided by CT Corporation, Corporation Service Company, National Registered Agents, Inc. (or its affiliate NRAI Entity Services, LLC), Wilmington Trust Company, Xxxxxxx Management Company, Lord Securities Corporation or, if none of those companies is then providing professional Independent Directors or Independent Managers, another nationally-recognized company reasonably approved by Lender, in each case that is not an Affiliate of the Borrower Parties and that provides professional Independent Directors and Independent Managers and other corporate services in the ordinary course of its business, and which individual is duly appointed as an Independent Manager or Independent Director, or as a member of the board of directors or board of managers of such corporation or limited liability company, as applicable, and for the five-year period prior to his or her appointment as an Independent Director has not been and during the continuation of his or her serving as an Independent Director will not be, any of the following: (a) a member (other than a Special Member), manager, director, trustee, officer, employee, attorney, or counsel of any of the Borrower Parties or their Affiliates (provided that such person may be an Independent Director or Independent Manager of Borrower as long as they are not a member, manager, director, trustee, officer, employee, attorney, or counsel of any other Borrower Party or Affiliate of a Borrower Party, except that a Person who otherwise satisfies the definition of Independent Director or Independent Manager other than this subparagraph (a) by reason of being the independent director or independent manager of a “special purpose entity” that is an Affiliate of Borrower shall not be disqualified from serving as an Independent Director or Independent Manager of Borrower if such Person is either (i)
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-16- 28722485.v7 a professional Independent Director or Independent Manager or (ii) the fees that such individual earns from serving as independent director or independent manager of Affiliates of Borrower in any given year constitute in the aggregate less than five percent (5%) of such individual’s annual income for that year); (b) a creditor, customer, supplier, service provider (including provider of professional services) or other Person who derives any of its purchases or revenues from its activities with any Borrower Party or any Affiliate of a Borrower Party (other than an Independent Manager or Independent Director provided by a nationally-recognized company that routinely provides professional Independent Directors or Independent Managers and other corporate services to any Borrower Party or any Affiliate of a Borrower Party in the ordinary course of business); (c) a direct or indirect legal or beneficial owner in any Borrower Party or any Affiliate of a Borrower Party; (d) a member of the immediate family of any member, manager, employee, attorney, customer, supplier or other Person referred to above; and (e) a Person Controlling or under the common Control of anyone listed in subparagraphs (a) through (d) above. “Initial Advance” has the meaning set forth in Section 2.1.2 hereof. “Initial Maturity Date” means the Payment Date in July 9, 2025. “Initial Payment Date” means the Payment Date occurring in July, 2022. “Instil Sponsor” means Instil Bio, Inc., a Delaware corporation. “Insurance Reserve Account” has the meaning set forth in Section 3.2.2(a) hereof. “Insurance Premiums” has the meaning set forth in Section 6.1(b) hereof. “Interest Accrual Period” means, (i) with respect to the Initial Payment Date, the period commencing on the Closing Date up to but not including the Initial Payment Date, and (ii) with respect to any other Payment Date, the period commencing on and including the ninth (9th) day of the preceding calendar month and ending on and including the eighth (8th) day of the calendar month in which such Payment Date occurs. “Interest and Carry Costs” means all amounts required to be deposited or paid (as applicable) pursuant to Section 3.1(b)(i) through (ix) hereof (including, without limitation, all fees, costs and expenses payable to Lender under the Loan Documents or Mezzanine Lender under the Mezzanine Loan Documents). “Interest and Carry Costs Advance Amount” means an amount equal to $399,422. “Interest and Carry Cost Line Item” means the Line Item or Line Items set forth in the Construction Budget in an amount equal to $1,210,369 and available for Interest and Carry Costs pursuant to this Agreement. “Interest and Carry Cost Shortfall” has the meaning set forth in Section 2.1.9(d) hereof.
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-17- 28722485.v7 “Interest Rate” means, for any Interest Accrual Period, (i) the Term SOFR Rate for so long as the Loan is a Term SOFR Rate Loan, (ii) the Alternate Rate for so long as the Loan is an Alternate Rate Loan or (iii) the Prime Rate for so long as the Loan is a Prime Rate Loan. “Interest Rate Cap Agreement” has the meaning set forth in Section 2.2.7(a); provided, that, after delivery of a Replacement Interest Rate Cap Agreement or a Substitute Interest Rate Cap Agreement to Lender, the term “Interest Rate Cap Agreement” shall be deemed to include such Replacement Interest Rate Cap Agreement or Substitute Interest Rate Cap Agreement and such Replacement Interest Rate Cap Agreement or Substitute Interest Rate Cap Agreement shall be subject to all requirements applicable to the Interest Rate Cap Agreement. “Late Payment Charge” has the meaning set forth in Section 2.4.2 hereof. “Lead Lender” has the meaning set forth in Section 10.29(a) hereof. “Lease” means the Master Lease any other lease, sublease or sub-sublease, letting, license, concession or other agreement (whether written or oral and whether now or hereafter in effect) pursuant to which any Person is granted a possessory interest in, or right to use or occupy all or any portion of any space in the Property, and (a) every modification, amendment or other agreement relating to such lease, sublease, sub-sublease, or other agreement entered into in connection with such lease, sublease, sub- sublease, or other agreement and (b) every guarantee of the performance and observance of the covenants, conditions and agreements to be performed and observed by the other party thereto. “Legal Requirements” means all federal, state, county, municipal and other governmental statutes, laws, rules, orders, regulations, ordinances, building codes, land laws, judgments, decrees and injunctions of Governmental Authorities affecting the Loan, any Secondary Market Transaction with respect to the Loan, Borrower, Master Tenant, Guarantor and/or the Property or any part thereof, or the construction, use, alteration or operation thereof, or any part thereof, whether now or hereafter enacted and in force, including the Securities Act, the Exchange Act, Regulation AB, and regulations promulgated pursuant to the Xxxx- Xxxxx Xxxx Street Reform and Consumer Protection Act (or any statute replacing or amending the same), the Americans with Disabilities Act of 1990, as amended, and all permits, licenses and authorizations and regulations relating thereto, and all covenants, agreements, restrictions and encumbrances contained in any instruments, either of record or known to Borrower, at any time in force affecting Borrower, Master Tenant, Guarantor, the Property or any part thereof, including any which may (a) require repairs, modifications or alterations in or to the Property or any part thereof, or (b) in any way limit the use and enjoyment thereof. “Lender” has the meaning set forth in the introductory paragraph hereto, together with its successors and assigns (including the holder of each Note). “Letter of Credit” means an irrevocable, unconditional, freely transferable (without cost to Lender), clean sight draft letter of credit, as the same may be replaced, split, substituted, modified, amended, supplemented, assigned or otherwise restated from time to time, which (a) names a Person other than Borrower as the account party, (b) either does not expire sooner than, or can be renewed for successive one (1) year periods ending not sooner than, thirty (30) days after the Maturity Date (or such earlier date as is thirty (30) days after such Letter of Credit is no longer required pursuant to the terms of this Agreement), (c) entitles Lender to draw thereon in New York City based solely on a statement purportedly executed by an officer of Lender stating that it has the right to draw thereon, (d) is issued by a domestic Approved Bank or the U.S. agency or branch of a foreign Approved Bank, or if there are no domestic Approved Banks or U.S. agencies or branches of a foreign Approved Bank then issuing letters of credit, then such letter of credit may be issued by a domestic bank, the long term unsecured debt rating of which is the highest such rating then given by the Rating Agency or Rating Agencies, as applicable, to a domestic commercial bank,
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-18- 00000000.v7 in any event having an office in New York City where presentation may be made by Lender, and (e) is otherwise in form and substance acceptable to Lender. If at any time the bank issuing any such Letter of Credit shall cease to be an Approved Bank, or if Borrower fails to cause such Letter of Credit to be renewed or replaced no later than thirty (30) days prior to any annual expiration thereof, Lender shall have the right immediately to draw down the same in full (or in part) and hold the proceeds of such draw as collateral for the Loan in a Reserve Account. “Lien” means any mortgage, deed of trust, lien (statutory or otherwise), pledge, hypothecation, easement, restrictive covenant, preference, assignment, security interest, or any other encumbrance, charge or transfer of, or any agreement to enter into or create any of the foregoing, on or affecting Borrower, the Property, or any portion thereof or any interest therein, or any direct or indirect interest in Borrower or SPE Component Entity, including any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, the filing of any financing statement, and mechanic’s, materialman’s and other similar liens and encumbrances. “Lien Law” means the lien law of the State as in effect from time to time, with respect to mechanic’s liens and lien priority. “Line Item” means a line item of cost or expense set forth in the Construction Budget, as the same may be adjusted in compliance with Section 2.1.11 or Section 5.1.3(c). “Loan” means the loan in the maximum principal amount of the Loan Amount made by Lender to Borrower pursuant to this Agreement. “Loan Amount” means the sum of $55,000,000. “Loan Documents” means, collectively, this Agreement, the Note, the Security Instrument, the Guarantees, the Environmental Indemnity, the Assignment of Management Agreement, the Assignment of Agreements, the Assignment of General Contractor Agreement, each Architect Consent, each Engineer Consent, each Major Trade Contractor Consent, the Cash Management Agreement, the Clearing Account Agreement, any Assignment of Interest Rate Cap Agreement, the Closing Certificate, the Master Lease SNDA and all other certificates, documents, agreements or instruments now or hereafter executed and/or delivered in connection with the Loan (as each may be amended, modified, extended, consolidated or supplemented from time to time). “Loss” or “Losses” means, with respect to any Person, all liabilities, obligations, losses, damages, fines, penalties, actions, proceedings, judgments, suits, claims, debts, costs, expenses, charges, fees, awards, amounts paid in settlement, demands, and disbursements of any kind or nature whatsoever (including reasonable attorneys’ fees) of or suffered or incurred by such Person in connection with or relating to the Loan, the Property, or any other collateral for the Loan (but not including (a) special, speculative, exemplary, or punitive damages, or (b) consequential damages in the nature of alleged “lost profits” or “lost opportunities”, in each case with respect to the foregoing clauses (a) and (b) except to the extent that a party seeking indemnification of such amount has paid or is required to pay such measure of damages other than as a result of (and to the extent of) its own gross negligence, willful misconduct or fraud). “Major Milestones” means the fulfillment of the following milestones for the Project as determined by Lender in its sole but good faith discretion: (i) Substantial Completion shall have occurred no later than the Substantial Completion Due Date; and (ii) Completion shall have occurred no later than the Completion Due Date.
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-19- 28722485.v7 “Major Trade Contract” means, (a) each of those certain agreements, dated as of August 1, 2020 and November 1, 2020, between Borrower and Project Manager, or (b) each Trade Contract, (i) if such Trade Contract has been executed prior to the Closing Date, under which there are Costs remaining to complete after the Closing Date equal to or in excess of $1,000,000, and (ii) if such Trade Contract is executed from and after the Closing Date, that has a contract or purchase price, as the case may be, whether initially or thereafter by virtue of any Change Order or Change Orders, equal to or in excess of $1,000,000; provided that, for purposes of this definition, multiple Trade Contracts with a single Trade Contractor, or an Affiliate thereof, as the case may be, shall be deemed to be one Trade Contract. “Major Trade Contractor” means any Trade Contractor under a Major Trade Contract. “Major Trade Contractor Consent” means each consent and agreement required pursuant to the terms of this Agreement to be executed and delivered by a Major Trade Contractor to Lender in substantially the form attached hereto as Exhibit B with respect to any Major Trade Contracts entered into by and between Borrower and any Major Trade Contractor, which, in each case, shall be, in form and substance reasonably acceptable to Lender and the applicable Major Trade Contractor, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time in accordance with the terms and conditions of this Agreement. “Management Agreement” means any property management agreement entered into in accordance with the terms of this Agreement between Borrower and a Qualified Manager that is reasonably acceptable to Lender, as the same may be amended, modified and/or supplemented from time to time in accordance with the terms hereof. “Manager” means a Qualified Manager that enters into a Management Agreement and delivers to Lender an Assignment of Management Agreement, in each case, in accordance with the terms and provisions of this Agreement. “Master Lease” means that certain Instil Bio Life Science Campus Lease, dated as of the Closing Date, between Borrower, as landlord, and Master Tenant, as tenant, as the same may be amended, modified and/or supplemented from time to time in accordance with the terms hereof. “Master Lease Payment Outside Date” has the meaning set forth in Section 4.1.2(l)(i). “Master Lease Payments” means all Rent (as defined in the Master Lease) paid by Master Tenant pursuant to the Master Lease. “Master Lease SNDA” means that certain Subordination, Non-Disturbance and Attornment Agreement, dated as of the Closing Date, among Lender, Borrower and Master Tenant, with respect to the Master Lease, as the same may be amended, modified and/or supplemented from time to time in accordance with the terms hereof. “Master Tenant” means Instil Sponsor. “Material Adverse Effect” means a material adverse effect on (a) the Property or the value or use thereof, (b) the business, profits, management, operations or condition (financial or otherwise) of Borrower, SPE Component Entity, Master Tenant, and Guarantor, taken as a whole, or the Property, (c) the enforceability, validity, perfection or priority of the lien of the Security Instrument or the other Loan Documents, or (d) the ability of any Borrower Party to perform its obligations under the Loan Documents to which it is a party; provided, however, that current financial and market conditions engendered by the SARS-CoV-2 global pandemic shall not be given effect in determining whether a Material Adverse Effect
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-20- 28722485.v7 has occurred with respect to a Borrower Party unless such conditions result in a material adverse effect specific to the business, condition (financial or otherwise), the Property or operations of Borrower, Guarantor and their respective Affiliates, taken as a whole, after the Closing Date. “Material Agreements” means each contract and agreement relating to the ownership, management, development, use, operation, leasing, maintenance, repair or improvement of the Property, other than the Management Agreement, the Construction Documents, the Master Lease and the other Leases, as to which either (i) there is an obligation of Borrower to pay more than $100,000 per annum; or (ii) the term thereof extends beyond one (1) year (unless cancelable on thirty (30) days or less notice without requiring the payment of termination fees or payments). “Maturity Date” means the Initial Maturity Date or, if applicable, the applicable date to which the Initial Maturity Date has been extended pursuant to Section 2.3 hereof, or such other date on which the final payment of the Debt becomes due and payable as herein provided, whether at the stated maturity date, by declaration of acceleration, or otherwise. “Maximum Legal Rate” means the maximum nonusurious interest rate, if any, that at any time or from time to time may be contracted for, taken, reserved, charged or received on the Loan and as provided for herein or the other Loan Documents, under the laws of the state or states whose laws are held by any court of competent jurisdiction to govern the interest rate provisions of the Loan. “Mezzanine Borrower” means Complex Therapeutics Mezzanine LLC, a Delaware limited liability company. “Mezzanine Borrower SPE Component Entity” means the SPE Component Entity (as defined in the Mezzanine Loan Agreement). “Mezzanine Debt” means the Debt (as defined under the Mezzanine Loan Agreement). “Mezzanine Funding Share” means 35.29%. “Mezzanine Lender” means OPG Hermes Investments (DE) LLC, a Delaware limited liability company, together with its successors and assigns. “Mezzanine Loan” means that certain loan in the original principal amount of $30,000,000 made of even date herewith by Mezzanine Lender to Mezzanine Borrower. “Mezzanine Loan Agreement” means that certain Mezzanine Loan Agreement, dated as of the date hereof, by and between Mezzanine Borrower and Mezzanine Lender, as the same may be amended, modified and/or supplemented from time to time. “Mezzanine Loan Additional Advance” means Additional Advance (as defined in the Mezzanine Loan Agreement). “Mezzanine Loan Amount” means the Loan Amount (as defined in the Mezzanine Loan Agreement). “Mezzanine Loan Debt Service” means, with respect to any particular period of time, scheduled principal and/or interest payments due under the Mezzanine Loan Agreement.
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-21- 28722485.v7 “Mezzanine Loan Documents” means all documents evidencing and/or securing the Mezzanine Loan and all documents executed and/or delivered in connection therewith, as the same may be amended, modified and/or supplemented from time to time. “Mezzanine Loan Event of Default” means an “Event of Default” as defined in the Mezzanine Loan Agreement. “Mezzanine Loan Monthly Debt Service Payment Amount” means the Monthly Debt Service Payment Amount (as defined in the Mezzanine Loan Agreement). “Mezzanine Loan Outstanding Principal Balance” means, as of any date, the outstanding principal balance of the Mezzanine Loan. “Mezzanine Loan Unfunded Loan Proceeds Account” means the “Unfunded Loan Proceeds Account” under and as defined in the Mezzanine Loan Agreement. “Milestone Non-Compliance Event” means that any Major Milestone has not been timely satisfied as provided in the definition of “Major Milestones”. “Minimum Rate” means the Rate Index Floor plus the Spread. “Monthly Debt Service Payment Amount” means, as of any Payment Date, all accrued and unpaid interest that has accrued on the Outstanding Principal Balance at the Interest Rate for the Interest Accrual Period in effect as of the day immediately preceding such Payment Date. “Moody’s” means Xxxxx’x Investors Service, Inc. “Mortgage Funding Share” means 64.71%. “Net Operating Income” means, for any period, the amount obtained by subtracting Operating Expenses for such period from Operating Income for such period. “Net Proceeds” means (a) with respect to the occurrence of a Casualty, the net amount of all insurance proceeds payable under the Policies required pursuant to Section 6.1(a) hereof as a result of the applicable damage or destruction, after deduction of Lender’s reasonable costs and expenses (including, but not limited to, reasonable legal fees), if any, in collecting same (but not including the proceeds of any business interruption insurance), and (b) with respect to the occurrence of a Condemnation, the net amount of any payments received from the applicable Governmental Authority on account of such Condemnation, or in any transaction or proceeding in lieu thereof, after deduction of Borrower’s and Lender’s reasonable costs and expenses (including reasonable legal fees), if any, in collecting same. “Net Proceeds Reserve Account” has the meaning set forth in Section 6.4 hereof. “Net Proceeds Threshold” means the sum of One Million and No/100 Dollars ($1,000,000). “Non-Lienable Work” means work conducted at, or for the benefit of, the Property, with respect to which work, no Person shall have the right under applicable Legal Requirements to file or record a Lien against the Property in respect of any non-payment of amounts due and owing to such Person.
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-22- 28722485.v7 “Note” means one or more loan promissory note(s) made by Borrower in favor of a Lender, as the same may be amended, restated, replaced, supplemented, extended or otherwise modified from time to time. “Obligations” means, collectively, Borrower’s obligations for the payment of the Debt and the performance of the all obligations of Borrower contained in the Loan Documents. “OFAC” has the meaning set forth in the definition of “Prescribed Laws”. “Officer’s Certificate” means a certificate delivered to Lender by Borrower that is signed by an authorized senior officer of Borrower or of the entity that Controls Borrower, as applicable, in the form attached hereto as Exhibit C. “Off-Site Materials” has the meaning assigned to such term in the definition of Stored Materials. “Operating Expenses” means, for any period, the total of all expenditures, computed in accordance with the Approved Accounting Method, of whatever kind during such period relating to the operation, maintenance and/or management of the Property that are incurred on a regular monthly or other periodic basis (including utilities, ordinary repairs and maintenance, insurance, license fees, property taxes and assessments, advertising expenses, management fees, payroll and related taxes, computer processing charges, operational equipment or other lease payments, and other similar costs), but excluding (a) non- cash charges such as depreciation and amortization, (b) Debt Service and Mezzanine Loan Debt Service, (c) any Reserve Funds required under the Loan Documents, (d) costs of restoration following a Casualty or Condemnation, (e) any payment or expense for which Borrower or Mezzanine Borrower was or is to be reimbursed from proceeds of the Loan or the Mezzanine Loan (respectively)), by insurance, or by any third party, (f) any expenses which are paid directly (or reimbursed to Borrower) by Master Tenant pursuant to the Master Lease, and (g) federal, state or local income taxes. “Operating Income” means all Revenues received or paid to or for the account or benefit of Borrower resulting from or attributable to the ownership or operation of the Property, determined in accordance with the Approved Accounting Method (but excluding (a) income and proceeds from the sale or other disposition of goods, capital assets and other items, in each case, to the extent such sales are not in the ordinary course of the Property operation; (b) any insurance proceeds paid by reason of a Casualty (except for proceeds of business interruption or other loss of income or insurance as set forth in the definition of Revenues); (c) any proceeds received in connection with a Condemnation; (d) payment of rents from tenants more than one (1) month in advance or deposits paid in advance for the use of the Property until such time as such payments or deposits become due; (e) Lease termination or modification payments; (f) sales, use and occupancy or other taxes on receipts required to be accounted for by Borrower to any Governmental Authority; (g) Loan proceeds and disbursements to Borrower from the Reserve Funds or to Mezzanine Borrower from the Reserve Funds (as defined in the Mezzanine Loan Agreement), if any; (h) gross receipts received by lessees, licensees or concessionaires of the Property; (i) sales of furniture, fixtures and equipment; (j) refunds of amounts not included in Operating Expenses at any time and uncollectible accounts; (k) reimbursements by Master Tenant of any expenses paid by Borrower; and (l) Revenues from any other events not related to the ordinary course of operation of the Property. “Operating Permits” means, collectively, all authorizations, consents and approvals given by and licenses and permits issued by Governmental Authorities which are required for the ownership, use and occupancy of the Property in accordance with all Legal Requirements (other than Construction Permits) and for the performance and observance of all obligations and agreements of Borrower contained herein or in the other Loan Documents that relate to the ownership, use and occupancy of the Property, including the ownership, use and occupancy of the Project following Completion of the same.
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-23- 28722485.v7 “Other Charges” means all ground rents, assessments, maintenance charges, impositions other than Property Taxes, and any other charges, including vault charges and license fees for the use of vaults, chutes and similar areas adjoining the Property, now or hereafter levied or assessed or imposed against the Property or any part thereof. “Other Connection Taxes” means, with respect to any Lender, Taxes imposed as a result of a present or former connection between such Lender and the jurisdiction imposing such Tax (other than connections arising from such Lender having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document). “Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment. “Outstanding Principal Balance” means, as of any date, the outstanding principal balance of the Loan. “Oxford Acquisition” means the acquisition of the Property by any Oxford Entity (excluding any acquisition of the Property by any Person in connection with the exercise by Lender of any of its rights and/or remedies under this Agreement or the other Loan Documents) during the period commencing on the Closing Date and ending on the date that is twelve (12) months following the Closing Date. “Oxford Entity” means Oxford Properties Group or any Affiliate (pursuant to clause (b) of the definition thereof) of Oxford Properties Group. “Payment Date” means the ninth (9th) day of each calendar month during the term of the Loan or, if such day is not a Business Day, the immediately preceding Business Day. “Permitted Encumbrances” means, (a) with respect to the Property, collectively (i) the Liens and security interests created by the Loan Documents, (ii) all Liens, encumbrances and other matters disclosed in the Title Insurance Policy or Survey, (iii) Liens, if any, for Taxes or Other Charges imposed by any Governmental Authority not yet due or delinquent or which are being contested by Borrower in accordance with the terms and conditions of this Agreement, (iv) such other title and survey exceptions as Lender has approved or may approve in writing in Lender’s reasonable discretion, (v) inchoate mechanics’ and materialmens’ liens, (vi) actual mechanics’ and materialmens’ liens provided same are discharged or bonded within thirty (30) days of the filing thereof (but in any case prior to the date on which any foreclosure or other realization thereon is scheduled to occur if sooner than such 30-day period) or which are otherwise being contested by Borrower in accordance with the terms and conditions of this Agreement, (vii) the Master Lease, (viii) Liens arising in connection with Permitted Equipment Leases, (ix) other than the Master Lease, the Leases entered into prior to the Closing Date or after the Closing Date in accordance with the terms and conditions of this Agreement, and (x) immaterial Transfers and grants of easements, restrictions, covenants, reservations and rights of way in the ordinary course of business, which, in each case, are (A) permitted by the terms of Section 5.1.1(d)(iii) and (B) entered into in full compliance with the terms of Section 5.1.1(d)(iii), and (xi) Liens (1) of the Clearing Bank and Cash Management Bank arising under Section 4-210 of the UCC on items in the course of collection and (2) in favor of Clearing Bank and Cash Management Bank arising as a matter of law encumbering deposits (including the right of set-off) arising
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-24- 28722485.v7 in the ordinary course of business in connection with the maintenance of such accounts, and (b) with respect to the direct or indirect Equity Interests in Borrower, the Liens of the Mezzanine Loan Documents. “Permitted Equipment Leases” means equipment leases or other similar instruments entered into with respect to equipment and/or Personal Property provided, that, in each case, such equipment leases or similar instruments (i) are entered into on commercially reasonable terms and conditions in the ordinary course of Borrower’s business, (ii) relate to equipment and/or Personal Property which is (A) used in connection with the operation and maintenance of the Property in the ordinary course of Borrower’s business and (B) readily replaceable without material interference or interruption to the operation of the Property, and (iii) have annual payments not exceeding $100,000 in the aggregate. “Permitted Indebtedness” means (a) in the case of Borrower, (i) the Debt, and (ii) unsecured trade and operational debt incurred in the ordinary course of business relating to the ownership and operation of the Property and the routine administration of Borrower, in amounts not to exceed 2% of the sum of the Loan Amount and the Mezzanine Loan Amount, which liabilities are not payable more than sixty (60) days past the date incurred, are paid when due and are not evidenced by a note, (iii) intentionally omitted, and (iv) Taxes imposed by any Governmental Authority not yet delinquent or which are being contested in accordance with the terms and conditions of this Agreement, and (b) in the case of any applicable SPE Component Entity, unsecured trade and operational debt incurred in the ordinary course of business relating to the ownership of its Equity Interest in Borrower, in amounts not to exceed $25,000, which liabilities are not paid more than sixty (60) days past the date incurred, are not evidenced by a note, and are paid when due. “Permitted Transfers” has the meaning set forth in Section 5.1.1(d) hereof. “Person” means any individual, corporation, partnership, joint venture, limited liability company, estate, trust, unincorporated association, any Governmental Authority, and any fiduciary acting in such capacity on behalf of any of the foregoing. “Personal Property” has the meaning set forth in the granting clause of the Security Instrument. “Plans and Specifications” means the plans and specifications for the construction of the Project approved by Lender as of the Closing Date and any other plans and specifications for the construction of the Project prepared or to be prepared by (or on behalf of) Borrower after the Closing Date, including any other architectural, structural, foundation and elevator plans and specifications prepared by Architect and any other mechanical, electrical, plumbing and fire protection plans and specifications prepared by any Person retained or to be retained by Borrower, Architect or General Contractor as approved in writing by Lender and Construction Consultant, to the extent such approval is required by the terms of this Agreement, in each case, as the same may be amended by Change Orders applicable thereto, provided that such Change Orders have been approved to the extent required pursuant to Section 5.1.3(g), in each case as the same may be amended, replaced, supplemented or otherwise modified from time to time in accordance with the terms of this Agreement. “PLL Policy” has the meaning set forth in Section 6.1(a)(ix) hereof. “Policy” and “Policies” has the meaning set forth in Section 6.1(b) hereof. “Prepaid Revenues” has the meaning set forth in Section 3.1(b) hereof. “Prepayment Date” has the meaning set forth in Section 2.5.1 hereof.
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-25- 28722485.v7 “Prepayment Premium” means, with respect to the principal amount of the Loan being prepaid on or prior to the applicable Prepayment Premium End Date, other than in connection with Oxford Acquisition, a payment to Lender in an amount equal to the product of (a) the Interest Rate as of the date of the prepayment), (b) the portion of the Loan being repaid, and (c) a fraction, the numerator of which is the number of days between the date through which interest on the amount being prepaid has been paid in full and the Prepayment Premium End Date and the denominator of which is 360. Notwithstanding the foregoing, with respect to any prepayment made after the Prepayment Premium End Date, the amount of the Prepayment Premium shall be zero. “Prepayment Premium End Date” means, (a) if the determination of the Prepayment Premium is being made with respect to a prepayment in connection with a Third Party Sale, June 9, 2023, and (b) if the determination of the Prepayment Premium is being made in any case other than with respect to a prepayment in connection with a Third Party Sale, December 9, 2023. “Prescribed Laws” means, collectively, (a) the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Public Law 107-56) (The USA PATRIOT Act), (b) Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001, and relating to Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism, (c) the International Emergency Economic Power Act, 50 U.S.C. § 1701 et. seq., (d) the Racketeer Influenced and Corrupt Organizations Act, (e) all requirements contained in the rules and regulations of the Office of Foreign Assets Control, Department of the Treasury (“OFAC”), and (f) all other Legal Requirements relating to money laundering, anti-bribery and corruption or terrorism. “Prime Rate” means a fluctuating rate per annum equal to the Prime Rate Index plus the Prime Rate Spread; provided, however in no event shall the Prime Rate be deemed to be less than the Minimum Rate. “Prime Rate Index” means the annual rate of interest published in The Wall Street Journal from time to time as the “Prime Rate.” If The Wall Street Journal ceases to publish the “Prime Rate,” Lender shall select an equivalent publication that publishes such “Prime Rate,” and if such “Prime Rates” are no longer generally published or are limited, regulated or administered by a governmental or quasi- governmental body, then Lender shall select a comparable interest rate index. Notwithstanding the foregoing, in no event shall Prime Rate Index be less than the Rate Index Floor. “Prime Rate Loan” means the Loan at such time as interest thereon accrues at a rate of interest based upon the Prime Rate. “Prime Rate Spread” means, in connection with the conversion of the Loan from a Term SOFR Loan to a Prime Rate Loan, the difference (expressed as the number of basis points) of (a) Term SOFR as of the Determination Date for which Term SOFR was last applicable to the Loan plus the Spread minus (b) the Prime Rate as of such Determination Date; provided, however, that if such difference is a negative number, the Prime Rate Spread shall be zero. “Project” means the construction, development, Completion and payment in full of all work relating to the Required Improvements as more specifically set forth herein and in accordance with the Plans and Specifications, all Legal Requirements and all other applicable requirements of the Loan Documents. “Project Advance Amount” means an amount equal to $20,887,353. “Project Manager” means Savills, Inc.
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-26- 28722485.v7 “Property” means each parcel of real property described on Exhibit A attached hereto, the Improvements thereon and all Personal Property owned by Borrower and encumbered by the Security Instrument, together with all rights pertaining to such property and Improvements, as more particularly described in the granting clause of the Security Instrument and referred to therein as the “Property”. “Property Taxes” means all real estate and personal property taxes, assessments, water rates or sewer rents (excluding income taxes), now or hereafter levied or assessed or imposed against the Property or part thereof, together with all interest and penalties thereon. “Punchlist Items” means, individually and/or collectively, as the context may require, minor or insubstantial details of construction, decoration, mechanical adjustment or installation the non-completion of which does not prevent the use, occupancy or operation of the Required Improvements for their intended purposes and does not result in a violation of any Management Agreement, the Master Lease or any other Lease. “Qualified Manager” means, in the judgment of Lender, a reputable and experienced management organization possessing experience in managing ten (10) or more properties of similar type, quality and size as the Property and approved by Lender. “Rate Conversion” means conversion of the Loan to an Alternate Rate Loan or Prime Rate Loan. “Rate Index Floor” means Closing Date Term SOFR. “Rating Agencies” means each of S&P, Moody’s, Fitch, DBRS, Inc., Morningstar, Inc., or Xxxxx Bond Ratings, or any other nationally recognized statistical rating agency which has been approved by Lender. “REA” means, collectively, as the same may be amended, restated, supplemented or otherwise modified from time to time, any reciprocal easement agreement or similar document affecting the Property now or hereafter of record, as more particularly described on Schedule VI hereto. “Recourse Guaranty” means that certain Guaranty Agreement, dated as of the Closing Date, from Guarantor to and for the benefit of Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time. “Recourse Liabilities” has the meaning set forth in Section 8.2 hereof. “Reimbursable Costs” has the meaning set forth in Section 2.1.2 hereof. “Relevant Governmental Body” means the Board of Governors of the Federal Reserve System and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of Governors of the Federal Reserve System and/or the Federal Reserve Bank of New York or any successor thereto. “Replacement Interest Rate Cap Agreement” has the meaning set forth in Section 2.2.7(b). “Required Borrower Equity Advance” means, with respect to each Combined Advance, non- borrowed cash equity in an amount equal to forty-nine percent (49%) of the total Costs that are the subject of such Combined Advance.
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-28- 28722485.v7 fees, parking fees, rent concessions or credits), other required pass-throughs or reimbursements paid by tenants under Leases of any nature, and interest on Reserve Funds, if any), business interruption or other loss of income or rental insurance proceeds, and other income or consideration of whatever form or nature received by or paid to or for the account of or benefit of Borrower, Manager or any of their respective agents or employees from any and all sources arising from or attributable to the Property. “Shortfall Account” has the meaning set forth in Section 2.1.9(d) hereof. “Soft Costs” means, collectively, all costs and expenses set forth in the Construction Budget which are denominated as “Soft Costs”. “S&P” means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services LLC company “Secondary Market Transaction” has the meaning set forth in Section 9.1 hereof. “Securities Act” means the Securities Act of 1933, as amended. “Security Instrument” means that certain first priority Construction Deed of Trust, Security Agreement, Assignment of Leases and Fixture Filing dated as of the Closing Date, executed and delivered by Borrower as security for the Loan and encumbering the Property, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time. “Servicer” has the meaning set forth in Section 10.28 hereof. “SOFR” means a rate equal to the secured overnight financing rate as administered by the SOFR Administrator and as published on the SOFR Administrator’s Website. “SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate). “SOFR Administrator’s Website” means the website of the Federal Reserve Bank of New York, currently at xxxx://xxx.xxxxxxxxxx.xxx, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time. “SPE Component Entity” means: (i) if Borrower is a limited partnership, the Special Purpose Entity that is the general partner of Borrower; or (ii) if Borrower is a limited liability company other than an Acceptable LLC, the Special Purpose Entity that is the managing member of Borrower; provided, however, if Borrower is an Acceptable LLC or a corporation, the term “SPE Component Entity” shall have no meaning when used in this Agreement. “Special Member” has the meaning set forth in the definition of “Special Purpose Entity”. “Special Purpose Entity” means a Person, other than an individual, which, since the date of its formation and at all times prior to, on and after the date thereof, has complied with and shall at all times comply with the following requirements: (a) was, is and will be formed solely for the purpose of (i) in the case of Borrower, acquiring, developing, owning, holding, selling, leasing, transferring, exchanging, financing, managing and operating the Property, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing; or (ii) in the case of any applicable SPE Component Entity, acting as the general
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-29- 28722485.v7 partner or managing member (as applicable) of Borrower; (b) has not been, is not, and will not be engaged in any business unrelated to (i) in the case of Borrower, acquiring, developing, owning, holding, selling, leasing, transferring, exchanging, financing managing and operating the Property, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing, or (ii) in the case of any applicable SPE Component Entity, acting as the general partner or managing member (as applicable) of Borrower; (c) has not had, does not have and will not have any assets other than (i) in the case of Borrower, the Property and those related to the ownership and operation of the Property (including, without limitation, replacement thereof as permitted by the Loan Documents) or, (ii) in the case of any applicable SPE Component Entity, its Equity Interest in Borrower; (d) has not engaged in, sought or consented to, and will, to the fullest extent permitted by law, not engage in, seek or consent to, (i) any dissolution, winding up, liquidation, consolidation, merger, or sale of all or substantially all of its assets, (ii) except as permitted under the terms of this Agreement, any transfer of partnership or membership interests (if such entity is a general partner in a limited partnership or a member in a limited liability company), or (iii) any amendment of its limited partnership agreement, articles of incorporation, articles of organization, certificate of formation or operating agreement (as applicable) with respect to the matters set forth in this definition without the written consent of Lender; (e) has been, is, and intends to remain solvent and has paid and intends to continue to pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same have or shall become due, and has maintained, is currently maintaining and will endeavor to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations; provided, however, the foregoing shall not require any owner of Borrower to make any additional capital contributions; (f) has not failed, and will not fail, to correct any known misunderstanding regarding the separate identity of such entity; (g) has maintained and will maintain its accounts, financial statements, books, and records separate from any other Person and has not permitted, and will not permit, its assets to be listed as assets on the financial statement of any other entity except as required by the Approved Accounting Method (provided, however, that Borrower’s assets may be included in a consolidated financial statement of its Affiliates provided that (i) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of Borrower and such Affiliates and to indicate that Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (ii) such assets shall be listed on Borrower’s own separate balance sheet; (h) has filed and will file its own tax returns, except to the extent that it (i) has been or is required to file consolidated tax returns by law or (ii) is treated as a disregarded entity for federal or state tax purposes; (i) other than as permitted in this Agreement, (i) has not commingled, and will not commingle, its funds or assets with those of any other Person and (ii) has not participated and will not participate in any cash management system with any other Person; (j) has held and will hold its assets in its own name; (k) has maintained and will maintain an arm’s-length relationship with its Affiliates;
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-30- 28722485.v7 (l) has paid and will pay its own liabilities and expenses, including the salaries of its own employees (if any), out of its own funds and assets, and has maintained and will maintain a sufficient number of employees (if any) in light of its contemplated business operations; provided, however, the foregoing shall not require any owner of Borrower to make any additional capital contributions; (m) has observed and will observe in all material respects all partnership, corporate or limited liability company formalities, as applicable; (n) has not had, and will not have, any Indebtedness other than Permitted Indebtedness; (o) except in connection with the Loan Documents, has not assumed or guaranteed or become obligated for, and will not assume or guarantee or become obligated for, the debts of any other Person (except to the extent SPE Component Entity is liable for the debts and obligations of Borrower by virtue of being the general partner of Borrower) and has not held out and will not hold out its credit as being available to satisfy the obligations of any other Person except, in each case, as permitted pursuant to this Agreement; (p) has not acquired and will not acquire obligations or securities of its partners, members or shareholders or any other Affiliate (other than the securities of Borrower held by any applicable SPE Component Entity); (q) has allocated and will allocate, fairly and reasonably, any overhead expenses that are shared with any Affiliate, including paying for shared office space and services performed by any employee of an Affiliate; (r) has maintained and used, now maintains and uses, and will maintain and use, separate stationery, invoices and checks bearing its name, and all stationery, invoices, and checks utilized by such Person or utilized to collect its funds or pay its expenses have borne and shall bear its own name and have not borne and shall not bear the name of any other entity unless such entity is clearly designated as being such Person’s agent; (s) has not pledged and will not pledge its assets for the benefit of any other Person other than Lender in connection with the Loan; (t) has conducted and will conduct its business in its name or in a name franchised or licensed to it by an entity other than an Affiliate of Borrower, and has held itself out and identified itself, and will hold itself out and identify itself, as a separate and distinct entity under its own name or in a name franchised or licensed to it by an entity other than an Affiliate of Borrower and not as a division or part of any other Person, except in each case for services rendered under a business management services agreement with an Affiliate that complies with the terms contained in Subsection (x) below, so long as the manager, or equivalent thereof, under such business management services agreement holds itself out as an agent of Borrower; (u) has maintained and will maintain its assets in such a manner that it will not be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person; (v) has not made and will not make loans to any Person or hold evidence of Indebtedness issued by any other Person or entity (other than cash and investment-grade securities issued by an entity that is not an Affiliate of or subject to common ownership with such entity);
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-31- 28722485.v7 (w) has not identified and will not identify its constituent partners, members or shareholders (as applicable), or any Affiliate of any of them, as a division or part of it, and has not identified itself, and shall not identify itself, as a division of any other Person; (x) has not entered into or been a party to, and will not enter into or be a party to, any transaction with its partners, members, shareholders or Affiliates except (i) in the ordinary course of its business and on terms which are intrinsically fair, commercially reasonable and are no less favorable to it than would be obtained in a comparable arm’s-length transaction with an unrelated third party, and (ii) in connection with this Agreement; (y) has not had and will not have any obligation to indemnify, and has not indemnified and will not indemnify, its partners, officers, directors, managers or members, as the case may be, unless such an obligation is, as of the Closing Date, fully subordinated to the Obligations and will continue at all times to constitute a claim against such Special Purpose Entity that is subordinated to the Obligations in the event that cash flow in excess of the amount required to pay the Obligations is insufficient to pay such obligation; (z) except as provided in the Loan Documents, does not and will not have any of its obligations guaranteed by any Affiliate; (aa) if such entity is a limited partnership, has had, now has and will have (i) as its only general partners, Special Purpose Entities that are corporations or Acceptable LLCs that own at least one percent (1%) of the equity of the limited partnership, and (ii) a partnership agreement providing that (A) such entity will not dissolve upon the bankruptcy of any partner, including any general partner, (B) the vote of a majority-in-interest of the remaining partners is sufficient to, and such partners shall, continue the life of the partnership in the event of such bankruptcy of the general partner, and (C) if the vote of a majority- in-interest of the remaining partners to continue the life of the partnership following the bankruptcy of the general partner is not obtained, the partnership may not liquidate the Property without the consent of the Lender for as long as the Loan is outstanding; (bb) if such entity is a corporation, has had, now has and will have at least one (1) Independent Director, and has not caused or allowed, and will not cause or allow, the board of directors of such entity to take any Bankruptcy Action (or to collude with, or otherwise assist, solicit, or cause to be solicited an involuntary Bankruptcy Action) or any other action requiring the unanimous affirmative vote of one hundred percent (100%) of the members of its board of directors unless at least one (1) Independent Director shall have participated in such vote and all of the directors have participated in such vote; (cc) except as provided in clause (dd) below, if such entity is a limited liability company, has been, now is, and will be a limited liability company formed under the laws of the State of Delaware that will have an operating agreement which provides that as long as any portion of the Debt remains outstanding: (i) the company shall have at least one (1) Independent Manager that shall be a duly- appointed “manager” of the limited liability company within the meaning of Section 18-101(10) of the Delaware Limited Liability Company Act (the “Act”), and the limited liability company shall not take any Bankruptcy Action (or to collude with, or otherwise assist, solicit, or cause to be solicited an involuntary Bankruptcy Action) unless (A) such Bankruptcy Action is approved by the prior unanimous written consent of all members and managers thereof (including any Independent Manager), and (B) at the time of such action such limited liability company has at least one (1) manager who is an Independent Manager (provided, however, the managers shall only have the rights and duties expressly set forth in the limited liability company agreement); (ii) upon the occurrence of any event that causes the last member of the limited liability company to cease to be a member of such limited liability company (other than upon an assignment by such member of all of its limited liability company interest in such limited liability company
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-32- 28722485.v7 and the admission of the transferee in accordance with the limited liability company agreement), (A) the person(s) acting as Independent Manager of such limited liability company shall, without any action of any Person and simultaneously with such member ceasing to be a member of such limited liability company, automatically be admitted as the “Special Member” (an Independent Manager in such capacity, a “Special Member”) and shall preserve and continue the existence of such limited liability company without dissolution, and (B) without limiting the provisions of clause (A), upon the occurrence of any event that causes the last remaining member of the limited liability company to cease to be a member of the limited liability company or that causes the sole member to cease to be a member of the limited liability company (other than upon continuation of the limited liability company without dissolution upon an assignment by the member of all of its limited liability company interest in the limited liability company and the admission of the transferee in accordance with the limited liability company agreement), to the fullest extent permitted by law, the personal representative of such member shall be authorized to, and shall, within ninety (90) days after the occurrence of the event that terminated the continued membership of such member in such limited liability company, agree in writing to continue the limited liability company without dissolution and to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of such limited liability company, effective as of the occurrence of the event that terminated the continued membership of such member in such limited liability company; (iii) no Special Member may resign or transfer its rights as Special Member unless (A) a successor Special Member has been admitted to such limited liability company as a Special Member, and (B) such successor Special Member has also accepted its appointment as an Independent Manager and executed a counterpart to the limited liability company agreement; provided, however, the Special Member shall automatically cease to be a member of the limited liability company upon the admission to the limited liability company of a substitute member; (iv) the Special Member shall be a member of the limited liability company that has no interest in the profits, losses and capital of the limited liability company and has no right to receive any distributions of limited liability company assets; pursuant to Section 18-301 of the Act, a Special Member shall not be required to make any capital contributions to the limited liability company and shall not receive a limited liability company interest in the limited liability company; (v) a Special Member, in its capacity as Special Member, may not bind the limited liability company; (vi) except as required by any mandatory provision of the Act, a Special Member, in its capacity as Special Member, shall have no right to vote on, approve or otherwise consent to any action by, or matter relating to, the limited liability company, including the merger, consolidation or conversion of the limited liability company; (vii) in order to implement the admission to the limited liability company of each Special Member, each Person acting as an Independent Manager shall execute a counterpart to the limited liability company agreement; (viii) prior to its admission to the limited liability company as Special Member, each Person acting as an Independent Manager shall not be a member of the limited liability company; (ix) such limited liability company shall be dissolved, and its affairs shall be wound up only upon the first to occur of the following (but subject to clause (ii) above): (A) the termination of the legal existence of the last remaining member of such limited liability company or the occurrence of any other event which terminates the continued membership of the last remaining member of such limited liability company in such limited liability company unless the business of such limited liability company is continued in a manner permitted by its limited liability company agreement or the Act, or (B) the entry of a decree of judicial dissolution of the limited liability company under Section 18-802 of the Act; (x) neither the bankruptcy of any member of the limited liability company or the Special Member shall cause such member or Special Member, respectively, to cease to be a member of such limited liability company and upon the occurrence of such an event, the business of such limited liability company shall continue without dissolution; (xi) in the event of dissolution of such limited liability company, such limited liability company shall conduct only such activities as are necessary to wind up its affairs (including the sale of the assets of such limited liability company in an orderly manner), and the assets of such limited liability company shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act; and (xii) to the fullest extent permitted by law, except as otherwise expressly provided in the limited liability company agreement, each member of the limited liability company and the Special Members shall irrevocably waive any right or power that they might have to cause such limited liability company or any
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-33- 28722485.v7 of its assets to be partitioned, to cause the appointment of a receiver for all or any portion of the assets of such limited liability company, to compel any sale of all or any portion of the assets of such limited liability company pursuant to any applicable law or to file a complaint or to institute any proceeding at law or in equity to cause the dissolution, liquidation, winding up or termination of such limited liability company (a limited liability company meeting the criteria of this clause (cc) is referred to herein as an “Acceptable LLC”); (dd) if such entity is a limited liability company that is not an Acceptable LLC, has had, now has and will have at least one (1) member that is a Special Purpose Entity that is a corporation or an Acceptable LLC that owns at least one percent (1%) of the Equity Interests in such limited liability company; (ee) the organizational documents of such entity shall further provide that: (i) such entity shall not be permitted take any action which, under the terms of any organizational documents of such entity, requires a unanimous written consent of the board of directors or managers of such entity unless at the time of such action there shall be at least one (1) Independent Manager or Independent Director serving in such capacity as required by the terms hereof; (ii) no Independent Director or Independent Manager may be removed or replaced except for Cause; (iii) any resignation, removal or replacement of any Independent Director or Independent Manager shall not be effective without five (5) Business Days prior written notice to Lender accompanied by a statement as to the reasons for such removal, the identity of the proposed replacement Independent Director or Independent Manager, and a certificate that the replacement Independent Director or Independent Manager satisfies the applicable terms and conditions of the definition of “Independent Director” or “Independent Manager”; (iv) to the fullest extent permitted by applicable law, including Section 18-1101(c) of the Act and notwithstanding any duty otherwise existing at law or in equity, the Independent Director or Independent Manager shall consider only the interests of the constituent owners of such entity and such entity (including such entity’s creditors) in acting or otherwise voting on a Bankruptcy Action (which such fiduciary duties to the owners of such entity and such entity’s creditors, in each case, shall be deemed to apply solely to the extent of their respective economic interests in such entity exclusive of (A) all other interests, (B) the interests of other affiliates of the owners of such entity and such entity, and (C) the interests of any group of affiliates of which the owners of such entity or such entity is a part); (v) other than as provided in clause (iv) above, to the fullest extent permitted by law the Independent Director or Independent Manager shall not have any fiduciary duties to any owners of such entity, any directors of such entity, or any other Person; (vi) the foregoing shall not eliminate the implied contractual covenant of good faith and fair dealing under applicable law; and (vii) to the fullest extent permitted by applicable law, including Section 18-1101(e) of the Act, an Independent Director or Independent Manager shall not be liable to such entity, any owners of such entity, or any other Person bound by the limited liability company agreement for breach of contract or breach of duties (including fiduciary duties), unless the Independent Director or Independent Manager acted in bad faith or engaged in gross negligence or willful misconduct; (ff) has complied and will comply with all of the terms and provisions contained in its organizational documents; (gg) the statement of facts contained in its organizational documents are true and correct and will remain true and correct; (hh) has and will have an express acknowledgment in its organizational documents that Lender is an intended third-party beneficiary of the “special purpose/separateness/bankruptcy remote” provisions (as applicable) of such organizational documents; and (ii) has not and will not consent to any other Person (i) operating its business in the
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-34- 28722485.v7 name of such Person, (ii) acting in the name of such Person, (iii) using such Person’s stationery or business forms, (iv) holding out its credit as being available to satisfy the obligations of such Person, (v) having contractual liability for the payment of any of the liabilities of such Person (except pursuant to the limited extent provided under the Loan Documents), or (vi) failing to at all times specify to all relevant third parties that it is acting in a capacity other than as the applicable Special Purpose Entity. “Spread” means three hundred twenty-five (325) basis points (i.e., 3.25%). “Springing Recourse Event” has the meaning set forth in Section 8.3 hereof “State” means the State of California. “Stored Materials” means materials purchased by Borrower at or prior to the date of a Draw Request for use in the Project, but either (i) stored at a bonded warehouse, and not yet installed or incorporated into the Project (“Unincorporated Materials”) or (ii) not yet delivered to the Property (“Off- Site Materials”), in each of the foregoing cases, other than operating supplies, operating equipment and furniture, fixtures, equipment and machinery for the Property. Stored Materials shall cease to be Stored Materials only when the same are installed or incorporated into the Property. “Stored Materials Cap” has the meaning set forth in Section 2.1.10 hereof. “Substantially Complete” means (i) the Approved Project Expenditures have been completed in substantial accordance with the Plans and Specifications and all Legal Requirements, subject only to the completion of all Punchlist Items, as evidenced by a written statement or certificate executed by General Contractor or the Architect, as applicable, and verified by the Construction Consultant, (ii) if applicable, a valid certificate of occupancy (or equivalent document, including without limitation, evidence that the applicable Governmental Authority has inspected and approved the completion of the Approved Project Expenditures, or a temporary certificate of occupancy) has been issued by the applicable Governmental Authority permitting the full use of the Property for its intended purposes, (iii) the Property is free of all mechanics’, materialmen’s, and other similar Liens (or such liens have otherwise been bonded over to Lender’s reasonable satisfaction), and (iv) Borrower has delivered to Lender reasonable evidence that the applicable Governmental Authorities have conducted a final inspection of the Property and approved the completion of such work. The terms “Substantially Completed” and “Substantial Completion” shall have the same meaning when used in the Loan Documents. “Substantial Completion Due Date” means June 1, 2023. “Substitute Interest Rate Cap Agreement” means an index rate derivative product comparable to the Interest Rate Cap Agreement described in Section 2.2.7(a), which product caps exposure to fluctuations in, as applicable, the Alternate Rate Index or the Prime Rate Index, and which otherwise satisfies all of the conditions set forth in Section 2.2.7 hereof; provided that references in such Section 2.2.7 to the previously applicable Applicable Rate Index shall be replaced with, as applicable, the Alternate Rate Index or the Prime Rate Index; and provided further that the strike rate for such derivative product shall be as determined by Lender (in its sole but good faith direction) as providing a hedge against rising interest rates that is no less beneficial to Borrower and Lender than the Interest Rate Cap Agreement being replaced or required to be purchased, as applicable. “Survey” means the survey delivered to (and approved by) Lender in connection with the closing of the Loan. “Tax Reserve Account” has the meaning set forth in Section 3.2.1(a) hereof.
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-35- 28722485.v7 “Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto. “Tenant Direction Letter” means an irrevocable written instruction to all tenants under Leases to deliver all Revenues payable thereunder directly to the Clearing Account in form and substance reasonably acceptable to Lender. “Third Party Sale” means the sale by Borrower of all of its right, title and interest in the Property to a Person that is not Borrower, Mezzanine Borrower, Master Tenant, Guarantor or Instil Sponsor or any Affiliate of any of the forgoing pursuant to a bona fide, arms’ length sale on market terms, as reasonably determined by Lender. “Term SOFR” means the Term SOFR Reference Rate for a tenor of one month on the Determination Date, as such rate is published by the Term SOFR Administrator; provided, however, that if as of 5:00 p.m. (New York City time) on any Determination Date the Term SOFR Reference Rate for a tenor of one month has not been published by the Term SOFR Administrator, then Term SOFR will be the Term SOFR Reference Rate for such tenor as published by the Term SOFR Administrator on the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate for such tenor was published by the Term SOFR Administrator so long as such first preceding U.S. Government Securities Business Day is not more than three (3) U.S. Government Securities Business Days prior to such Determination Date. Notwithstanding the foregoing or anything herein to the contrary, in no event shall Term SOFR be less than the Rate Index Floor. “Term SOFR Administrator” means CME Group Benchmark Administration Limited (CBA) (or a successor administrator of the Term SOFR Reference Rate selected by Lender). “Term SOFR Loan” means the Loan at such time as interest thereon accrues at a rate of interest based upon the Term SOFR Rate. “Term SOFR Rate” means, with respect to each Interest Accrual Period, the per annum rate of interest of Term SOFR determined as of the Determination Date immediately preceding the commencement of such Interest Accrual Period plus the Spread; provided that in no event will the Term SOFR Rate be less than the Minimum Rate. “Term SOFR Reference Rate” means the forward-looking term rate based on SOFR. “Title Company” means Fidelity National Title Insurance Company or any successor title company acceptable to Lender and licensed to issue title insurance in the State in which the Property is located. “Title Insurance Policy” means the title insurance policy obtained by Lender in connection with the closing of the Loan. “Trade Contract” means any agreement, contract or purchase order between Borrower, an Affiliate of Borrower or General Contractor, on the one hand, and any Trade Contractor, on the other hand, pursuant to which such Trade Contractor agrees to provide labor, materials, equipment and/or services in connection with the construction of the Project, in each case, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time in accordance with the terms of this Agreement. The term “Trade Contract” shall not include the Architect Agreement, the General Contractor
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-36- 28722485.v7 Agreement or any other agreement, contract or purchase order pertaining solely to professional services to be provided by any other Design Professional. “Trade Contractor” means any Person that is a contractor, subcontractor, sub-subcontractor, supplier or provider of labor, materials, equipment and/or services in connection with the construction of the Project or any subsidiary and/or affiliate of any of the foregoing, under a Trade Contract. “Transfer” means any sale, conveyance, transfer, lease, assignment, grant, mortgage, option, encumbrance, hypothecation, pledge, or Lien, in each case whether by operation of law or otherwise, and with respect to an entity shall include the merger of such entity with or into any other entity; provided, however, that this definition shall not include any Condemnation. “Tranche” has the meaning set forth in Section 9.2(a) hereof. “UCC” means the Uniform Commercial Code as in effect in the State of New York. “Unfunded Loan Amount” has the meaning set forth in Section 2.3.2. “Unfunded Loan Proceeds Account” has the meaning set forth in Section 2.3.2. “UNOI” means the underwritten net operating income for the Property determined by Lender as the sum of (a) Operating Income for the trailing twelve (12) month period, less (b) actual Operating Expenses incurred in connection with the Property during the twelve (12) month period preceding the date of calculation, with adjustments for any anticipated increases in such Operating Expenses projected to occur during the twelve (12) month period following the date of calculation. “Unincorporated Materials” has the meaning assigned to such term in the definition of Stored Materials. “U.S. Government Securities Business Day” means any day except for a Saturday, a Sunday or a day on which the Securities Industry and Financial Markets Association, or any successor thereto, recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities. “U.S. Person” shall mean any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code. “U.S. Tax Compliance Certificate” has the meaning set forth in Section 2.2.3(e)(ii)(B)(3) hereof. “WARN Act” shall mean the Worker Adjustment and Retraining Notification Act or any other applicable similar state law. “Withdrawal Liability” has the meaning given to such term under Part I of Subtitle E of Title IV of ERISA. “Write-Down and Conversion Powers” means, with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail- In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule.
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-38- 28722485.v7 substantially in the form required pursuant to Section 2.1.5(b) not less than ten (10) Business Days (but not more than sixty (60) days) prior to the applicable Advance Date; provided that there shall be no more than one Draw Request for Approved Project Expenditures and no more than one Draw Request for Interest and Carry Cost in each calendar month. Each Draw Request for Approved Project Expenditures shall specify the Hard Costs (which shall not exceed the value of work in place and Stored Materials as supported by invoices and other supporting documentation, as reasonably approved by Construction Consultant, less any Retainage), including deposits paid to any Contractor or Trade Contractor, and Soft Costs (including deposits required to be paid pursuant to any agreement covering Soft Costs)) and Interest and Carry Costs to be paid from the proceeds of the requested Additional Advance. No Additional Advance with respect to the payment of any Advance Item constituting Approved Project Expenditure shall be requested or advanced (x) for an amount that, together with the amount of Additional Advance with respect to the payment of all other Advance Items constituting Approved Project Expenditure then being requested hereunder and under the Mezzanine Loan Agreement, is less than $150,000 (other than the last requested Additional Advance with respect to such Advance Item if less) or (y) more frequently than once in any calendar month. Each Draw Request in connection with an Additional Advance for the payment of Hard Costs shall specify the amount of any Retainage previously withheld and which has then become payable by Borrower, with supporting documentation describing in reasonable detail the basis for any such disbursements. All Draw Requests shall be approved by Lender, not to be unreasonably withheld, and, with respect to Hard Costs, reasonably approved for payment by Construction Consultant. (b) Required Documentation. Each Draw Request submitted hereunder shall include the following: (i) a requisition letter in the form set forth on Exhibit E attached hereto; (ii) an Officer’s Certificate in the form set forth on Exhibit C attached hereto; (iii) proof of payment to (x) General Contractor and (y) each Trade Contractor with respect to such Trade Contractor’s Non-Lienable Work (which proof of payment, in the case of each such Trade Contractor, shall include, without limitation, copies of all applicable invoices and wire confirmations), as the case may be, evidencing payment in full for all work performed and/or material supplied to the date of the preceding Additional Advance, except for Retainage and any disputed amounts being contested by Borrower in accordance with Section 5.1.2(b) hereof; (iv) with respect to any Draw Request for payment of Hard Costs, the following: (A) a completed Application and Certificate for Payment (AIA Documents G702 and G703) that is executed by the General Contractor, Architect (or, if such Application and Certificate for Payment is not executed by Architect, then the Draw Request shall include an Architect’s certificate in form and substance reasonably satisfactory to Lender) and/or the Major Trade Contractors, as applicable, each of which shall be certified as true and complete by Borrower and shall be verified by the Construction Consultant; (B) unconditional or conditional (conditioned only upon payment from the requested disbursement) waivers of liens from General Contractor and all Trade Contractors with respect to all Costs (other than Interest and Carry Costs) incurred in connection with the Project since the Closing Date or the last Advance Date, as applicable, dated on or about the date of such Draw Request, in form and
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-39- 28722485.v7 substance reasonably acceptable to Lender, covering all work done and all sums received by such Persons through the date such waiver is signed and noting the amounts then due and owing (other than any Retainage), each of which shall be verified by Construction Consultant; (C) a list of all Trade Contracts executed since the date of the then last preceding Additional Advance, together with a certification by Borrower that copies of such Trade Contracts have been submitted to Construction Consultant prior to the date of such Draw Request, together with, unless previously provided to Lender and to the extent required herein, executed Major Trade Contractor Consents for each new Major Trade Contractor who is to receive proceeds of the applicable Additional Advance; (D) a list of all Construction Contracts (to the extent not previously provided, including pursuant to clause (C) above) in effect as of such Advance Date and copies of any Construction Contracts (to the extent not previously provided, including pursuant to clause (C) above) and any amendments, restatements, replacements, supplements or other modifications to any Construction Contracts, in each case, executed after the Closing Date or the date of the last Draw Request, as the case may be, in accordance with the terms and conditions of this Agreement; (E) to the extent not previously delivered to Lender, copies of Change Orders that have not been submitted to Lender prior to the date of such Draw Request, together with (I) a statement by Borrower that copies of the same have been submitted to Construction Consultant simultaneously with or prior to the date of such Draw Request and (II) a list of all Change Orders then to date and a list of all contemplated or pending Change Orders; (F) evidence reasonably satisfactory to Lender (which evidence may, in Lender’s discretion, be in the form of an Officer’s Certificate, in form and substance reasonably acceptable to Lender, stating) that the full amount of the applicable portion of the proceeds of the then last preceding Additional Advance have been paid out by Borrower or General Contractor to the Persons with respect to whom the Additional Advance was disbursed and otherwise in accordance with this Agreement; and (G) such other information and documentation as may be reasonably requested by Lender or Construction Consultant with respect to the Hard Costs covered by such Draw Request; and (v) with respect to any Draw Request for payment of Soft Costs, the following: (A) current requisitions for payment from Trade Contractors to the extent allocable to the Project; (B) such evidence as Lender reasonably requests that such Soft Costs have been properly incurred and are due and payable and are in amounts set forth in the Construction Budget;
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-43- 28722485.v7 and 2.1.6 above, Lender shall not be obligated to make such Additional Advance unless all of the following conditions are also satisfied: (a) Lender shall have received an Officer’s Certificate with respect to any construction work constituting the applicable Approved Project Expenditures to be funded by such Additional Advance certifying that whatever portion of such work has been Completed to date has been Completed in good and workmanlike manner in substantial accordance with all applicable Legal Requirements and the Plans and Specifications; (b) Lender shall have received (i) an updated Construction Budget for the Project in accordance with Section 5.1.3(c) hereof, in form and substance reasonably satisfactory to Lender, which indicates the Costs (other than Interest and Carry Costs) anticipated to complete the Required Improvements, after giving effect to Costs (other than Interest and Carry Costs) incurred during the period since the Closing Date, or the date of the last preceding Draw Request, as the case may be, and (ii) an anticipated costs report in form and substance reasonably acceptable to Lender, which indicates the Costs (other than Interest and Carry Costs) anticipated to complete the Required Improvements, after giving effect to Costs incurred during the previous calendar month (or the date of the last preceding Draw Request, as the case may be), and projected Costs; provided, that, no Line Item in the Construction Budget with respect to Approved Project Expenditures shall be eligible for funding from the proceeds of an Additional Advance until 100% of such Line Item has been bought out and Lender and Construction Consultant have reviewed the related sub-contract(s) and, if applicable, Major Trade Contractor Consent(s); (c) Lender shall have received a reconciliation by Borrower of the progress and cost of the construction of the Project through the date of the Draw Request with the Construction Schedule and the Construction Budget, together with a projection of such progress and costs through to Completion of the Project; and (d) in no event will the aggregate of all Additional Advances actually made under this Agreement for the payment of Approved Project Expenditures exceed the Project Advance Amount. 2.1.8 Intentionally Omitted. 2.1.9 Advances to Pay Interest, Fees and Expenses. (a) Subject to the terms of this Agreement, Additional Advances may be used to pay Interest and Carry Costs. Subject to the remaining provisions of this Section 2.1.9, Borrower hereby irrevocably requests that Lender make an Additional Advance on each Payment Date to pay Interest and Carry Costs to the extent of the Mortgage Funding Share of any shortfall of amounts on deposit in the Cash Management Account. Additional Advances required to be made by Lender in accordance with the foregoing shall be deposited by Lender into the Cash Management Account for application in the manner and order of priority as set forth in Section 3.1(b) of this Agreement. Any Additional Advance so made shall be deemed to be an Additional Advance made to and received by Borrower and shall be added to the unpaid principal balance of the Loan. (b) Notwithstanding anything to the contrary contained in this Agreement and without relieving Borrower of any obligation to pay the same, Lender shall have no obligation to make any Additional Advance with respect to Interest and Carry Costs as set forth in this Section 2.1.9 unless each of the conditions precedent to an Additional Advance set forth in Sections 2.1.6(a), (c), (d), (e), (h), (i), (k), (m), (n), (o), (p), (q), (r), (s), (t), (u) and (w) have been satisfied. In addition, with respect to any Additional Advance disbursed in accordance with the foregoing and disbursed to Borrower for payments of Cash Expenses and/or Approved Extraordinary Expenses, in addition to any other requirements set forth in this
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-44- 28722485.v7 Agreement, Borrower shall also provide to Lender an Officer’s Certificate (i) certifying that such Additional Advance (or a portion thereof) are to be used for the payment of Cash Expenses or Approved Extraordinary Expenses, as applicable, (ii) including copies of all bills, invoices, receipts and other documentation requested by Lender to be reimbursed or paid by the Additional Advance (or a portion thereof), and (iii) stating that all prior Additional Advances requested for the payment of Costs have been spent on Cash Expenses and/or Approved Extraordinary Expenses for which such Additional Advances were made. No such Additional Advance shall be deemed to cure or waive any Default or Event of Default that may then exist. The authorization hereby granted shall be irrevocable, and no further direction or authorization from Borrower shall be necessary for Lender to make any Additional Advance in accordance with this Section 2.1.9. Lender shall not be deemed to be authorized to make an Additional Advance on any Payment Date with respect to Interest and Carry Costs that are then due and payable that have otherwise been paid by Borrower when due and payable and nothing contained in this Section 2.1.9 shall be deemed to prevent Borrower from paying Interest and Carry Costs from its own funds. (c) Lender agrees that Interest and Carry Costs on any Payment Date shall be paid as follows: (i) first, pursuant to Section 3.1(b) hereof, (ii) second, from the Shortfall Account, (iii) third, from the Excess Cash Flow Reserve Account, (iv) fourth, as (x) an Additional Advance to the extent there are unfunded Loan proceeds available to make such Additional Advance in accordance with the terms of this Agreement, and (y) a Mezzanine Loan Additional Advance to the extent there are unfunded Mezzanine Loan proceeds available to make such Mezzanine Loan Additional Advance in accordance with the terms of the Mezzanine Loan Agreement, and (v) fifth, from a current payment from Borrower as and when such Interest and Carry Costs are due. (d) If, at any time and from time to time, Lender determines that, without duplication, the sum (such sum, the “Estimated Interest and Carry Available Amount”) of (i) the then remaining unadvanced Loan Amount and the then remaining unadvanced Mezzanine Loan Amount available for application toward the payment of Interest and Carry Costs, plus (ii) any funds then on deposit in the Shortfall Account and any Reserve Account (but only to the extent that the funds then on deposit in the Reserve Account are allocable for payment of Interest and Carry Costs, and provided that Lender’s access to such funds is not restricted by (A) Legal Requirements, injunction or other court order, or (B) as a result of any action, inaction or omission by Borrower, Guarantor or any Affiliate of Borrower or Guarantor), plus (iii) amounts that are guaranteed pursuant to the Equity Funding Guaranty (provided that no claim is then being pursued by Lender in respect of any of the Guarantees and Guarantor is not then in default or in breach of any of its obligations in respect of any of the Guarantees) with respect to Interest and Carry Costs, as determined by Lender, would be insufficient to fund the estimated Interest and Carry Costs projected to be payable with respect to the Loan and the Mezzanine Loan through the Maturity Date (the “Estimated Interest and Carry Costs”), as determined by Lender in its good faith discretion (the amount by which the Estimated Interest and Carry Costs exceeds the amount of the Estimated Interest and Carry Available Amount, the “Interest and Carry Cost Shortfall”), Lender shall require that Borrower deposit cash into an interest and shortfall reserve account established and maintained at Cash Management Bank by Lender under the sole dominion and control of Lender (the “Shortfall Account”) in an amount equal to the Interest and Carry Cost Shortfall. Any Interest and Carry Cost Shortfall payment that Borrower is required to deposit in accordance with this Section 2.1.9(d) shall be due and payable to Lender not later than five (5) Business Days after Lender’s delivery to Borrower of written demand for such payment. Provided that (1) no Event of Default or Mezzanine Loan Event of Default has occurred and is continuing, (2) no Interest and Carry Cost Shortfall then exists, and (3) all amounts then due and payable to Lender under this Agreement and the other Loan Documents (including, without limitation, all Reserve Funds required to be deposited by Borrower in accordance with the terms of this Agreement) have been made, amounts then remaining in the Shortfall Account (after deducting thereof any amounts applied by Lender in accordance with the terms of this Agreement) shall be used to pay shortfalls in deposits and/or payments, as applicable, pursuant to
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-45- 28722485.v7 Section 3.1(b), subject to the terms and conditions set forth in this Agreement with respect to Additional Advances to pay Interest and Carry Costs. 2.1.10 Advances for Stored Materials. Lender shall make disbursements for Stored Materials to be utilized in connection with the Project, as applicable, in amounts such that the sum of all Additional Advances and Mezzanine Loan Additional Advances on account of all such Stored Materials not yet installed or incorporated into the Project shall not be in excess of $1,500,000 (“Stored Materials Cap”) in the aggregate at any one time, it being agreed that once Borrower provides satisfactory evidence to Lender and Construction Consultant that such applicable Stored Materials have been installed or incorporated into the Project, such Stored Materials so installed or incorporated into the Project shall no longer count against the Stored Materials Cap. The aggregate amount of Additional Advances for Stored Materials shall in no event at any time exceed the actual Hard Costs incurred by Borrower for such materials as verified by Construction Consultant pursuant to the provisions of this Agreement. In addition to the foregoing limitations, Additional Advances on account of Stored Materials shall be subject to the other provisions of this Agreement and, prior to any Additional Advance for Stored Materials being made, Lender shall have received the following, in form and substance reasonably satisfactory to Lender: (a) evidence that the Stored Materials are appropriate for purchase during the then current stage of construction; (b) (i) as to any Stored Materials, evidence that such Stored Materials are or will be securely stored (A) on site at the Property or (B) in a bonded warehouse off-site properly inventoried and clearly stenciled or otherwise marked to indicate that they are (I) the property of Borrower and (II) the subject of a security interest by Lender and (ii) with respect to Stored Materials stored off-site in accordance with the foregoing, an agreement of the owner of such warehouse to permit Lender and/or Construction Consultant access to the same; (c) evidence that the Stored Materials have been paid for and are owned by (or upon payment of the amounts to be disbursed in the applicable Draw Request shall be paid for and owned by) Borrower free of all liens or claims of the vendor or any third party; (d) a perfected, first-priority security interest in such Stored Materials is held by Lender; (e) as to any Off-Site Materials, evidence reasonably satisfactory to Lender that such Off-Site Materials are segregated and identified as Borrower’s property; (f) as to any Unincorporated Materials, Construction Consultant shall have determined, in a manner reasonably satisfactory to Construction Consultant, that such Unincorporated Materials are not in excess of such building equipment and materials as would be kept at the Property in accordance with good construction practice for current installation or incorporation; (g) evidence reasonably satisfactory to Lender that the Off-Site Materials or Unincorporated Materials, as the case may be, are insured against casualty, loss and theft for an amount equal to their replacement costs and Lender is named as an additional insured and loss payee with respect thereto; (h) as to any Off-Site Materials, proof of payment reasonably satisfactory to Lender from the supplier or fabricator of such Off-Site Materials, the cost of which is, in whole or in part, payment for all amounts covered by any prior Draw Request; and
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-52- 28722485.v7 certification previously delivered expires or becomes obsolete or inaccurate in any respect, such properly completed and executed documentation reasonably requested by Borrower as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, if reasonably requested by Borrower, any Lender shall deliver such other documentation prescribed by applicable Legal Requirements (or reasonably requested by Borrower) as will enable Borrower to determine whether or not such Lender is subject to backup withholding or information reporting requirements. (ii) Without limiting the generality of the foregoing, in the event that Borrower is a U.S. Person, (A) any Lender that is a U.S. Person shall deliver to Borrower and on or about the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of Borrower), executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax; (B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Borrower (in such number of copies as shall be reasonably requested by Borrower) on or about the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of Borrower), whichever of the following is applicable: 1. in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or IRS Form W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty; 2. executed copies of IRS Form W-8ECI; 3. in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit K-1 attached hereto to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of Borrower within the meaning of Section 871(h)(3)(B) of the Code, or a “controlled foreign corporation” related to Borrower as described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed copies of IRS Form W-8BEN or IRS Form W 8BEN-E; or 4. to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W- 8ECI, IRS Form W-8BEN, IRS Form W 8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit K-2 or Exhibit K-3, each attached hereto, IRS Form W-9, and/or other certification documents from
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-57- 28722485.v7 upon the termination of such initial Interest Rate Cap Agreement and not terminate prior to the Maturity Date, and (v) require payments to be made on the date that is three (3) Business Days prior to the applicable Payment Date. Borrower shall collaterally assign to Lender, pursuant to an Assignment of Interest Rate Cap Agreement, all of its right, title and interest (but not its obligations) to receive any and all payments under any Replacement Interest Rate Cap Agreement, and shall deliver to Lender an executed counterpart of such Replacement Interest Rate Cap Agreement (which shall, by its terms, authorize the collateral assignment to Lender and require that payments be deposited directly into the account designated by Lender) and shall notify the Acceptable Counterparty of such assignment and obtain from such counterparty a confirmation of the assignment of such Replacement Interest Rate Cap Agreement to Lender in form and content acceptable to Lender. (c) Borrower shall comply with all of its obligations under the terms and provisions of the Interest Rate Cap Agreement. Borrower shall take all actions reasonably requested by Lender to enforce Lender’s rights under the Interest Rate Cap Agreement in the event of a default by an Acceptable Counterparty and shall not waive, amend or otherwise modify any of its rights thereunder. (d) In the event of any downgrade, withdrawal or qualification of the rating of the counterparty under the Interest Rate Cap Agreement such that such counterparty is a Downgraded Counterparty, or in the event of any default by an Acceptable Counterparty under the Interest Rate Cap Agreement, Borrower shall, not later than fifteen (15) days following the receipt by Borrower of notice of such downgrade, withdrawal, qualification, or default (whether received from Lender, the Acceptable Counterparty, or otherwise), then Borrower shall replace the Interest Rate Cap Agreement with an Interest Rate Cap Agreement satisfying the requirements of Section 2.2.7(a) above not later than fifteen (15) days following the receipt by Borrower of notice of such downgrade (whether received from Lender, the Acceptable Counterparty, or otherwise). (e) In the event that Borrower fails to purchase and deliver to Lender the Interest Rate Cap Agreement or fails to maintain the Interest Rate Cap Agreement, in each case, in accordance with the terms and provisions of this Agreement, Lender may (but shall have no obligation to) purchase the Interest Rate Cap Agreement and the cost incurred by Lender in purchasing such Interest Rate Cap Agreement shall be paid by Borrower to Lender with interest thereon at the Default Rate from the date such cost was incurred by Lender until such cost is reimbursed by Borrower to Lender. (f) In connection with the Interest Rate Cap Agreement, Borrower shall obtain and deliver to Lender, within twenty (20) Business Days following the Closing Date (or, with respect to a Replacement Interest Rate Cap Agreement or Substitute Interest Rate Cap Agreement, within twenty (20) Business Days following the effective date of such Replacement Interest Rate Cap Agreement or Substitute Interest Rate Cap Agreement, as applicable), an opinion from counsel (which counsel may be in-house counsel for the Acceptable Counterparty) for the Acceptable Counterparty (upon which Lender and its successors and assigns may rely) which shall provide, in relevant part, that: (i) the Acceptable Counterparty is duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation and has the organizational power and authority to execute and deliver, and to perform its obligations under, the Interest Rate Cap Agreement; (ii) the execution and delivery of the Interest Rate Cap Agreement by the Acceptable Counterparty, and any other agreement which the Acceptable Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been and remain duly authorized by all necessary action and do not contravene any provision of its certificate of incorporation or by-laws (or equivalent organizational documents) or any law, regulation or contractual restriction binding on or affecting it or its property; (iii) all consents, authorizations and approvals required for the execution and delivery by the Acceptable Counterparty of the Interest Rate Cap Agreement, and any other agreement which the Acceptable Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been obtained and remain in full force and effect, all conditions thereof have
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-59- 28722485.v7 (g) Completion of the Project shall have occurred; (h) Borrower and Guarantor shall have executed and delivered amendments to and reaffirmations of any or all of the Loan Documents as may be reasonably requested by Lender; (i) each of the representations and warranties of Borrower and Guarantor contained in each of the Loan Documents shall be true, complete and correct in all material respects as of the Maturity Date, except for any changes in facts or circumstances occurring since the Closing Date that do not constitute a Default or Event of Default or were not caused by the occurrence of a Default or Event of Default and, in any event, do not result in a Material Adverse Effect; (j) Borrower shall have paid to Lender a fee in the amount of 0.25% of the Outstanding Principal Balance plus any amounts available to be advanced as Additional Advances under this Agreement, and shall have paid or reimbursed all of Lender’s outstanding fees and expenses, in accordance with the terms of this Agreement and the other Loan Documents; (k) if Lender determines that the Estimated Interest and Carry Available Amount calculated as of the first day of the applicable Extension Term would be insufficient to fund the estimated Interest and Carry Costs projected to be payable with respect to the Loan and the Mezzanine Loan through the last day of the applicable Extension Term (the amount of any such shortfall, an “Extension Shortfall”), Borrower shall deposit cash into the Unfunded Loan Proceeds Account in an amount equal to the Extension Shortfall; (l) Borrower either (i) extends the term of the Interest Rate Cap Agreement (or, if following a Rate Conversion, the Substitute Interest Rate Cap Agreement) then in effect to a date not earlier than the extended Maturity Date, or (ii) enters into a new Interest Rate Cap Agreement (or, if following a Rate Conversion, the Substitute Interest Rate Cap Agreement) and assigns the same to Lender pursuant to such documents as Lender may require, which Interest Rate Cap Agreement (or, if following a Rate Conversion, the Substitute Interest Rate Cap Agreement) expires no earlier than the extended Maturity Date, and which extension or new agreement complies with the requirements set forth in Section 2.2.7 and has the effect of capping Term SOFR (or, following, a Rate Conversion, as applicable, the Alternate Rate Index or the Prime Rate Index) at a strike price equal to 3.00%, on a notional principal amount not less than the Outstanding Principal Balance; (m) Mezzanine Borrower shall have extended the Maturity Date (as defined in the Mezzanine Loan Agreement) of the Mezzanine Loan to a date not sooner than the applicable extended Maturity Date hereunder (including that all conditions precedent to such extension shall have been satisfied by Mezzanine Borrower or waived in writing by Mezzanine Lender); and (n) Mezzanine Borrower shall have satisfied all requirements set forth in Section 2.3.1 of the Mezzanine Loan Agreement for such extension of the Mezzanine Loan (except to the extent that the only condition not satisfied thereunder is Borrower’s simultaneous satisfaction of the conditions set forth in this Section 2.3.1) and the Mezzanine Loan has been extended pursuant to the terms and conditions of the Mezzanine Loan Agreement. 2.3.2 Unfunded Loan Proceeds. If (i) any Loan proceeds have not been advanced (such unadvanced amounts hereinafter, the “Unfunded Loan Amount”) on or prior to the Initial Maturity Date and (ii) Borrower has elected to exercise the first Extension Option in accordance with the terms and conditions of Section 2.3.1 hereof, then, Lender, at its sole election, may elect by written notice to Borrower given no less than ten (10) Business Days prior to the anticipated advance date, advance all or such applicable portion of the Unfunded Loan Amount into an Eligible Account under the sole dominion and
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-62- 00000000.v7 Clearing Account, subject to a Clearing Account Agreement, (ii) deliver a Tenant Director Letter to all tenants under any other Leases, and (iii) deposit all other Revenues received by Borrower or Manager into the Clearing Account within one (1) Business Day after receipt. Borrower shall send a copy of each Tenant Direction Letter sent as provided above, together with evidence that the same has been sent, to Lender within five (5) Business Days after the sending thereof. Without the consent of Lender, neither Borrower nor Manager shall terminate, amend, revoke or modify any Tenant Direction Letter in any manner whatsoever, or direct or cause any tenant to pay any amount in any manner other than as provided in the related Tenant Direction Letter. To the extent that Borrower or any Person on Borrower’s behalf holds any Revenues, whether in accordance with this Agreement or otherwise, (A) such amounts shall be deemed to be collateral for the Debt and shall be held in trust for the benefit of Lender, (B) such amounts shall not be commingled with any other funds or property of Borrower or Manager, and (C) Borrower or Manager shall deposit such amounts in the Clearing Account within one (1) Business Day of receipt. (b) Application of Revenues. On each Business Day, funds on deposit in the Clearing Account (if applicable) shall be transferred to the Cash Management Account (or as otherwise directed by Lender or its Servicer). So long as no Event of Default shall have occurred and be continuing (and thereafter at Lenders’ sole option and discretion) Lender shall direct Cash Management Bank to allocate all available funds on deposit in the Cash Management Account (other than any Revenues paid more than one (1) month in advance, which shall be retained in the Cash Management Account until payment thereof is due under the applicable Lease (“Prepaid Revenues”), on each Payment Date in the following amounts and order or priority: (i) First, to the Tax Reserve Account in an amount sufficient to pay the monthly deposit, if any, required to be made for Property Taxes in accordance with the terms and conditions of Section 3.2(a); and then (ii) Second, to the Insurance Reserve Account in an amount sufficient to pay the monthly deposit, if any, required to be made for Insurance Premiums in accordance with the terms and conditions of Section 3.2(b) hereof; and then (iii) Third, to pay Cash Management Bank the monthly portion of fees charged by the Cash Management Bank in accordance with the Cash Management Agreement and any other fees or expenses due to Lender under the Loan Documents; and then (iv) Fourth, to Lender in the amount of the Monthly Debt Service Payment Amount; and then (v) Fifth, to Lender to pay any other amounts, if any, then due Lender (or then required to be paid to Servicer or Construction Consultant) under the Loan Documents not specified in the foregoing clauses; and then (vi) Sixth, to Lender in the amount of the Mezzanine Monthly Debt Service Payment Amount; and then (vii) Seventh, to Mezzanine Lender to pay any other amounts, if any, then due Lender (or then required to be paid to Servicer or Construction Consultant (each such term as defined in the Mezzanine Loan Agreement)) under the Mezzanine Loan Documents not specified in the foregoing clauses; and then (viii) Eighth, to Borrower for payments for monthly Cash Expenses actually incurred during the prior month in accordance with the related Approved Annual Budget
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-64- 00000000.v7 (a) Borrower shall, on each Payment Date, deposit into an Eligible Account established by Lender from time to time (the “Tax Reserve Account”) the amount that Lender reasonably estimates will be necessary in order to accumulate sufficient funds to pay, at least thirty (30) days prior to their respective due dates, all Property Taxes and Other Charges due within the ensuing twelve (12) months (the amount of such deposit required on any Payment Date, the “Tax Reserve Deposit Amount”). Amounts deposited into the Tax Reserve Account are referred to herein as the “Tax Reserve Funds.” If at any time, Lender reasonably determines that the Tax Reserve Funds will not be sufficient to pay the Property Taxes and Other Charges, Lender shall notify Borrower of such determination and Borrower shall deposit the shortfall amount determined by Lender into the Tax Reserve Account within five (5) Business Days following written notice from Lender to Borrower. Notwithstanding the foregoing or anything to the contrary herein, after the Closing Date, Lender shall disburse into the Tax Reserve Account in the order of priority of application set forth in Section 2.1.9(c) hereof, (i) amounts available for deposit into the Tax Reserve Account pursuant to Section 3.1(b)(i) hereof, (ii) amounts then on deposit in the Shortfall Account allocable for the payment of Property Taxes and Other Charges, (iii) amounts then on deposit in the Excess Cash Flow Account allocable for the payment of Property Taxes and Other Charges, and (iv) Additional Advances available for payment of Property Taxes and Other Charges, in each case, for the payment of Property Taxes and Other Charges in an amount equal to the then-required Tax Reserve Deposit Amount (such disbursement to be made by Lender, the “Tax Disbursement Amount”). Lender’s disbursement of the Tax Disbursement Amount shall satisfy Borrower’s obligations to make a deposit into the Tax Reserve Account in such amount, provided that, (x) if the Tax Disbursement Amount is less than the then-required Tax Reserve Deposit Amount, Borrower shall deposit such deficiency in accordance with the terms of this Section 3.2.1(a), and (y) with respect to disbursement of amounts on deposit in the Shortfall Account, such disbursement shall be required only so long as Lender’s access to such amounts is not restricted by (A) Legal Requirements, injunction or other court order, or (B) as a result of any action, inaction or omission by Borrower, Guarantor or any Affiliate of Borrower or Guarantor. (b) Provided no Event of Default shall exist, Lender shall apply the funds in the Tax Reserve Account to payments of the Property Taxes and Other Charges for which such funds have been reserved on their respective due dates. In making any such payment, Lender may do so according to any xxxx, statement or estimate procured from the appropriate public office without inquiry into the accuracy thereof. If Lender so elects at any time, Borrower shall provide, at Borrower’s expense, a tax service contract for the term of the Loan issued by a tax reporting agency acceptable to Lender. If Lender does not so elect, Borrower shall reimburse Lender for the out-of-pocket cost of making annual tax searches throughout the term of the Loan. (c) Notwithstanding the foregoing provisions of this Section 3.2.1, Borrower shall not be required to deposit the Tax Reserve Deposit Amount as set in Section 3.2.1(a) at any time that, in Lender’s determination, (i) Master Tenant pays all Property Taxes and Other Charges directly to the appropriate taxing authority in accordance with the express terms of the Master Lease, (ii) there is no event of default by Master Tenant under the Master Lease, and (iii) Borrower provides Lender, or causes to be provided to Lender, evidence of payment of such Property Taxes and Other Charges prior to delinquency. Borrower shall immediately commence depositing all Tax Reserve Deposit Amounts as required by Lender pursuant to Section 3.2.1, within five (5) Business Days of receipt of notice from Lender of Borrower’s failure to comply with items (i), (ii), or (iii) in the immediately preceding sentence, and such failure is not cured within such five (5) Business Day period, which such notice shall instruct Borrower, in such event, to immediately commence making all additional deposits of the Tax Reserve Deposit Amount. 3.2.2 Insurance Reserve Account. (a) Borrower shall, on each Payment Date, deposit into an Eligible Account established by Lender from time to time (the “Insurance Reserve Account”) the amount that Lender
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-69- 28722485.v7 Authority required for the execution, delivery and performance by Borrower, SPE Component Entity, and/or Guarantor, as applicable, of this Agreement or any other Loan Documents to which it is a party has been obtained and is in full force and effect. (d) Litigation; Judgments. There are no actions, suits or proceedings at law or in equity by or before any Governmental Authority or other agency now pending or to Borrower’s knowledge, threatened against or affecting Borrower, SPE Component Entity, Guarantor, or the Property, that, with respect to Guarantor only, (i) would reasonably be expected to result in a Material Adverse Effect or (ii) purports to affect the legality, validity or enforceability of any Loan Document or the consummation of the transactions contemplated by the Loan Documents. Borrower, SPE Component Entity, and Guarantor are not in default or violation with respect to any order, writ, injunction, decree or demand of any Governmental Authority. If the Property is subject to a Management Agreement, to Borrower’s knowledge, (i) there are no actions, suits or proceedings at law or in equity by or before any Governmental Authority or other agency now pending or threatened against or affecting Manager that, if determined adversely, would be reasonably likely to have a Material Adverse Effect, and (ii) Manager is not in default or violation with respect to any order, writ, injunction, decree or demand of any Governmental Authority that would be reasonably likely to have a Material Adverse Effect. (e) Agreements. Borrower is not a party to any agreement or instrument and has not subjected itself or the Property to, and neither it nor the Property are subject to, any restriction which would reasonably be expected to have a Material Adverse Effect. Borrower is not in default in any material respect in the performance, observance or fulfillment of any of the obligations, covenants or conditions contained in any agreement or instrument to which it is a party or by which Borrower or the Property are bound. Borrower and SPE Component Entity have no material financial obligations under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which Borrower or SPE Component Entity is a party or by which Borrower, SPE Component Entity, or the Property is otherwise bound, other than (a) Permitted Indebtedness, and (b) other obligations which, in each case, would not reasonably be expected to have a Material Adverse Effect. (f) Solvency. Borrower has (a) not entered into the transaction contemplated by this Agreement or executed the Loan Documents with the actual intent to hinder, delay or defraud any creditor and (b) received reasonably equivalent value in exchange for its obligations under such Loan Documents. The fair saleable value of Borrower’s assets exceeds and will, immediately following the making of the Loan, exceed Borrower’s total liabilities, including subordinated, unliquidated, disputed and contingent liabilities. The fair saleable value of Borrower’s assets is and will be, immediately following the making of the Loan, greater than Borrower’s probable liabilities, including the maximum amount of its contingent liabilities on its debts as such debts become absolute and matured. Borrower’s assets do not and, immediately following the making of the Loan will not, constitute unreasonably small capital to carry out its business as conducted or as proposed to be conducted. Borrower does not intend to, and does not believe that it will, incur debts and liabilities (including contingent liabilities and other commitments) beyond its ability to pay such debts and liabilities as they mature (taking into account the timing and amounts of cash to be received by Borrower and the amounts to be payable on or in respect of the obligations of Borrower). No petition in bankruptcy has been filed against Borrower or SPE Component Entity, and neither Borrower nor SPE Component Entity has ever made an assignment for the benefit of creditors or taken advantage of any insolvency act for the benefit of debtors. None of Borrower, SPE Component Entity, or any of their respective direct or indirect owner is contemplating either the filing of a Bankruptcy Action by Borrower or SPE Component Entity or the liquidation of all or a major portion of its assets or properties, and Borrower has no knowledge of any Person contemplating the filing of any such petition against it or SPE Component Entity. Neither the Property, nor any portion thereof, is the subject of, and none of Borrower, SPE Component Entity, or Guarantor is a debtor in, state or federal bankruptcy, insolvency or similar proceeding. None of Borrower, SPE Component Entity, Guarantor, or any Person owning a direct
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-72- 28722485.v7 of an easement vested in the City of Los Angeles for street purposes) and good title to the balance of the Property, free and clear of all Liens whatsoever except the Permitted Encumbrances. There are no Liens on the direct or indirect Equity Interests in Borrower (other than the Lien created by the Mezzanine Loan Documents and Permitted Encumbrances and Liens encumbering shares publicly traded on a nationally or internationally recognized stock exchange). Neither the Property nor any part thereof, nor any direct or indirect Equity Interests in Borrower, are subject to any purchase options, rights of first refusal, rights of first offer or other similar rights in favor of any Person. The Permitted Encumbrances in the aggregate do not materially and adversely affect the value, operation or use of the Property (as currently used) or Borrower’s ability to repay the Loan. The Security Instrument, when properly recorded in the appropriate records, together with any UCC financing statements required to be filed in connection therewith, will create (a) a valid, perfected first priority lien in and to Borrower’s right, title and interest to the Property (as such term is defined in the Security Instrument), subject only to Permitted Encumbrances, and (b) perfected security interests in and to, and perfected collateral assignments of, Borrower’s right, title and interest to all Personal Property owned by Borrower (including the Leases), all in accordance with the terms thereof, in each case subject only to any applicable Permitted Encumbrances. There are no claims for payment for work, labor or materials affecting the Property, which are or may become a Lien prior to, or of equal priority with, the Liens created by the Loan Documents. There are no prior assignments of the Leases or any portion of the Revenues due and payable or to become due and payable which are presently outstanding. This Agreement, together with the other applicable Loan Documents, creates a valid and continuing security interest (as defined in the UCC) in each of the Accounts in favor of Lender, which security interest is prior to all other Liens and is enforceable as such against creditors of and purchasers from Borrower. Other than in connection with the Loan Documents and except for Permitted Encumbrances, Borrower has not sold or otherwise conveyed the Accounts. Borrower is not a party to any outstanding contract or agreement requiring it to convey its interest in the Property to any Person, other than the conveying of the leasehold interest granted pursuant to the Master Lease. (b) Compliance. Borrower and the Property (including the use thereof) comply in all material respects with all applicable Legal Requirements, including building and zoning ordinances and codes and Prescribed Laws. Pursuant to all Legal Requirements, Borrower has sufficient development rights to construct the Project and there are no remaining zoning or discretionary approvals required in order to complete the Required Improvements. There has not been committed by Borrower or to Borrower’s knowledge, any other Person in occupancy of or involved with the operation or use of the Property any act or omission affording any Governmental Authority the right of forfeiture as against the Property or any part thereof or any monies paid in performance of Borrower’s obligations under any of the Loan Documents. In the event that all or any part of the Improvements are destroyed or damaged, said Improvements can be legally reconstructed to their condition prior to such damage or destruction, and thereafter exist for the same use without violating any zoning or other ordinances applicable thereto and without the necessity of obtaining any variances or special permits. No legal proceedings are pending or, to the knowledge of Borrower, threatened in writing with respect to the zoning of the Property. Neither the zoning nor any other right to construct, use or operate the Property is in any way dependent upon or related to any property other than the Property (except for any easements or rights-of-way which are Permitted Encumbrances). The use being made of the Property is (or with respect to the Project, will be upon Completion) in conformity with the certificate of occupancy issued for the Property and all other restrictions, covenants and conditions affecting the Property. The Loan is solely for the business purpose of Borrower, and is not for personal, family, household, or agricultural purposes. (c) Condemnation. No Condemnation or other similar proceeding has been commenced or, to Borrower’s best knowledge, is threatened or contemplated with respect to all or any portion of the Property or for the relocation of any roadway providing access to the Property.
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-74- 28722485.v7 termination of any policy of insurance or bond. Except for the matter set forth on Schedule VII hereto (the costs of which are covered by insurance), the Improvements have suffered no material casualty or damage which has not been fully repaired and the cost thereof fully paid. (k) Boundaries; Survey. All of the improvements which were included in determining the appraised value of the Property lie wholly within the boundaries and building restriction lines of the Property, and no improvements on adjoining properties encroach upon the Property, and no easements or other encumbrances upon the Property encroach upon any of the Improvements, so as to affect the value or marketability of the Property except those which are insured against by the Title Insurance Policy. The Survey does not fail to reflect any material matter affecting the Property or the title thereto. (l) Leases. (i) The Property is not subject to any Leases other than the Master Lease, and the demised premises under the Master Lease constitute the entirety of the Land and the Improvements. The initial term of the Master Lease does not expire prior to the date that is the later to occur of the date that is (A) fifteen (15) years following the Must-Take Space Commencement Date (as defined in the Master Lease and (B) fifteen (15) years following the Closing Date. Master Tenant is required to commence payment of base rental payments under the Master Lease, with respect to Building A, not later than the Closing Date, and, with respect to the Required Improvements, on the date (such date, the “Master Lease Payment Outside Date”) that is the earlier to occur of (x) the date on which the Project is Substantially Complete and (y) the Substantial Completion Due Date. (ii) With respect to each Lease (including, without limitation, the Master Lease, (A) Borrower is the owner of landlord’s interest in such Lease, (B) other than with respect to Permitted Encumbrances, no Person has any possessory interest in the Property or right to occupy the same except under and pursuant to the provisions of such Lease, (C) such Lease is in full force and effect, the tenants thereunder have accepted possession of and are in occupancy of all of their respective demised premises (except, prior to the Substantial Completion Due Date, Building B), are open for business, and are paying (except, prior to the Master Lease Payment Outside Date, the Master Lease Payments in respect of Building B) full, unabated rent, and no tenant under such Lease has given Borrower any notice of its intent to terminate such Lease or vacate the leased premises (and Borrower has no knowledge that any such tenant intends to so terminate or vacate), (D) Borrower has not received written notice from any tenant under such Lease claiming that Borrower (or any prior landlord) is in default thereunder, and to the knowledge of Borrower there are no defaults under such Lease by any party thereto, (E) no Revenue has been paid more than one (1) month in advance of its due date, (F) all work to be performed by Borrower (or any prior landlord) under such Lease (other than, with respect to the Master Lease, the Required Improvements) has been performed as required and has been accepted by the applicable tenant, (G) any payments, free rent, partial rent, rebate of rent or other payments, credits, allowances or abatements required to be given by Borrower to any tenant has already been received by such tenant, (H) all security deposits are held by Borrower in accordance with the terms of such Lease and applicable Legal Requirements, (I) no tenant under such Lease is a debtor in state or federal bankruptcy, insolvency, or similar proceeding, (J) other than Master Tenant under the Master Lease, no tenant under such Lease (or any sublease) is an Affiliate of Borrower, (K) except, in each case, in accordance with the express provisions of this Agreement, no tenant has assigned any interest in such Lease or sublet all or any portion of the premises demised thereby, no such tenant holds its leased premises under assignment or sublease, nor does anyone except such tenant and its
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-80- 28722485.v7 after Borrower’s knowledge of such, Borrower shall provide to Lender, the identity of the proposed replacement Independent Director or Independent Manager, as applicable, together with a certification that such replacement satisfies the requirements set forth with respect to an Independent Director or Independent Manager in this Agreement. (ii) Borrower shall not (A) violate, and shall not permit any other Person in occupancy of or involved with the operation or use of the Property to violate, any Prescribed Laws or otherwise commit any act or omission affording any Governmental Authority the right of forfeiture against the Property or any part thereof or any monies paid in performance of Borrower’s obligations under any of the Loan Documents, or (B) at all times throughout the term of the Loan, including after giving effect to any Transfers permitted pursuant to the Loan Documents, permit (or allow to occur) (I) any of the funds or other assets of Borrower, SPE Component Entity, or Guarantor to constitute property of, or be beneficially owned, directly or indirectly, by any Embargoed Person, (II) an Embargoed Person to own any interest of any nature whatsoever in Borrower, SPE Component Entity or Guarantor, as applicable, or (III) any of the funds of Borrower, SPE Component Entity, or Guarantor, as applicable, to be derived from any unlawful activity, in each case with respect to the foregoing clauses (I) through (III) with the result that the investment in Borrower, SPE Component Entity, or Guarantor, as applicable (whether directly or indirectly), is or would be prohibited by applicable Legal Requirements, or the Loan is or would be in violation of applicable Legal Requirements. Borrower covenants and agrees that in the event Borrower receives any notice that Borrower (or any of its beneficial owners, affiliates or participants) or any Person that owns a direct or indirect interest in the Property (other than a public shareholder of Guarantor) becomes an Embargoed Person or is indicted, arraigned, or custodially detained on charges involving money laundering or predicate crimes to money laundering, Borrower shall promptly notify Lender. At Lender’s option, it shall be an Event of Default hereunder if any of the representations and warranties contained in Section 4.1.1(j) hereof are untrue in any material respect at any time. Borrower acknowledges that the Prescribed Laws require all financial institutions to obtain, verify and record certain information that identifies individuals or business entities which open an “account” with such financial institution. Consequently, Lender may from time-to-time request, and Borrower shall provide to Lender, Borrower’s name, address, tax identification number and/or such other identification information as shall be necessary for Lender to comply with federal law (including such information concerning its direct and indirect owners), and re-make the representations and warranties contained in Section 4.1.1(j) hereof. An “account” for this purpose may include, without limitation, a deposit account, cash management service, a transaction or asset account, a credit account, a loan or other extension of credit, and/or other financial services product. (iii) Required Equity/Control Requirements. The Required Equity/Control Requirements shall remain satisfied at all times. (c) ERISA. Assuming that no portion of the Loan is funded (initially or through participation, assignment, transfer or securitization of the Loan) with plan assets of any plan covered by XXXXX xx §0000 of the Code, unless the Lender (or other applicable party) relied on an available prohibited transaction exemption, all of the conditions of which are and will continue to be satisfied, Borrower shall not engage in any transaction that would cause any obligation, or action taken or to be taken, hereunder (or the exercise by Lender of any of its rights under the Loan Documents) to be a non-exempt (under a statutory or administrative class exemption) prohibited transaction under ERISA, or otherwise cause Borrower to be unable to make the representations contained in Section 4.1.1(g) hereof. Borrower further covenants and
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-81- 28722485.v7 agrees to deliver to Lender such certifications or other evidence from time to time throughout the term of the Loan, as reasonably requested by Lender, that (i) the representations contained in Section 4.1.1(g) hereof are true and correct as of the date of such certification, and (ii) one or more of the following circumstances is true: (A) Equity Interests in Borrower are publicly offered securities, within the meaning of 29 C.F.R §2510.3-101(b)(2); (B) less than twenty-five percent (25%) of each outstanding class of Equity Interests in Borrower are held by “benefit plan investors” within the meaning of 29 C.F.R §2510.3-101(f)(2); (C) Borrower qualifies as an “operating company” or a “real estate operating company” within the meaning of 29 C.F.R §2510.3-101(c) or (e); or (D) the assets of Borrower are not otherwise “plan assets” (within the meaning of 29 C.F.R. §2510.3-101) of one or more “employee benefit plans” (as defined in §3(3) of ERISA) subject to Title I of ERISA. (d) Transfers. (i) Without the prior written consent of Lender, Borrower shall not, and shall not permit to occur, any (y) Transfer (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) of the Property, any part thereof, or any legal or beneficial interest therein, or any direct or indirect Equity Interest in any Restricted Party, or (z) effectuate change of Control of a Restricted Party. Notwithstanding the foregoing provisions of this Section 5.1.1(d), the following Transfers (collectively, the “Permitted Transfers”) shall be permitted without Lender’s consent (subject to the satisfaction of the applicable terms and conditions set forth below): (A) Permitted Encumbrances; (B) Transfers of worn out or obsolete Personal Property that are promptly replaced with property of equivalent value and functionality if reasonably necessary or which is no longer necessary in connection with the operation of any Property; (C) the Master Lease and any other Leases that have been approved by Lender (or that do not require Lender’s approval) in accordance with the this Agreement; (D) the pledge of any direct or indirect Equity Interest in Borrower by Mezzanine Borrower in connection with the Mezzanine Loan and, Transfer of the direct Equity Interests in Borrower to Mezzanine Lender (and any change of Control in Borrower or Mezzanine Borrower), in each case, pursuant to a foreclosure or voluntary transfer in lieu thereof to the Mezzanine Lender or other exercise of remedies by Mezzanine Lender under the Mezzanine Loan Documents; (E) the Transfer of publicly traded shares on a nationally or internationally recognized stock exchange in any direct or indirect equity owner of Mezzanine Borrower; and (F) Transfer of the Property pursuant to a foreclosure or voluntary transfer in lieu thereof to Lender or other exercise of remedies by Lender; provided, however, in each case with respect to any such Transfer described in clause (E) above, the following conditions are satisfied:
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-82- 28722485.v7 1. to the extent Borrower has knowledge of any Transfer that would cause the transferee to increase its direct or indirect interest in Borrower to an amount which equals or exceeds 10% of the direct or indirect Equity Interests in Borrower (and such transferee did not hold at least a 10% interest prior to such Transfer), Borrower shall give Lender written notice of such Transfer, and an Officer’s Certificate certifying that the requirements of this Section 5.1.1(d) have been satisfied, not less than ten (10) Business Days after Borrower obtains knowledge of such Transfer; 2. such Transfer does not result in the Required Equity/Control Requirements failing to be satisfied; 3. such Transfer does not and will not result in the termination or dissolution of Borrower, SPE Component Entity (if any) or Guarantor, by operation of law or otherwise; 4. no such Transfer shall be to any Person that would cause the representations made in Sections 4.1.1(g), (h) or 4.1.1(j) to be untrue if made immediately following such Transfer; 5. no such Transfer shall cause Borrower or any SPE Component Entity to fail to be a Special Purpose Entity after such Transfer; 6. no such Transfer shall consist of a Transfer of the Equity Interests in Borrower or Mezzanine Borrower owned by SPE Component Entity (if any); 7. (I) if such Transfer would cause the transferee to increase its direct or indirect interest in Borrower to an amount which equals or exceeds 10% of the direct or indirect Equity Interests in Borrower (and such transferee did not hold at least a 10% interest prior to such Transfer), such proposed transferee complies with, (x) other than with respect to Transfers of direct or indirect ownership interests in Borrower constituting publicly traded shares on a nationally or internationally recognized stock exchange, all of Lender’s “know your customer” requirements, and (y) all Prescribed Laws and all applicable banking rules and regulations, and (II) unless the applicable Transfer is a Transfer of direct or indirect ownership interests in Borrower constituting publicly traded shares on a nationally or internationally recognized stock exchange, Borrower shall, prior to such Transfer, deliver to Lender (at Borrower’s sole cost and expense) customary searches (credit, judgment, lien, etc.) acceptable to Lender with respect to such transferee; 8. if approved by Lender, if any such Transfer results in a Person owning more than forty-nine percent (49%) of the direct or indirect interests in Borrower that did not own such amount prior to such Transfer or results in a change of Control of Borrower, then Lender shall have received a substantive consolidation opinion in form and content acceptable to Lender; and
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-83- 28722485.v7 9. Borrower shall have reimbursed Lender for all reasonable and actual out-of-pocket expenses incurred by Lender in connection with such Transfer. (ii) Lender shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon a Transfer in violation of this Agreement. This Section 5.1.1(d) shall apply to every such Transfer regardless of whether voluntary or not, or whether or not Lender has consented to any previous such Transfer. Borrower acknowledges that Lender has examined and relied on the experience of Borrower and Guarantor in owning and operating properties such as the Property in agreeing to make the Loan, and will continue to rely on such Persons’ ownership of Borrower and the Property as a means of maintaining the value of the Property as security for repayment of the Debt and the performance of the Obligations contained in the Loan Documents. Borrower acknowledges that Lender has a valid interest in maintaining the value of the Property so as to ensure that, should Borrower default in the repayment of the Debt or the performance of the Obligations, Lender can recover the Debt by a sale of the Property. For all purpose under the Loan Documents, a Transfer of the Property or Borrower shall include, but not be limited to: (A) an installment sales agreement wherein Borrower agrees to sell the Property, or any part thereof, for a price to be paid in installments; (B) an agreement by Borrower leasing all or substantially all of the Property for other than actual occupancy by a space tenant thereunder, or a sale, assignment or other transfer of, or the grant of a security interest in, Borrower’s right, title and interest in and to any Leases or any Revenues (provided that the foregoing shall not be construed to prohibit Borrower from entering into a non-binding term sheets for the sale and/or sale-leaseback of the Property which are not recorded and are expressly subject and subordinate to the Loan Documents); (C) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (D) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the limited liability company interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (E) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the limited liability company interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such limited liability company interest, or the Sale or Pledge of non-managing limited liability company interests or the creation or issuance of new non-managing limited liability company interests; (F) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; or (G) the removal or the resignation of the Manager other than in accordance with Section 5.1.2(g) hereof. (iii) Borrower may, without the consent of Lender, grant easements, restrictions, covenants, reservations and rights of way in the ordinary course of business for access, water and sewer lines, telephone and telegraph lines, electric lines or other utilities, provided that no such encumbrance shall materially impair the utility and operation of the Property or have a Material Adverse Effect. In connection with any encumbrance permitted pursuant to this Section 5.1.1(d)(iii), Lender shall execute and deliver any instrument reasonably necessary or appropriate to subordinate the Lien of the
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-85- 28722485.v7 Borrower has received funds pursuant to Section 3.1(b) hereof, if applicable) with a detailed explanation of any variances of five percent (5%) or more between budgeted and actual amounts for such periods, and identifying any payment made to an Affiliate of Borrower and the reasons therefor; (B) a list of tenants, if any, occupying more than ten percent (10%) of the total floor area of the Improvements; (C) a breakdown showing the year in which each Lease then in effect expires and the percentage of total floor area of the Improvements and the percentage of base rent with respect to which Leases shall expire in each such year, each such percentage to be expressed on both a per year and cumulative basis (and such other occupancy statistics for the Property as Lender may request); (D) an Officer’s Certificate certifying to such officer’s knowledge that each annual financial statement fairly presents the financial condition and the results of operations of Borrower and the Property being reported upon and that such financial statements have been prepared in accordance with the Approved Accounting Method and as of the date thereof whether there exists an event or circumstance which constitutes a Default or Event of Default under the Loan Documents executed and delivered by, or applicable to, Borrower and if such Default or Event of Default exists, the nature thereof, the period of time it has existed and the action then being taken to remedy the same; and (E) a certification to Lender identifying the name and contact information of each Independent Director or Independent Manager required hereunder. (iii) Not later than forty-five (45) days prior to the commencement of each fiscal year, Borrower shall submit to Lender its proposed annual budget for the Property detailing all anticipated Operating Expenses and Operating Income for the Property for the ensuing fiscal year in form reasonably satisfactory to Lender. Such proposed budget shall be subject to Lender’s written approval (when so approved, an “Approved Annual Budget”), not to be unreasonably withheld, conditioned or delayed. Until such time that Lender approves a proposed budget, the most recently Approved Annual Budget shall apply; provided, however, that such Approved Annual Budget shall be deemed adjusted to reflect actual increases in the amount of Property Taxes, Insurance Premiums and Other Charges. The approved Annual Budget for the remainder of calendar year 2022 is attached hereto as Exhibit D. (iv) Borrower will furnish, or cause to be furnished, to Lender on or before thirty (30) days after the end of each calendar quarter, (A) Borrower’s calculation of the Debt Yield for the twelve (12) month period ending at the end of such calendar quarter (provided that Borrower may make such calculations using its reasonable expectation of the adjustments to be made to such calculations pursuant to the definition of UNOI contained herein) accompanied by an Officer’s Certificate with respect thereto, together with Borrower’s method of calculation and such detail and background information as Lender shall reasonably require, (B) accompanied by an Officer’s Certificate stating that such items are true, correct, accurate, and complete in all material respects and fairly present in all material respects the financial condition and results of the operations of Borrower and the Property (subject to normal year-end adjustments): (I) a rent roll for the subject quarter; (II) subject to any appropriate reconciliations, quarterly and year-to-date operating statements prepared for each calendar month, noting Net Operating Income, Operating Income (and any other Revenues not already included therein), and Operating Expenses, and, upon Lender’s request, other information necessary and sufficient to fairly represent in all material respects the financial position and results of operation of the Property during such calendar quarter, and containing a comparison of budgeted income and expenses (including Cash Expenses and Extraordinary Expenses for which Borrower has received funds pursuant to Section 3.1(b) hereof, if applicable) and the actual income
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-88- 28722485.v7 (d) REAs. Borrower shall, at its sole cost and expense, promptly and timely perform and observe all the material terms, covenants and conditions required to be performed and observed by Borrower under the REAs. Borrower shall notify Lender promptly in writing of the occurrence of any material default by any party to the REAs or the occurrence of any event that, with the passage of time or service of notice, or both, would constitute a material default by any party to the REAs, and the receipt by Borrower of any notice (written or otherwise) from any party under the REAs noting or claiming the occurrence of any default by Borrower under the REAs or the occurrence of any event that, with the passage of time or service of notice, or both, would constitute a default by Borrower under the REAs. Borrower shall promptly deliver to Lender a copy of any such written notice of default. Borrower hereby collaterally assigns to Lender all of its rights under the REAs to vote on any matters concerning the Property or the REAs, provided that such Voting rights are hereby licensed back to Borrower effective so long as no Event of Default exists and is continuing. So long as any of the Obligations remains outstanding (other than contingent indemnification obligations which expressly survive the repayment of the Debt), Borrower shall not exercise any purchase right, purchase option or similar rights granted to Borrower with respect to any real property without Lender’s approval. (e) Zoning; REAs. Borrower shall not initiate or consent to any zoning reclassification of any portion of the Property or seek any variance under any existing zoning ordinance or use or permit the use of any portion of the Property in any manner that could result in such use becoming a non-conforming use under any zoning ordinance or any other applicable land use law, rule or regulation, in each case, without the prior consent of Lender. Borrower shall not, without Lender’s written consent, (i) fail to exercise any option or right to renew or extend the term of the REAs (if applicable) in accordance with the terms of the REAs, and shall give immediate written notice to Lender and shall execute, acknowledge, deliver and record any document requested by Lender to evidence the Lien of the Security Instrument on such extended or renewed term (and if Borrower shall fail to exercise any such option or right as aforesaid, Lender may exercise the option or right as Borrower’s agent and attorney-in-fact as provided above in Lender’s own name or in the name of and on behalf of a nominee of Lender, as Lender may determine in the exercise of its sole and absolute discretion); (ii) waive, excuse, condone or in any way release or discharge any party to the REAs of or from their material obligations, covenant and/or conditions under the REAs; (iii) surrender, terminate, forfeit, or suffer or permit the surrender, termination or forfeiture of, or change, modify or amend in a material or adverse manner, the REAs. (f) Operation of the Property. (i) Borrower shall cause the Property to be maintained in a good and safe condition and repair in all material respects, and at all times keep the Property in good working order and repair (subject to ordinary wear and tear and casualty damage, and, with respect to Building B only, taking into account, prior to Substantial Completion, the construction of the Required Improvements to the extent effectuated in accordance with the terms and conditions set forth in this Agreement). Lender acknowledges that the Property is managed as of the Closing Date by Borrower and does not have professional management as otherwise required by this Section 5.1.2(f). Lender agrees, subject to the terms of Section 5.1.2(f)(ii), that Borrower may continue to manage the Property. (ii) Borrower will not engage a Manager, developer or leasing agent without Lender’s prior written consent, not to be unreasonable withheld, conditioned or delayed. If Lender reasonably determines that the Property is not being managed in accordance with generally accepted management practices for properties similar to the Property, then Lender may, at its option, deliver written notice to Borrower, which written notice will specify the issues for Lender’s determination. If Lender determines that the issues specified in such written notice are not remedied to Lender’s reasonable satisfaction by Borrower
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-89- 28722485.v7 within thirty (30) days from receipt of such written notice or that Borrower has failed to diligently undertake correcting such issues within such thirty (30) day period, or if an Event of Default has occurred and is continuing, Borrower will, at Lender’s direction, engage a Qualified Manager reasonably satisfactory to Lender at all times under a property management agreement approved by Lender in writing, which Manager will execute an Assignment of Management Agreement in a form acceptable to Lender. (iii) If Borrower is required to engage a Qualified Manager in accordance with Section 5.1.2(f)(ii), then Borrower shall cause the Property to be operated, in all material respects, in accordance with the Management Agreement. If the Management Agreement expires or is terminated (without limiting any obligation of Borrower to obtain Lender’s consent to any termination or modification of the Management Agreement in accordance with the terms and provisions of this Agreement), Borrower shall promptly enter into a Management Agreement in form and content reasonably acceptable to Lender with Manager approved by Lender. Borrower shall: (i) promptly perform and/or observe, in all material respects, all of the covenants and agreements required to be performed and observed by it under the Management Agreement and do all things necessary to preserve and to keep unimpaired its material rights thereunder; (ii) promptly notify Lender of any material default under the Management Agreement of which it is aware; (iii) promptly deliver to Lender a copy of each financial statement, business plan, capital expenditures plan, notice, report and estimate received by it under the Management Agreement; and (IV) enforce the performance and observance of all of the covenants and agreements required to be performed and/or observed by Manager under the Management Agreement, in a commercially reasonable manner. If (1) an Event of Default occurs or if Lender or any other Person takes possession of the Property or any portion thereof through foreclosure, conveyance in lieu of foreclosure or other similar transaction, (2) if Manager files or is the subject of a petition in bankruptcy or similar proceeding, or a trustee or receiver is appointed for Manager’s assets or Manager makes an assignment for the benefit of creditors or Manager is adjudicated insolvent, (3) a default occurs under the Management Agreement on the part of either Borrower or Manager, beyond any applicable grace and cure periods, (4) a change of Control of Manager occurs, or (5) Manager shall commit gross negligence, fraud, illegal acts, or willful misconduct, Borrower shall, at the request of Lender, terminate the Management Agreement and replace Manager with a Manager reasonably approved by Lender. (g) Management Agreement. If Borrower is required to engage a Qualified Manager in accordance with Section 5.1.2(f)(ii), then Borrower shall not, without Lender’s prior written consent: (i) surrender, terminate or cancel the Management Agreement; provided, that Borrower may, without Lender’s consent, not to be unreasonably withheld, replace the Manager so long as the replacement manager is a Qualified Manager engaged pursuant to a Replacement Management Agreement; (ii) reduce or consent to the reduction of the term of the Management Agreement; (iii) increase the amount of any charges or fees payable to Manager under the Management Agreement in excess of three percent (3.0%) of Operating Income per annum; or (iv) otherwise modify, change, supplement, alter or amend, or waive or release any of its rights and remedies under, the Management Agreement in any material respect. Borrower shall not permit Manager to assign or subcontract Manager’s rights, duties or responsibilities under the Management Agreement to any other Person without the express written consent of Lender. Following the occurrence and during the continuance of an Event of Default, Borrower shall not exercise any rights, make any decisions, grant any approvals or otherwise take any action under the Management Agreement without the prior written consent of Lender, which consent may be granted, conditioned or withheld in Lender’s sole discretion.
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-101- 28722485.v7 following hazards: (1) premises and operations; (2) products and completed operations on an “if any” basis; (3) independent contractors; and (4) contractual liability for all insured contracts; and (D) providing for no deductible in excess of Twenty-Five Thousand and 00/100 Dollars ($25,000) unless approved by Lender in writing; (iii) rental loss and/or business income interruption insurance (A) with loss payable to Lender as its interest shall appear; (B) covering all risks or “special form” required to be covered by the insurance provided for in clause (i) above; (C) containing an extended period of indemnity endorsement which provides that after the physical loss to the Improvements and the Personal Property has been repaired, the continued loss of income will be insured until such income either returns to the same level it was at prior to the loss, or the expiration of at least twelve (12) months from the date that the Property is repaired or replaced and operations are resumed, whichever first occurs, and notwithstanding that the policy may expire prior to the end of such period; and (D) in an amount equal to one hundred percent (100%) of the projected Revenues (which may be reduced to reflect non-continuing expenses) for a period of at least eighteen (18) months from the date of such Casualty (assuming such Casualty had not occurred) and notwithstanding that the policy may expire at the end of such period. The amount of such business income insurance shall be determined prior to the Closing Date and at least once each year thereafter based on Borrower’s reasonable estimate of the Revenues for the succeeding twelve (12) month period; (iv) at all times during which structural construction, repairs or alterations are being made with respect to the Improvements, and only if the property and liability coverage forms do not otherwise apply, (A) commercial general liability and umbrella liability insurance covering claims related to the structural construction, repairs or alterations being made at the Property which are not covered by or under the terms or provisions of the commercial general liability and umbrella liability insurance policies required herein; and (B) the insurance provided for in clause (i) above written in a so-called builder’s risk completed value form (1) on a non-reporting basis, (2) against all risks insured against pursuant to clause (i) above, (3) including permission to occupy the Property, and (4) with an agreed amount endorsement waiving co-insurance provisions; (v) if applicable, worker’s compensation insurance with respect to any employees of Borrower, as required by any Governmental Authority or Legal Requirement and employer’s liability in amounts acceptable to Lender; (vi) comprehensive boiler and machinery insurance, if applicable, in amounts as shall be reasonably required by Lender on terms consistent with the commercial property insurance policy required under clause (i) above; (vii) umbrella/excess liability insurance in an amount not less than Twenty Million and No/100 Dollars ($20,000,000.00) per occurrence on terms consistent with the commercial general liability insurance policy required under clause (ii) above; (viii) if applicable, commercial motor vehicle liability coverage for all owned and non-owned vehicles, including rented and leased vehicles containing minimum limits per occurrence, including umbrella coverage, of One Million and No/100 Dollars ($1,000,000);
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-102- 28722485.v7 (ix) pollution legal liability insurance against claims for pollution legal liability resulting from existing conditions and new pollution events related to the Property in form and substance acceptable to Lender (“PLL Policy”), such insurance: (A) to be a claims made and reported policy which shall be maintained, either by renewal, extension or replacement, for a period commencing no later than the Closing Date and continuing through the date that is twenty-four (24) months beyond the fully extended Maturity Date (the “Required PLL Period”); provided, that, no later than the date that is twelve (12) months prior to the Maturity Date, Borrower shall have caused the PLL Policy to be effective through the end of the Required PLL Period without the need for any further renewal, extension or replacement of the PLL Policy; (B) to have a limit of liability of Ten Million Dollars ($10,000,000) for each incident and Ten Million Dollars ($10,000,000) in the aggregate, (C) to have a self-insured retention not to exceed One Hundred Thousand Dollars ($100,000) for each incident; (D) shall name Lender as an additional named insured with its successors and/or assigns as their interests may appear; (E) shall name Lender pursuant to a “Mortgagee Assignment” or similar endorsement providing automatic rights of assignment in the event of default solely to the Property; and (F) shall, throughout the Required PLL Period, include the same coverages, terms, conditions and endorsements (and shall not be modified or cancelled without the prior written consent of Lender) as the PLL Policy approved as of the Closing Date; (x) the commercial property, business income, commercial general liability and umbrella liability insurance required under Sections 6.1(a)(i), (ii), (iii) and (vii) above shall provide Terrorism Coverage (defined below), whether caused by a foreign or domestic source and Borrower shall maintain Terrorism Coverage on terms (including amounts) consistent with those required under Sections 6.1(a)(i), (ii), (iii) and (vii) above at all times during the term of the Loan; provided, however, in the event the insurance required under Sections 6.1(a)(i) and (iii) above shall contain an exclusion for loss resulting from perils and acts of terrorism, Borrower shall maintain a separate, stand-alone terrorism insurance policy satisfactory to Lender in its commercially reasonable discretion. As used above, “Terrorism Coverage” shall mean acts of terror or similar acts of sabotage; provided, that, for so long as the Terrorism Risk Insurance Act of 2002, as extended and modified by the Terrorism Risk Insurance Program Authorization Act of 2007 (1) remains in full force and effect and (2) continues to cover both foreign and domestic acts of terror, the provisions of such law that define “covered acts” shall determine what is deemed to be included within this definition of “Terrorism Coverage”; (xi) upon not less than thirty (30) days’ notice, such other reasonable insurance and in such reasonable amounts as Lender from time to time may reasonably request against such other insurable hazards which at the time are commonly insured against for properties similar to the Property located in or around the region in which the Property is located. (b) All insurance provided for in Section 6.1(a) shall be obtained under valid and enforceable policies (collectively, the “Policies” or in the singular, the “Policy”), and shall be subject to the approval of Lender, not to be unreasonably withheld, conditioned or delayed, as to insurance companies, amounts, deductibles, loss payees and insureds. The Policies shall be issued by financially sound and responsible insurance companies authorized to do business in the State and having a claims paying ability rating of “A” or better by S&P, or “A2” or better by Moody’s, or “AX” or better by AM Best (but in such case only to the extent that such Rating Agency rates the applicable insurer). The Policies described in Section 6.1(a) hereof (other than those strictly limited to liability protection) shall designate Lender as mortgagee and loss payee. Not less than ten (10) days prior to the expiration dates of the Policies theretofore
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-105- 28722485.v7 (ii) (A) in the event the Net Proceeds are insurance proceeds, less than thirty percent (30%) of the total floor area of the Improvements on the Property has been damaged, destroyed or rendered unusable as a result of such Casualty, or (B) in the event the Net Proceeds are Condemnation proceeds, less than fifteen percent (15%) of the land constituting the Property is taken, and such land is located along the perimeter or periphery of the Property, and no portion of the Improvements on the Property is located on such land or is being taken; (iii) the Master Lease, any Material Agreements and any REAs shall remain in full force and effect during and after the completion of the Restoration, without abatement of rent beyond the time required for Restoration, notwithstanding the occurrence of any such Casualty or Condemnation; (iv) Lender shall have determined in good faith that the proceeds of any applicable business interruption insurance (together with any projected Revenues and any additional funds to be deposited with Lender for such purposes) are sufficient to pay all Debt Service coming due under the Loan Documents and all Operating Expenses through the end of the Restoration; (v) Lender shall be satisfied that the Restoration will be completed on or before the earliest to occur of (A) six (6) months prior to the Maturity Date, (B) such time as may be required under applicable Legal Requirements, and (C) the expiration of any applicable business interruption coverage; (vi) the Property and the use thereof after the Restoration will be in compliance with and permitted under all applicable Legal Requirements; (vii) such Casualty or Condemnation, as applicable, does not result in the total loss of access to the Property or the related Improvements; (viii) Lender shall have determined that, after giving effect to the Restoration, the Debt Yield shall be equal to or greater than the higher of (A) eight and one-half percent (8.5%), and (B) the Debt Yield in effect immediately prior to the applicable Casualty or Condemnation; (ix) Intentionally omitted; (x) Lender shall have determined that, after giving effect to the Restoration, the ratio (expressed as a percentage) in which the numerator is the Outstanding Principal Balance and the denominator is equal to the appraised value of the Property (as determined pursuant to an Appraisal ordered by Lender (but at the sole cost and expense of Borrower) and based upon assumptions acceptable to Lender, and otherwise acceptable to Lender in its sole but good faith discretion), shall not be greater than the lower of (A) forty-five percent (45%), and (B) such ratio in effect immediately prior to the applicable Casualty or Condemnation; (xi) Borrower shall deliver, or cause to be delivered, to Lender a signed detailed budget approved in writing by Borrower’s architect or engineer stating the entire cost of completing the Restoration, which budget shall be subject to Lender’s approval in Lender’s sole but good faith discretion; and
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-106- 28722485.v7 (xii) the Net Proceeds together with any cash or cash equivalent deposited by Borrower with Lender are sufficient in Lender’s reasonable discretion to cover the cost of Restoration. (c) All Net Proceeds received by Lender and not disbursed to Borrower shall be held by Lender in the Net Proceeds Reserve Account and shall be applied (i) to the repayment of Debt if Lender so elects and is not required to allow Borrower to use the same as provided in Section 6.4(a) above, or (ii) toward the cost of Restoration to the extent so required pursuant to Section 6.4(a) above; provided, however, that nothing herein contained shall be deemed to relieve Borrower of its obligations to pay the Debt on the respective dates of payment provided for, or perform the Obligations as required under, this Agreement and the other Loan Documents, except to the extent such amounts are actually paid out of such Net Proceeds. If the conditions described in Section 6.4(b) have been satisfied, Borrower shall commence any applicable Restoration as soon as reasonably practicable (but in no event later than ninety (90) days after Lender has informed Borrower as to whether such conditions have been satisfied, subject to Excusable Delay) and shall complete the same in an expeditious and diligent fashion and in compliance with all applicable Legal Requirements in all material respects. If such conditions have not been satisfied, Borrower shall not be deemed to be in Default hereunder for failing to diligently pursue a Restoration for a period of sixty (60) days thereafter so long as the Debt is repaid in full within such 60-day period (provided that the foregoing shall not be deemed a waiver of any other Default or Event of Default that may occur during such 60-day period). (d) Notwithstanding anything to the contrary in this Agreement, all insurance proceeds received by Borrower or Lender in respect of business interruption coverage shall be held by Lender in the Net Proceeds Reserve Account and, so long as no Event of Default then exists, shall be applied at Lender’s sole discretion to (i) the Debt then due and payable, and (ii) Operating Expenses approved by Lender in its sole discretion; provided, however, that nothing herein contained shall be deemed to relieve Borrower of its obligations to pay the Debt on the respective dates of payment provided for, or perform its Obligations as required under, this Agreement and the other Loan Documents. (e) If required pursuant to this Section 6.4, funds in the Net Proceeds Reserve Account shall be disbursed by Lender to pay the costs of the Restoration, to, or as directed by, Borrower from time to time during the course of the Restoration, upon receipt of evidence satisfactory to Lender that (i) all materials installed and work and labor performed (except to the extent that they are to be paid for out of the requested disbursement) in connection with the Restoration have been paid for in full, and (ii) there exist no notices of pendency, stop orders, mechanic’s or materialman’s liens or notices of intention to file same, or any other liens or encumbrances of any nature whatsoever on the Property which have not been fully bonded or insured to the satisfaction of Lender. All plans and specifications required in connection with Restoration shall be subject to prior review and acceptance in all respects by Lender and by an independent consulting engineer selected by Lender. The identity of the contractors, subcontractors and materialmen engaged in Restoration, as well as the contracts under which they have been engaged, shall be subject to prior review and approval by Lender, not to be unreasonably withheld, conditioned or delayed. All out-of- pocket costs and expenses incurred by Lender in connection with making the Net Proceeds available for Restoration shall be paid by Borrower. In no event shall Lender be obligated to make disbursements of the Net Proceeds in excess of an amount equal to the costs actually incurred from time to time for work in place as part of Restoration, minus an amount equal to ten percent (10%) (or such higher amount actually held back by Borrower from contractors, subcontractors and materialmen engaged in Restoration) of the direct construction “hard” costs actually incurred for work in place as part of Restoration, until Restoration has been completed. Such retained amount shall not be released until Lender has determined that Restoration has been completed in accordance with the provisions of this Section 6.4(e) and that all approvals necessary for the re-occupancy and use of the Property have been obtained from all appropriate Governmental Authorities, and Lender receives evidence satisfactory to Lender that the costs of Restoration have been
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-108- 28722485.v7 is required to be made for the payment of the amount described in this clause (b) pursuant to the terms of this Agreement) if and when required to do so hereunder; (c) if the Policies are not kept in full force and effect pursuant to the terms hereof, or if certified copies of the Policies are not delivered to Lender within thirty (30) days after Lender’s request therefor; (d) the occurrence of a Transfer (other than a Permitted Transfer in accordance with this Agreement); provided, however, (i) the existence of inchoate mechanics liens imposed by operation of law relating to labor or materials provided to the Property in compliance with the terms and conditions of the Loan Documents and as to which no enforcement, collection, execution, levy or foreclosure proceeding shall have been commenced shall not constitute an Event of Default hereunder, and (ii) the existence of an actual Lien relating to labor or materials provided to the Property in compliance with the terms and conditions of the Loan Documents shall not constitute an Event of Default hereunder so long as the same is being contested and/or has been bonded over as provided in Section 5.1.2(b) hereof within thirty (30) days after Borrower acquires actual knowledge of the filing or recording of such Lien (but in any event not later than five (5) Business Days after the commencement of an action to foreclose on such Lien); (e) if (i) any representation or warranty made by Borrower herein or by Borrower or Guarantor in any other Loan Document as of the date such representation or warranty was made or is deemed to have been remade is, or (ii) any financial statement, report, certificate or other instrument, agreement or document furnished to Lender by or on behalf of Borrower or Guarantor after the Closing Date shall have been (or contained statements or information that is), false or misleading in any material respect as of the date the same was delivered, unless with respect to the foregoing misrepresentations or false or misleading information (each, a “Misrepresentation”) (A) such Misrepresentation was not knowingly or intentionally made, (B) Lender has suffered no material Loss on account thereof (or Borrower shall have reimbursed Lender for the amount of such Loss so demanded by Lender) nor has the same resulted in a Material Adverse Effect, (C) such Misrepresentation can be cured (meaning that the facts and circumstances underlying the applicable Misrepresentation can be changed such that the applicable representation or information as made or delivered will be true and correct), and (D) such Misrepresentation has been so cured within thirty (30) days after the earlier of (1) the date on which Borrower first has actual knowledge that such Misrepresentation exists, and (2) the date on which Lender first notifies Borrower that such Misrepresentation exists); (f) if a Bankruptcy Action occurs with respect to Borrower, any SPE Component Entity, or Guarantor; provided, however, if Bankruptcy Action was involuntary and not consented to by such Person, the same shall constitute an Event of Default hereunder only upon the same not being discharged, stayed or dismissed within sixty (60) days; (g) if Borrower attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents; (h) if Borrower breaches any of the covenants set forth in Section 5.1.1(b), (d), (e), (g) or (h), Section 5.1.2(f), (g), (h), (i), (j), (n), (o), (u) or (v), Section 5.1.3 or Section 5.1.4; (i) if Borrower breaches any of its covenants contained in Section 5.1.1(f) hereof and such breach continues for a period of ten (10) days following Lender’s notice to Borrower of the same; (j) if one or more judgments or decrees shall be entered against (i) Borrower, or (ii) Guarantor (individually or collectively) involving, in the case of clause (ii) only, in the aggregate a liability in excess of $2,500,000 and, in either case, the same shall not have been vacated, bonded, satisfied or stayed
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-110- 28722485.v7 (a) Upon the occurrence and during the continuance of an Event of Default (other than an Event of Default described in Section 7.1(f) above), in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and in and to the Property, including declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents against Borrower and the Property, including all rights or remedies available at law or in equity; and upon the occurrence and during the continuance of any Event of Default described in Section 7.1(f) above, the Debt shall immediately and automatically become due and payable, without notice or demand, and Borrower hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding. (b) During the continuance of an Event of Default, all or any one or more of the rights, powers, privileges and other remedies available to Lender against Borrower under this Agreement or any of the other Loan Documents executed and delivered by, or applicable to, Borrower or at law or in equity may be exercised by Lender at any time and from time to time, whether or not all or any of the Debt shall be declared due and payable, and whether or not Lender shall have commenced any foreclosure proceeding or other action for the enforcement of its rights and remedies under any of the Loan Documents. Any such actions taken by Lender shall be cumulative and concurrent and may be pursued independently, singularly, successively, together or otherwise, at such time and in such order as Lender may determine in its sole discretion, to the fullest extent permitted by law, without impairing or otherwise affecting the other rights and remedies of Lender permitted by law, equity or contract or as set forth herein or in the other Loan Documents. Without limiting the generality of the foregoing, Borrower agrees that if an Event of Default is continuing, to the extent allowed by applicable laws, (i) Lender shall not be subject to any “one action” or “election of remedies” law or rule, (ii) all liens and other rights, remedies or privileges provided to Lender shall remain in full force and effect until Lender has exhausted all of its remedies against the Property and the Lien created by the Security Instrument has been foreclosed, sold and/or otherwise realized upon in satisfaction of the Debt or the Obligations have been paid in full, and (iii) Lender may, in its sole discretion, without impairing or otherwise affecting any other rights and remedies of Lender hereunder, at law or in equity, apply, ex parte, for the appointment of a custodian, trustee, receiver, keeper, liquidator or conservator of the Property or any part thereof, irrespective of the adequacy of the security for the Debt and without regard to the solvency of Borrower or of any Person liable for the payment of the Debt, to which appointment Borrower does hereby consent and such receiver or other official shall have all rights and powers permitted by applicable law and such other rights and powers as the court making such appointment may confer, but the appointment of such receiver or other official shall not impair or in any manner prejudice the rights of Lender to receive the Revenues with respect to the Property pursuant to this Agreement or any other Loan Document. (c) During the continuance of an Event of Default, Lender shall have the right from time to time to sever the Notes and the other Loan Documents into one or more separate notes, mortgages and other security documents in such denominations as Lender shall determine in its sole discretion for purposes of evidencing and enforcing its rights and remedies provided hereunder. Borrower shall execute and deliver to Lender from time to time, promptly after the request of Lender, a severance agreement and such other documents as Lender shall request in order to effect the severance described in the preceding sentence, all in form and substance reasonably satisfactory to Lender. Borrower hereby absolutely and irrevocably appoints Lender as its true and lawful attorney, coupled with an interest, in its name and stead to make and execute all documents necessary or desirable to effect the aforesaid severance, Borrower ratifying all that its said attorney shall do by virtue thereof; provided, however, Lender shall not make or execute any such documents under such power until three (3) Business Days after notice has been given to Borrower by Lender of Lender’s intent to exercise its rights under such power. The costs or expenses
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-111- 28722485.v7 incurred in connection with the preparation, execution, recording or filing of the foregoing Loan Documents (and amendments thereto) shall be paid by Borrower. (d) With respect to Borrower and the Property, nothing contained herein or in any other Loan Document shall be construed as requiring Lender to resort to the Property for the satisfaction of any of the Debt in any preference or priority, and Lender may seek satisfaction out of the Property, or any part thereof, in its absolute discretion in respect of the Debt. Except as limited by applicable law, Lender shall have the right from time to time to partially foreclose the Security Instrument in any manner and for any amounts secured by the Security Instrument then due and payable as determined by Lender, including the following circumstances: (i) in the event Borrower defaults beyond any applicable grace period in the payment of one or more scheduled payments of principal and/or interest, Lender may foreclose the Security Instrument to recover such delinquent payments, or (ii) in the event Lender elects to accelerate less than the entire Debt, Lender may foreclose the Security Instrument to recover so much of the Debt as Lender may accelerate and such other sums secured by the Security Instrument as Lender may elect. Notwithstanding one or more partial foreclosures, the Property shall remain subject to the Security Instrument to secure payment of sums secured by the Security Instrument and not previously recovered. (e) In addition to all remedies conferred it by law and by the terms of this Agreement and the other Loan Documents, during the continuance of an Event of Default Lender may pursue any one or more of the following remedies concurrently or successively, it being the intent hereof that none of such remedies shall be to the exclusion of any other, and with full rights to reimbursement from Borrower and any Guarantor: (i) take possession of the Property and complete any construction work at the Property, including the right to avail itself of and procure performance of existing contracts or let any contracts with the same contractors or others and to employ watchmen to protect the Property from injury. Without restricting the generality of the foregoing and for the purposes aforesaid to be exercised during the existence and continuance of an Event of Default, Borrower hereby appoints and constitutes Lender its lawful attorney-in-fact with full power of substitution to complete any construction work at the Property in the name of Borrower; (ii) use Reserve Funds to complete any construction work at the Property; (iii) make changes to the plans and specifications which shall be necessary or desirable to complete any construction work at the Property in substantially the manner contemplated by such plans and specifications; (iv) retain or employ new general contractors, subcontractors, architects, engineers and inspectors as shall be required for said purposes; to pay, settle or compromise all existing bills and claims which may be liens or security interests, or to avoid such bills and claims becoming liens against the Property, or as may be necessary or desirable for the completion of any construction work at the Property or for the clearance of title to the Property; (v) execute all applications and certificates in the name of Borrower which may be required by any of the contract documents; (vi) prosecute and defend all actions or proceedings in connection with any construction work at the Property; and (vii) take any action and require such performance as it deems necessary to be furnished hereunder and to make settlements and compromises with the surety or sureties thereunder, and in connection therewith, to execute instruments of release and satisfaction. (f) Any amounts recovered from the Property or any other collateral for the Loan after an Event of Default may be applied by Lender toward the payment of the Debt in such order, priority and proportions as Lender determines. (g) The rights, powers and remedies of Lender under this Agreement shall be cumulative and not exclusive of any other right, power or remedy which Lender may have against Borrower or Guarantor pursuant to this Agreement or the other Loan Documents, or existing at law or in equity or otherwise. Lender’s rights, powers and remedies may be pursued singularly, concurrently or otherwise, at such time and in such order as Lender may determine in Lender’s sole discretion.
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-114- 28722485.v7 Agreement as required pursuant to this Agreement (including amounts payable by Borrower pursuant to Section 2.2.7, it being agreed that Lender shall have no obligation to purchase an Interest Rate Cap Agreement, Replacement Interest Rate Cap Agreement or Substitute Interest Rate Cap Agreement on behalf of Borrower, and that Lender’s Losses on account of Borrower’s failure to purchase an Interest Rate Cap Agreement, Replacement Interest Rate Cap Agreement or Substitute Interest Rate Cap Agreement are not limited to the cost of such Interest Rate Cap Agreement, Replacement Interest Rate Cap Agreement or Substitute Interest Rate Cap Agreement at the time the same was required to be purchased); (x) Borrower’s failure to obtain and maintain the fully paid for Policies in accordance with Section 6.1 attributable to the time that Borrower owns the Property; (xi) Borrower’s failure to pay all Property Taxes attributable to the time that Borrower owns the Property prior to the same becoming delinquent; (xii) the failure of Borrower or any SPE Component Entity to be a Special Purpose Entity; (xiii) any liability under the WARN Act or any other applicable similar law that arises as a result of the termination of any of the employees at the Property, provided that Borrower shall in no event be liable under this clause 8.2(xiii) to the extent the termination of employees was made by or at the direction of Lender; (xiv) the forfeiture by any Borrower Party of the Property or any material portion thereof, caused by or resulting from criminal conduct or activity by Borrower or any Borrower Party in connection therewith; (xv) any transfer, mortgage, mortgage recording, stamp, intangible or other similar Taxes for which Lender becomes obligated, directly or indirectly, following a foreclosure of the Property or action in lieu thereof; (xvi) any Withdrawal Liability or similar amounts incurred by Borrower or any Affiliate of Borrower for which Lender becomes obligated, directly or indirectly, upon the conclusion of a foreclosure of the Property or action in lieu thereof; (xvii) any distributions made by any Borrower Party in violation of the terms of the Loan Documents; (xviii) the failure of Borrower, Guarantor or any SPE Component Entity to be a Special Purpose Entity; (xix) the failure of Borrower to comply with any provisions of Section 5.1.1(f) hereof; (xx) the failure of Borrower to comply with any provisions of Section 5.1.2(j); (xxi) incurrence by Borrower or SPE Component Entity of any Indebtedness in violation of this Agreement;
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-117- 28722485.v7 aggregate principal amount of all such Tranches as of their date of creation shall equal the Outstanding Principal Balance immediately prior to their creation, (B) the weighted average interest rate of all such Tranches shall on the date created equal the interest rate that was applicable to the Loan immediately prior to the creation of such Tranches, (C) the debt service payments on all such Tranches shall on the date they are created equal the debt service payment that was due under the Loan immediately prior to the creation of such Tranches, (D) no such amendment to the Loan Documents shall decrease in any material manner the rights of Borrower or Guarantor under the Loan Documents, or result in any additional material liability or material obligation to Borrower or Guarantor under the Loan Documents (except to the extent related to having different interest rates apply to the Tranches upon partial paydown thereof following the occurrence of an Event of Default, or the extent related to having separate mortgage and mezzanine loans), and (E) no such amendment described in clause (v) above shall be effective sooner than thirty (30) days after notice thereof from Lender, nor shall it cause the Maturity Date to be an earlier date). In connection with the creation of any mezzanine loan as described above, Borrower shall cause the formation of one or more Special Purpose Entities as required by Lender in order to serve as the borrower under any such mezzanine loan (and the applicable organizational documents of Borrower and such new entity shall be acceptable to Lender in form and content), and Borrower shall deliver to Lender a “UCC-9” insurance policy and a mezzanine endorsement to the owner’s policy of title insurance held by Borrower, and such opinions of legal counsel as lender may reasonably require. If Borrower fails to cooperate with Lender within ten (10) Business Days of written request by Lender, Lender is hereby appointed as Borrower’s attorney in fact, coupled with an interest, to execute any and all documents necessary to accomplish such modifications (but in any event the Loan Documents shall be deemed to have been modified to incorporate any such modifications as Lender may so notify Borrower of in writing) and at Lender’s option, declare such failure to be an Event of Default. (b) At the request of Lender, Borrower shall provide information regarding Borrower, the Guarantor or the Property which is not in the possession of Lender or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be reasonably required by prospective investors or required by applicable Legal Requirements in connection with any such Secondary Market Transaction, including to: (i) provide additional and/or updated information concerning Borrower, any SPE Component Entity, Guarantor, Manager, or the Property, together with appropriate verification and/or consents related to such information through letters of auditors or opinions of counsel of independent attorneys reasonably acceptable to Lender; (ii) assist in preparing descriptive materials for presentations to any or all of the Rating Agencies, and work with, and if requested, supervise, third-party service providers engaged by Borrower, any SPE Component Entity and their respective Affiliates to obtain, collect, and deliver information requested or required by Lender; (iii) deliver (1) new or updated opinions of counsel as to non-consolidation, due execution and enforceability with respect to the Property, Borrower, any SPE Component Entity, Guarantor and their respective Affiliates, and the Loan Documents (including a so-called “10b-5” opinion), and (2) revised organizational documents for Borrower and any SPE Component Entity and certificates of the relevant Governmental Authorities in all relevant jurisdictions indicating the good standing and qualification of Borrower and SPE Component Entity as of the date of the Secondary Market Transaction, which counsel opinions and revisions to organizational documents shall be reasonably satisfactory to Lender; (iv) use Commercially Reasonable Efforts to deliver such additional tenant estoppel letters and subordination, non-disturbance and attornment agreements or, if applicable, estoppels from parties to agreements that affect the Property and who are required to provide the same, which estoppel letters and subordination non-disturbance and attornment agreements shall be reasonably satisfactory to Lender; (v) make such representations and warranties as of the closing date of the Secondary Market Transaction with respect to the Property, Borrower, any SPE Component Entity, Guarantor and the Loan Documents as may be reasonably requested by Lender and consistent with the facts covered by such representations and warranties as they exist on the date thereof, including the representations and warranties made in the Loan Documents; (vi) if requested by Lender, review and certify as to the accuracy of any information regarding the Property, Borrower, any SPE
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-121- 28722485.v7 be a waiver of any subsequent Default or Event of Default or to impair any remedy, right or power consequent thereon. SECTION 10.6. Notices. All notices, consents, approvals and requests required or permitted hereunder or under any other Loan Document shall be given in writing and shall be effective for all purposes if hand delivered or sent by (a) certified or registered United States mail, postage prepaid, return receipt requested or (b) expedited prepaid delivery service, either commercial or United States Postal Service, with proof of attempted delivery (with a copy of any notice delivered by the methods described in clause (a) or clause (b) to be sent by electronic mail), addressed as follows (or at such other address and Person as shall be designated from time to time by any party hereto, as the case may be, in a written notice to the other parties hereto in the manner provided for in this Section 10.6): If to Lender: OPG Hermes Investments (DE) LLC c/o Oxford Properties Group 000 Xxxx Xxxxxx 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Legal Counsel with a copy to: Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP Xxx Xxx Xxxx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx Xxxxx, Esq. If to Borrower: Complex Therapeutics LLC c/o Instil Bio, Inc. 0000 Xxxxx Xxxxxx, Xxxxx 000 Xxxxxx, Xxxxx 00000 Attention: Xxxxxxx Xxxxxx With a copy to: Xxxxxx LLP 0000 Xxxxxxxx Xxxx Xxx Xxxxx, Xxxxxxxxxx 00000-0000 Attention: Xxxxx Xxxxxxxx, Esq. A notice shall be deemed to have been given: (i) in the case of hand delivery or delivery by a reputable overnight courier, at the time of delivery; (ii) in the case of registered or certified mail, when delivered or the first attempted delivery on a Business Day; (iii) or in the case of expedited prepaid delivery, upon the first attempted delivery on a Business Day. Any failure to deliver a notice by reason of a change of address not given in accordance with this Section 10.6, or any refusal to accept notice, shall be deemed to have been given when the delivery was attempted. Any notice required or permitted to be given by any party hereunder or under any other Loan Document may be given by its counsel and any notice required or permitted to be given by Lender hereunder or under any other Loan Document may also be given by a Servicer. SECTION 10.7. Trial by Jury. BORROWER AND LENDER HEREBY AGREE NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVE ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THE LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY BORROWER AND LENDER, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A
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-123- 28722485.v7 the other Loan Documents and the consummation of the transactions contemplated hereby and thereby and all the costs of furnishing all opinions by counsel for Borrower (including without limitation any opinions requested by Lender as to any legal matters arising under this Agreement or the other Loan Documents with respect to the Property); (ii) Borrower’s ongoing performance of and compliance with Borrower’s respective agreements and covenants contained in this Agreement and the other Loan Documents on its part to be performed or complied with after the Closing Date, including confirming compliance with environmental and insurance requirements; (iii) Lender’s ongoing performance and compliance with all agreements and conditions contained in this Agreement and the other Loan Documents on its part to be performed or complied with after the Closing Date; (iv) the negotiation, preparation, execution, delivery and administration of any consents, amendments, waivers or other modifications to this Agreement and the other Loan Documents and any other documents or matters requested by Lender; (v) securing Borrower’s compliance with any requests made pursuant to the provisions of this Agreement and the other Loan Documents; (vi) the filing and recording fees and expenses, title insurance and reasonable fees and expenses of counsel for providing to Lender all required legal opinions, and other similar expenses incurred in creating and perfecting the Liens in favor of Lender pursuant to this Agreement and the other Loan Documents; (vii) enforcing or preserving any rights, either in response to third party claims or in prosecuting or defending any action or proceeding or other litigation, in each case against, under or affecting Borrower, Guarantor, this Agreement, the other Loan Documents, the Property, or any other security given for the Loan; and (viii) enforcing any Obligations of or collecting any payments due from Borrower under this Agreement, the other Loan Documents or with respect to the Property or in connection with any refinancing or restructuring of the credit arrangements provided under this Agreement in the nature of a “work-out” or of any insolvency or bankruptcy proceedings; provided, however, that Borrower shall not be liable for the payment of any such costs and expenses to the extent the same arise by reason of the illegal acts, gross negligence, bad faith or willful misconduct of Lender. Any cost and expenses due and payable to Lender may, at the direction of Lender in its sole discretion, be paid from any amounts in the Clearing Account or the Cash Management Account. (b) Borrower shall indemnify, defend and hold harmless Lender, each Servicer, their respective Affiliates, and their respective directors, managers, officers, partners, members, shareholders, participants, employees, professionals and agents of any of the foregoing, and the successors and assigns of the foregoing (each, an “Indemnified Party”), from and against any and all Losses that may be imposed on, incurred by, or asserted against an Indemnified Party in any manner relating to or arising out of (i) any Defaults or Events of Default under the Loan and/or in connection with the enforcement of the Loan Documents, (ii) any breach by Borrower of its Obligations under, or any misrepresentation by any Borrower Party contained in the Loan Documents, (iii) the use or intended use of the proceeds of the Loan, (iv) costs incurred by Lender in connection with any amendment to, or restructuring of, the Debt or the Loan Documents, (v) any accident, injury to, or death of, Persons or loss of or damage to the Property occurring in, on or about the Property or any part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or rights of way, (vi) any use, non-use or condition in, on or about the Property or any part thereof or on the adjoining sidewalks, curbs, adjacent property or adjacent parking areas, streets or rights of way, (vii) performance of any labor or services or the furnishing of any materials or other property in respect of the Property or any part thereof, (viii) any failure of the Property to be in compliance with any Legal Requirements, (ix) any and all claims and demands whatsoever which may be asserted against an Indemnified Party by reason of any alleged obligations or undertakings on its part to perform or discharge any of the terms, covenants, or agreements contained in any Lease or other agreement relating to the Property, (x) any and all Losses that Lender may incur, directly or indirectly, as a result of a breach of Sections 4.1.1(g) or 5.1.1(c) hereof by Borrower, and (xi) all Recourse Liabilities; provided, however, that Borrower shall not have any obligation to Lender hereunder to the extent that the applicable indemnified liabilities arise from the illegal acts, gross negligence, bad faith or willful misconduct of Lender. To the extent that the undertaking to indemnify, defend and hold harmless set forth in the preceding sentence may be unenforceable because it violates any law or public policy, Borrower shall pay the
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-126- 28722485.v7 way relating to or arising from a claim by any Person that such Person acted directly or indirectly, by or on behalf of Guarantor, Borrower or any Affiliate thereof or was retained directly or indirectly, by or on behalf of Guarantor, Borrower or any Affiliate thereof in connection with the transactions contemplated herein. The provisions of this Section 10.20 shall survive the expiration and termination of this Agreement and the payment of the Debt. SECTION 10.21. Prior Agreements. This Agreement and the other Loan Documents contain the entire agreement of the parties hereto and thereto in respect of the transactions contemplated hereby and thereby, and all prior agreements among or between such parties, whether oral or written, including that certain Construction Loan Term Sheet, dated March 20, 2022, executed by Instil Bio, Inc., are superseded by the terms of this Agreement and the other Loan Documents. SECTION 10.22. Time is of the Essence. Time is of the essence of each provision of this Agreement and the other Loan Documents. SECTION 10.23. Certain Additional Rights of Lender (VCOC). Notwithstanding anything to the contrary contained in this Agreement, Lender shall have: (a) the right to routinely consult with and advise Borrower’s management regarding the significant business activities and business and financial developments of Borrower; provided, however, that such consultations shall not include discussions of environmental compliance programs or disposal of hazardous substances. Consultation meetings should occur on a regular basis (no less frequently than quarterly) with Lender having the right to call special meetings at any reasonable times and upon reasonable advance notice; (b) the right, in accordance with the terms of this Agreement, to examine the books and records of Borrower at any reasonable times upon reasonable notice; (c) the right, in accordance with the terms of this Agreement, including Section 5.1.1(f) hereof, to receive monthly, quarterly and year-end financial reports, including balance sheets, statements of income, shareholder’s equity and cash flow, a management report and schedules of outstanding Indebtedness; and (d) the right, without restricting any other rights of Lender under this Agreement (including any similar right), to approve any acquisition by Borrower of any other significant property (other than personal property required for the day to day operation of the Property). The rights described above in this Section 10.22 may be exercised by any entity which owns and Controls, directly or indirectly, substantially all of the interests in Lender. SECTION 10.24. Duplicate Originals, Counterparts. This Agreement may be executed in any number of duplicate originals and each duplicate original shall be deemed to be an original and all of which together shall constitute a single agreement. The failure of any party hereto to execute this Agreement, or any counterpart hereof, shall relieve the other signatories from their obligations hereunder. SECTION 10.25. Prepayment Charges. Borrower acknowledges that (a) Lender is making the Loan in consideration of the receipt by Lender of all interest and other benefits intended to be conferred by the Loan Documents that is not prepayable except as provided in Section 2.4, and (b) if payments of principal are made to Lender prior to the regularly scheduled due date for such payment, for any reason whatsoever, whether voluntary, as a result of Lender’s acceleration of the Loan after an Event of Default, by operation of law or otherwise, Lender will not receive all such interest and other benefits and may, in addition, incur costs and expenses. For these reasons, and to induce Lender to make the Loan, Borrower expressly waives any right or privilege to prepay the Loan except as otherwise may be specifically permitted herein and agrees that, except for any prepayment that is expressly permitted to be made pursuant to this Agreement without the payment of the Prepayment Premium (as applicable), all prepayments, if any, whether voluntary or involuntary, will be accompanied by the Prepayment Premium (as applicable), which shall constitute additional interest. Such Prepayment Premium (as applicable) shall be required whether payment is made by Borrower, by a Person on behalf of Borrower, or by the purchaser at any foreclosure sale, and may be included in any bid by Lender at such sale. Borrower further acknowledges that (i) it is a
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-129- 28722485.v7 Agreement. Each Borrower Party’s obligations under the Loan Documents are and will be independent of any Co-Lender Agreement and shall remain unmodified by the provisions thereof (although Borrower acknowledges that with respect to certain approvals, calculations and other decisions hereunder, any Co- Lender Agreement may require Lead Lender to consult with or receive the approval of one or more other Lenders prior to providing its own approval or determination regarding the same). Borrower shall be entitled to rely on waivers, consents and/or approvals granted by Lead Lender. [NO FURTHER TEXT ON THIS PAGE; SIGNATURE PAGE FOLLOWS]
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EXHIBIT A Property Description THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF LOS ANGELES, IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: PARCEL 1: XXX 000 XX XXXXX XX. 0000, XX THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 60, PAGES 72 AND 73 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. PARCEL 2: XXXX 000 XXX 000 XX XXXXX XX. 0000, XX THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 60, PAGES 72 AND 73 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. PARCEL 3: XXX 000 XX XXXXX XX. 0000, XX THE CITY OF LOS ANGELES, IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 60 PAGES 72 AND 73 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. PARCEL 4: XXX 000 XX XXXXX XX. 0000, XX THE CITY OF LOS ANGELES, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 60, PAGES 72 AND 73 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY. EXCEPT ALL MINERALS, COALS, OILS, PETROLEUM AND KINDRED SUBSTANCES AND NATURAL GAS UNDER AND IN THAT PORTION OF SAID LAND LYING WITHIN THE BOUNDARIES OF TRACT NO. 1875, AS PER MAP RECORDED IN BOOK 19, PAGE 38 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, AS RESERVED OF RECORD. APN: 0000-000-000
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EXHIBIT B FORM OF MAJOR TRADE CONTRACTOR CONSENT [ATTACHED]
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29464796.v4 FORM MAJOR TRADE CONTRACTOR CONSENT AND AGREEMENT OPG HERMES INVESTMENTS (DE) LLC c/o Oxford Properties Group 000 Xxxx Xxxxxx 00xx Xxxxx Xxx Xxxx, XX 00000 Property: 18408-18412 Xxxxxx Xxxxxx, Xxx Xxxxxxx, XX 00000 Borrower: COMPLEX THERAPEUTICS LLC Ladies and Gentlemen: The undersigned, a contractor (“Trade Contractor”) on the captioned Property, understands that OPG Hermes Investments (DE) LLC, a Delaware limited liability company, having an address at c/o Oxford Properties Group, 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (together with its successors and assigns, “Lender”) has made a loan to Borrower in the maximum principal amount of up to $55,000,000.00 (the “Loan”) pursuant to that certain Loan Agreement, dated as of the date hereof, between Borrower and Lender (as the same may be amended, restated, supplemented, extended, replaced or otherwise modified from time to time, the “Loan Agreement”), which Loan shall be used in part to fund, among other things, a portion of the costs of constructing the proposed improvements at the Property (the “Required Improvements”). Capitalized terms used but not otherwise defined herein shall have the respective meanings given thereto in the Loan Agreement. Trade Contractor hereby agrees with Lender as follows: 1. Attached hereto as Schedule I is a true and complete copy of our agreement with [____] (“Agent”), as agent for Borrower, dated [_______], 20[_], to construct and/or renovate a portion of the Required Improvements (the “Trade Contract”) in accordance with the plans and specifications set forth with respect to such portion of the Required Improvements as more particularly described in the Trade Contract. 2. Trade Contractor hereby acknowledges and consents to a collateral assignment of the Trade Contract to Lender, which assigns all of Borrower’s rights, if any, under the Trade Contract to Lender. In the event Lender, its nominee, subsidiary, successor(s) or assign(s) (the “Successor”), shall acquire title to the Property through foreclosure, deed in lieu of foreclosure, or receivership, then, at the request of the Successor, and upon Successor’s written agreement to accept Trade Contractor’s attornment, Trade Contractor shall attorn and shall promptly execute and deliver any instrument the Successor may require to evidence such attornment. Upon such attornment, the Trade Contract shall continue in full force and effect as if it were a direct agreement between the Successor and Trade Contractor. 3. At the request of the Borrower and in order to induce Lender to make advances of the Loan, Trade Contractor hereby acknowledges and agrees that (i) no amendment, modification,
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29464796.v4 or supplement of the Trade Contract, in any material respect, shall be permitted without Lender’s prior written consent, and (ii) Lender may enforce the obligations of the Trade Contract with the same force and effect as if enforced by the Borrower. Except as permitted pursuant to the terms of paragraph 5 below, Trade Contractor shall not terminate or surrender the Trade Contract without Lender’s prior written consent and will promptly notify Lender in writing of any attempted termination or surrender of the Trade Contract by Borrower. 4. Trade Contractor represents and warrants that (i) it has no notice of any prior assignment of the Trade Contract, (ii) the Trade Contract is a valid, enforceable agreement, (iii) neither Trade Contractor nor, to the knowledge of Trade Contractor, the Borrower is in default thereunder, (iv) all covenants, conditions and agreements required to have been performed by Trade Contractor have been performed as required therein, except those not due to be performed until after the date hereof, (v) Trade Contractor is duly licensed to conduct its business in the jurisdiction where the construction is to be performed and will maintain said license in full force and effect throughout the life of the Trade Contract, and (vi) as of the date hereof, the subcontractors employed by Trade Contractor (if any) with respect to the Property have been paid all amounts due and payable in accordance with their subcontracts. Trade Contractor further agrees that if it at any time gives a notice of default to Borrower under the Trade Contract, Trade Contractor shall provide a copy of such notice simultaneously to Lender at the following address: If to Lender: OPG Hermes Investments (DE) LLC c/o Oxford Properties Group 000 Xxxx Xxxxxx 00xx Xxxxx Xxx Xxxx, XX 00000 Attention: Legal Counsel with a copy to: Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx LLP Xxx Xxx Xxxx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx Xxxxx, Esq. 5. Trade Contractor further agrees that if it at any time gives a notice of default to Borrower under the Trade Contract, Trade Contractor shall not exercise any remedy, including, but not limited to, any right to terminate the Trade Contract, unless and until Trade Contractor gives notice to Lender of its intent to exercise such remedy and provides Lender the opportunity to remedy or cure such breach within the greater of (i) the period set forth in the Trade Contract or (ii) ninety (90) days thereafter, or if such breach cannot by its nature be cured within ninety (90) days, such longer period as is required so long as Lender shall have commenced curing such breach during such period and thereafter shall diligently and continuously prosecute the same to completion; provided that Lender shall have no obligation to cure or cause the cure of such default. 6. Additionally, and in consideration of the Lender’s making of the Loan, Trade Contractor agrees that in the event of (x) a default under the Trade Contract by Borrower beyond any applicable notice and cure periods or (y) a default by Borrower beyond applicable notice and cure periods under any of the documents now or hereafter executed and delivered in connection
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29464796.v4 with the Loan, as the same may be from time to time amended and supplemented, Trade Contractor shall, at Lender’s request, (i) continue performance under the Trade Contract in accordance with the terms thereof, provided that Trade Contractor is paid in accordance with the Trade Contract, without regard to any modifications thereto not approved in writing by Lender (to the extent approval was required pursuant to Section 3 above), for all services rendered after Lender’s election to have Trade Contractor continue performing, further provided that the time periods set forth in the Trade Contract for performance by Borrower shall be deemed extended by the period of time necessary to allow Lender to obtain possession of the Property in accordance with the terms of the Loan Documents, or (ii) terminate the Trade Contract without payment of any penalty or termination fees and, at Lender’s election, immediately assign all of its rights under any subcontracts to Lender. 7. If any proceeds of the Loan made by the Lender are disbursed directly to Trade Contractor, then Trade Contractor shall receive the same in trust for the purpose of paying the costs of constructing the Required Improvements due and payable to contractors, subcontractors, suppliers, laborers and materialmen and will apply the same to such payment. 8. The person executing this letter on behalf of Trade Contractor hereby certifies that he or she has the authority to do so and that Trade Contractor has full authority under all state and local laws and regulations to perform all of its obligations under the Trade Contract in accordance with the terms thereof. 9. The provisions set forth in this letter shall be binding upon Trade Contractor and Trade Contractor’s successors and assigns and shall inure to the benefit of Lender and its successors and assigns. 10. Trade Contractor agrees that any termination of Agent’s role as agent for Borrower under the Trade Contract or any other termination, cancellation or expiration of that certain [______], dated as of [______, 20__], between Agent and Borrower shall not in and of itself affect, impair, limit or otherwise alter the rights of Borrower or obligations of Trade Contractor under the Trade Contract.
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29464796.v4 Dated: [______], 2022 [CONTRACTOR] By: ______________________________ Name: Title:
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29464796.v4 Schedule I Trade Contract
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US\001915\00038\29994645.v4-6/6/22 EXHIBIT C FORM OF OFFICER’S CERTIFICATE Borrower Name: COMPLEX THERAPEUTICS LLC, a Delaware limited liability company Property Address: 18408-18412 Oxnard Street, Los Angeles, California [_____] This Officer’s Certificate is being delivered in accordance with that certain Loan Agreement dated _____________, 2022 (the “Loan Agreement”) among Borrower, Complex Therapeutics LLC, a Delaware limited liability company, and OPG Hermes Investments (DE) LLC, a Delaware limited liability company (“Lender”). Capitalized terms used in this Officer’s Certificate and not specifically defined herein have the meaning provided in the Loan Agreement. The undersigned officer of Borrower, having personal knowledge of the matters set forth herein, hereby certifies on behalf of Borrower, and not in his/her individual capacity, the following: [___] Pursuant to Section 2.1.5(a) (Requests for Additional Advances): Borrower requests an Additional Advance pursuant to Section 2.1.5(a) and hereby represents, warrants, and certifies that: (i) all Advance Items to be funded by the requested disbursement involving construction or alteration work have been completed in a good and workmanlike manner and in accordance in substantial accordance with all applicable Legal Requirements and Plans and Specifications; (ii) all Additional Advance (or a portion thereof) to be funded are to be used for the payment of Approved Project Expenditures, Cash Expenses or Approved Extraordinary Expenses, as applicable; (iii) Borrower has previously provided to Lender, or attached to this Officer’s Certificate is, a copy of any license, permit or other approval by any Governmental Authority required to commence and/or complete such Advance Item; (iv) each Person that supplied materials or labor in connection with the Advance Item to be funded by the requested disbursement is identified on a schedule included with this Officer’s Certificate; (v) each such Person has been paid in full or will be paid in full upon such disbursement for all amounts due and payable to such Person through the date hereof; (vi) included with this Officer’s Certificate is a full or partial lien waiver (as applicable) or other evidence of payment reasonably satisfactory to Lender with respect to such Person(s); (vii) included with this Officer’s Certificate are copies of all bills, invoices, receipts and other documentation requested by Lender to be reimbursed or paid by the Additional Advance (or a portion thereof); (viii) all prior Additional Advances requested for the payment of Costs have been spent on Cash Expenses and/or Approved Extraordinary Expenses for which such Additional Advances were made; and (ix) the Closing Date Minimum Equity Requirement is satisfied and Borrower has made no distributions. [___] Pursuant to Section 5.1.1(d) (Transfers): Borrower certifies that (i) all the requirements of Section 5.1.1(d) are satisfied and (ii) with respect to Section 5.1.1(d)(iii), (x) the consideration, if any, being paid for any such encumbrance is commercially reasonable and (y) any such encumbrance does not materially impair the utility and operation of the Property, materially reduce the value of the Property or otherwise have a Material Adverse Effect. [___] Pursuant to Section 5.1.1(f) (Delivery of Reports): To the knowledge of the undersigned: [___] – Annual/Quarterly Reports: Each financial statement, or other report included with this Officer’s Certificate (as applicable) are true, correct, and complete in all material respects, and fairly presents in all material respects the financial condition and the results of operations of Borrower and the Property (subject to normal year-end adjustments) being reported upon as of the date set forth in such documents and such financial statements have been prepared in accordance with the Approved Accounting Method.
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US\001915\00038\29994645.v4-6/6/22 [___] – Annual/Quarterly Reports: As of the date hereof there exists no event or circumstance which constitutes a Default or Event of Default under by Borrower under the Loan Documents other than [PLEASE DESCRIBED IF APPLICABLE, INCLUDING THE PERIOD OF TIME IT HAS EXISTED AND THE ACTION THEN BEING TAKEN TO REMEDY THE SAME: ______________]. [___] – Quarterly Reports: Subject to any appropriate reconciliations, the quarterly and year-to-date operating statements included with this Officer’s Certificate, noting Net Operating Income, Operating Income and Operating Expenses, are true, correct, accurate, and complete in all material respects and fairly present in all material respects the financial condition and results of the operations of Borrower and the Property (subject to normal year-end adjustments). [___] – Quarterly Reports: Borrower’s calculation of the Debt Yield for the twelve (12) month period ending at the end of the most recently-completed calendar quarter (based on Borrower’s reasonable expectation of the adjustments to be made to such calculations pursuant to the definition of UNOI contained in the Loan Agreement), is as follows: Debt Yield: [___]% BY SIGNING BELOW, the undersigned certifies on behalf of Borrower, and not in his/her individual capacity, that (a) all information provided in this Officer’s Certificate is true, complete, and correct in all material respects and does not omit any material fact that would make any such information false or misleading, and (b) the undersigned representative is duly authorized to sign this Officer’s Certificate on Borrower’s behalf. Date: [________] Name: Title:
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EXHIBIT D INITIAL APPROVED ANNUAL BUDGET [***]
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US\001915\00038\29994645.v4-6/6/22 EXHIBIT E FORM OF REQUISITION LETTER BORROWER AND MEZZANINE BORROWER’S REQUISITION LETTER Requisition No. MORTGAGE LENDER: OPG Hermes Investments (DE) LLC, a Delaware limited liability company MEZZANINE LENDER: OPG Hermes Investments (DE) LLC, a Delaware limited liability company MORTGAGE BORROWER: Complex Therapeutics LLC, a Delaware limited liability company MEZZANINE BORROWER: Complex Therapeutics Mezzanine LLC, a Delaware limited liability company DATE: [__________________] PREMISES: 18408-18412 Oxnard Street, Los Angeles, California PERIOD COVERED: [___________________] to [__________________] Pursuant to the Loan Agreement (the “Agreement”) and Mezzanine Loan Agreement (“Mezzanine Loan Agreement”) for the subject Loan, Borrower and Mezzanine Borrower hereby authorize and request an advance in the amount of $[_______] (the “Requested Amount”), which is comprised of the items provided for in the attached requisition, Section 2.1.5(a) of the Loan Agreement and Mezzanine Loan Agreement which sets forth and specifies the Hard Costs, Soft Costs and Interest and Carry Costs to be paid from the proceeds of the requested Advance and which has become payable by Borrower. Borrower requests that the funds be wired on [___________], 20[__] in accordance with the following wire instructions: Amount: $[___________] Bank: [___________] ABA #: [___________] Account Name: [___________] Account #: [___________] Attention: [___________] The Hard Costs, Soft Costs and Interest and Carry Costs to be paid by the Requested Amount are more particularly set forth on Schedule I attached hereto. The Requested Amount is comprised of: Mortgage Funding Share: $[__________] Mezzanine Funding Share: $[__________]
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US\001915\00038\29994645.v4-6/6/22 or Event of Default or were not caused by the occurrence of a Default or Event of Default and, in any event, do not result in a Material Adverse Effect. 9. Borrower has obtained all Construction Permits required under Legal Requirements for the actual stage of construction on the Property and delivered to Lender a copy of each of the Construction Permits. 10. Borrower has paid or reimbursed all of Lender’s outstanding fees and expenses (including fees and expenses of the Construction Consultant, and all other fees, costs and expenses of (including fees and expenses of outside legal counsel) relating to the Loan to the extent then due and payable, pursuant to the applicable provisions of this Agreement and the other Loan Documents. 11. Except as otherwise permitted under the Loan Documents, all material and fixtures incorporated in the construction of the Project have been purchased so that their absolute ownership has vested in Borrower immediately upon delivery to the Property and Borrower has produced and furnished, if required by Lender, the contracts, bills of sale or other agreements under which title to such materials and fixtures is claim. 12. The Loan is in balance as provided in Section 2.1.11 of the Loan Agreement. 13. There is no pending or threatened litigation known to Borrower or its counsel against Borrower, Master Tenant, Guarantor, Manager, General Contractor or the Property which, if decided unfavorably, could reasonably be expected to result in (i) a change in Control of Borrower, Master Tenant or Manager, (ii) a Material Adverse Effect, or (iii) the failure of Guarantor to satisfy the Financial Covenant Requirement. 14. Borrower has delivered to Lender all documents, reports, certificates, affidavits and other information, in form and substance reasonably satisfactory to Lender or Construction Consultant, as each may reasonably require, to evidence compliance by Borrower with the terms and conditions to be complied with by Borrower in connection with the disbursement of the applicable Additional Advance. 15. Borrower has delivered to Lender evidence of compliance with all recommendations set forth in the Environmental Report or any future environmental report or assessment requested by Lender under the terms of the Environmental Indemnity; provided, that, by undertaking the measures identified in and pursuant to Section 2.1.6(j) of the Loan Agreement, Lender shall not be deemed to be exercising any control over operations of Borrower or the handling of any environmental matter or hazardous wastes or substances of Borrower for purposes of incurring or being subject to liability therefor. 16. No Interest and Carry Cost Shortfall exists. 17. Other than matters fully disclosed to Lender which are curable and are being cured as part of the work comprising the Required Improvements, and subject to Borrower’s right to contest in accordance with Section 5.1.2(b) of the Loan Agreement, the Property complies in all material respects with all Legal Requirements.
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US\001915\00038\29994645.v4-6/6/22 18. (i) Other than matters being cured as part of the work comprising the Required Improvements, the Property complies in all material respects with all Legal Requirements, (ii) if any Restoration is continuing, Borrower is diligently pursuing such Restoration and Lender has determined that the non-completion of such Restoration prior to the making of the Additional Advance is not reasonably likely to have a Material Adverse Effect, and (iii) no Casualty or Condemnation has occurred that permits any tenant party to a Lease a termination right (or such right shall have been waived or lapsed). 19. On the Advance Date, no event has occurred that would reasonably be expected to result in Borrower being unable to achieve any Major Milestone within the time period applicable to such Major Milestone, as determined by Lender. 20. Borrower has caused, at Lender’s election, either (i) payment and performance Bonds, in form and substance reasonably satisfactory to Lender and issued by sureties satisfactory to Lender have been maintained with respect to the obligations of each Trade Contractor; and/or (ii) a sub-guard insurance policy in form and substance reasonably acceptable to Lender has been maintained with respect to the obligations of each Trade Contractor, provided, that the Bonds are in an amount not less than the full contract price for each such Trade Contract required to be bonded pursuant to Section 2.1.6(v) of the Loan Agreement. 21. Borrower has provided satisfactory evidence that the Closing Date Minimum Equity Requirement is satisfied and no distributions have been made. 22. The Master Lease is in full force and effect and no default has occurred under the Master Lease that remains uncured. [The below items should be included for Additional Advances for the Payment of Approved Project Expenditures.] 23. Borrower has delivered to Lender an Officer’s Certificate with respect to any construction work constituting the applicable Approved Project Expenditures to be funded by such Additional Advance certifying that whatever portion of such work has been Completed to date has been Completed in good and workmanlike manner substantially in accordance with all applicable Legal Requirements and the Plans and Specifications. 24. Borrower has delivered to Lender (i) an updated Construction Budget for the Project, in form and substance reasonably satisfactory to Lender, which indicates the Costs (other than Interest and Carry Costs) anticipated to complete the Required Improvements, after giving effect to Costs (other than Interest and Carry Costs) incurred during the period since the Closing Date, or the date of the last preceding Draw Request, as the case may be, and (ii) an anticipated costs report in form and substance reasonably acceptable to Lender, which indicates the Costs (other than Interest and Carry Costs) anticipated to complete the Required Improvements, after giving effect to Costs incurred during the previous calendar month (or the date of the last preceding Draw Request, as the case may be), and projected Costs; provided, that, no Line Item in the Construction Budget with respect to Approved Project Expenditures shall be eligible for funding from the proceeds of an Additional Advance until 100% of such Line Item has been bought out and
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US\001915\00038\29994645.v4-6/6/22 Lender and Construction Consultant have reviewed the related sub contract(s) and, if applicable, Major Trade Contractor Consent(s). 25. Borrower has delivered to Lender a reconciliation by Borrower of the progress and cost of the construction of the Project through the date of the Draw Request with the Construction Schedule and the Construction Budget, together with a projection of such progress and costs through to Completion of the Project. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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US\001915\00038\29994645.v4-6/6/22 MORTGAGE BORROWER: COMPLEX THERAPEUTICS LLC, a Delaware limited liability company By: ____________________________ Name: Title:
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US\001915\00038\29994645.v4-6/6/22 MEZZANINE BORROWER: COMPLEX THERAPEUTICS MEZZANINE LLC, a Delaware limited liability company By: ____________________________ Name: Title:
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EXHIBIT F INTENTIONALLY OMITTED
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EXHIBIT G INTENTIONALLY OMITTED
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EXHIBIT H INTENTIONALLY OMITTED
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EXHIBIT I INTENTIONALLY OMITTED
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EXHIBIT J INTENTIONALLY OMITTED
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US\001915\00038\29994645.v4-6/6/22 EXHIBIT K-1 FORM OF U.S. TAX COMPLIANCE CERTIFICATE (For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)] Reference is hereby made to the Loan Agreement dated as of [ ], 2022 (as amended, supplemented or otherwise modified from time to time, the “Loan Agreement”), by and between [_____________], a [_____________] (together with its successors and assigns, “Lender”), and Complex Therapeutics LLC, a Delaware limited liability company (“Borrower”), and each lender from time to time party thereto. Pursuant to the provisions of Section 2.2.3 of the Loan Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a “ten percent shareholder” of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a “controlled foreign corporation” related to Borrower as described in Section 881(c)(3)(C) of the Code. The undersigned has furnished Borrower with a certificate of its non-U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided in this certificate changes, the undersigned shall promptly so inform Borrower, and (2) the undersigned shall have at all times furnished Borrower with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments. Unless otherwise defined herein, terms defined in the Loan Agreement and used herein shall have the meanings given to them in the Loan Agreement. [NAME OF LENDER] By:_________________________________ Name: Title: Date: ________ __, 20[ ]
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US\001915\00038\29994645.v4-6/6/22 EXHIBIT K-2 FORM OF U.S. TAX COMPLIANCE CERTIFICATE (For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)] Reference is hereby made to the Loan Agreement dated as of [ ], 2022 (as amended, supplemented or otherwise modified from time to time, the “Loan Agreement”), by and between [_____________], a [_____________] (together with its successors and assigns, “Lender”), and Complex Therapeutics LLC, a Delaware limited liability company (“Borrower”)and each lender from time to time party thereto. Pursuant to the provisions of Section 2.2.3 of the Loan Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a “ten percent shareholder” of Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a “controlled foreign corporation” related to Borrower as described in Section 881(c)(3)(C) of the Code. The undersigned has furnished its participating Lender with a certificate of its non- U.S. Person status on IRS Form W-8BEN or IRS Form W-8BEN-E. By executing this certificate, the undersigned agrees that (1) if the information provided in this certificate changes, the undersigned shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments. Unless otherwise defined herein, terms defined in the Loan Agreement and used herein shall have the meanings given to them in the Loan Agreement. [NAME OF PARTICIPANT] By:_________________________________ Name: Title: Date: ________ __, 20[ ]
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US\001915\00038\29994645.v4-6/6/22 EXHIBIT K-3 FORM OF U.S. TAX COMPLIANCE CERTIFICATE (For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)] Reference is hereby made to the Loan Agreement dated as of [ ], 2022 (as amended, supplemented or otherwise modified from time to time, the “Loan Agreement”), by and between [_____________], a [_____________] (together with its successors and assigns, “Lender”), and Complex Therapeutics LLC, a Delaware limited liability company (“Borrower”), and each lender from time to time party thereto. Pursuant to the provisions of Section 2.2.3 of the Loan Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect such participation, neither the undersigned nor any of its direct or indirect partners/members is a “bank” extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a “ten percent shareholder” of Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a “controlled foreign corporation” related to Borrower as described in Section 881(c)(3)(C) of the Code. The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E or (ii) an IRS Form W- 8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided in this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments. Unless otherwise defined herein, terms defined in the Loan Agreement and used herein shall have the meanings given to them in the Loan Agreement. [NAME OF PARTICIPANT] By:_________________________________ Name: Title: Date: ________ __, 20[ ]
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US\001915\00038\29994645.v4-6/6/22 EXHIBIT K-4 FORM OF U.S. TAX COMPLIANCE CERTIFICATE (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)] Reference is hereby made to the Loan Agreement dated as of [ ], 2022 (as amended, supplemented or otherwise modified from time to time, the “Loan Agreement”), by and between [_____________], a [_____________] (together with its successors and assigns, “Lender”), and Complex Therapeutics LLC, a Delaware limited liability company (“Borrower”), and each lender from time to time party thereto. Pursuant to the provisions of Section 2.2.3 of the Loan Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to this Loan Agreement or any other Loan Document, neither the undersigned nor any of its direct or indirect partners/members is a “bank” extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a “ten percent shareholder” of Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a “controlled foreign corporation” related to Borrower as described in Section 881(c)(3)(C) of the Code. The undersigned has furnished the Lender and Borrower with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8BEN-E or (ii) an IRS Form W- 8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8BEN-E from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided in this certificate changes, the undersigned shall promptly so inform Borrower, and (2) the undersigned shall have at all times furnished Borrower with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments. Unless otherwise defined herein, terms defined in the Loan Agreement and used herein shall have the meanings given to them in the Loan Agreement. [NAME OF LENDER] By:_________________________________ Name: Title: Date: ________ __, 20[ ] 269973724 v2
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EXHIBIT L INITIAL CONSTRUCTION BUDGET [***]
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EXHIBIT M INITIAL CONSTRUCTION SCHEDULE [***]
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SCHEDULE I EXISTING CONSTRUCTION DOCUMENTS [***]
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SCHEDULE II ORGANIZATIONAL STRUCTURE [ATTACHED]
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ORGANIZATIONAL CHART Instil Bio, Inc. (Delaware C corporation) Complex Therapeutics LLC (Delaware limited liability company) 100% Ownership 100% Ownership Complex Therapeutics Mezzanine LLC (a Delaware limited liability company) Borrower* Guarantor Mezzanine Borrower 18408-18412 Xxxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000 *To Borrower's knowledge based on the public reporting made as of March 31, 2022, no individual or entity owns, directly or indirectly, more than 10% of the Borrower other than FMR LLC and Curative Ventures V LLC.
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SCHEDULE III LIST OF MATERIAL AGREEMENTS [ATTACHED]
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Schedule III - List of Material Agreements None, service contracts will stay with Instil Bio, Inc. per matrix.
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SCHEDULE IV LIST OF DESIGN PROFESSIONALS [***]
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SCHEDULE V CONSTRUCTION PERMITS [ATTACHED]
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Schedule V - Construction Permits Clinical Building Permits Permit # Brief Description Address Date Issued on Amount Licensed Contractor Description 21016 - 10000 - 06831 Bldg- Alter/Repair 00000 X Xxxxxx Xx 4/21/2021 $1,222.31 XXXXXX CONSTRUCTION COMPANY eplan Modify the existing slab. 20042 - 10000 - 21651 Plumbing 00000 X Xxxxxx Xx 5/6/2021 $1,524.31 XXXX-XXXXX PLUMBING CO INC PLUMBING TI. INCLUDES POTABLE WATER AND WASTE/VENT. 3" WATER METER WITH BACKFLOW DEVICE AND PRV 20016 - 10000 - 28026 Bldg- Alter/Repair 18412 - 00000 X Xxxxxx Xx 5/7/2021 $9,995.41 XXXXXX CONSTRUCTION COMPANY T.I. TO EXISTING OFFICE AND MANUFACTURING FACILITY. REMOVE EXISTING RATED CORRIDOR TO CONNECT TO ADJACENT BUILDING. CHANGE THE EXISTING BUILDING CONSTRUCTION TYPE FROM V-B TO III-B. REWORK EXTERIOR STAIRS, NEW STAIR TO ROOF AND NEW 20020 - 10001 - 02289 Nonbldg- New 00000 X Xxxxxx Xx 5/7/2021 $1,392.96 XXXXXX CONSTRUCTION COMPANY EARLY START SITE PREPARATION WORK FOR " RESTRIPE PARKING LOT, NEW ACCESSIBLE RAMP AND NEW EQUIPMENT CONCRETE PAD" 20030 - 10000 - 06263 Grading 00000 X Xxxxxx Xx 5/7/2021 $769.16 XXXXXX CONSTRUCTION COMPANY GRADING FOR PARKING LOT. 75 CU YD CUT 250 CU YD FILL 175 NET CU YD IMPORT 20041 - 10000 - 39638 Electrical 00000 X Xxxxxx Xx B2 5/12/2021 $5,060.87 ROSENDIN ELECTRIC INC FULL PC TO A TI FULL PC TO A TI TO COMMERCIAL PROPERTY BUILDINGS 1 AND 2. 21041 - 10000 - 05696 Electrical 00000 X Xxxxxx Xx B1 5/12/2021 $2,097.16 ROSENDIN ELECTRIC INC FULL PC TO A TI TO COMMERCIAL PROPERTY BUILDINGS 1 AND 2. 20044 - 10000 - 11181 HVAC 00000 X Xxxxxx Xx 6/9/2021 $3,006.88 CONTROL AIR ENTERPRISES LLC HVAC TENANT IMPROVEMENT. 21042 - 20000 - 16025 Plumbing 00000 X Xxxxxx Xx XXXX 1, 2 9/1/2021 $357.52 XXXX-XXXXX PLUMBING CO INC Installation of low-pressure gas system.
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Commercial Building Permits Permit # Brief Description Address Date Issued on Amount Licensed Contractor Description 21042 - 20000 - 05846 Plumbing 00000 X Xxxxxx Xx 3/24/2021 $59.95 XXXXXX CONSTRUCTION COMPANY SEWER CAP PERMIT FOR DEMOLITION OF BUILDING NO. 2 21307 SQFT OPEN OFFICES/STAGE/PRODUCTION UNDER PERMIT 21019-10000-00275 21042 - 20000 - 05847 Plumbing 18360 - 00000 X Xxxxxx Xx 3/24/2021 $59.95 XXXXXX CONSTRUCTION COMPANY SEWER CAP PERMIT FOR DEMOLITION OF BUILDING NO. 2 21307 SQFT OPEN OFFICES/STAGE/PRODUCTION UNDER PERMIT 21019-10000-00270 21019 - 10000 - 00270 Bldg- Demolition 18360 - 00000 X Xxxxxx Xx 4/13/2021 $1,791.74 XXXXXX CONSTRUCTION COMPANY DEMOLITION OF OFFICE BUILDING, CLEAR LOT, FENCE AND CANOPY REQUIRED 21019 - 10000 - 00275 Bldg- Demolition 00000 X Xxxxxx Xx 4/13/2021 $1,791.74 XXXXXX CONSTRUCTION COMPANY DEMO (E) OFFICE BUILDING, CLEAR LOT, FENCE AND CANOPY REQUIRED 21030 - 10000 - 02055 Grading 00000 X Xxxxxx Xx 8/17/2021 $3,465.66 XXXXXX CONSTRUCTION COMPANY ROUGH GRADING FOR A NEW COMERCIAL MANUFACTURING BUILDING FOR CELL-THERAPY PRODUCTS- 21041 - 10000 - 21468 Electrical 00000 X Xxxxxx Xx 9/1/2021 $19,779.14 XXXXXX CONSTRUCTION COMPANY (EPLAN) FULL PLAN CHECK FOR ELECTRICAL SYSTEM FOR NEW CONSTRUCTION UNDER BUILDING PERMIT 21010-10000-00719. 21044 - 20000 - 06428 HVAC 00000 X Xxxxxx Xx 9/13/2021 $6,233.71 CONTROL AIR ENTERPRISES LLC MECHANICAL SYSTEM FOR NEW COMMERCIAL MANUFACTURING BUILDING FOR CELL-THERAPY PRODUCTS. 21010 - 10000 - 00719 Bldg- Alter/Repair 18412 - 00000 X Xxxxxx Xx 10/6/2021 $105,273.73 XXXXXX CONSTRUCTION COMPANY FOUNDATION ONLY PERMIT FOR A NEW COMERCIAL MANUFACTURING BUILDING 21020 - 10000 - 01633 Nonbldg- New 18412 - 00000 X Xxxxxx Xx 11/2/2021 $2,100.07 XXXXXX CONSTRUCTION COMPANY SITE RETAINING WALLS , SLOPED S.O.G., AND RAISED PLANTER WALLS. 21010 - 10000 - 00719 Bldg-New 00000 X Xxxxxx Xx 12/1/2021 $540,342.54 XXXXXX CONSTRUCTION COMPANY NEW COMMERCIAL MANUFACTURING BUILDING 21042 - 20000 - 10871 Plumbing 00000 X Xxxxxx Xx 12/14/2021 $5,752.48 CONTROL AIR ENTERPRISES LLC PLUMBING SYSTEM PLAN CHECK FOR POTABLE WATER, WASTE & VENT , STORM DRAIN. 4'' water meter, 4'' RPBP, two PRV. 21010 - 10000 - 00719 Bldg- Alter/Repair 18412 - 00000 X Xxxxxx Xx 2/7/2022 $310.41 XXXXXXX & XXXX GLASS COMPANY SUPPLEMENTAL TO PERMIT # 21010-10000-00719 DEFERRED SUBMITTAL FOR GLASS CURTAIN WALLS. 21010 - 10003 - 00719 Bldg- Alter/Repair 00000 X Xxxxxx Xx 2/7/2022 $310.41 XXXXXXX & WOLF GLASS COMPANY SUPPLEMENTAL TO PERMIT # 21010-10000-00719 DEFERRED SUBMITTAL FOR GLASS CURTAIN WALLS.
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Permit # Brief Description Address Date Issued on Amount Licensed Contractor Description 21042 - 20001 - 10871 Plumbing 00000 X Xxxxxx Xx 2/16/2022 $148.24 CONTROL AIR ENTERPRISES LLC medium pressure gas system 5 psi. Partial permit fees paid under original plan check. 21044 - 20002 - 06428 HVAC 00000 X Xxxxxx Xx 3/31/2022 $227.81 CONTROL AIR ENTERPRISES LLC SUPPLEMENTAL TO PERMIT 21044- 20000-06428. Revision to approved plans. 22041 - 90000 - 16334 Electrical, Special Equipment 00000 X Xxxxxx Xx 4/13/2022 $274.46 XXXX ELECTRIC COMPANY Grounding for Temporary Generator - Xxxxxx Xxxxxxx 22041 - 90000 - 16335 Electrical, Special Equipment 00000 X Xxxxxx Xx 4/13/2022 $274.46 XXXX ELECTRIC COMPANY Grounding for temporary generator #3 used by the flooring contractor 22041 - 90000 - 16336 Electrical, Public Safety Only 00000 X Xxxxxx Xx 4/13/2022 $575.41 XXXX ELECTRIC COMPANY Install fire alarm and security devices in walls and ceiling. primary permit to follow
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SCHEDULE VI LIST OF REAs None.
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SCHEDULE VII EXCEPTION TO PHYSICAL CONDITION REPRESENTATION [ATTACHED]
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SCHEDULE 4.1.2(j) On June 1, 2022, the General Contractor informed Borrower that the General Contractor observed some surface settlement at the manhole cover (see below picture) directly above the landscape irrigation cisterns, which are located underneath the outer portion of the north-west parking lot of the Building B (see below site plan). As of the date hereof, the General Contractor is investigating the cause of the settlement, and has notified its insurance company of a potential claim. As of the date hereof, the General Contractor estimates repairs will cost between approximately $50,000 and $200,000, and take three to four weeks to complete, depending on the cause of the surface settlement.