EXHIBIT 10.24
CONSTRUCTION LOAN AGREEMENT
CONSTRUCTION LOAN AGREEMENT
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(Syndication)
THIS CONSTRUCTION LOAN AGREEMENT ("Agreement") is made by and among each
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lender from time to time a party hereto (individually, a "Lender" and
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collectively, the "Lenders"), and BANK OF AMERICA, N.A., a national banking
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association as Administrative Agent, and XXXXX OPERATING PARTNERSHIP, L.P., a
Delaware limited partnership ("Borrower"), who agree as follows:
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ARTICLE 1 - THE LOAN
1.1 General Information and Exhibits. This Agreement includes the Exhibits
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listed below which are marked by an "X", all of which Exhibits are attached
hereto and made a part hereof for all purposes. Borrower and Lenders agree that
if any Exhibit to be attached to this Agreement contains blanks, the same shall
be completed correctly and in accordance with this Agreement prior to or at the
time of the execution and delivery thereof.
X Exhibit "A" - Legal Description of the Land
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X Exhibit "B" - Basic Information
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X Exhibit "C" - Certain Conditions Precedent to the First Advance
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X Exhibit "D" - Budget
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X Exhibit "E" - Plans
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X Exhibit "F" - Advances
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X Exhibit "F-1" - Draw Request
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X Exhibit "G" - Survey Requirements
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Exhibit "H" - Permanent Loan
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X Exhibit "I" - Leasing and Tenant Matters
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X Exhibit "J" - List of Required Bonds
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Exhibit "K" - Letters of Credit
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X Exhibit "L" - Assignment and Acceptance
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X Exhibit "M" - Promissory Note
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X Exhibit "N" - Schedule of Lenders
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The Exhibits contain other terms, provisions and conditions applicable to the
Loan. Capitalized terms used in this Agreement shall have the meanings assigned
to them in the Basic Information set forth in Exhibit "B" (the "Basic
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Information"). This Agreement and the other Loan Documents, which must be in
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form, detail and substance satisfactory to Lenders, evidence the agreements of
Borrower and Lenders with respect to the Loan. Borrower shall comply with all of
the Loan Documents.
1.2 Purpose. The proceeds of the Loan shall be used by Borrower to pay (i)
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the cost of the construction of the Improvements on the Land and (ii) other
fees, costs and expenses relating to the Property if and to the extent that such
costs are specifically provided for in the Loan Allocation column in the Budget.
1.3 Commitment to Lend. Borrower agrees to borrow from each Lender, and
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each Lender severally agrees to make advances of its Pro Rata Share of the Loan
proceeds to Borrower in amounts
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at any one time outstanding not to exceed such Lender's Pro Rata Share of the
Loan and (except for Administrative Agent with respect to Administrative Agent
Advances), on the terms and subject to the conditions set forth in this
Agreement and Exhibit "C" and Exhibit "F" attached to this Agreement. Lender's
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commitment to lend shall expire and terminate (a) automatically on the Advance
Termination Date; (b) automatically if the Loan is prepaid in full; and (c)
automatically upon the occurrence of a Default. The Loan is not revolving. Any
amount repaid may not be reborrowed.
1.4 Budget. Loan funds are allocated to payment of the costs of the Project
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shown in the "Loan Allocation" column of the Budget attached to this Agreement
as Exhibit "D". Borrower shall not amend the Budget, or otherwise reallocate
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Loan funds from one Budget line item to another, without the prior written
approval of Administrative Agent in its sole discretion. The Budget has been
prepared by Borrower, and Borrower represents to Administrative Agent and
Lenders that the Budget includes all costs incident to the Loan and the Project
through the maturity date of the Loan (collectively, the "Aggregate Cost") after
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taking into account the requirements of this Agreement, including "hard" and
"soft" costs, fees and expenses. Unless approved by Administrative Agent in its
sole discretion, no advance shall be made (a) for any cost not set forth in the
Budget, (b) from any line item in the Budget that, when added to all prior
advances from that line item, would exceed the lesser of (i) the actual cost
incurred by Borrower for such line item, or (ii) the sum shown in the "Loan
Allocation" column in the Budget for such line item, (c) from any contingency
line item, or (d) to pay interest on the Loan after commencement of operations
in the Improvements if and to the extent that, subject to the provisions of
Exhibit "I", there is sufficient net operating income from the Property to pay
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such interest. Advances from any line item in the Budget for purposes other than
those for which amounts are initially allocated to such line item, or changes in
the relative amounts allocated to particular line items in the Budget may only
be made as Administrative Agent in its sole discretion deems necessary or
advisable.
1.5 Borrower's Deposit. If at any time Administrative Agent determines that
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the sum of: (i) any unadvanced portion of the Loan to which Borrower is
entitled, plus (ii) the portions of the Aggregate Cost that are to be paid by
Borrower from other funds that, to Administrative Agent's satisfaction, are
available, set aside and committed, is or will be insufficient to pay the actual
unpaid Aggregate Cost, Borrower shall, within seven (7) days after written
notice from Administrative Agent, deposit with Administrative Agent the amount
of the deficiency ("Borrower's Deposit") in an interest-bearing account of
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Administrative Agent's selection with interest earned thereon to be part of
Borrower's Deposit. Such Borrower's Deposit is hereby pledged to Administrative
Agent and Lenders as additional security for the Loan, and Borrower hereby
grants and conveys to Administrative Agent for the ratable benefit of
Administrative Agent and Lenders a security interest in all funds so deposited
with Administrative Agent, as additional security for the Loan. Administrative
Agent may advance all or a portion of the Borrower's Deposit prior to the Loan
proceeds. Administrative Agent may (but shall have no obligation to) apply all
or any part of Borrower's Deposit against the unpaid Indebtedness in such order
as Administrative Agent determines.
1.6 Evidence of Debt. Amounts of the Loan made by each Lender shall be
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evidenced by one or more accounts or records maintained by such Lender and by
the Administrative Agent in the ordinary course of business. The accounts or
records maintained by the Administrative Agent and each Lender shall be
conclusive absent manifest error of the amount of the Loan made by the Lenders
to the Borrower and the interest and payments thereon. Any failure so to record
or any error in doing so shall not, however, limit or otherwise affect the
obligation of the Borrower hereunder to
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pay any amount owing with respect to the Loans. In the event of any conflict
between the accounts and records maintained by any Lender and the accounts and
records of the Administrative Agent in respect of such matters, the accounts and
records of Administrative Agent shall control. Each Lender may attach schedules
to its Note(s) and endorse thereon the date, amount and maturity of the
applicable Note and payments with respect thereto.
1.7 Interest Rates.
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(a) The unpaid principal balance of this Loan from day to day
outstanding which is not past due, shall bear interest at a fluctuating rate of
interest equal to the lesser of (I) the maximum non-usurious rate of interest
allowed by applicable law or (II) the LIBOR Daily Rate plus two hundred (200)
basis points per annum. The "LIBOR Daily Rate" shall mean a fluctuating rate of
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interest equal to the one month rate of interest (rounded upwards, if necessary
to the nearest 1/100 of 1%) appearing on Telerate Page 3750 (or any successor
page) as the one month London interbank offered rate for deposits in U.S.
Dollars at approximately 11:00 a.m. (London time) on the second preceding
Business Day, as adjusted from time to time in Lender's sole discretion for then
applicable reserve requirements, deposit insurance assessment rates and other
regulatory costs. If for any reason such rate is not available, the term "LIBOR
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Daily Rate" shall mean the fluctuating rate of interest equal to the one month
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rate of interest (rounded upwards, if necessary to the nearest 1/100 of 1%)
appearing on Reuters Screen LIBO Page as the one month London interbank offered
rate for deposits in U.S. Dollars at approximately 11:00 a.m. (London time) on
the second preceding Business Day, as adjusted from time to time in
Administrative Agent's sole discretion for then applicable reserve requirements,
deposit insurance assessment rates and other regulatory costs; provided,
however, if more than one rate is specified on Reuters Screen LIBO Page, the
applicable rate shall be the arithmetic mean of all such rates. "Telerate Page
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3750" means the British Bankers Association Libor Rates (determined as of 11:00
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a.m. London time) that are published by Bridge Information Systems, Inc.
Interest shall be computed for the actual number of days which have elapsed, on
the basis of a 360-day year.
(b) If Administrative Agent determines that no adequate basis exists
for determining the LIBOR Daily Rate or that the LIBOR Daily Rate will not
adequately and fairly reflect the cost to Lenders of funding the Loan, or that
any applicable law or regulation or compliance therewith by any Lender prohibits
or restricts or makes impossible the charging of interest based on the LIBOR
Daily Rate and such Lender so notifies Administrative Agent and Borrower, then
until Administrative Agent notifies Borrower that the circumstances giving rise
to such suspension no longer exist, interest shall accrue and be payable on the
unpaid principal balance of this Loan from the date Administrative Agent so
notifies Borrower until the Maturity Date of this Loan (whether by acceleration,
declaration, extension or otherwise) at a fluctuating rate of interest equal to
the Prime Rate of Administrative Agent. Each Lender agrees to designate a
different Lending Office if such designation will avoid the need for such notice
and will not, in the good faith judgment of such Lender, otherwise be materially
disadvantageous to such Lender. Each time the Prime Rate changes, the per annum
rate of interest on this Loan shall change immediately and contemporaneously
with such change in the Prime Rate. If Administrative Agent (including any
subsequent Administrative Agent) ceases to exist or to establish or publish a
prime rate which the Prime Rate is then determined, the applicable variable rate
from which the Prime Rate is determined thereafter shall be instead the prime
rate reported in The Wall Street Journal (or the average prime
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rate if a high and a low prime rate are therein reported), and the Prime Rate
shall change without notice with each change in such prime rate as of the date
such change is reported.
1.7.1 Past Due Rate. Any principal of, and to the extent permitted by
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applicable law, any interest on this Loan, and any other sum payable hereunder,
which is not paid when due shall bear interest, from the date due and payable
until paid, payable on demand, at a rate per annum (the "Past Due Rate") equal
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to the lesser of (I) the maximum non-usurious rate of interest allowed by
applicable law or (II) the LIBOR Daily Rate plus six hundred (600) basis points.
1.8 Prepayment. Borrower may prepay the principal balance of this Loan, in
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full at any time or in part from time to time, without fee, premium or penalty,
provided that: (a) no prepayment may be made which in Administrative Agent's
judgment would contravene or prejudice funding under any applicable Permanent
Loan Commitment or Tri-party Agreement or the like; (b) Administrative Agent
shall have actually received from Borrower prior written notice of (i)
Borrower's intent to prepay, (ii) the amount of principal which will be prepaid
(the "Prepaid Principal"), and (iii) the date on which the prepayment will be
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made; (c) each prepayment shall be in a Minimum Amount multiple of $1,000
(unless the prepayment retires the outstanding balance of this Loan in full);
and (d) each prepayment shall be in the amount of 100% of the Prepaid Principal,
plus accrued unpaid interest thereon to the date of prepayment, plus any other
sums which have become due to Administrative Agent and Lenders under the Loan
Documents on or before the date of prepayment but have not been paid. If this
Loan is prepaid in full, any commitment of Lenders for further advances shall
automatically terminate.
1.9 Consequential Loss. Within fifteen (15) days after request by any
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Lender (or at the time of any prepayment), Borrower shall pay to such Lender
such amount or amounts as will compensate such Lender for any loss, cost,
expense, penalty, claim or liability, including any loss incurred in obtaining,
prepaying, liquidating or employing deposits or other funds from third parties
and any loss of revenue, profit or yield, as determined by such Lender in its
judgment reasonably exercised (together, "Consequential Loss") incurred by such
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Lender with respect to any LIBOR Rate, including any LIBOR Rate Election or
LIBOR Rate Principal as a result of: (a) the failure of Borrower to make
payments on the date specified under this Agreement or in any notice from
Borrower to Administrative Agent; (b) the failure of Borrower to borrow,
continue or convert into LIBOR Rate Principal on the date or in the amount
specified in a notice given by Borrower to Administrative Agent pursuant to this
Agreement or the Loan Agreement; (c) the early termination of any Interest
Period for any reason; or (d) the payment or prepayment of any amount on a date
other than the date such amount is required or permitted to be paid or prepaid,
whether voluntarily or by reason of acceleration, including, but not limited to,
acceleration upon any transfer or conveyance of any right, title or interest in
the Property giving Administrative Agent on behalf of Lenders the right to
accelerate the maturity of the Loan as provided in the Deed of Trust. The
foregoing notwithstanding, the amounts of the Consequential Loss shall never be
less than zero or greater than is permitted by applicable law. If any
Consequential Loss will be due, the Lender shall deliver to Borrower a notice as
to the amount of the Consequential Loss, which notice shall be conclusive in the
absence of manifest error. Neither Administrative Agent nor the Lenders shall
have any obligation to purchase, sell and/or match funds in connection with the
funding or maintaining of the Loan or any portion thereof. The obligations of
Borrower under this Section shall survive any termination of the Loan Documents
and payment of this Loan and shall not be waived by any delay by Administrative
Agent or Lenders in seeking such compensation.
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1.10 Late Charge. If Borrower shall fail to make any payment due hereunder
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or under the terms of any Note within fifteen (15) days after the date such
payment is due, Borrower shall pay to the applicable Lender or Lenders on demand
a late charge equal to four percent (4%) of such payment. Such fifteen (15) day
period shall not be construed as in any way extending the due date of any
payment. The "late charge" is imposed for the purpose of defraying the expenses
of a Lender incident to handling such defaulting payment. This charge shall be
in addition to, and not in lieu of, any other remedy Lenders may have and is in
addition to any fees and charges of any agents or attorneys which Administrative
Agent or Lenders may employ upon the occurrence of a Default, whether authorized
herein or by law.
1.11 Taxes.
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(a) Any and all payments by Borrower to or for the account of
Administrative Agent or any Lender under any Loan Document shall be made free
and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, assessments, fees, withholdings or similar
charges, and all liabilities with respect thereto, excluding, in the case of
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Administrative Agent and any Lender, taxes imposed on or measured by its net
income, and franchise taxes imposed on it (in lieu of net income taxes), by the
jurisdiction (or any political subdivision thereof) under the Laws of which
Administrative Agent or such Lender, as the case may be, is organized or
maintains a lending office (all such non-excluded taxes, duties, levies,
imposts, deductions, assessments, fees, withholdings or similar charges, and
liabilities being hereinafter referred to as "Taxes"). If Borrower shall be
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required by any Laws to deduct any Taxes from or in respect of any sum payable
under any Loan Document to Administrative Agent or any Lender, (i) the sum
payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section), Administrative Agent and such Lender receives an amount equal to
the sum it would have received had no such deductions been made, (ii) Borrower
shall make such deductions, (iii) Borrower shall pay the full amount deducted to
the relevant taxation authority or other authority in accordance with applicable
Laws, and (iv) within 30 days after the date of such payment, Borrower shall
furnish to Administrative Agent (which shall forward the same to such Lender)
the original or a certified copy of a receipt evidencing payment thereof.
(b) In addition, Borrower agrees to pay any and all present or future
stamp, court or documentary taxes and any other excise or property taxes or
charges or similar levies which arise from any payment made under any Loan
Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as "Other Taxes").
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(c) If Borrower shall be required by the Laws of any jurisdiction
outside the United States to deduct any Taxes from or in respect of any sum
payable under any Loan Document to Administrative Agent or any Lender, Borrower
shall also pay to Administrative Agent (for the account of such Lender) or to
such Lender, at the time interest is paid, such additional amount that such
Lender specifies as necessary to preserve the after-tax yield (after factoring
in United States (federal and state) taxes imposed on or measured by net income)
the Lender would have received if such deductions (including deductions
applicable to additional sums payable under this Section) had not been made.
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(d) Borrower agrees to indemnify Administrative Agent and each
Lender for the full amount of Taxes and Other Taxes (including any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section) paid by Administrative Agent and such Lender and any liability
(including penalties, interest and expenses) arising therefrom or with respect
thereto, in each case whether or not such Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Tribunal. Payment under this
subsection (d) shall be made within 30 days after the date the Lender or the
Administrative Agent makes a demand therefor.
(e) Without prejudice to the survival of any other agreement
of Borrower hereunder, the agreements and obligations of Borrower contained in
this Section shall survive the termination of the Commitments and the payment in
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full of all the other Obligations.
1.12 Payment Schedule and Maturity Date. The entire principal balance
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of the Loan then unpaid and all accrued interest then unpaid shall be due and
payable in full on the Maturity Date. Accrued unpaid interest shall be due and
payable on the first (1st) day of the calendar month after the date of this
Agreement and on the same day of each succeeding calendar month thereafter until
all principal and accrued interest owing on this Loan shall have been fully paid
and satisfied.
1.13 Advances and Payments.
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(a) Following receipt of a Draw Request, Administrative Agent
shall promptly provide each Lender with a copy of the Draw Request Form in the
form of Exhibit "F-1", the related AIA Document G-702 and G-703, the related
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written certification by Borrower's Architect and if available the related
written certification of the Construction Consultant. Administrative Agent shall
notify each Lender telephonically (with confirmation by facsimile) or by
facsimile (with confirmation by telephone) not later than 1:00 p.m.
Administrative Agent's Time two (2) Business Days prior to the advance Funding
Date for LIBOR Rate Principal advances, and one (1) Business Day prior to the
advance Funding Date for all other advances, of its Pro Rata Share of the Amount
Administrative Agent has determined shall be advanced in connection therewith
("Advance Amount"). In the case of an advance of the Loan, each Lender shall
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make the funds for its Pro Rata Share of the Advance Amount available to
Administrative Agent not later than 11:00 a.m. Administrative Agent's Time on
the Funding Date thereof. After Administrative Agent's receipt of the Advance
Amount from Lenders, Administrative Agent shall make proceeds of the Loan in an
amount equal to the Advance Amount (or, if less, such portion of the Advance
Amount that shall have been paid to Administrative Agent by Lenders in
accordance with the terms hereof) available to Borrowers on the applicable
Funding Date by advancing such funds to Borrowers in accordance with the
provisions of Exhibit "F".
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(b) All payments by Borrower shall be made without condition or
deduction for any counterclaim, defense, recoupment or setoff. Except as
otherwise expressly provided herein, all payments by Borrower hereunder shall be
made to Administrative Agent not later than 12:00 p.m. Administrative Agent's
Time on the date specified herein. Administrative Agent shall promptly
distribute to each Lender, such funds as it may be entitled to receive
hereunder.
(c) Except as otherwise provided herein, all payments by
Borrower or any Lender shall be made to Administrative Agent at Administrative
Agent's Office not later than the time for such type of payment specified in
this Agreement. All payments received after such time
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shall be deemed received on the next succeeding Business Day. All payments shall
be made in immediately available funds in lawful money of the United States of
America.
(d) Upon satisfaction of any applicable terms and conditions
set forth herein, Administrative Agent shall promptly make any amounts received
in accordance with the prior subsection available in like funds received as
follows: (i) if payable to Borrower, in accordance with Exhibit "F", except as
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otherwise specified herein, and (ii) if payable to any Lender, by wire transfer
to such Lender at the address specified in the Schedule of Lenders.
(e) Unless Borrower or any Lender has notified Administrative
Agent prior to the date any payment is required to be made by it to
Administrative Agent, that Borrower or such Lender, as the case may be, will not
make such payment, Administrative Agent may assume that Borrower or such Lender,
as the case may be, has timely made such payment and may (but shall not be
required to do so) in reliance thereon, make available a corresponding amount to
the person or entity entitled thereto. If and to the extent that such payment
was not in fact made to Administrative Agent in immediately available funds,
then:
(i) if Borrower failed to make such payment, each Lender
shall forthwith on demand repay to Administrative Agent the portion of
such assumed payment that was made available to such Lender in
immediately available funds, together with interest thereon in respect
of each day from and including the date such amount was made available
by Administrative Agent to such Lender to the date such amount is
repaid to Administrative Agent in immediately available funds at the
Federal Funds Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such
Lender or, if applicable, Electing Lender or Lenders shall forthwith on
demand pay to Administrative Agent the amount thereof in immediately
available funds, together with interest thereon for the period from the
date amount was made available by Administrative Agent to Borrower to
the date such amount is recovered by Administrative Agent (the
"Compensation Period") at a rate per annum equal to the interest rate
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applicable to such amount under the Loan. If such Lender pays such
amount to Administrative Agent, then such amount shall constitute such
Lender's Pro Rata Share, included in the applicable Loan advance. If
such Lender does not pay such amount forthwith upon Administrative
Agent's demand therefor, Administrative Agent may make a demand
therefor upon Borrower, and the Borrower shall pay such amount to
Administrative Agent, together with interest thereon for the
Compensation Period at a rate per annum equal to the rate of interest
applicable to such amount under the Loan. Nothing herein shall be
deemed to relieve any Lender from its obligation to fulfill its
Commitment or to prejudice any rights which Administrative Agent or
Borrower may have against any Lender as a result of any default by such
Lender hereunder.
A notice of the Administrative Agent to any Lender with respect to any amount
owing under this subsection shall be conclusive, absent manifest error.
(f) If any Lender makes available to the Administrative Agent
funds for any Loan advance to be made by such Lender as provided in the
foregoing provisions of this Section, and the funds are not advanced to Borrower
or otherwise used to satisfy any Obligations of Lender
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hereunder, the Administrative Agent shall return such funds (in like funds as
received from such Lender) to such Lender, without interest, within two (2)
business days.
(g) Nothing herein shall be deemed to obligate any Lender to
obtain the funds for any Loan advance in any particular place or manner or to
constitute a representation by any Lender that it has obtained or will obtain
the funds for any Loan advance in any particular place or manner.
1.14. Administrative Agent Advances.
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(a) Administrative Agent is hereby authorized by Borrower and
Lenders, from time to time, in Administrative Agent's sole discretion, (i) after
the occurrence of a Default (but without constituting a waiver of such Default),
(ii) at any time that any of the other applicable conditions precedent set forth
in Exhibit "C" and Exhibit "F" to the making of advances have been satisfied to
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the extent required by Administrative Agent, or (iii) after acquisition of all
or a portion of the Loan collateral by foreclosure or deed in lieu of
foreclosure, to make advances of the Loan to Borrowers or otherwise expend funds
on behalf of Lenders which Administrative Agent, in its reasonable business
judgment, deems necessary or desirable (x) to preserve or protect the Loan
collateral (including those with respect to property taxes, insurance premiums,
completion of construction, operation, management, improvements, maintenance,
repair, sale and disposition), or any portion thereof, or (y) to pay any costs,
fees and expenses as described in Section 6.10 herein (any of the advances
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described in this Section being herein referred to as "Administrative Agent
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Advances"). Notwithstanding anything herein to the contrary, advances for the
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completion of the construction, operation, management, improvements,
maintenance, repair, sale and disposition shall only be considered protective
advances as described in this paragraph in the event that such advances do not
exceed the sum of One Million Dollars ($1,000,000) in the cumulative. In the
event that such advances exceed One Million Dollars ($1,000,000) any further
advances shall require the prior consent of the Required Lenders.
(b) Administrative Agent Advances shall constitute obligatory
advances of Lenders under this Agreement, shall be repayable on demand and
secured by the Loan collateral, and shall bear interest at the rate applicable
to such amount under the Loan or otherwise at the Prime Rate. Administrative
Agent shall notify each Lender in writing of each Administrative Agent Advance.
Upon receipt of notice from Administrative Agent of its making of an
Administrative Agent Advance, each Lender shall make the amount of such Lender's
Pro Rata Share of the outstanding principal amount of the Administrative Agent
Advance available to Administrative Agent, in same day funds, to such account of
Administrative Agent as Administrative Agent may designate, (i) on or before
3:00 p.m. (Administrative Agent's Time) on the day Administrative Agent provides
Lenders with notice of the making of such Administrative Agent Advance if
Administrative Agent provides such notice on or before 12:00 p.m.
(Administrative Agent's Time), or (ii) on or before 12:00 p.m. on the Business
Day immediately following the day Administrative Agent provides Lenders with
notice of the making of such advance if Administrative Agent provides notice
after 12:00 p.m. (Administrative Agent's Time).
1.15 Defaulting Lender.
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1.15.1 Notice and Cure of Lender Default; Election Period;
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Electing Lenders. Administrative Agent shall notify (such notice being referred
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to as the "Default Notice") Borrower
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(for Loan advances) and each non-Defaulting Lender if any Lender is a Defaulting
Lender. Each non-Defaulting Lender shall have the right, but in no event or
under any circumstance the obligation, to fund such Defaulting Lender Amount,
provided that, within twenty (20) days of the date of the Default Notice (the
"Election Period"), such non-Defaulting Lender or Lenders (each such Lender, an
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"Electing Lender") irrevocably commit(s) by notice in writing (an "Election
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Notice") to Administrative Agent, the other Lenders and Borrower to fund the
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Defaulting Lender Amount. If Administrative Agent receives more than one
Election Notice within the Election Period, then the commitment to fund the
Defaulting Lender Amount shall be apportioned pro rata among the Electing
Lenders in the proportion that the amount of each such Electing Lender's
Commitment bears to the total Commitments of all Electing Lenders. If the
Defaulting Lender fails to pay the Defaulting Lender Payment Amount within the
Election Period, the Electing Lender or Lenders, as applicable, shall be
automatically obligated to fund the Defaulting Lender Amount (and Defaulting
Lender shall no longer be entitled to fund such Defaulting Lender Amount) within
three (3) Business Days after such notice to Administrative Agent for
reimbursement to Administrative Agent or payment to Borrower as applicable.
Notwithstanding anything to the contrary contained herein, if Administrative
Agent has funded the Defaulting Lender Amount, Administrative Agent shall be
entitled to reimbursement for its portion of the Defaulting Lender Payment
Amount pursuant to Section 5.11.
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1.15.2 Removal of Rights; Indemnity. Administrative Agent
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shall not be obligated to transfer to a Defaulting Lender any payments made by
or on behalf of Borrower to Administrative Agent for the Defaulting Lender's
benefit; nor shall a Defaulting Lender be entitled to the sharing of any
payments hereunder or under any Note until all Defaulting Lender Payment Amounts
are paid in full. Administrative Agent shall hold all such payments received or
retained by it for the account of such Defaulting Lender; Amounts payable to a
Defaulting Lender shall be paid by Administrative Agent to reimburse
Administrative Agent and any Electing Lender pro rata for all Funds Defaulting
Lender Payment Amounts. Solely for the purposes of voting or consenting to
matters with respect to the Loan Documents, a Defaulting Lender shall be deemed
not to be a "Lender" and such Defaulting Lender's Commitment shall be deemed to
be zero. A Defaulting Lender shall have no right to participate in any
discussions among and/or decisions by Lenders hereunder and/or under the other
Loan Documents. Further, any Defaulting Lender shall be bound by any amendment
to, or waiver of, any provision of, or any action taken or omitted to be taken
by Administrative Agent and/or the non-Defaulting Lenders under, any Loan
Document which is made subsequent to the Defaulting Lender's becoming a
Defaulting Lender. This Section shall remain effective with respect to a
Defaulting Lender until such time as the Defaulting Lender shall no longer be in
default of any of its obligations under this Agreement by curing such default by
payment of all Defaulting Lender Payment Amounts (i) within the Election Period,
or (ii) after the Election Period with the consent of the non-Defaulting
Lenders. Such Defaulting Lender nonetheless shall be bound by any amendment to
or waiver of any provision of, or any action taken or omitted to be taken by
Administrative Agent and/or the non-Defaulting Lenders under any Loan Document
which is made subsequent to that Lender's becoming a Defaulting Lender and prior
to such cure or waiver. The operation of this Section shall not be construed to
increase or otherwise affect the Commitment of any non-Defaulting Lender, or
relieve or excuse the performance by Borrower of their duties and obligations
hereunder or under any of the other Loan Documents. Furthermore, nothing
contained in this Section shall release or in any way limit a Defaulting
Lender's obligations as a Lender hereunder and/or under any other of the Loan
Documents. Further, a Defaulting Lender shall indemnify and hold harmless
Administrative Agent and each of the non-Defaulting Lenders from any claim,
loss, or costs incurred
PAGE 9
by Administrative Agent and/or the non-Defaulting Lenders as a result of a
Defaulting Lender's failure to comply with the requirements of this Agreement,
including, without limitation, any and all additional losses, damages, costs and
expenses (including, without limitation, attorneys' fees) incurred by
Administrative Agent and any non-Defaulting Lender as a result of and/or in
connection with (i) a non-Defaulting Lender's acting as an Electing Lender, (ii)
any enforcement action brought by Administrative Agent against a Defaulting
Lender, and (iii) any action brought against Administrative Agent and/or
Lenders. The indemnification provided above shall survive any termination of
this Agreement.
1.15.3 Commitment Adjustments. In connection with the
----------------------
adjustment of the amounts of the Loan Commitments of the Defaulting Lender and
Electing Lender(s) upon the expiration of the Election Period as aforesaid,
Borrower, Administrative Agent and Lenders shall execute such modifications to
the Loan Documents as shall, in the reasonable judgment of Administrative Agent,
be necessary or desirable in connection with the adjustment of the amounts of
Commitments in accordance with the foregoing provisions of this Section. For the
purpose of voting or consenting to matters with respect to the Loan Documents
such modifications shall also reflect the removal of voting rights of the
Defaulting Lender and increase in voting rights of Electing Lenders to the
extent an Electing Lender has funded the Defaulting Lender Amount. In connection
with such adjustments, Defaulting Lenders shall execute and deliver an
Assignment and Acceptance covering that Lender's Commitment and otherwise comply
with Section 6.5. If a Lender refuses to execute and deliver such Assignment and
------------
Acceptance or otherwise comply with Section 6.5, such Lender hereby appoints
-----------
Administrative Agent to do so on such Lender's behalf. Administrative Agent
shall distribute an amended Schedule of Lenders, which shall thereafter be
incorporated into this Agreement, to reflect such adjustments. However, all such
Defaulting Lender Amounts funded by Administrative Agent or Electing Lenders
shall continue to be Defaulting Lender Amounts of the Defaulting Lender pursuant
to its obligations under this Agreement.
1.15.4 No Election. In the event that no Lender elects to
-----------
commit to fund the Defaulting Lender Amount within the Election Period,
Administrative Agent shall, upon the expiration of the Election Period, so
notify Borrower and each Lender.
1.16 Several Obligations; No Liability, No Release. Notwithstanding
---------------------------------------------
that certain of the Loan Documents now or hereafter may have been or will be
executed only by or in favor of Administrative Agent in its capacity as such,
and not by or in favor of Lenders, any and all obligations on the part of
Administrative Agent (if any) to make any advances of the Loan or reimbursements
for other Payment Amounts shall constitute the several (and not joint)
obligations of the respective Lenders on a ratable basis, according to their
respective Pro Rata Shares. Except as may be specifically provided in this
Agreement, no Lenders shall have any liability for the acts of any other
Lenders. No Lenders shall be responsible to Borrower or any other person for any
failure by any other Lenders to fulfill its obligations to made advances of the
Loan or reimbursements for other Payment Amounts, nor to take any other action
on its behalf hereunder or in connection with the financing contemplated herein.
The failure of any Lender to pay to Administrative Agent its Pro Rata Share of a
Payment Amount shall not relieve any other Lender of any obligation hereunder to
pay to Administrative Agent its Pro Rata Share of such Payment Amounts as and
when required herein, but no Lender shall be responsible for the failure of any
other Lender to so fund its Pro Rata Share of the Payment Amount. In furtherance
of the foregoing, Lenders shall comply with their obligation to pay
Administrative Agent their Pro Rata Share of such Payment Amounts regardless of
PAGE 10
(i) the occurrence of any Default hereunder or under any Loan Document; (ii) a
default by Borrowers under the Permanent Loan Commitment, if applicable, (iii)
any failure of consideration, absence of consideration, misrepresentation,
fraud, or any other event, failure, deficiency, breach or irregularity of any
nature whatsoever in the Loan Documents; (iv) any bankruptcy, insolvency or
other like event with regard to any Borrower; Permanent Lender, if any, or
Guarantor. The obligation of Lenders to pay to such Payment Amounts are in all
regards independent of any claims between Administrative Agent and any Lender.
ARTICLE 2 - ADDITIONAL COVENANTS AND AGREEMENTS
2.1 Construction of the Improvements. Borrower shall commence construction
--------------------------------
of the Improvements on or before the Construction Commencement Date, and shall
prosecute the construction of the Improvements with diligence and continuity, in
a good and workmanlike manner, and in accordance with sound building and
engineering practices, all applicable laws and governmental requirements, the
Plans and the Loan Documents. Borrower shall not permit cessation of work for a
period in excess of ten (10) days (whether or not consecutive), except for
Excusable Delays. Borrower shall complete construction of the Improvements free
and clear of all liens (except liens created by the Loan Documents), and shall
obtain a certificate of occupancy and all other permits, licenses and approvals
from all applicable governmental authorities required for the occupancy, use and
operation of the Improvements, in each case satisfactory to Administrative
Agent, on or before the Completion Date. Borrower shall promptly correct (a) any
material defect in the Improvements, (b) any material departure from the Plans,
law or governmental requirements, or (c) any encroachment by any Improvements or
structure on any building setback line, easement, property line or restricted
area.
2.2 Plans and Changes. No construction shall be undertaken on the Land
-----------------
except as shown in the Plans. Borrower assumes full responsibility for ensuring
that the Plans contain all necessary detail and are adequate for construction of
the Improvements, and for the compliance of the Plans and the Property with all
laws, restrictive covenants, governmental requirements and sound building and
engineering practices. No plans or specifications, or any changes thereto, shall
be included as part of the Plans until approved by Administrative Agent,
Construction Consultant, Nissan, the Foundations, the Association, Developer, as
defined in the Development Agreement and to the extent required thereby, all
applicable governmental authorities, and all other parties required under the
Loan Documents. Without Administrative Agent's prior written consent, Borrower
shall not change or modify the Plans, agree to any change order, or allow any
extras to any contractor or any subcontractor, except that Borrower may make
Permitted Changes if: (a) Borrower notifies Administrative Agent in writing of
the change or extra with appropriate supporting documentation and information;
(b) Borrower obtains the approval of the applicable contractor, Borrower's
architect and all sureties; (c) the structural integrity, quality and standard
of workmanship of the Improvements is not impaired by such change or extra; (d)
no substantial change in architectural appearance is effected by such change or
extra; (e) no default in any obligation to any person or violation of any law or
governmental requirement would result from such change or extra; (f) Borrower
complies with Section 1.5 of this Agreement to cover any excess cost resulting
-----------
from the change or extra; and (g) completion of the Improvements by the
Completion Date will not be affected. Administrative Agent shall not be
obligated to review a proposed change unless it has received all documents
necessary to review such change, including the change order, cost estimates,
plans and specifications, and evidence that all required approvals other than
that of Administrative Agent have been obtained.
PAGE 11
2.3 Contracts. Without Administrative Agent's prior written approval as to
---------
parties, terms, and all other matters, Borrower shall not (a) enter into any
material contract (hereinafter defined) for the performance of any work or the
supplying of any labor, materials or services for the design or construction of
the Improvements, (b) enter into any management, leasing, maintenance or other
contract pertaining to the Property not described in clause (a) that is not
unconditionally terminable by Borrower or any successor owner without penalty or
payment on not more than thirty (30) days notice to the other party thereunder,
or (c) modify, amend, or terminate any such contracts. All such contracts shall
provide that all rights and liens of the applicable contractor, architect,
engineer, supplier, surveyor or other party and any right to remove removable
Improvements are subordinate to Lender's rights and liens, shall require all
subcontracts and purchase orders to contain a provision subordinating the
subcontractors' and mechanics' and materialmen's liens and any right to remove
removable Improvements to Lender's rights and liens, and shall provide that no
change order shall be effective without the prior written consent of
Administrative Agent, except for change orders which implement Permitted
Changes. Borrower shall not default under any contract, Borrower shall not
permit any contract to terminate by reason of any failure of Borrower to perform
thereunder, and Borrower shall promptly notify Administrative Agent of any
default thereunder. Borrower will deliver to Administrative Agent, upon request
of Administrative Agent, the names and addresses of all persons or entities with
whom each contractor has contracted or intends to contract for the construction
of the Improvements or for the furnishing of labor or materials therefor. With
respect to contracts for the performance of any work or the supplying of any
labor, materials or services, a "material" contract is one which exceeds
$100,000.00 in total price.
2.4 Assignment of Contracts and Plans. As additional security for the
---------------------------------
Obligations, Borrower hereby transfers and assigns to Administrative Agent for
the ratable benefit of Administrative Agent and Lenders all of Borrower's right,
title and interest, but not its liability, in, under, and to all construction,
architectural and design contracts, and the Plans, and agrees that all of the
same are covered by the security agreement provisions of the Deed of Trust.
Borrower agrees to deliver to Administrative Agent from time to time upon
Administrative Agent's request such consents to the foregoing assignment from
parties contracting with Borrower as Administrative Agent may require. Neither
this assignment nor any action by Administrative Agent or Lenders shall
constitute an assumption by Administrative Agent or Lenders of any obligation
under any contract or with respect to the Plans, Borrower hereby agrees to
perform all of its obligations under any contract, and Borrower shall continue
to be liable for all obligations of Borrower with respect thereto.
Administrative Agent shall have the right at any time (but shall have no
obligation) to take in its name or in the name of Borrower such action as
Administrative Agent may determine to be necessary to cure any default under any
contract or with respect to the Plans or to protect the rights of Borrower,
Administrative Agent or Lenders with respect thereto. Borrower irrevocably
constitutes and appoints Administrative Agent as Borrower's attorney-in-fact,
which power of attorney is coupled with an interest and irrevocable, to enforce
in Borrower's name or in Administrative Agent's and Lender's name all rights of
Borrower under any contract or with respect to the Plans. Administrative Agent
shall incur no liability if any action so taken by it or on its behalf shall
prove to be inadequate or invalid. Borrower indemnifies and holds Administrative
Agent and Lenders harmless against and from any loss, cost, liability or expense
(including, but not limited to, consultants' fees and expenses and attorneys'
fees and expenses) incurred in connection with Borrower's failure to perform
such contracts or any action taken by Administrative Agent or Lenders.
Administrative Agent may use the Plans for any purpose relating to the
Improvements. Borrower represents and warrants to Administrative Agent and
Lenders that the copy of any contract furnished or to be furnished to
Administrative Agent is and shall be a true and complete
PAGE 12
copy thereof, that the copies of the Plans delivered to Administrative Agent are
and shall be true and complete copies of the Plans, that there have been no
modifications thereof which are not fully set forth in the copies delivered, and
that Borrower's interest therein is not subject to any claim, setoff, or
encumbrance.
2.5 Storage of Materials. Borrower shall cause all materials supplied for,
--------------------
or intended to be utilized in the construction of the Improvements, but not yet
affixed to or incorporated into the Improvements or the Land, to be stored on
the Land with adequate safeguards to prevent loss, theft, damage or commingling
with materials for other projects. Borrower shall not purchase or order
materials for delivery more than forty-five (45) days prior to the scheduled
incorporation of such materials into the Improvements.
2.6 Construction Consultant. Administrative Agent may retain the services
-----------------------
of a Construction Consultant, whose duties may include, among others, reviewing
the Plans and any proposed changes to the Plans, performing construction cost
analyses, observing work in place and reviewing Draw Requests. The duties of
Construction Consultant run solely to Administrative Agent for the ratable
benefit of Lenders, and Construction Consultant shall have no obligations or
responsibilities whatsoever to Borrower, Borrower's architect, engineer,
contractor or any of their agents or employees. Unless prohibited by applicable
law, all fees, costs, and expenses of Construction Consultant shall be paid by
Borrower. Borrower shall cooperate with Construction Consultant and will furnish
to Construction Consultant such information and other material as Construction
Consultant considers necessary or useful in performing its duties.
2.7 Inspection. Administrative Agent and its agents, including
----------
Construction Consultant, may enter upon the Property to inspect the Property,
the Project and any materials at any reasonable time, unless Administrative
Agent deems such inspection is of an emergency nature, in which event Borrower
shall provide Administrative Agent with immediate access to the Property.
Borrower will furnish to Administrative Agent and its agents, including
Construction Consultant, for inspection and copying, all Plans, shop drawings,
specifications, books and records, and other documents and information that
Administrative Agent may request from time to time.
2.8 Notice to Lenders. Borrower shall promptly within five (5) days after
-----------------
the occurrence of any of the following events, notify each Lender in writing
thereof, specifying in each case the action Borrower has taken or will take with
respect thereto: (a) any violation of any law or governmental requirement; (b)
any litigation, arbitration or governmental investigation or proceeding
instituted or threatened against Borrower or any Guarantor or the Property, and
any material development therein; (c) any actual or threatened condemnation of
any portion of the Property, any negotiations with respect to any such taking,
or any loss of or substantial damage to the Property; (d) any labor controversy
pending or threatened against Borrower or any contractor, and any material
development in any labor controversy; (e) any notice received by Borrower with
respect to the cancellation, alteration or non-renewal of any insurance coverage
maintained with respect to the Property; (f) any failure by Borrower or any
contractor, subcontractor or supplier to perform any material obligation under
any construction contract, any event or condition which would permit termination
of a construction contract or suspension of work thereunder, or any notice given
by Borrower or any contractor with respect to any of the foregoing; (g) any lien
filed against the Property or any stop notice served on Borrower in connection
with construction of the Improvements; or (h) any required permit, license,
certificate or approval with respect to the Property lapses or ceases to be in
full force and effect.
PAGE 13
2.9 Financial Statements. Borrower shall deliver to Administrative Agent
--------------------
with sufficient copies for each Lender the Financial Statements and other
statements and information at the times and for the periods described in (a) the
Basic Information and (b) any other Loan Document, and Borrower shall deliver to
Administrative Agent with sufficient copies for each Lender from time to time
such additional financial statements and information as Administrative Agent may
at any time request. Borrower will make all of its books, records and accounts
available to Administrative Agent and its representatives at the Property upon
request and will permit them to review and copy the same. Borrower shall
promptly notify Administrative Agent of any material adverse change in the
financial condition of Borrower and, if known by Borrower, Guarantor, or in the
construction progress of the Improvements. Administrative Agent shall provide a
copy of such Financial Statements to each Lender upon receipt.
2.10 Other Information. Borrower shall furnish to Administrative Agent from
-----------------
time to time upon Administrative Agent's request (i) copies of all subcontracts
entered into by contractors or subcontractors and the names and addresses of all
persons or entities with whom Borrower or any contractor has contracted or
intends to contract for the construction of the Improvements or the furnishing
of labor or materials in connection therewith; (ii) copies of all contracts,
bills of sale, statements, receipts or other documents under which Borrower
claims title to any materials, fixtures or articles of personal property
incorporated or to be incorporated into the Improvements or subject to the lien
of the Deed of Trust; (iii) a list of all unpaid bills for labor and materials
with respect to construction of the Improvements and copies of all invoices
therefor; (iv) budgets of Borrower and revisions thereof showing the estimated
costs and expenses to be incurred in connection with the completion of
construction of the Improvements; (v) current or updated detailed Project
schedules or construction schedules; and (vi) such other information relating to
Borrower, Guarantor, the Improvements, the Property, or any indemnitor or other
person or party connected with Borrower, the Loan, the construction of the
Improvements or any security for the Loan.
2.11 Reports and Testing. Borrower shall (a) promptly deliver to
-------------------
Administrative Agent copies of all reports, studies, inspections and tests made
on the Land, the Improvements or any materials to be incorporated into the
Improvements; (b) make such additional tests on the Land, the Improvements or
any materials to be incorporated into the Improvements as Administrative Agent
reasonably requires. Borrower shall immediately notify Administrative Agent of
any report, study, inspection or test that indicates any adverse condition
relating to the Land, the Improvements or any such materials.
2.12 Advertising by Lenders. At Administrative Agent's request and at
----------------------
Borrower's expense (not to exceed $1,000), Borrower shall erect and maintain on
the Property one or more advertising signs approved by Administrative Agent
indicating that the construction financing for the Property has been provided by
Lenders.
2.13 Appraisal. Administrative Agent may obtain from time to time, an
---------
appraisal of all or any part of the Property prepared in accordance with written
instructions from Administrative Agent by a third-party appraiser engaged
directly by Administrative Agent. Each such appraiser and appraisal shall be
satisfactory to Administrative Agent (including satisfaction of applicable
regulatory requirements). The cost of any such appraisal shall be borne by
Borrower if such appraisal is the first appraisal in any calendar year and in
all events if Administrative Agent obtains such appraisal after the
PAGE 14
occurrence of a Default, and such cost is due and payable by Borrower on demand
and shall be secured by the Loan Documents. Administrative Agent shall provide a
copy of such Appraisal to each Lender upon receipt.
2.14 Payment of Withholding Taxes. Borrower shall not use, or knowingly
----------------------------
permit any contractor or subcontractor to use, any portion of the proceeds of
any Loan advance to pay the wages of employees unless a portion of the proceeds
or other funds are also used to make timely payment to or deposit with (a) the
United States of all amounts of tax required to be deducted and withheld with
respect to such wages under the Internal Revenue Code, and (b) any state and/or
local Tribunal or agency having jurisdiction of all amounts of tax required to
be deducted and withheld with respect to such wages under any applicable state
and/or local laws.
2.15 ERISA and Prohibited Transaction Taxes. As of the date hereof and
--------------------------------------
throughout the term of this Loan Agreement, (a) Borrower is not and will not be
(i) an "employee benefit plan", as defined in Section 3(3) of the Employee
------------
Retirement Income Security Act of 1974, as amended ("ERISA"); or (ii) a "plan"
within the meaning of Section 4975(e) of the Internal Revenue Code, as amended
---------------
(the "Code"); (b) the assets of Borrower do not and will not constitute "plan
assets" within the meaning of the United States Department of Labor Regulations
set forth in 29 C.F.R. (S)2510.3-101; (c) Borrower is not and will not be a
"governmental plan" within the meaning of Section 3(32) of ERISA; (d)
-------------
transactions by or with Borrower are not and will not be subject to state
statutes applicable to Borrower regulating investments of fiduciaries with
respect to governmental plans; and (e) Borrower shall not engage in any
transaction which would cause any obligation, or action taken or to be taken,
hereunder (or the exercise by Administrative Agent of any of Lender's rights
under this Agreement, any Note or the other Loan Documents) to be a non-exempt
(under a statutory or administrative class exemption) prohibited transaction
under ERISA or Section 4975 of the Code. Borrower further agrees to deliver to
------------
Administrative Agent such certifications or other evidence of compliance with
the provisions of this Section 2.15 as Administrative Agent may from time to
------------
time request.
ARTICLE 3 - REPRESENTATIONS AND WARRANTIES
To induce Lenders to make the Loan, Borrower hereby represents and warrants
to Administrative Agent and Lenders that except as otherwise disclosed to
Administrative Agent in writing (a) Borrower has complied with any and all laws
and regulations concerning its organization, existence and the transaction of
its business, and has the right and power to own the Property and to develop the
Improvements as contemplated in this Agreement and the other Loan Documents; (b)
Borrower is authorized to execute, deliver and perform all of its obligations
under the Loan Documents; (c) the Loan Documents are valid and binding
obligations of Borrower; (d) Borrower is not in violation of any law, regulation
or ordinance, or any order of any court or Tribunal, and no provision of the
Loan Documents violates any applicable law, any covenants or restrictions
affecting the Property, any order of any court or Tribunal or any contract or
agreement binding on Borrower or the Property; (e) to the extent required by
applicable law, Borrower and Guarantor have filed all necessary tax returns and
reports and have paid all taxes and governmental charges thereby shown to be
owing; (f) intentionally omitted; (g) the Land is not part of a larger tract of
---------------------
land owned by Borrower or any of its affiliates or any Guarantor, is not
otherwise included under any unity of title or similar covenant with other lands
not encumbered by the Deed of Trust, and constitutes a separate tax lot or lots
with a separate tax assessment or assessments for the Land and Improvements,
independent of those for any other lands or improvements; (h) the Land and
Improvements comply with all laws and governmental requirements,
PAGE 15
including all subdivision and platting requirements, without reliance on any
adjoining or neighboring property; (i) the Plans do, and the Improvements when
constructed will, comply with all legal requirements regarding access and
facilities for handicapped or disabled persons; (j) Borrower has not directly or
indirectly conveyed, assigned or otherwise disposed of or transferred (or agreed
to do so) any development rights, air rights or other similar rights, privileges
or attributes with respect to the Property, including those arising under any
zoning or land use ordinance or other law or governmental requirement; (k) the
construction schedule for the Project is realistic and the Completion Date is a
reasonable estimate of the time required to complete the Project; (l) the
Financial Statements delivered to Administrative Agent are true, correct, and
complete in all material respects, and there has been no material change of
Borrower's or Guarantor's financial condition from the financial condition of
Borrower or Guarantor (as the case may be) indicated in such Financial
Statements; (m) all utility services necessary for the development of the Land
and the construction of the Improvements and the operation thereof for their
intended purpose are available at the boundaries of the Land, including electric
and natural gas facilities, telephone service, water supply, storm and sanitary
sewer facilities; (n) except as otherwise provided for in the Loan Documents,
the Borrower has made no contract or arrangement of any kind the performance of
which by the other party thereto would give rise to a lien on the Property; (o)
the current and anticipated use of the Property complies with all applicable
zoning ordinances, regulations and restrictive covenants affecting the Land
without the existence of any variance, non-complying use, nonconforming use or
other special exception, all use restrictions of any Tribunal having
jurisdiction have been satisfied, and no violation of any law or regulation
exists with respect thereto; (p) attached hereto as Exhibit "J" is a list of all
-----------
bonds required in connection with completion of the Improvements, and to the
best of Borrower's knowledge, no other bonds or other security are currently
required or will be required prior to completion of the Improvements; (q) prior
to the recordation of the Deed of Trust, except as disclosed to Administrative
Agent in writing, no work of any kind (including destruction or removal of any
existing improvements, site work, clearing, grading, grubbing, draining or
fencing of the Land) has been or will be commenced or performed on the Land, no
equipment or material has been or will be delivered to or placed upon the Land
for any purpose whatsoever, and no contract (or memorandum or affidavit thereof)
for the supplying of labor, materials, or services for the design or
construction of the Improvements, or the surveying of the Land or Improvements,
nor any affidavit or notice of commencement of construction of the Improvements,
has been or will be executed or recorded, which could cause a mechanic's or
materialman's lien or similar lien to achieve priority over the Deed of Trust or
the rights of Administrative Agent and Lenders thereunder.
ARTICLE 4 - DEFAULT AND REMEDIES
4.1 Events of Default. The occurrence of any one of the following shall
-----------------
be a default under this Agreement ("Default"): (a) any of the Indebtedness is
-------
not paid when due, whether on the scheduled due date or upon acceleration,
maturity or otherwise; (b) any covenant, agreement, condition, representation or
warranty in this Agreement (other than covenants to pay the Indebtedness and
other than Defaults expressly listed in this Section) is not fully and timely
performed, observed or kept; (c) the occurrence of a Default under any other
Loan Document (taking into account any applicable notice and cure period set
forth in such Loan Document); (d) the execution and/or filing of any affidavit
of commencement stating construction on the Land actually commenced prior to the
day after the date on which the Deed of Trust was duly filed for record; (e)
construction of the Improvements ceases for more than ten (10) days (whether or
not consecutive) except for Excusable Delays; (f) the construction of the
Improvements, or any materials for which an advance has been requested, fails to
comply with
PAGE 16
the Plans, the Loan Documents, any laws or governmental requirements, or any
applicable restrictive covenants; (g) Borrower fails to satisfy any condition
precedent to the obligation of Lenders to make an advance; (h) construction of
the Improvements is abandoned, Administrative Agent determines that construction
of the Improvements in accordance with this Agreement will not be completed on
or before the Completion Date, or Borrower fails to complete construction of the
Improvements (and obtain all applicable permits, licenses, certificates and
approvals) in accordance with this Agreement on or before the Completion Date;
(i) any required permit, license, certificate or approval with respect to the
Property lapses or ceases to be in full force and effect; (j) a Borrower's
Deposit is not made with Administrative Agent within seven (7) days after
Administrative Agent's request therefor in accordance with Section 1.5; (k)
-----------
construction is enjoined or Borrower, Administrative Agent or a Lender is
enjoined or prohibited from performing any of its respective obligations under
any of the Loan Documents; (l) the owner of the Property enters into any lease
of part or all of the Property which does not comply with the Loan Documents;
(m) a lien for the performance of work or the supply of materials which is
established against the Property, or any stop notice served on Borrower, the
general contractor, Administrative Agent or a Lender, remains unsatisfied or
unbonded for a period of twenty (20) days after the date of filing or service;
(n) the occurrence of any condition or situation which, in the sole
determination of Administrative Agent, constitutes a danger to or impairment of
the Property or the lien of the Deed of Trust, if such condition or situation is
not remedied within ten (10) days after written notice to the Borrower thereof;
(o) the entry of a judgment against Borrower or any Guarantor or the issuance of
any attachment, sequestration, or similar writ levied upon any of its property
which is not discharged within a period of ten (10) days; (p) Administrative
Agent determines that a material adverse change has occurred in the financial
condition of Borrower or any Guarantor or in the condition of the Property; (q)
there occurs (1) any default under the Nissan Lease which remains uncured beyond
any applicable cure period set forth in the Nissan Lease, or (2) any
termination, cancellation, modification or amendment of the Nissan Lease without
the express prior written consent of Lender; (r) the dissolution or insolvency
of Borrower or any Guarantor; (s) a default occurs under the Development
Agreement and/or the Developer's Completion Guaranty which is not cured within
any applicable notice and cure period (if any) provided in such document; and
(t) a default occurs under any other Loan Document which is not cured within any
applicable notice and cure period provided therein.
4.2 Remedies. Upon a Default, subject to the terms and conditions of
--------
Section 4.2 of the Deed of Trust, Administrative Agent at its election may (but
shall not be obligated to), and at the direction of the Required Lenders shall,
without notice, do any one or more of the following: (a) terminate Lenders'
Commitment to lend and any obligation to disburse any Borrower's Deposit
hereunder; (b) declare any and all Indebtedness immediately due and payable; (c)
reduce any claim to judgment; (d) exercise any and all rights and remedies
afforded by this Agreement, the other Loan Documents, law, equity or otherwise,
including obtaining appointment of a receiver (to which Borrower hereby
consents) and/or judicial or nonjudicial foreclosure under the Deed of Trust;
(e) in its own name on behalf of the Lenders or in the name of Borrower, enter
into possession of the Property, perform all work necessary to complete
construction of the Improvements substantially in accordance with the Plans (as
modified as deemed necessary by Administrative Agent), the Loan Documents, and
all applicable laws, governmental requirements and restrictive covenants, and
continue to employ Borrower's architect, engineer and any contractor pursuant to
the applicable contracts or otherwise; or (f) set-off and apply, to the extent
thereof and to the maximum extent permitted by law, any and all deposits, funds,
or assets at any time held and any and all other indebtedness at any time owing
by Administrative Agent or any Lender to or for the credit or account of
Borrower against any Indebtedness. Further, L/C Issuer may, with the approval of
Administrative Agent on behalf of the
PAGE 17
Required Lenders, demand immediate payment by Borrower of an amount equal to the
aggregate amount of all outstanding Letters of Credit to be held in a deposit
account with Administrative Agent to secure amounts due from Borrower under
Letters of Credit and when no Letters of Credit exist, the Loan.
Borrower hereby appoints Administrative Agent as Borrower's
attorney-in-fact, which power of attorney is irrevocable and coupled with an
interest, with full power of substitution if Administrative Agent so elects, to
do any of the following in Borrower's name upon the occurrence of a Default: (i)
use such sums as are necessary, including any proceeds of the Loan and any
Borrower's Deposit, make such changes or corrections in the Plans, and employ
such architects, engineers, and contractors as may be required, or as Lenders
may otherwise consider desirable, for the purpose of completing construction of
the Improvements substantially in accordance with the Plans (as modified as
deemed necessary by Administrative Agent), the Loan Documents, and all
applicable laws, governmental requirements and restrictive covenants; (ii)
execute all applications and certificates in the name of Borrower which may be
required for completion of construction of the Improvements; (iii) endorse the
name of Borrower on any checks or drafts representing proceeds of any insurance
policies, or other checks or instruments payable to Borrower with respect to the
Property; (iv) do every act with respect to the construction of the Improvements
that Borrower may do; (v) prosecute or defend any action or proceeding incident
to the Property, (vi) pay, settle, or compromise all bills and claims so as to
clear title to the Property; and (vii) take over and use all or any part of the
labor, materials, supplies and equipment contracted for, owned by, or under the
control of Borrower, whether or not previously incorporated into the
Improvements. Any amounts expended by Administrative Agent itself or on behalf
of Lenders to construct or complete the Improvements or in connection with the
exercise of its remedies herein shall be deemed to have been advanced to
Borrower hereunder as a demand obligation owing by Borrower to Administrative
Agent or Lenders as applicable and shall constitute a portion of the
Indebtedness, regardless of whether such amounts exceed any limits for
Indebtedness otherwise set forth herein. Neither Administrative Agent nor
Lenders shall have any liability to Borrower for the sufficiency or adequacy of
any such actions taken by Administrative Agent.
No delay or omission of Administrative Agent or Lenders to exercise any
right, power or remedy accruing upon the happening of a Default shall impair any
such right, power or remedy or shall be construed to be a waiver of any such
Default or any acquiescence therein. No delay or omission on the part of
Administrative Agent or Lenders to exercise any option for acceleration of the
maturity of the Indebtedness, or for foreclosure of the Deed of Trust following
any Default as aforesaid, or any other option granted to Administrative Agent
and Lenders hereunder in any one or more instances, or the acceptances by
Administrative Agent or Lenders of any partial payment on account of the
Indebtedness, shall constitute a waiver of any such Default, and each such
option shall remain continuously in full force and effect. No remedy herein
conferred upon or reserved to Administrative Agent and/or Lenders is intended to
be exclusive of any other remedies provided for in any Note or any of the other
Loan Documents, and each and every such remedy shall be cumulative, and shall be
in addition to every other remedy given hereunder, or under any Note or any of
the other Loan Documents, or now or hereafter existing at law or in equity or by
statute. Every right, power and remedy given to Administrative Agent and Lenders
by this Agreement, any Note or any of the other Loan Documents shall be
concurrent, and may be pursued separately, successively or together against
Borrower, or the Property or any part thereof, or any personal property granted
as security under the Loan Documents, and every right, power and remedy given by
this Agreement,
PAGE 18
any Note or any of the other Loan Documents may be exercised from time to time
as often as may be deemed expedient by the Required Lenders.
Regardless of how a Lender may treat payments received from the
exercise of remedies under the Loan Documents for the purpose of its own
accounting, for the purpose of computing the Obligations, payments shall be
applied as elected by Lenders. No application of payments will cure any Event of
Default, or prevent acceleration, or continued acceleration, of amounts payable
under the Loan Documents, or prevent the exercise, or continued exercise, of
rights or remedies of Administrative Agent and Lenders hereunder or thereunder
or at Law or in equity.
ARTICLE 5 - ADMINISTRATIVE AGENT
5.1 Appointment and Authorization of Administrative Agent.
-----------------------------------------------------
(a) Each Lender hereby irrevocably (subject to Section 5.9)
appoints, designates and authorizes Administrative Agent to take such action on
its behalf under the provisions of this Agreement and each other Loan Document
and to exercise such powers and perform such duties as are expressly delegated
to it by the terms of this Agreement or any other Loan Document, together with
such powers as are reasonably incidental thereto. Notwithstanding any provision
to the contrary contained elsewhere herein or in any other Loan Document,
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, nor shall Administrative Agent have or be deemed to
have any fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against
Administrative Agent. Without limiting the generality of the foregoing sentence,
the use of the term "agent" herein and in the other Loan Documents with
reference to Administrative Agent is not intended to connote any fiduciary or
other implied (or express) obligations arising under agency doctrine of any
applicable law. Instead, such term is used merely as a matter of market custom,
and is intended to create or reflect only an administrative relationship between
independent contracting parties.
(b) Except as expressly otherwise provided in this Agreement
or the other Loan Documents, Administrative Agent shall have and may use its
sole discretion with respect to exercising or refraining from exercising any
discretionary rights, or taking or refraining from taking any actions which
Administrative Agent is expressly entitled to exercise or take under this
Agreement and the other Loan Documents, including, without limitation, (i) the
determination if and to what extent matters or items subject to Administrative
Agent's satisfaction are acceptable or otherwise within its discretion, (ii) the
making of Administrative Agent Advances, and (iii) the exercise of remedies
pursuant to, but subject to, Article 4 or pursuant to any other Loan Document,
---------
or the exercise of rights and remedies pursuant to the Tri-Party Agreement, if
applicable, and any action so taken or not taken shall be deemed consented to by
Lenders. Notwithstanding the foregoing, the appointment of a property manager
after foreclosure or the acceptance of a deed in lieu of foreclosure shall
require the approval of Administrative Agent and the Required Lenders.
5.2 Delegation of Duties. Administrative Agent may execute any of its
--------------------
duties under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel and
other consultant experts concerning all matters pertaining
PAGE 19
to such duties. Administrative Agent shall not be responsible for the negligence
or misconduct of any agent or attorney-in-fact that it selects with reasonable
care.
5.3 Liability of Administrative Agent. No Agent-Related Persons shall
---------------------------------
(i) be liable for any action taken or omitted to be taken by any of them under
or in connection with this Agreement or any other Loan Document or the
transactions contemplated hereby (except for its own gross negligence or willful
misconduct), or (ii) be responsible in any manner to any of Lenders for any
recital, statement, representation or warranty made by Borrower or any
subsidiary or Affiliate of Borrower, or any officer thereof, contained herein or
in any other Loan Document, or in any certificate, report, statement or other
document referred to or provided for in, or received by Administrative Agent
under or in connection with, this Agreement or any other Loan Document, or the
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document, or for any failure of Borrower or any
other party to any Loan Document to perform its obligations hereunder or
thereunder. No Agent-Related Person shall be under any obligation to any Lender
to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of Borrower, Guarantor,
Permanent Lender, if applicable, or any of their Affiliates.
5.4 Reliance by Administrative Agent. Administrative Agent shall be
--------------------------------
entitled to rely, and shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, statement or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper person or persons, and upon advice and statements of
legal counsel (including counsel to any party to the Loan Documents),
independent accountants and other experts selected by Administrative Agent.
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Required Lenders or all Lenders if
required hereunder as it deems appropriate and, if it so requests, it shall
first be indemnified to its satisfaction by Lenders against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. Administrative Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement or
any other Loan Document in accordance with a request or consent of the Required
Lenders or all Lenders, if required hereunder, and such request and any action
taken or failure to act pursuant thereto shall be binding upon all the Lenders
and participants. Where this Agreement expressly permits or prohibits an action
unless the Required Lenders or all Lenders, if required hereunder, otherwise
determine, the Administrative Agent shall and in all other instances,
Administrative Agent may, but shall not be required to, initiate any
solicitation for the consent or a vote of Lenders. In the absence of written
instructions from the Required Lenders or all Lenders, if required hereunder,
Administrative Agent may take or not take any action, at its discretion, unless
this Agreement specifically requires the consent of the Required Lenders or all
Lenders.
5.5 Notice of Default. Administrative Agent shall not be deemed to have
-----------------
knowledge or notice of the occurrence of any Default, unless (i) the account
officers of Administrative Agent servicing the Loan have actual knowledge
thereof, or (ii) Administrative Agent shall have received written notice from a
Lender, Permanent Lender, if applicable, or Borrower referring to this
Agreement, describing such Default, and Administrative Agent determines that
such Default will have a Material Adverse Effect. Administrative Agent will
notify Lenders of its receipt of any such
PAGE 20
notice. Administrative Agent shall take such action with respect to such Default
as may be requested by the Required Lenders in accordance with Article 4;
---------
provided, however, that unless and until Administrative Agent has received any
-------- -------
such request, Administrative Agent may (but shall not be obligated to) take such
action, or refrain from taking such action, with respect to such Default as it
shall deem advisable or in the best interest of Lenders.
5.6 Credit Decision; Disclosure of Information by Administrative Agent.
------------------------------------------------------------------
(a) Each Lender acknowledges that none of Agent-Related Persons has
made any representation or warranty to it, and that no act by Administrative
Agent hereinafter taken, including any consent to and acceptance of any
assignment or review of the affairs of Borrower, Permanent Lender, if
applicable, and Guarantor, shall be deemed to constitute any representation or
warranty by any Agent-Related Person to any Lenders as to any matter, including
whether Agent-Related Persons have disclosed material information in their
possession. Each Lender, represents to Administrative Agent that it has,
independently and without reliance upon any Agent-Related Person and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of Borrower,
Permanent Lender, if applicable, and Guarantor, and all applicable bank or other
regulatory laws relating to the transactions contemplated hereby, and made its
own decision to enter into this Agreement and to extend credit to Borrower
hereunder. Each Lender also represents that it will, independently and without
reliance upon any Agent-Related Person and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such investigations as
it deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of Borrower,
Permanent Lender, if applicable, and Guarantor.
(b) Administrative Agent upon its receipt shall provide each Lender
such notices, reports and other documents expressly required to be furnished to
Lenders by Administrative Agent herein. To the extent not already available to a
Lender, Administrative Agent shall also provide the Lender and/or make available
for the Lender's inspection during reasonable business hours and at the Lender's
expense, upon the Lender's written request therefor: (i) copies of the Loan
Documents; (ii) such information as is then in Administrative Agent's possession
in respect of the current status of principal and interest payments and accruals
in respect of the Loan; (iii) copies of all current financial statements in
respect of Borrower, or any Guarantor or other person liable for payment or
performance by Borrower of any obligations under the Loan Documents, then in
Administrative Agent's possession with respect to the Loan; and (iv) other
current factual information then in Administrative Agent's possession with
respect to the Loan and bearing on the continuing creditworthiness of Borrower,
Permanent Lender, if applicable, or any Guarantor, or any of their respective
Affiliates; provided that nothing contained in this section shall impose any
-------- ----
liability upon Administrative Agent for its failure to provide a Lender any of
such Loan Documents, information, or financial statements, unless such failure
constitutes willful misconduct or gross negligence on Administrative Agent's
part; and provided, further, that Administrative Agent shall not be obligated to
-------- -------
provide any Lender with any information in violation of law or any contractual
restrictions on the disclosure thereof thereof (provided such contractual
restrictions shall not apply to distributing to a Lender factual and financial
information expressly required to be provided herein). Except as set forth
above, Administrative Agent shall not have any duty or responsibility to provide
any Lenders with any credit or other information
PAGE 21
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of Borrower, Permanent Lender, if applicable, or
Guarantor or any of their respective Affiliates which may come into the
possession of any of Agent-Related Persons.
5.7 Indemnification of Administrative Agent. Whether or not the
---------------------------------------
transactions contemplated hereby are consummated, Lenders shall indemnify upon
demand each Agent-Related Person (to the extent not reimbursed by or on behalf
of Borrower and without limiting the obligation of Borrower to do so), pro rata,
and hold harmless each Agent-Related Person from and against any and all
Indemnified Liabilities incurred by it; provided, however, that no Lenders shall
-------- -------
be liable for the payment to any Agent-Related Person of any portion of such
Indemnified Liabilities resulting from such person's gross negligence or willful
misconduct; provided, however, that no action taken in accordance with the
-------- -------
directions of the Required Lenders shall be deemed to constitute gross
negligence or willful misconduct for purposes of this Section. Without
limitation of the foregoing, to the extent that Administrative Agent is not
reimbursed by or on behalf of Borrower, each Lender shall reimburse
Administrative Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including attorney fees) incurred by Administrative
Agent as described in Section 6.10. The undertaking in this Section shall
------------
survive the payment of all Obligations hereunder and the resignation or
replacement of Administrative Agent.
5.8 Administrative Agent in Individual Capacity. Administrative Agent,
-------------------------------------------
in its individual capacity, and its Affiliates may make loans to, issue letters
of credit for the account of, accept deposits from, acquire equity interests in
and generally engage in any kind of banking, trust, financial advisory,
underwriting or other business with any party to the Loan Documents and their
respective Affiliates as though Administrative Agent were not Administrative
Agent hereunder and without notice to or consent of Lenders. Lenders acknowledge
that Borrower and Bank of America, N.A., as Lender, ("Swap Bank") or an
---------
Affiliate of Swap Bank have entered or may enter into Swap Contract. A portion
of the Loan may be funded to honor Borrower's payment obligations to Swap Bank
or such Affiliate under the terms of such agreement, and Lenders shall have no
right to share in any portion of such payments. Lenders acknowledge that,
pursuant to such activities, Bank of America, N.A. or its Affiliates may receive
information regarding any party to the Loan Documents, or their respective
Affiliates (including information that may be subject to confidentiality
obligations in favor of such parties or such parties' Affiliates) and
acknowledge that Administrative Agent shall be under no obligation to provide
such information to them. With respect to its ProRata Share of the Loan, Bank of
America, N.A. shall have the same rights and powers under this Agreement as any
other Lenders and may exercise such rights and powers as though it were not
Administrative Agent, Swap Bank or L/C Issuer, and the terms "Lender" and
"Lenders" include Bank of America, N.A. in its individual capacity.
5.9 Successor Administrative Agent. Administrative Agent may, and at
------------------------------
the request of the Required Lenders, or upon its ceasing also to be a Lender
hereunder, for good cause shall, resign as Administrative Agent upon 30 days'
notice to Lenders. If Administrative Agent resigns under this Agreement, the
Required Lenders shall appoint from among Lenders a successor administrative
agent for Lenders which successor administrative agent shall be consented to by
the Borrower at all times other than during the existence of Default (which
consent of the Borrower shall not be unreasonably withheld or delayed). If no
successor administrative agent is appointed prior to the effective date of the
resignation of Administrative Agent, Administrative Agent may appoint, after
consulting with Lenders and Borrower, a successor administrative agent from
among Lenders. Upon
PAGE 22
the acceptance of its appointment as successor administrative agent hereunder,
such successor administrative agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent and the term "Administrative Agent"
shall mean such successor administrative agent and the retiring Administrative
Agent's appointment, powers and duties as Administrative Agent shall be
terminated. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article and other applicable
Sections of this Agreement shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent under this
Agreement. If no successor administrative agent has accepted appointment as
Administrative Agent by the date which is 30 days following a retiring
Administrative Agent's notice of resignation, the retiring Administrative
Agent's resignation shall nevertheless thereupon become effective and Lenders
shall perform all of the duties of Administrative Agent hereunder until such
time, if any, as the Required Lenders appoint a successor agent as provided for
above.
5.10 Releases; Acquisition and Transfers of Collateral.
-------------------------------------------------
(a) Lenders hereby irrevocably authorize Administrative Agent
to transfer or release any lien on, or after foreclosure or other acquisition of
title by Administrative Agent on behalf of the Lenders to transfer or sell, any
Loan collateral (i) upon the termination of the Commitments and payment and
satisfaction in full of all Indebtedness; (ii) unless a Lender elects to
purchase the collateral as provided in Section 5.10(d) below, after foreclosure
---------------
or other acquisition of title for a purchase price of 90% of the value indicated
in the most recent appraisal of the collateral obtained by Administrative Agent
made in accordance with regulations governing Administrative Agent, less any
reduction indicated in the appraisal estimated by experts in such areas, or
(iii) if approved by the Required Lenders.
(b) If all or any portion of the Loan collateral is acquired
by foreclosure or by deed in lieu of foreclosure, Administrative Agent shall
take title to the collateral in its name or by an Affiliate of Administrative
Agent, but for the benefit of all Lenders in their Pro Rata Shares on the date
of the foreclosure sale or recordation of the deed in lieu of foreclosure (the
"Acquisition Date"). Administrative Agent and all Lenders hereby expressly waive
and relinquish any right of partition with respect to any collateral so
acquired. After any collateral is acquired, Administrative Agent shall appoint
and retain one or more Persons (individually and collectively, "Property
--------
Manager") experienced in the management, leasing, sale and/or dispositions of
-------
similar properties.
(c) Upon request by Administrative Agent or Borrowers at any
time, Lenders will confirm in writing Administrative Agent's authority to sell,
transfer or release any such liens of particular types or items of Loan
collateral pursuant to this Section; provided, however, that (i) Administrative
Agent shall not be required to execute any document necessary to evidence such
release, transfer or sale on terms that, in Administrative Agent's opinion,
would expose Administrative Agent to liability or create any obligation or
entail any consequence other than the transfer, release or sale without
recourse, representation or warranty, and (ii) such transfer, release or sale
shall not in any manner discharge, affect or impair the obligations of Borrower
other than those expressly being released.
(d) If Administrative Agent or any Lender receives a purchase
offer for Loan collateral for which one of the Lenders does not consent within
ten (10) Business Days after notification from Administrative Agent or such
other Lender, the consenting Lenders may offer
PAGE 23
("Purchase Offer") to purchase all of the non-consenting Lenders' right, title
--------------
and interest in the collateral for a purchase price equal to the non-consenting
Lenders' Pro Rata Share of the net proceeds anticipated from such sale of such
collateral (as reasonably determined by Administrative Agent) ("Net Proceeds").
------------
Within ten (10) Business Days thereafter each non-consenting Lender shall be
deemed to have accepted such Purchase Offer unless such non-consenting Lender
notifies Administrative Agent that it elects to purchase all of the consenting
Lenders' right, title and interest in the collateral for a purchase price
payable by such non-consenting Lender in an amount equal to the consenting
Lenders' Pro Rata Share of the Net Proceeds. If more than one non-consenting
Lender elects to purchase the consenting Lenders' interest in the collateral,
the consenting Lenders' interest shall be divided among such non-consenting
Lenders based upon the Pro Rata Shares of such non-consenting Lenders. Any
amount payable hereunder by a Lender shall be due on the earlier to occur of the
closing of the sale of the collateral or ninety (90) days after the Purchase
Offer, regardless of whether the collateral has been sold. Notwithstanding
anything in this Agreement to the contrary, if more than two (2) Lenders exist
at the time Administrative Agent or any Lender receives a Purchase Offer that
Administrative Agent or such Lender wishes to accept, the Purchase Offer must
contain a purchase price of not less than 90% of the value indicated in the most
recent appraisal of the collateral obtained by Administrative Agent made in
accordance with regulations governing Administrative Agent, less any reduction
indicated in the appraisal estimated by experts in such areas, for this
subparagraph (d) to apply.
5.11 Application of Payments. Except as otherwise provided below with
-----------------------
respect to Defaulting Lenders, aggregate principal and interest payments,
payments for Indemnified Liabilities, proceeds from the Permanent Lender, if
applicable, and/or foreclosure or sale of the collateral, and net operating
income from the collateral during any period it is owned by Administrative Agent
on behalf of the Lenders ("Payments") shall be apportioned pro rata among
--------
Lenders and payments of any fees (other than fees designated for Administrative
Agent's separate account) shall, as applicable, be apportioned pro rata among
Lenders. Notwithstanding anything to the contrary in this Agreement, all
Payments due and payable to Defaulting Lenders shall be due and payable to and
be apportioned pro rata among Administrative Agent and Electing Lenders. Such
apportionment shall be in the proportion that the Defaulting Lender Payment
Amounts paid by them bears to the total Defaulting Lender Payment Amounts of
such Defaulting Lender. Such apportionment shall be made until the
Administrative Agent and Lenders have been paid in full for the Defaulting
Payment Amounts. All pro rata Payments shall be remitted to Administrative Agent
and all such payments not constituting payment of specific fees, and all
proceeds of the Loan collateral received by Administrative Agent, shall be
applied first, to pay any fees, indemnities, or costs, expenses (including those
-----
in Section 5.7) and reimbursements then due to Administrative Agent from
-----------
Borrower under the Loan Documents; second, to pay any fees or costs and expenses
------
then due to Lenders from Borrower under the Loan Documents; third, to pay pro
-----
rata interest due in respect of the Loan and Administrative Agent Advances;
fourth, to pay or prepay pro rata principal of the Loan and Administrative Agent
------
Advances; fifth, pro rata, to pay any other Indebtedness due to Administrative
-----
Agent or any Lender by Borrower; and sixth pro rata, to pay any remaining
-----
Indebtedness due under the Loan to Defaulting Lenders.
5.12 Benefit. The terms and conditions of this Article are inserted for
-------
the sole benefit of Administrative Agent and Lenders; the same may be waived in
whole or in part, with or without terms or conditions, without prejudicing
Administrative Agent's or Lenders' rights to later assert them in whole or in
part.
PAGE 24
ARTICLE 6 - GENERAL TERMS AND CONDITIONS
6.1 Consents; Borrower's Indemnity. Except where otherwise expressly
------------------------------
provided in the Loan Documents, in any instance where the approval, consent or
the exercise of Administrative Agent or Lender's judgment is required, the
granting or denial of such approval or consent and the exercise of such judgment
shall be (a) within the sole discretion of Administrative Agent or Lenders; (b)
deemed to have been given only by a specific writing intended for the purpose
given and executed by Administrative Agent or Lender's; and (c) free from any
limitation or requirement of reasonableness. Notwithstanding any approvals or
consents by Administrative Agent or Lenders, neither Administrative Agent nor
any Lender has any obligation or responsibility whatsoever for the adequacy,
form or content of the Plans, the Budget, any contract, any change order, any
lease, or any other matter incident to the Property or the construction of the
Improvements. Administrative Agent's or Lender's acceptance of an assignment of
the Plans for the benefit of Administrative Agent and Lenders shall not
constitute approval of the Plans. Any inspection or audit of the Property or the
books and records of Borrower, or the procuring of documents and financial and
other information, by or on behalf of Administrative Agent shall be for
Administrative Agent and Lender's protection only, and shall not constitute an
assumption of responsibility to Borrower or anyone else with regard to the
condition, construction, maintenance or operation of the Property, or relieve
Borrower of any of Borrower's obligations. Borrower has selected all surveyors,
architects, engineers, contractors, materialmen and all other persons or
entities furnishing services or materials to the Project. Neither Administrative
Agent nor any Lender has any duty to supervise or to inspect the Property or the
construction of the Improvements nor any duty of care to Borrower or any other
person to protect against, or inform Borrower or any other person of the
existence of, negligent, faulty, inadequate or defective design or construction
of the Improvements. Neither Administrative Agent nor any Lender shall be liable
or responsible for, and Borrower shall indemnify each Agent-Related Person and
each Lender and their respective Affiliates, directors, officers, agents,
attorneys and employees (collectively, the "Indemnities") from and against: (a)
-----------
any claim, action, loss or cost (including attorney's fees and costs arising
from or relating to (i) any defect in the Property or the Improvements, (ii) the
performance or default of Borrower, Borrower's surveyors, architects, engineers,
contractors, the Construction Consultant, or any other person, (iii) any failure
to construct, complete, protect or insure the Improvements, (iv) the payment of
costs of labor, materials, or services supplied for the construction of the
Improvements, (v) in connection with the protection and preservation of the Loan
collateral (including those with respect to property taxes, insurance premiums,
completion of construction, operation, management, improvements, maintenance,
repair, sale and disposition), or (vi) the performance of any obligation of
Borrower whatsoever, (b) any and all claims, demands, actions or causes of
action that are asserted against any Indemnitee by any person (other than the
Administrative Agent or any Lender) relating directly or indirectly to a claim,
demand, action or cause of action that such person asserts or may assert against
Borrower, Permanent Lender, if applicable, Guarantor, or any of their Affiliates
or any of their officers or directors; (c) any and all claims, demands, actions
or causes of action arising out of or relating to, the Loan Documents, any
predecessor loan documents, the Commitments, the use or contemplated use of the
proceeds of any Loan, or the relationship of Borrower, Guarantor, Permanent
Lender, if applicable, the Administrative Agent and Lenders under this
Agreement; (d) any and all claims, demands, actions or causes of action arising
out of or relating to the use of Information (as defined in Section 6.6) or
other materials obtained through internet, Intralinks or other similar
information transmission systems in connection with this Agreement; (e) any
administrative or investigative proceeding by any Tribunal arising out of or
related to a claim, demand, action or cause of action described in subsection
(a) (b) (c) or (d) above; and (e) any and all
PAGE 25
liabilities, losses, costs or expenses (including attorney fees) that any
Indemnitee suffers or incurs as a result of the assertion of any foregoing
claim, demand, action, cause of action or proceeding, or as a result of the
preparation of any defense in connection with any foregoing claim, demand,
action, cause of action or proceeding, in all cases, whether or not an
Indemnitee is a party to such claim, demand, action, cause of action or
proceeding and whether it is defeated, successful or withdrawn, (all the
foregoing, collectively, the "Indemnified Liabilities"); provided that no
----------------------- --------
Indemnitee shall be entitled to indemnification for any loss caused by its own
gross negligence or willful misconduct or for any loss asserted against it by
another Indemnitee. Nothing, including any advance or acceptance of any document
or instrument, shall be construed as a representation or warranty, express or
implied, to any party by Administrative Agent or Lenders. Inspection shall not
constitute an acknowledgment or representation by Administrative Agent, any
Lender or the Construction Consultant that there has been or will be compliance
with the Plans, the Loan Documents, or applicable laws, governmental
requirements and restrictive covenants, or that the construction is free from
defective materials or workmanship. Inspection, whether or not followed by
notice of Default, shall not constitute a waiver of any Default then existing,
or a waiver of Administrative Agent and Lender's right thereafter to insist that
the Improvements be constructed in accordance with the Plans, the Loan
Documents, and all applicable laws, governmental requirements and restrictive
covenants. Administrative Agent's failure to inspect shall not constitute a
waiver of any of Administrative Agent or Lender's rights under the Loan
Documents or at law or in equity.
6.2 Miscellaneous. This Agreement may be executed in several
-------------
counterparts, all of which are identical, and all of which counterparts together
shall constitute one and the same instrument. The Loan Documents are for the
sole benefit of Administrative Agent, Lenders and Borrower and are not for the
benefit of any third party. A determination that any provision of this Agreement
is unenforceable or invalid shall not affect the enforceability or validity of
any other provision and the determination that the application of any provision
of this Agreement to any person or circumstance is illegal or unenforceable
shall not affect the enforceability or validity of such provision as it may
apply to other persons, entities or circumstances. Time shall be of the essence
with respect to Borrower's obligations under the Loan Documents. This Agreement,
and its validity, enforcement and interpretation, shall be governed by Georgia
law (without regard to any conflict of laws principles) and applicable United
States federal law.
6.3 Notices.
-------
6.3.1 Modes of Delivery; Changes. Except as otherwise provided
herein, all notices, requests, consents, demands and other communications
required or which any party desires to give under this Agreement or any other
Loan Document shall be in writing and, unless otherwise specifically provided in
such other Loan Document, shall be deemed sufficiently given or furnished if
delivered by personal delivery, by courier, by registered or certified United
States mail, postage prepaid, or by facsimile (with, subject to subsection 6.3.2
below, a confirmatory duplicate copy sent by first class United States mail),
addressed to the party to whom directed at the addresses set forth at the end of
this Agreement or by (subject to subsection 6.3.3 below) electronic mail address
specified for notices on the Schedule of Lenders (unless changed by similar
notice in writing given by the particular party whose address is to be changed).
Any such notice or communication shall be deemed to have been given and received
either at the time of personal delivery or, in the case of courier or mail, as
of the date of first attempted delivery at the address and in the manner
provided herein, or, in the case of facsimile, upon receipt; provided, however,
that service of a notice required by any applicable statute shall be
PAGE 26
considered complete when the requirements of that statute are met.
Notwithstanding the foregoing, no notice of change of address shall be effective
except upon actual receipt. This Section shall not be construed in any way to
affect or impair any waiver of notice or demand provided in any Loan Document or
to require giving of notice or demand to or upon any person in any situation or
for any reason.
6.3.2 Effectiveness of Facsimile Documents and Signatures. Loan
Documents may be transmitted and/or signed by facsimile. The effectiveness of
any such documents and signatures shall, subject to applicable law, have the
same force and effect as manually-signed originals and shall be binding on all
parties to the Loan Documents. The Administrative Agent may also require that
any such documents and signatures be confirmed by a manually-signed original
thereof; provided, however, that the failure to request or deliver the same
-------- -------
shall not limit the effectiveness of any facsimile document or signature.
6.3.3 Limited Use of Electronic Mail. Electronic mail and
internet and intranet websites may be used only to distribute routine
communications, such as financial statements and other information, and to
distribute Loan Documents for execution by the parties thereto, and may not be
used for any other purpose.
6.3.4 Reliance by Administrative Agent and Lenders. The
Administrative Agent and the Lenders shall be entitled to rely and act upon any
notices (including telephonic Loan advance notices) purportedly given by or on
behalf of the Borrower even if (i) such notices were not made in a manner
specified herein, were incomplete or were not preceded or followed by any other
form of notice specified herein, or (ii) the terms thereof, as understood by the
recipient, varied from any confirmation thereof. The Borrower shall indemnify
each Agent-Related Person and each Lender from all losses, costs, expenses and
liabilities resulting from the reliance by such person on each notice
purportedly given by or on behalf of the Borrower. All telephonic notices to and
other communications with the Administrative Agent may be recorded by the
Administrative Agent, and each of the parties hereto hereby consents to such
recording. If a Lender does not notify or inform Administrative Agent of whether
or not it consents to, or approves of or agrees to any matter of any nature
whatsoever with respect to which its consent, approval or agreement is required
under the express provisions of this Agreement or with respect to which its
consent, approval or agreement is otherwise requested by Administrative Agent,
in connection with the Loan or any matter pertaining to the Loan, within ten
(10) Business Days (or such longer period as may be specified by Administrative
Agent) after such consent, approval or agreement is requested by Administrative
Agent, the Lender shall be deemed to have given its consent, approval or
agreement, as the case may be, with respect to the matter in question.
6.4 Payments Set Aside. To the extent that the Borrower makes a
------------------
payment to the Administrative Agent or any Lender, or the Administrative Agent
or any Lender exercises its right of set-off, and such payment or the proceeds
of such set-off or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent or such Lender in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then
(a) to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such set-off had not occurred, and (b)
each Lender severally agrees to pay to the
PAGE 27
Administrative Agent upon demand its applicable share of any amount so recovered
from or repaid by the Administrative Agent, plus interest thereon from the date
of such demand to the date such payment is made at a rate per annum equal to the
Federal Funds Rate from time to time in effect.
6.5 Successors and Assigns.
----------------------
(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that the Borrower may not assign or otherwise
transfer any of its rights or obligations hereunder without the prior written
consent of each Lender (and any attempted assignment or transfer by the Borrower
without such consent shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any person (other than
the parties hereto, their respective successors and assigns permitted hereby
and, to the extent expressly contemplated hereby, the Indemnitees) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more Eligible Assignees
all, but not less than all, of its rights and obligations under this Agreement
(including all or a portion of its Commitment and Pro Rata Share of the Loan at
the time owing to it); provided that:
(i) each assignment shall be made as an assignment of one
hundred percent (100%) of the assigning Lender's rights and obligations
under this Agreement with respect to its Pro Rata Share of the Loan and
the Commitment assigned, and
(ii) the parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Acceptance,
together with a processing and recordation fee of $3,500, plus the cost
of any applicable endorsement of the Title Insurance or new Title
Insurance.
Subject to acceptance and recording thereof by the Administrative Agent pursuant
to subsection (c) of this Section, from and after the effective date specified
in each Assignment and Acceptance, the assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all of the assigning Lender's rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to the
benefits of this Agreement with respect to Borrower's obligation surviving
termination of this Agreement. Upon request, Administrative Agent shall prepare
and the Borrower shall execute and deliver new or replacement Notes
("Replacement Notes") to the assigning Lender and the assignee Lender evidencing
-----------------
their respective Pro Rata Shares of the Loan. Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this subsection shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in accordance with
subsection (d) of this Section.
(c) The Administrative Agent, acting solely for this purpose
as an agent of the Borrower, shall forward the Assignment and Acceptance and the
Replacement Notes to the Title Insurer for issuance of an applicable endorsement
to the Title Insurance or new Title Insurance, and
PAGE 28
shall maintain at the Administrative Agent's Office a copy of each Assignment
and Acceptance delivered to it and a register for the recordation of the names
and addresses of the Lenders, and the Commitments of, and principal amount of
each Lender's Pro Rata Share of the Loan and L/C Obligations owing to, each
Lender pursuant to the terms hereof from time to time (the "Register"). The
--------
entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Lender hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrower and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(d) Any Lender may, without the consent of, but with prior
notice to the Administrative Agent, sell participations to one or more banks or
other entities (a "Participant") in all or a portion of such Lender's rights
-----------
and/or obligations under this Agreement (including all or a portion of its
Commitment and/or its Pro Rata Share of the Loan owing to it); provided that (i)
--------
such Lender's obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) the Borrower, the Administrative Agent
and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement, and (iv) except to the extent consented by Administrative Agent and
the Required Lenders in their sole discretion with respect to each
participation, any agreement or instrument pursuant to which a Lender sells such
a participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement.
(e) A Participant shall not be entitled to receive any greater
payment under Sections 1.7, 1.8 or 1.9 than the applicable Lender would have
----------------- ---
been entitled to receive with respect to the participation sold to such
Participant.
(f) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement (including
under its Notes, if any) to secure obligations of such Lender, including any
pledge or assignment to secure obligations to a Federal Reserve Bank; provided
--------
that no such pledge or assignment shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
(g) If the consent of the Borrower to an assignment or to an
assignee is required hereunder (including a consent to an assignment which does
not meet the minimum assignment threshold specified in clause (i) of the
provision to the first sentence of subsection (b) above), the Borrower shall be
deemed to have given its consent five Business Days after the date notice
thereof has been delivered by the assigning Lender (through the Administrative
Agent) unless such consent is expressly refused by the Borrower prior to such
fifth Business Day.
(h) As used herein, the following terms have the following
meanings:
"Eligible Assignee" means (a) a Lender; (b) an Affiliate
-----------------
of a Lender; (c) an Approved Fund; and (d) any other person (other
than a natural person) approved by the Administrative Agent, and,
unless a Default has occurred and is continuing, the Borrower (each
such approval not to be unreasonably withheld or delayed).
PAGE 29
"Fund" means any person (other than a natural person)
----
that is (or will be) engaged in making, purchasing, holding or
otherwise investing in commercial real estate loans and similar
extensions of credit in the ordinary course of its business.
"Approved Fund" means any Fund that is administered
-------------
or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an
entity or an Affiliate of an entity that administers or manages a
Lender.
6.6 Confidentiality. Each of the Administrative Agent and the Lenders
---------------
agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential); (b) to the extent requested
by any regulatory authority; (c) to the extent required by applicable laws or
regulations or by any subpoena or similar legal process; (d) to any other party
to this Agreement; (e) in connection with the exercise of any remedies hereunder
or any suit, action or proceeding relating to this Agreement or the enforcement
of rights hereunder; (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or
participant in, or any prospective assignee of or participant in, any of its
rights or obligations under this Agreement or (ii) any direct or indirect
contractual counterparty or prospective counterparty (or such contractual
counterparty's or prospective counterparty's professional advisor) to any Swap
Agreement or credit derivative transaction relating to obligations of the
Borrower; (g) with the consent of the Borrower; (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section or (ii) becomes available to the Administrative Agent or any Lender
on a nonconfidential basis from a source other than the Borrower; or (i) to the
National Association of Insurance Commissioners or any other similar
organization or any nationally recognized rating agency that requires access to
information about a Lender's or its Affiliates' investment portfolio in
connection with ratings issued with respect to such Lender or its Affiliates.
For the purposes of this Section, "Information" means all information received
-----------
from the Borrower relating to the Borrower or its business, other than any such
information that is available to the Administrative Agent or any Lender on a
nonconfidential basis prior to disclosure by the Borrower; provided that, in the
--------
case of information received from the Borrower after the date hereof, such
information is clearly identified in writing at the time of delivery as
confidential. Any person required to maintain the confidentiality of Information
as provided in this Section shall be considered to have complied with its
obligation to do so if such person has exercised the same degree of care to
maintain the confidentiality of such Information as such person would accord to
its own confidential information. The Administrative Agent and the Lenders may
disclose the existence of this Agreement and information about this Agreement to
market data collectors, similar service providers to the lending industry, and
service providers to the Administrative Agent and the Lenders in connection with
the administration and management of this Agreement, the Loan and Loan
Documents.
6.7 Set-off. In addition to any rights and remedies of Administrative
-------
Agent and Lenders provided by law, upon the occurrence and during the
continuance of any Event of Default, Administrative Agent and each Lender is
authorized at any time and from time to time, without prior notice to Borrower
or any other party to the Loan Documents, any such notice being waived by
PAGE 30
Borrower (on its own behalf and on behalf of each party to the Loan Documents to
the fullest extent permitted by law, to set-off and apply any and all deposits,
general or special, time or demand, provisional or final, any time owing by
Administrative Agent or such Lender to or for the credit or the account of such
parties to the Loan Documents against any and all Obligations, irrespective of
whether or not the Administrative Agent or such Lender shall have made demand
under this Agreement or any other Loan Document and although such Obligations
may be contingent or unmatured. Each Lender agrees promptly to notify Borrower
and Administrative Agent after any such set-off and application made by such
Lender; provided, however, that the failure to give such notice shall not affect
the validity of such set-off and application.
6.8 Sharing of Payments. If, other than as expressly provided elsewhere
-------------------
herein, any Lender shall obtain on account of the portions of the Loan advanced
by it, any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) in excess of its ratable share (or other share
contemplated hereunder) thereof, such Lender shall immediately (a) notify the
Administrative Agent of such fact, and (b) purchase from the other Lenders such
participations in the portions of the Loan made by them and/or such
subparticipations in the participations in L/C Obligations held by them, as the
case may be, as shall be necessary to cause such purchasing Lender to share the
excess payment in respect of such portions of the Loan or such participations,
as the case may be, pro rata with each of them; provided, however, that if all
-------- -------
or any portion of such excess payment is thereafter recovered from the
purchasing Lender, such purchase shall to that extent be rescinded and each
other Lender shall repay to the purchasing Lender the purchase price paid
therefor, together with an amount equal to such paying Lender's ratable share
(according to the proportion of (i) the amount of such paying Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender) of
any interest or other amount paid or payable by the purchasing Lender in respect
of the total amount so recovered. The Borrower agrees that any Lender so
purchasing a participation from another Lender may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off, but subject to Section 6.7 with respect to such participation as fully
-----------
as if such Lender were the direct creditor of the Borrower in the amount of such
participation. The Administrative Agent will keep records (which shall be
conclusive and binding in the absence of manifest error) of participations
purchased under this Section and will in each case notify the Lenders following
any such purchases or repayments. Each Lender that purchases a participation
pursuant to this Section shall from and after such purchase have the right to
give all notices, requests, demands, directions and other communications under
this Agreement with respect to the portion of the Obligations purchased to the
same extent as though the purchasing Lender were the original owner of the
Obligations purchased.
6.9 Amendments; Survival. Administrative Agent and Lenders shall be
--------------------
entitled to amend (whether pursuant to a separate intercreditor agreement or
otherwise) any of the terms, conditions or agreements set forth in Article 5 or
---------
as to any other matter in the Loan Documents respecting payments to
Administrative Agent or Lenders or the required number of the Lenders to approve
or disapprove any matter or to take or refrain from taking any action, without
the consent of Borrower or any other Person or the execution by Borrower or any
other Person of any such amendment or intercreditor agreement. Subject to the
foregoing, Administrative Agent may amend or waive any provision of this
Agreement or any other Loan Document, or consent to any departure by any party
to the Loan Documents therefrom which amendment, waiver or consent in
Administrative Agent's reasonable determination shall not have a Material
Adverse Affect, or is otherwise intended to be within Administrative Agent's
discretion or determination; provided however, otherwise no such
--------
PAGE 31
amendment, waiver or consent shall be effective unless in writing, signed by the
Required Lenders and Borrower or the applicable party to the Loan Documents, as
the case may be, and acknowledged by Administrative Agent, and each such waiver
or consent shall be effective only in the specific instance and for the specific
purpose for which given; provided further however, no such amendment, waiver or
--------
consent shall, unless in writing and signed by each of the Lenders directly
affected thereby and by the Borrower, and acknowledged by the Administrative
Agent, do any of the following:
(a) extend or increase the Commitment of any Lender (or
reinstate any Commitment terminated pursuant to Section 4.2) (it being
-----------
understood that a waiver of a Default shall not constitute an extension or
increase in any Lender's Commitment);
(b) postpone any date fixed by this Agreement or any other
Loan Document for any payment or mandatory prepayment of principal, interest,
fees or other amounts due to the Lenders (or any of them) hereunder or under any
other Loan Document;
(c) reduce the principal of, or the rate of interest specified
herein on, any Loan or any fees or other amounts payable hereunder or under any
other Loan Document; provided, however, that the Administrative Agent may waive
-------- -------
any obligation of the Borrower to pay interest at the Past Due Rate and/or late
charges for periods of up to thirty days, and only the consent of the Required
Lenders shall be necessary to waive any obligation of the Borrower to pay
interest at the Past Due Rate or late charges thereafter, or to amend the
definition of "Past Due Rate" or "late charges";
(d) change the percentage of the combined Commitments or of
the aggregate unpaid principal amount of the Loan which is required for the
Lenders or any of them to take any action hereunder;
(e) change the definition of "Pro Rata Share" or "Required
Lender";
(f) amend this Section, or Section 6.8, or any provision
-----------
herein providing for consent or other action by all the Lenders;
(g) release the liability of Borrower or any existing
Guarantor or terminate the Tri-Party Agreement, if applicable;
(h) permit the sale, transfer, pledge, mortgage or assignment
of any Loan collateral or any direct or indirect interest in Borrower, except as
expressly permitted under the Loan Documents; or
(i) transfer or release any lien on, or after foreclosure or
other acquisition of title by Administrative Agent on behalf of the Lenders
transfer or sell, any Loan collateral except as permitted in Section 5.10.
------------
and, provided further, that no amendment, waiver or consent shall, unless in
-------- -------
writing and signed by the Administrative Agent in addition to the Required
Lenders or all the Lenders, as the case may be, affect the rights or duties of
the Administrative Agent under this Agreement or any other Loan Document.
Notwithstanding anything to the contrary herein, any Lender that has failed to
fund any
PAGE 32
portion of its Pro Rata Share of the Loan or participations in L/C Obligations
required to be funded by it hereunder shall not have any right to approve or
disapprove any amendment, waiver or consent hereunder, except that the Pro Rata
Share of such Lender may not be increased without the consent of such Lender.
This Agreement shall continue in full force and effect until the Indebtedness is
paid in full and all of Administrative Agent and Lender's obligations under this
Agreement are terminated; and all representations and warranties and all
provisions herein for indemnity of the Indemnitees, Administrative Agent and
Lenders (and any other provisions herein specified to survive) shall survive
payment in full of the Indebtedness and any release or termination of this
Agreement or of any other Loan Documents.
6.10 Costs and Expenses. Without limiting any Loan Document and TO
-------------------
the extent not prohibited by applicable laws, Borrower shall pay when due, shall
reimburse to Administrative Agent for the benefit of itself and Lenders on
demand and shall indemnify Administrative Agent and Lenders from, all
out-of-pocket fees, costs, and expenses paid or incurred by Administrative Agent
in connection with the negotiation, preparation and execution of this Agreement
and the other Loan Documents (and any amendments, approvals, consents, waivers
and releases requested, required, proposed or done from time to time), or in
connection with the disbursement, administration or collection of the Loan or
the enforcement of the obligations of Borrower or the exercise of any right or
remedy of Administrative Agent, including (a) all fees and expenses of
Administrative Agent's counsel; (b) fees and charges of each Construction
Consultant, inspector and engineer; (c) appraisal, re-appraisal and survey
costs; (d) title insurance charges and premiums; (e) title search or examination
costs, including abstracts, abstractors' certificates and uniform commercial
code searches; (f) judgment and tax lien searches for Borrower and each
Guarantor; (g) escrow fees; (h) fees and costs of environmental investigations
site assessments and remediations; (i) recordation taxes, documentary taxes,
transfer taxes and mortgage taxes; (j) filing and recording fees; and (k) loan
brokerage fees. Borrower shall pay all costs and expenses incurred by
Administrative Agent, including attorneys' fees, if the obligations or any part
thereof are sought to be collected by or through an attorney at law, whether or
not involving probate, appellate, administrative or bankruptcy proceedings.
Borrower shall pay all costs and expenses of complying with the Loan Documents,
whether or not such costs and expenses are included in the Budget. Borrower's
obligations under this Section shall survive the delivery of the Loan Documents,
the making of advances, the payment in full of the obligations, the release or
reconveyance of any of the Loan Documents, the foreclosure of the Deed of Trust
or conveyance in lieu of foreclosure, any bankruptcy or other debtor relief
proceeding, and any other event whatsoever.
6.11 Foreign Lenders and Participants. Each Lender, and each holder of
--------------------------------
a participation interest herein, that is a "foreign corporation, partnership or
trust" within the meaning of the Internal Revenue Code of 1986, as amended from
time to time ("Code") shall deliver to Administrative Agent, prior to receipt of
----
any payment subject to withholding (or after accepting an assignment or
receiving a participation interest herein), two duly signed completed copies of
either Form W-8BEN or any successor thereto (relating to such person and
entitling it to a complete exemption from withholding on all payments to be made
to such person by Borrower pursuant to this Agreement) or Form W-8ECI or any
successor thereto (relating to all payments to be made to such person by
Borrower pursuant to this Agreement) of the United States Internal Revenue
Service or such other evidence satisfactory to Borrower and Administrative Agent
that no withholding under the federal income tax laws is required with respect
to such person. Thereafter and from time to time, each such
PAGE 33
person shall (a) promptly submit to Administrative Agent such additional duly
completed and signed copies of one of such forms (or such successor forms as
shall be adopted from time to time by the relevant United States taxing
authorities) as may then be available under then current United States laws and
regulations to avoid, or such evidence as is satisfactory to Borrower and
Administrative Agent of any available exemption from, United States withholding
taxes in respect of all payments to be made to such person by Borrower pursuant
to this Agreement and (b) take such steps as shall not be materially
disadvantageous to it, in the reasonable judgment of such Lenders, and as may be
reasonably necessary (including the re-designation of its lending office, if
any) to avoid any requirement of applicable laws that Borrower make any
deduction or withholding for taxes from amounts payable to such person. If such
persons fails to deliver the above forms or other documentation, then
Administrative Agent may withhold from any interest payment to such person an
amount equivalent to the applicable withholding tax imposed by Sections 1441 and
-----------------
1442 of the Code, without reduction. If any Tribunal asserts that Administrative
----
Agent did not properly withhold any tax or other amount from payments made in
respect of such person, such person shall indemnify Administrative Agent
therefor, including all penalties and interest and costs and expenses (including
attorney fees) of Administrative Agent. The obligation of Lenders under this
subsection shall survive the payment of all Obligations and the resignation or
replacement of Administrative Agent.
6.12 Further Assurances. Borrower will, upon Administrative Agent's
------------------
request, (a) promptly correct any defect, error or omission in any Loan
Document; (b) execute, acknowledge, deliver, procure, record or file such
further instruments and do such further acts as Administrative Agent deems
necessary, desirable or proper to carry out the purposes of the Loan Documents
and to identify and subject to the liens and security interest of the Loan
Documents any property intended to be covered thereby, including any renewals,
additions, substitutions, replacements, or appurtenances to the Property; (c)
execute, acknowledge, deliver, procure, file or record any document or
instrument Administrative Agent deems necessary, desirable, or proper to protect
the liens or the security interest under the Loan Documents against the rights
or interests of third persons; and (d) provide such certificates, documents,
reports, information, affidavits and other instruments and do such further acts
deemed necessary, desirable or proper by Administrative Agent to comply with the
requirements of any agency having jurisdiction over Administrative Agent.
6.13 Inducement to Lenders; Indemnity. The representations and
--------------------------------
warranties contained in this Agreement and the other Loan Documents (a) are made
to induce Lenders to make the Loan and extend any other credit to or for the
account of the Borrower pursuant hereto, and Administrative Agent and Lenders
are relying thereon, and will continue to rely thereon, and (b) shall survive
any bankruptcy proceedings involving Borrower, Guarantor or the Property,
foreclosure, or conveyance in lieu of foreclosure.
6.14 Forum. Borrower hereby irrevocably submits generally and
-----
unconditionally for itself and in respect of its property to the jurisdiction of
any state court, or any United States federal court, sitting in the State
specified in Section 6.2 of this Agreement and to the jurisdiction of any state
-----------
court or any United States federal court, sitting in the state in which any of
the Property is located, over any suit, action or proceeding arising out of or
relating to this Agreement or the Indebtedness. Borrower hereby irrevocably
waives, to the fullest extent permitted by law, any objection that Borrower may
now or hereafter have to the laying of venue in any such court and any claim
that any such court is an inconvenient forum. Borrower hereby agrees and
consents that, in addition to any methods of service or process provided for
under applicable law, all service of process in any such suit, action or
PAGE 34
proceeding in any state court, or any United States federal court, sitting in
the state specified in Section 6.2 may be made by certified or registered mail,
-----------
return receipt requested, directed to Borrower at its address for notice stated
in the Loan Documents, or at a subsequent address of which Administrative Agent
received actual notice from Borrower in accordance with the Loan Documents, and
service so made shall be complete five (5) days after the same shall have been
so mailed. Nothing herein shall affect the right of Administrative Agent to
serve process in any manner permitted by law or limit the right of
Administrative Agent to bring proceedings against Borrower in any other court or
jurisdiction.
6.15 Interpretation. References to "Dollars," "$," "money," "payments"
-------------- ------- - ----- --------
or other similar financial or monetary terms are references to lawful money of
the United States of America. References to Articles, Sections, and Exhibits
are, unless specified otherwise, references to articles, sections and exhibits
of this Agreement. Words of any gender shall include each other gender. Words in
the singular shall include the plural and words in the plural shall include the
singular. References to Borrower or Guarantor shall mean, each person comprising
same, jointly and severally. References to "persons" shall include both natural
-------
persons and any legal entities, including public or governmental bodies,
agencies or instrumentalities. The words "include" and "including" shall be
------- ---------
interpreted as if followed by the words "without limitation". Captions and
------- ----------
headings in the Loan Documents are for convenience only and shall not affect the
construction of the Loan Documents.
6.16 No Partnership, etc. The relationship between Lenders (including
-------------------
Administrative Agent) and Borrower is solely that of lender and borrower.
Neither Administrative Agent nor Lender has any fiduciary or other special
relationship with or duty to Borrower and none is treated by the Loan Documents.
Nothing contained in the Loan Documents, and no action taken or omitted pursuant
to the Loan Documents, is intended or shall be construed to create any
partnership, joint venture, association, or special relationship between
Borrower and Administrative Agent or any Lender or in any way make
Administrative Agent or any Lender a co-principal with Borrower with reference
to the Project, the Property or otherwise. In no event shall Administrative
Agent or Lender's rights and interests under the Loan Documents be construed to
give Administrative Agent or any Lender the right to control, or be deemed to
indicate that Administrative Agent or any Lender is in control of, the business,
properties, management or operations of Borrower.
6.17 Records. The unpaid amount of the Loan and the amount of any other
-------
credit extended by Administrative Agent or Lenders to or for the account of
Borrower set forth on the books and records of Administrative Agent shall be
presumptive evidence of the amount thereof owing and unpaid, but failure to
record any such amount on Administrative Agent's books and records shall not
limit or affect the obligations of Borrower under the Loan Documents to make
payments on the Loan when due.
6.18 Commercial Purpose. Borrower warrants that the Loan is being made
------------------
solely to acquire or carry on a business or commercial enterprise, and/or
Borrower is a business or commercial organization. Borrower further warrants
that all of the proceeds of this Loan shall be used for commercial purposes and
stipulates that the Loan shall be construed for all purposes as a commercial
loan, and is made for other than personal, family, household or agricultural
purposes.
6.19 WAIVER OF JURY TRIAL. BORROWER WAIVES, TO THE FULLEST EXTENT
--------------------
PERMITTED BY APPLICABLE LAW, TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH
BORROWER AND LENDER MAY BE PARTIES, ARISING
PAGE 35
OUT OF, IN CONNECTION WITH OR IN ANY WAY PERTAINING TO, ANY NOTE, THE LOAN
AGREEMENT, THE DEED OF TRUST OR ANY OF THE OTHER LOAN DOCUMENTS. IT IS AGREED
AND UNDERSTOOD THAT THIS WAIVER CONSTITUTES A WAIVER OF TRIAL BY JURY OF ALL
CLAIMS AGAINST ALL PARTIES TO SUCH ACTION OR PROCEEDINGS, INCLUDING CLAIMS
AGAINST PARTIES WHO ARE NOT PARTIES TO ANY NOTE. THIS WAIVER IS KNOWINGLY,
WILLINGLY AND VOLUNTARILY MADE BY BORROWER, AND BORROWER HEREBY REPRESENTS THAT
NO REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY INDIVIDUAL TO INDUCE
THIS WAIVER OF TRIAL BY JURY OR TO IN ANY WAY MODIFY OR NULLIFY ITS EFFECT.
BORROWER FURTHER REPRESENTS AND WARRANTS THAT IT HAS BEEN REPRESENTED IN THE
SIGNING OF ALL NOTES AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL
COUNSEL, OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED BY INDEPENDENT LEGAL
COUNSEL SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY TO
DISCUSS THIS WAIVER WITH COUNSEL.
6.20 Service of Process. Borrower hereby consents to process being
------------------
served in any suit, action, or proceeding instituted in connection with this
Loan by (a) the mailing of a copy thereof by certified mail, postage prepaid,
return receipt requested, to Borrower and (b) serving a copy thereof upon CT
Corporation in Atlanta, Xxxxxx County, Georgia, the agent hereby designated and
appointed by Borrower as Borrower's agent for service of process. Borrower
irrevocably agrees that such service shall be deemed to be service of process
upon Borrower in any such suit, action, or proceeding. Nothing in any Note shall
affect the right of Administrative Agent to serve process in any manner
otherwise permitted by law and nothing in any Note will limit the right of
Administrative Agent on behalf of the Lenders otherwise to bring proceedings
against Borrower in the courts of any jurisdiction or jurisdictions.
6.21 Entire Agreement. The Loan Documents constitute the entire
----------------
understanding and agreement between Borrower, Administrative Agent and Lenders
with respect to the transactions arising in connection with the Loan, and
supersede all prior written or oral understandings and agreements between
Borrower, Administrative Agent and Lenders with respect to the matters addressed
in the Loan Documents. In particular, and without limitation, the terms of any
commitment letter, letter of intent or quote letter by Administrative Agent or
any Lender to make the Loan are merged into the Loan Documents. Neither
Administrative Agent nor any Lender has made any commitments to extend the term
of the Loan past its stated maturity date or to provide Borrower with financing
except as set forth in the Loan Documents. Except as incorporated in writing
into the Loan Documents, there are not, and were not, and no persons are or were
authorized by Administrative Agent or any Lender to make, any representations,
understandings, stipulations, agreements or promises, oral or written, with
respect to the matters addressed in the Loan Documents.
6.22 Mandatory Arbitration. Any controversy or claim between or among
---------------------
the parties hereto including but not limited to those arising out of or relating
to this Agreement or any related agreements or instruments, including any claim
based on or arising from an alleged tort, shall be determined by binding
arbitration in accordance with the Federal Arbitration Act (or if not
applicable, the applicable state law), the Rules of Practice and Procedure for
the Arbitration of Commercial Disputes of Judicial Arbitration and Mediation
Services, Inc. ("J.A.M.S.") and the "Special Rules" set forth below. In the
-------
event of any inconsistency, the Special Rules shall control. Judgment upon any
arbitration award may
Page 36
be entered in any court having jurisdiction. Any party to this Agreement may
bring an action, including a summary or expedited proceeding, to compel
arbitration of any controversy or claim to which this agreement applies in any
court having jurisdiction over such action.
a. Special Rules. The arbitration shall be conducted in
-------------
Atlanta, Georgia, and administered by J.A.M.S. who will appoint an arbitrator;
if J.A.M.S. is unable or legally precluded from administering the arbitration,
then the American Arbitration Association will serve. All arbitration hearings
will be commenced within ninety (90) days of the demand for arbitration;
further, the arbitrator shall only, upon a showing of cause, be permitted to
extend the commencement of such hearing for up to an additional sixty (60) days.
b. Reservations of Rights. Nothing in this Agreement shall be
----------------------
deemed to (i) limit the applicability of any otherwise applicable statutes of
limitation or repose and any waivers contained in this Agreement; or (ii) be a
waiver by Administrative Agent or any Lender of the protection afforded to it by
12 U.S.C. Sec. 91 or any substantially equivalent state law; or (iii) limit the
right of (A) any Lender (subject to Section 1.8 and Article 5) to exercise self
----------- ---------
help remedies such as (but not limited to) setoff, or (B) Administrative Agent
on behalf of the Lenders to foreclose against any real or personal property
collateral, or (C) Administrative Agent on behalf of the Lenders to obtain from
a court provisional or ancillary remedies such as (but not limited to)
injunctive relief or the appointment of a receiver. Lenders may exercise such
self help rights, and Administrative Agent on behalf of the Lenders may
foreclose upon such property or obtain such provisional or ancillary remedies
before, during or after the pendency of any arbitration proceeding brought
pursuant to this Agreement. At the option of the Administrative Agent on behalf
of the Lenders, foreclosure under a deed of trust or mortgage may be
accomplished by any of the following: the exercise of a power of sale under the
deed of trust or mortgage, or by judicial sale under the deed of trust or
mortgage, or by judicial foreclosure. Neither the exercise of self help remedies
nor the institution or maintenance of an action for foreclosure or provisional
or ancillary remedies shall constitute a waiver of the right of any party,
including the claimant in any such action, to arbitrate the merits of the
controversy or claim occasioning resort to such remedies. No provision in the
Loan Documents regarding submission to jurisdiction and/or venue in any court is
intended or shall be construed to be in derogation of the provisions in any Loan
Document for arbitration of any controversy or claim.
THE WRITTEN LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES.
[SIGNATURES BEGIN ON NEXT PAGE]
Page 37
EXECUTED and DELIVERED UNDER SEAL as of November 30 , 2001.
---------------
BORROWER:
XXXXX OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
By: Xxxxx Real Estate Investment Trust, Inc.,
a Maryland corporation, general partner
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxxx
--------------------------
Title: Executive Vice President
--------------------------
Attest: /s/ M. Xxxxx Xxxxxxx
-------------------------
Name: M. Xxxxx Xxxxxxx
-------------------------
Title: Sr. Vice President
-------------------------
[CORPORATE SEAL]
Borrower's Address for Notices:
0000 Xxx Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
The Federal Tax Identification Number of Borrower:
00-0000000
[SIGNATURES CONTINUED ON NEXT PAGE]
Page 38
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
BANK OF AMERICA, N.A., a national banking
association, individually as Administrative Agent
and a Lender
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxx X. Xxxxx
----------------------------
Title: Senior Vice President
---------------------------
[BANK SEAL]
Lender's Address for Notices:
Bank of America, N.A.
Real Estate Banking Group
Bank of America Plaza - Sixth Floor
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
[SIGNATURES CONTINUED ON NEXT PAGE]
Page 39
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
GUARANTY BANK, as a Lender
By: /s/ Xxxx X. Lirgl (SEAL)
-----------------------------
Name: Xxxx X. Lirgl, Jr.
---------------------------
Title: Vice President
---------------------------
[SIGNATURES CONTINUED ON NEXT PAGE]
Page 40
[SIGNATURES CONTINUED FROM PREVIOUS PAGE]
SOUTHTRUST BANK, as a Lender
By: /s/ Xxxx Xxxxxxx (SEAL)
---------------------------------------
Name: Xxxx Xxxxxxx
-------------------------------------
Title: AVP
------------------------------------
PAGE 41
EXHIBIT "A"
BEING a tract of land situated in the XXXXXXXX XXXXX SURVEY, ABSTRACT NO. 56,
DALLAS County, Texas, and being all of Xxx 0, Xxxxx X, XXX XXXXXXXX, 12TH
INSTALLMENT, an Addition to the City of Irving, Texas, recorded in Volume 86246,
Page 000, Xxxx Xxxxxxx, XXXXXX Xxxxxx, Xxxxx, as conveyed to X. X. Xxxx
Foundation by Correction General Warranty Deed as recorded in volume 89017, Page
0000, Xxxx Xxxxxxx, XXXXXX Xxxxxx, Xxxxx, and being more particularly described
as follows:
BEGINNING at a 1/2 inch iron rod found for corner at the North end of a corner
clip at the intersection of the Northeast line of Esters Boulevard (80 foot
right-of-way) and the Southeast line of Freeport Parkway (100 foot
right-of-way);
THENCE North 54 degrees 19 minutes 10 seconds East, with said Southeast line, a
distance of 57.16 feet to a 1/2 inch iron rod found for corner at the beginning
of a curve to the left having a central angle of 44 degrees 00 minutes 00
seconds, a radius of 880.59 feet and a chord bearing and distance of North 32
degrees 19 minutes 10 seconds East, 659.75 feet;
THENCE along said curve to the left and continuing with said Southeast line, an
arc distance of 676.24 feet to a 1/2 inch iron rod found for corner;
THENCE North 10 degrees 19 minutes 10 seconds East; continuing along said South-
east line, a distance of 87.55 feet to a 1/2 inch iron rod found for corner at
the Southwest end of a corner clip at the intersection of said Southeast line
and the South line of Regent Boulevard (100 foot right-of-way);
THENCE North 55 degrees 19 minutes 10 seconds East; along said corner clip; a
distance of 25.00 feet to a 1/2 inch iron rod found for corner in said South
line of Regent Boulevard;
THENCE South 79 degrees 40 minutes 50 seconds East, along said South line, a
distance of 402.27 feet to a 1/2 inch iron rod found for corner at the beginning
of a curve to the right having a central angle of 43 degrees 56 minutes 12
seconds, a radius of 549.97 feet and a chord bearing and distance of South 57
degrees 42 minutes 45 seconds East, 411.48 feet;
THENCE along said curve to the right and continuing along said South line, an
arc distance of 421.74 feet to a 1/2 inch iron rod found for corner;
THENCE South 35 degrees 44 minutes 26 seconds East, continuing along said South
line, a distance of 88.38 feet to a 1/2 inch iron rod found for corner, said
corner also being the most Northerly corner of Lot 6, Block C, of the above-
mentioned DFW Freeport Addition;
THENCE South 54 degrees 19 minutes 10 seconds west, along the North line of said
Lot 6, a distance of 1208.41 feet to an "x' cut found for corner in the
aforementioned Northeast line of Esters Boulevard;
THENCE North 35 degrees 40 minutes 50 seconds West, along said Northeast line, a
distance of 433.97 feet to a 1/2 inch iron rod found for a corner at the South
end of the aforementioned corner clip at the intersection of said
(Continued)
Northeast line of Esters Boulevard and the aforementioned Southeast line of
Freeport Parkway;
Thence North 09 degrees 19 minutes 10 seconds East, along said corner clip, a
distance of 25.00 feet to the POINT OF BEGINNING and CONTAINING 647,837 square
feet or 14.8723 acres of land, more or less.
EXHIBIT "B"
----------
BASIC INFORMATION
-----------------
A. DEFINITIONS: As used in this Agreement and the attached exhibits, the
-----------
following terms shall have the following meanings:
1. "Administrative Agent" means Bank of America, N.A., in its capacity as
--------------------
administrative agent under any of the Loan Documents, or any successor
administrative agent.
2. "Administrative Agent Advances" means advances as set forth in Section
----------------------------- -------
1 of this Agreement.
-
3. "Administrative Agent's Office" means Administrative Agent's address
-----------------------------
and, as appropriate, account as set forth on the Schedule of Lenders, or such
other address or account as Administrative Agent hereafter may from time to time
notify to Borrower and Lenders.
4. "Administrative Agent's Time" means the time of day observed in the
---------------------------
city where Administrative Agent's office is located.
5. "Advance Termination Date" means the Maturity Date.
------------------------
6. "Affiliate" means any person directly or indirectly controlling,
---------
controlled by, or under direct or indirect common control with, such person. A
person shall be deemed to be "controlled by" any other person if such other
person possesses, directly or indirectly, power (a) to vote 10% or more of the
securities (on a fully diluted basis) having ordinary voting power for the
election of directors or managing general partners; or (b) to direct or cause
the direction of the management and policies of such person whether by contract
or otherwise.
7. "Agent-Related Persons" means Administrative Agent (including any
---------------------
successor administrative agent), together with its Affiliates (including
Arranger), and the officers, directors, employees, agents and attorneys-in-fact
of such persons and Affiliates.
8. "Aggregate Cost" has the meaning set forth in Section 1.4 of this
-------------- -----------
Agreement.
9. "Agreement" has the meaning set forth in the introductory paragraph of
---------
this Agreement, and includes all exhibits attached hereto and referenced in
Section 1.1.
-----------
10. "Appraised Value" means at least $42,750,000.00.
---------------
11. "Arranger" means Banc of America Securities LLC, in its capacity as
--------
sole arranger and sole book manager.
12. "Assignment and Acceptance" means an Assignment and Acceptance
-------------------------
substantially in the form of Exhibit "L".
----------
13. "Association" means Freeport Property Owners Association, Inc., a
-----------
Texas non-profit corporation.
EXHIBIT "B"
14. "Basic Information" has the meaning set forth in Section 1.1 of this
----------------- -----------
Agreement.
15. "Borrower" has the meaning set forth in the introductory paragraph of
--------
this Agreement.
16. "Borrower's Deposit" has the meaning set forth in Section 1.5 of this
------------------ -----------
Agreement.
17. "Budget" means the budget and cost itemization for the Project
------
attached as Exhibit "D".
-----------
18. "Business Day" means any day other than a Saturday, Sunday or other
------------
day on which commercial banks are authorized to close under the laws of, or are
in fact closed in, the state where Administrative Agent's Office is located or,
if such day relates to any LIBOR Rate, means any such day on which dealings in
dollar deposits are conducted by and between banks in the London, England
interbank market.
19. "Commitment" means, as to each Lender, its obligation to advance its
----------
Pro Rata Share of the Loan in an aggregate principal amount not exceeding the
amount set forth opposite such Lender's name on the Schedule of Lenders at any
one time outstanding, as such amount may be reduced or adjusted from time to
time in accordance with this Agreement (collectively, the "combined
--------
Commitments").
-----------
20. "Completion Date" means the earlier of (i) that date which is fourteen
---------------
(14) months from the Construction Commencement Date, or (ii) any earlier date
required by the Nissan Lease for completion of the Improvements.
21. "Construction Commencement Date" means on or before February 1, 2002.
------------------------------
22. "Construction Consultant" means the construction consultant, if any,
-----------------------
engaged by Administrative Agent with respect to the Project.
23. "Debtor Relief Laws" means the Bankruptcy Code of the United States of
------------------
America, and all other liquidation, conservatorship, bankruptcy, assignment for
the benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States of America or
other applicable jurisdictions from time to time in effect and affecting the
rights of creditors generally.
24. "Deed of Trust" means the Deed of Trust, Assignment and Security
-------------
Agreement dated November 30, 2001, from the Borrower to certain trustees for
Administrative Agent and Lender's benefit, securing repayment of the
Indebtedness and Borrower's performance of its other obligations to
Administrative Agent and Lenders under the Loan Documents, as amended, modified,
supplemented, restated and replaced from time to time.
25. "Default" has the meaning set forth in Section 4.1 of this Agreement.
------- -----------
26. "Defaulting Lender" means a Lender that fails to pay its Pro Rata
-----------------
Share of a Payment Amount within five (5) Business Days after notice from
Administrative Agent, until such Lender cures such failure as permitted in this
Agreement.
EXHIBIT "B"
27. "Defaulting Lender Amount" means the Defaulting Lender's Pro Rata
------------------------
Share of a Payment Amount.
28. "Defaulting Lender Payment Amounts" means a Defaulting Lender Amount
---------------------------------
plus interest from the date such Defaulting Lender Amount was funded by
Administrative Agent and/or an Electing Lender, as applicable, to the date such
amount is repaid to Administrative Agent and/or such Electing Lender, as
applicable, at the rate per annum applicable to such Defaulting Lender Amount
under the Loan or otherwise at the Prime Rate.
29. "Development Agreement" has the meaning set forth in the Deed of
---------------------
Trust.
30. "Draw Request" means a properly completed and executed written
------------
application by Borrower to Lenders in the form of Exhibit "F-1" (or in another
------------
form approved by Administrative Agent) setting forth the amount of Loan proceeds
desired, together with such schedules, affidavits, releases, waivers,
statements, invoices, bills and other documents, certificates and information
Lenders require.
31. "Eligible Assignee" has the meaning set forth in Section 6.5.
----------------- -----------
32. "Environmental Agreement" means the Environmental Indemnity Agreement
-----------------------
of even date herewith by and among Borrower, Guarantor and Administrative Agent
for the benefit of Lenders.
33. "Excusable Delay" means a delay, not to exceed a total of ten (10)
---------------
days, caused by unusually adverse weather conditions which have not been taken
into account in the construction schedule, fire, earthquake or other acts of
God, strikes, lockouts, acts of public enemy, riots or insurrections or any
other unforeseen circumstances or events beyond the control of Borrower (except
financial circumstances or events or matters which may be resolved by the
payment of money), and as to which Borrower notifies Administrative Agent in
writing within five (5) days after such occurrence; provided, however, no
Excusable Delay shall extend the Completion Date or suspend or xxxxx any
obligation of Borrower or any Guarantor or any other person to pay any money.
34. "Federal Funds Rate" means, for any day, the rate per annum (rounded
------------------
upwards to the nearest 1/100 of 1%) equal to the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank on the Business Day next succeeding such day; provided that
--------
(a) if such day is not a Business Day, the Federal Funds Rate for such day shall
be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for such
day shall be the average rate charged to Bank of America on such day on such
transactions as determined by Administrative Agent.
35. "Financial Statements" means (i) for each reporting party other than
--------------------
an individual, a balance sheet, income statement, statements of cash flow and
amounts and sources of contingent liabilities, a reconciliation of changes in
equity and liquidity verification, and unless Administrative Agent otherwise
consents, consolidated and consolidating statements if the reporting party is a
holding company or a parent of a subsidiary entity; and (ii) for each reporting
party who is an individual, a balance sheet, statements of amount and sources of
contingent liabilities, sources and uses of cash and liquidity verification and,
unless Administrative Agent otherwise consents, Financial Statements for each
entity owned or jointly owned by the reporting party. For purposes of this
definition and any
EXHIBIT "B"
covenant requiring the delivery of Financial Statements, each party for whom
Financial Statements are required is a "reporting party" and a specified period
---------------
to which the required Financial Statements relate is a "reporting period".
----------------
36. "Foundations" means The Xxxx Xxx and X.X. Xxxx Foundation, a Texas
-----------
non-profit corporation and The Xxxx Foundation, a Texas non-profit corporation.
37. "Funding Date" means the date on which an advance of Loan proceeds or
------------
Borrower's Deposit shall occur.
38. "Guarantor" means Xxxxx Real Estate Investment Trust, Inc., a Maryland
---------
corporation.
39. "Improvements" means all on-site and off-site improvements to the Land
------------
for an approximately 268,290 square foot, three-story office building with
accessory parking, child care facilities, fitness center, kitchen, dining areas,
warehouse space, training rooms, document preparation areas and
telecommunications room, to be constructed on the Land, together with all
fixtures, tenant improvements, and appurtenances now or later to be located on
the Land and/or in such improvements.
40. "Indebtedness" means any and all indebtedness to Administrative Agent
------------
or Lenders evidenced, governed or secured by, or arising under, any of the Loan
Documents, including the Loan, Swap Contracts and all Letters of Credit.
41. "Indemnified Liabilities" has the meaning set forth in Section 6.1.
----------------------- -----------
42. "Land" means the real property described in Exhibit "A".
---- -----------
43. "Laws" means all constitutions, treaties, statutes, laws, ordinances,
----
regulations, rules, orders, writs, injunctions, or decrees of the United States
of America, any state or commonwealth, any municipality, any foreign country,
any territory or possession, or any Tribunal.
44. "Lender" means each lender from time to time party to this Agreement.
------
45. "Lending Office" means, as to any Lender, the office or offices of
--------------
such Lender described as such on the Schedule of Lenders, or such other office
-------------------
or offices as such Lender may from time to time notify Borrower and
Administrative Agent.
46. "Loan" means the loan by Lenders to Borrower, in the maximum amount of
----
$34,200,000.00, but not to exceed, in the aggregate, the payment of 80.9% of the
costs incident to the Project as specified in the Budget. In the event the
aggregate amount of the actual costs incident to the Project are less than the
aggregate amount specified in the Budget, the maximum amount described above
shall be reduced by the difference between the aggregate amount specified in the
Budget and the aggregate amount of such actual costs.
47. "Loan Documents" means this Agreement (including all exhibits), the
--------------
Deed of Trust, any Note, the Environmental Agreement, any guaranty, financing
statements, Swap Contracts, the Budget, each Draw Request, and such other
documents evidencing, securing or pertaining to the Loan as shall, from time to
time, be executed and/or delivered by Borrower, Guarantor, or any other party to
Administrative Agent or any Lender pursuant to this Agreement, as they may be
amended, modified, restated, replaced and supplemented from time to time.
EXHIBIT "B"
48. "Material Adverse Effect" means (a) a material adverse change in,
-----------------------
or a material adverse effect upon, the Project, or the operations, business,
properties, condition (financial or otherwise) or prospects of the Borrower or
the Borrower and its Subsidiaries taken as a whole; (b) a material impairment of
the ability of any party to the Loan Documents to perform its obligations under
any Loan Document to which it is a party; or (c) a material adverse effect upon
the legality, validity, binding effect or enforceability against any party to
the Loan Documents of any Loan Document to which it is a party.
49. "Maturity Date" means July 30, 2003, as it may be earlier
-------------
terminated or extended in accordance with the terms hereof.
50. "Nissan" means Nissan Motor Acceptance Corporation, a California
------
corporation.
51. "Nissan Lease" means that certain Lease Agreement dated September
------------
19, 2001 by and between Borrower, as landlord, and Nissan, as tenant, with
respect to the Improvements.
52. "Notes" means the Promissory Notes each dated November 30, 2001
-----
executed by Borrower and payable to the order of each Lender in the amount of
each Lender's Commitment and collectively in the maximum principal amount of the
Loan, substantially in the form of Exhibit "M" as amended, modified, replaced,
-----------
restated, extended or renewed from time to time.
53. "Obligations" means all advances to, and debts, liabilities,
-----------
obligations, covenants and duties of, any party to a Loan Document arising under
any Loan Document, whether direct or indirect (including those acquired by
assumption), absolute or contingent, due or to become due, now existing or
hereafter arising and including interest that accrues after the commencement by
or against any party to a Loan Document or any Affiliate thereof of any
proceeding under any Debtor Relief Laws naming such person as the debtor in such
proceeding.
54. "Payment Amount" means an advance of the Loan, an unreimbursed
--------------
Administrative Agent Advance, an unreimbursed Indemnified Liability, or any
other amount that a Lender is required to fund under this Agreement.
55. "Permitted Changes" means changes to the Plans or Improvements,
-----------------
provided the cost of any single change or extra does not exceed $50,000.00 and
the aggregate amount of all such changes and extras (whether positive or
negative) does not exceed $500,000.00.
56. "Permitted Lender" means [intentionally omitted].
----------------
57. "Plans" means the plans and specifications listed in Exhibit "E"
----- -----------
and all modifications thereof and additions thereto that are included as part of
the Plans as the same shall be approved by Administrative Agent in the exercise
of its sole discretion in accordance with the terms of this Agreement.
58. "Potential Default" means any condition or event which with the
-----------------
giving of notice or lapse of time or both would, unless cured or waived, become
a Default.
EXHIBIT "B"
59. "Prime Rate" means, on any day, the rate of interest per annum then
----------
most recently established by Administrative Agent as its "prime rate," it being
understood and agreed that such rate is set by Administrative Agent as a general
reference rate of interest, taking into account such factors as Administrative
Agent may deem appropriate, that it is not necessarily the lowest or best rate
actually charged to any customer or a favored rate, that it may not correspond
with future increases or decreases in interest rates charged by other lenders or
market rates in general, and that Administrative Agent may make various business
or other loans at rates of interest having no relationship to such rate. If
Administrative Agent (including any subsequent Administrative Agent) ceases to
exist or to establish or publish a prime rate from which the Prime Rate is then
determined, the applicable variable rate from which the Prime Rate is determined
thereafter shall be instead the prime rate reported in The Wall Street Journal
-----------------------
(or the average prime rate if a high and a low prime rate are therein reported),
and the Prime Rate shall change without notice with each change in such prime
rate as of the date such change is reported.
60. "Principal Debt" means the aggregate unpaid principal balance of
--------------
this Loan at the time in question.
61. "Pro Rata Share" means, with respect to each Lender, the percentage
--------------
of the Loan set forth opposite the name of that Lender on the Schedule of
-----------
Lenders, as such share may be adjusted pursuant to Section 6.5.
------- -----------
62. "Project" means the acquisition of the Land, the construction of
-------
the Improvements, and if applicable, the leasing and operation of the
Improvements.
63. "Property" means the Land, the Improvements and all other property
--------
constituting the "Deed of Trust Property," as described in the Deed of Trust, or
subject to a right, lien or security interest to secure the Loan pursuant to any
other Loan Document.
64. "Required Lenders" means as of any date of determination at least
----------------
two Lenders (excluding Defaulting Lenders) holding Pro Rata Shares of the Loan
aggregating more than 50% of the aggregate outstanding principal amount of the
Loan (excluding that portion of the Loan held by a Defaulting Lender or
Defaulting Lenders).
65. "Rights" means rights, remedies, powers and privileges.
------
66. "Schedule of Lenders" means the schedule of Lenders party to this
-------------------
Agreement as set forth on Exhibit "N", as it may be modified from time to time
-----------
in accordance with this Agreement.
67. "Stored Materials Advance Limit" means $0.00.
------------------------------
68. "Subsidiary" means a corporation, partnership, joint venture,
----------
limited liability company or other business entity of which a majority of the
shares of securities or other interests having ordinary voting power for the
election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned, or the management of which is otherwise
controlled, directly, or indirectly through one or more intermediaries.
69. "Survey" means a survey prepared in accordance with Exhibit "G" or
------ -----------
as otherwise approved by Administrative Agent in its sole discretion.
EXHIBIT "B"
70. "Swap Contract" means (a) any and all rate swap transactions, basis
-------------
swaps, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price
or bond index swaps or options or forward bond or forward bond price or forward
bond index transactions, interest rate options, forward foreign exchange
transactions, cap transactions, floor transactions, collar transactions,
currency swap transactions, cross-currency rate swap transactions, currency
options, or any other similar transactions or any combination of any of the
foregoing (including any options to enter into any of the foregoing), whether or
not any such transaction is governed by or subject to any master agreement, or
(b) any and all transactions of any kind, and the related confirmations, which
are subject to the terms and conditions of, or governed by, any form of master
agreement published by the International Swaps and Derivatives Association,
Inc., or any other master agreement (any such master agreement, together with
any related schedules, as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, a "Master Agreement"), including any such
----------------
obligations or liabilities under any Master Agreement.
71. "Telerate Page 3750" means the British Bankers Association Libor
------------------
Rates (determined at 11:00 a.m. London, England time) that are published by
Bridge Information Systems, Inc.
72. "Title Insurance" means the loan policy or policies of title
---------------
insurance issued to Administrative Agent for the benefit of Lenders by the Title
Insurer, in an amount equal to the maximum principal amount of the Loan,
insuring the validity and priority of the Deed of Trust encumbering the Land and
Improvements for the benefit of Administrative Agent and Lenders.
73. "Title Insurer" means Lawyers Title Insurance Corporation.
-------------
74. "Tribunal" means any state, commonwealth, federal, foreign,
--------
territorial or other court or governmental department, commission, board,
bureau, district, authority, agency, central bank, or instrumentality, or any
arbitration authority.
B. FINANCIAL STATEMENTS:
--------------------
Borrower shall provide or cause to be provided to Administrative Agent
with a copy for each Lender all of the following:
(a) Financial Statements of Borrower, and, if Borrower is a partnership
of each general partner of Borrower for each fiscal year of such reporting
party, as soon as reasonably practicable and in any event within one hundred
twenty (120) days after the close of each fiscal year, and for each fiscal
quarter of each such reporting party, as soon as reasonably practicable and in
any event within forty-five (45) days after the close of each such reporting
period.
(b) Financial Statements of Guarantor for each fiscal year of
Guarantor, as soon as reasonably practicable and in any event within one hundred
twenty (120) days after the close of each fiscal year, and for each fiscal
quarter of Guarantor, as soon as reasonably practicable and in any event within
forty-five (45) days after the close of each such reporting period.
(c) Prior to commencement of operations of the Improvements, a capital
and operating budget for the Property for its first fiscal year (or portion
thereof) of operations; and after commencement of operations in the
Improvements: (i) prior to the beginning of each fiscal year of
EXHIBIT "B"
Borrower, a capital and operating budget for the Property; and (ii) for each
month (and for the fiscal year through the end of that month) (A) a statement of
all income and expenses in connection with the Property, and (B) a current
leasing status report (including tenants' names, occupied tenant space, lease
terms, rents, vacant space and proposed rents), including in each case a
comparison to the budget, as soon as reasonably practicable but in any event
within thirty (30) days after the end of each such month, certified in writing
as true and correct by a representative of Borrower satisfactory to
Administrative Agent. Items provided under this paragraph shall be in form and
detail satisfactory to Administrative Agent.
(d) Copies of filed federal and state income tax returns of Borrower
and Guarantor for each taxable year, within twenty (20) days after filing but in
any event not later than one hundred fifty (150) days after the close of each
such taxable year.
(e) From time to time promptly after Administrative Agent's request,
such additional information, reports and statements respecting the Property and
the Improvements, or the business operations and financial condition of each
reporting party, as Administrative Agent may reasonably request.
All Financial Statements shall be in form and detail satisfactory to
Administrative Agent and shall contain or be attached to the signed and dated
written certification of the reporting party in form specified by Administrative
Agent to certify that the Financial Statements are furnished to Administrative
Agent in connection with the extension of credit by Lenders and constitute a
true and correct statement of the reporting party's financial position. All
certifications and signatures on behalf of corporations, partnerships or other
entities shall be by a representative of the reporting party satisfactory to
Administrative Agent. All Financial Statements for a reporting party who is an
individual shall be on Administrative Agent's then-current personal financial
statement form or in another form satisfactory to Administrative Agent. All
fiscal year-end Financial Statements of Borrower and Guarantor shall be audited
and certified, without any qualification or exception not acceptable to
Administrative Agent, by independent certified public accountants acceptable to
Administrative Agent, and shall contain all reports and disclosures required by
generally accepted accounting principles for a fair presentation.
EXHIBIT "B"
PROMISSORY NOTE
---------------
(BANK OF AMERICA, N.A.)
$11,400,000.00 November 30, 2001
-----------
FOR VALUE RECEIVED, XXXXX OPERATING PARTNERSHIP, L.P., a Delaware
limited partnership ("Borrower"), hereby promises to pay to the order of BANK OF
--------
AMERICA, N.A., a national banking association (together with any and all of its
successors and assigns and/or any other holder of this Note, "Lender"), in
------
accordance with that certain Loan Agreement (defined below) among Borrower, Bank
of America, N.A., a national banking association (together with any and all of
its successors and assigns, "Administrative Agent"), as agent for the benefit of
--------------------
the Lenders from time to time a party to that certain Construction Loan
Agreement (Syndication) (the "Loan Agreement") dated of even date herewith,
--------------
without offset, in immediately available funds in lawful money of the United
States of America, at Bank of America Plaza, 600 Peachtree Street, N.E., in the
City of Atlanta, Xxxxxx County, Georgia, the principal sum of ELEVEN MILLION
FOUR HUNDRED THOUSAND AND NO/100 DOLLARS ($11,400,000.00) (or the unpaid balance
of all principal advanced against this Note, if that amount is less), together
with interest on the unpaid principal balance of this Note from day to day
outstanding as hereinafter provided.
1. Note; Interest; Payment Schedule and Maturity Date. This Note is one
--------------------------------------------------
of the Notes referred to in the Loan Agreement and is entitled to the benefits
thereof and subject to prepayment in whole or part as provided therein. The
entire principal balance of this Note then unpaid shall be due and payable at
the times as set forth in the Loan Agreement. Accrued unpaid interest shall be
due and payable at the times and at the interest rate as set forth in the Loan
Agreement until all principal and accrued interest owing on this Note shall have
been fully paid and satisfied. Any amount not paid when due and payable
hereunder shall, to the extent permitted by applicable law, bear interest and if
applicable a late charge as set forth in the Loan Agreement.
2. Security; Loan Documents. The security for this Note includes a Deed
------------------------
of Trust, Assignment, Security Agreement and Financing Statement (which, as it
may have been or may be amended, restated, modified or supplemented from time to
time, is herein called the "Deed") of even date herewith from Borrower to
----
Administrative Agent, for itself and as Administrative Agent for the lenders
from time to time a party to that certain Construction Loan Agreement
(Syndication) among Borrower, Lender and such other Lenders dated of even date
herewith (the "Loan Agreement"), conveying and encumbering certain property in
--------------
Irving, Dallas County, Texas described therein (the "Property"). This Note, the
--------
Deed, the Loan Agreement and all other documents now or hereafter securing,
guaranteeing or executed in connection with the loan evidenced by this Note (the
"Loan"), are, as the same have been or may be amended, restated, modified or
----
supplemented from time to time, herein sometimes called individually a "Loan
----
Document" and together the "Loan Documents."
-------- --------------
PAGE 1
3. Defaults.
--------
(a) It shall be a default ("Default") under this Note and each of
-------
the other Loan Documents if (i) any principal, interest or other amount of money
due under this Note is not paid in full when due, regardless of how such amount
may have become due; (ii) any covenant, agreement, condition, representation or
warranty herein or in any other Loan Document is not fully and timely performed,
observed or kept; or (iii) there shall occur any default or event of default
under the Deed or any other Loan Document that extends beyond any applicable
cure or grace period. Upon the occurrence of a Default, subject to the terms of
Section 4.2 of the Deed, Administrative Agent on behalf of the Lenders shall
have the rights to declare the unpaid principal balance and accrued but unpaid
interest on this Note, and all other amounts due hereunder and under the other
Loan Documents, at once due and payable (and upon such declaration, the same
shall be at once due and payable), to foreclose any liens and security interests
securing payment hereof and to exercise any of its other rights, powers and
remedies under this Note, under any other Loan Document, or at law or in equity.
(b) All of the rights, remedies, powers and privileges (together,
"Rights") of Administrative Agent on behalf of the Lenders provided for in this
------
Note and in any other Loan Document are cumulative of each other and of any and
all other Rights at law or in equity. The resort to any Right shall not prevent
the concurrent or subsequent employment of any other appropriate Right. No
single or partial exercise of any Right shall exhaust it, or preclude any other
or further exercise thereof, and every Right may be exercised at any time and
from time to time. No failure by Administrative Agent or any Lender to exercise,
nor delay in exercising any Right, including but not limited to the right to
accelerate the maturity of this Note, shall be construed as a waiver of any
Default or as a waiver of any Right. Without limiting the generality of the
foregoing provisions, the acceptance by Lender from time to time of any payment
under this Note which is past due or which is less than the payment in full of
all amounts due and payable at the time of such payment, shall not (i)
constitute a waiver of or impair or extinguish the right of Administrative Agent
or any Lender to accelerate the maturity of this Note or to exercise any other
Right at the time or at any subsequent time, or nullify any prior exercise of
any such Right, or (ii) constitute a waiver of the requirement of punctual
payment and performance or a novation in any respect.
(c) If Lender retains an attorney in connection with any Default or
at maturity or to collect, enforce or defend this Note or any other Loan
Document in any lawsuit or in any probate, reorganization, bankruptcy,
arbitration or other proceeding, or if Borrower sues Lender in connection with
this Note or any other Loan Document and does not prevail, then Borrower agrees
to pay to Lender, in addition to principal, interest and any other sums owing to
Lender hereunder and under the other Loan Documents, all costs and expenses
incurred by Lender in trying to collect this Note or in any such suit or
proceeding, including, without limitation, reasonable attorneys' fees and
expenses actually incurred by Lender, investigation costs and all court costs,
whether or not suit is filed hereon, whether before or after the Maturity Date,
or whether in connection with bankruptcy, insolvency or appeal, or whether
collection is made against Borrower or any guarantor or endorser or any other
person primarily or secondarily liable hereunder.
PAGE 2
4. Heirs, Successors and Assigns. The terms of this Note and of the other
-----------------------------
Loan Documents shall bind and inure to the benefit of the successors and assigns
of the parties. The foregoing sentence shall not be construed to permit Borrower
to assign the Loan except as otherwise permitted under the Loan Documents. As
further provided in the Loan Agreement, a Lender may, at any time, sell,
transfer, or assign all or a portion of its interest in this Note, the Deed and
the other Loan Documents, as set forth in the Loan Agreement.
5. General Provisions. Time is of the essence with respect to Borrower's
------------------
obligations under this Note. If more than one person or entity executes this
Note as Borrower, all of said parties shall be jointly and severally liable for
payment of the indebtedness evidenced hereby. Borrower and all sureties,
endorsers, guarantors and any other party now or hereafter liable for the
payment of this Note in whole or in part, hereby severally (a) waive demand,
presentment for payment, notice of dishonor and of nonpayment, protest, notice
of protest, notice of intent to accelerate, notice of acceleration and all other
notices (except any notices which are specifically required by this Note or any
other Loan Document), filing of suit and diligence in collecting this Note or
enforcing any of the security herefor; (b) agree to any substitution,
subordination, exchange or release of any such security or the release of any
party primarily or secondarily liable hereon; (c) agree that Lender shall not be
required first to institute suit or exhaust its remedies hereon against Borrower
or others liable or to become liable hereon or to perfect or enforce its rights
against them or any security herefor; (d) consent to any extensions or
postponements of time of payment of this Note for any period or periods of time
and to any partial payments, before or after maturity, and to any other
indulgences with respect hereto, without notice thereof to any of them; and (e)
submit (and waive all rights to object) to non-exclusive personal jurisdiction
of any state or federal court sitting in the State of Georgia, and venue in the
county in which payment is to be made as specified in Section 1 of this Note,
for the enforcement of any and all obligations under this Note and the Loan
Documents; (f) waive the benefit of all homestead and similar exemptions as to
this Note; (g) agree that their liability under this Note shall not be affected
or impaired by any determination that any title, security interest or lien taken
by Lender to secure this Note is invalid or unperfected; and (h) hereby
subordinate to the Loan and the Loan Documents any and all rights against
Borrower and any of the security for the payment of this Note, whether by
subrogation, agreement or otherwise, until this Note is paid in full. A
determination that any provision of this Note is unenforceable or invalid shall
not affect the enforceability or validity of any other provision and the
determination that the application of any provision of this Note to any person
or circumstance is illegal or unenforceable shall not affect the enforceability
or validity of such provision as it may apply to other persons or circumstances.
This Note may not be amended except in a writing specifically intended for such
purpose and executed by the party against whom enforcement of the amendment is
sought. Captions and headings in this Note are for convenience only and shall be
disregarded in construing it. THIS NOTE, AND ITS VALIDITY, ENFORCEMENT AND
INTERPRETATION, SHALL BE GOVERNED BY GEORGIA LAW (WITHOUT REGARD TO ANY CONFLICT
OF LAWS PRINCIPLES) AND APPLICABLE UNITED STATES FEDERAL LAW.
6. Notices. Any notice, request or demand to or upon Borrower or Lender
-------
shall be deemed to have been properly given or made when delivered in accordance
with the Loan Agreement.
PAGE 3
7. No Usury. It is expressly stipulated and agreed to be the intent of
--------
Borrower, Administrative Agent and Lenders at all times to comply with
applicable state law or applicable United States federal law (to the extent that
it permits Lender to contract for, charge, take, reserve, or receive a greater
amount of interest than under state law) and that this Section shall control
every other covenant and agreement in this Note and the other Loan Documents. If
applicable state or federal law should at any time be judicially interpreted so
as to render usurious any amount called for under this Note or under any of the
other Loan Documents, or contracted for, charged, taken, reserved, or received
with respect to the Loan, or if Lender's exercise of the option to accelerate
the Maturity Date, or if any prepayment by Borrower results in Borrower having
paid any interest in excess of that permitted by applicable law, then it is
Lender's express intent that all excess amounts theretofore collected by Lender
shall be credited on the principal balance of this Note and all other
indebtedness secured by the Deed, and the provisions of this Note and the other
Loan Documents shall immediately be deemed reformed and the amounts thereafter
collectible hereunder and thereunder reduced, without the necessity of the
execution of any new documents, so as to comply with the applicable law, but so
as to permit the recovery of the fullest amount otherwise called for hereunder
or thereunder. All sums paid or agreed to be paid to Lender for the use or
forbearance of the Loan shall, to the extent permitted by applicable law, be
amortized, prorated, allocated, and spread throughout the full stated term of
the Loan.
THE LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES.
THERE ARE NO ORAL AGREEMENTS BETWEEN THE PARTIES.
PAGE 4
IN WITNESS WHEREOF, Borrower has duly executed this Note under seal as of
the date first above written.
BORROWER:
XXXXX OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
By: XXXXX REAL ESTATE INVESTMENT
TRUST, INC., a Maryland corporation
By: /S/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxxx
Executive Vice President
[CORPORATE SEAL]
PAGE 5
PROMISSORY NOTE
---------------
(GUARANTY BANK)
$11,400,000.00 November 30, 2001
-----------------
FOR VALUE RECEIVED, XXXXX OPERATING PARTNERSHIP, L.P., a Delaware limited
partnership ("Borrower"), hereby promises to pay to the order of GUARANTY BANK,
--------
a national banking association (together with any and all of its successors and
assigns and/or any other holder of this Note, "Lender"), in accordance with that
------
certain Loan Agreement (defined below) among Borrower, Bank of America, N.A., a
national banking association (together with any and all of its successors and
assigns, "Administrative Agent"), as agent for the benefit of the Lenders from
--------------------
time to time a party to that certain Construction Loan Agreement (Syndication)
(the "Loan Agreement") dated of even date herewith, without offset, in
--------------
immediately available funds in lawful money of the United States of America, at
Bank of America Plaza, 600 Peachtree Street, N.E., in the City of Atlanta,
Xxxxxx County, Georgia, the principal sum of ELEVEN MILLION FOUR HUNDRED
THOUSAND AND NO/100 DOLLARS ($11,400,000.00) (or the unpaid balance of all
principal advanced against this Note, if that amount is less), together with
interest on the unpaid principal balance of this Note from day to day
outstanding as hereinafter provided.
1. Note; Interest; Payment Schedule and Maturity Date. This Note is one
--------------------------------------------------
of the Notes referred to in the Loan Agreement and is entitled to the benefits
thereof and subject to prepayment in whole or part as provided therein. The
entire principal balance of this Note then unpaid shall be due and payable at
the times as set forth in the Loan Agreement. Accrued unpaid interest shall be
due and payable at the times and at the interest rate as set forth in the Loan
Agreement until all principal and accrued interest owing on this Note shall have
been fully paid and satisfied. Any amount not paid when due and payable
hereunder shall, to the extent permitted by applicable law, bear interest and if
applicable a late charge as set forth in the Loan Agreement.
2. Security; Loan Documents. The security for this Note includes a Deed
------------------------
of Trust, Assignment, Security Agreement and Financing Statement (which, as it
may have been or may be amended, restated, modified or supplemented from time to
time, is herein called the "Deed") of even date herewith from Borrower to
----
Administrative Agent, for itself and as Administrative Agent for the lenders
from time to time a party to that certain Construction Loan Agreement
(Syndication) among Borrower, Lender and such other Lenders dated of even date
herewith (the "Loan Agreement"), conveying and encumbering certain property in
--------------
Irving, Dallas County, Texas described therein (the "Property"). This Note, the
--------
Deed, the Loan Agreement and all other documents now or hereafter securing,
guaranteeing or executed in connection with the loan evidenced by this Note (the
"Loan"), are, as the same have been or may be amended, restated, modified or
----
supplemented from time to time, herein sometimes called individually a "Loan
----
Document" and together the "Loan Documents."
-------- --------------
PAGE 1
3. Defaults.
--------
(a) It shall be a default ("Default") under this Note and each of the
-------
other Loan Documents if (i) any principal, interest or other amount of money due
under this Note is not paid in full when due, regardless of how such amount may
have become due; (ii) any covenant, agreement, condition, representation or
warranty herein or in any other Loan Document is not fully and timely performed,
observed or kept; or (iii) there shall occur any default or event of default
under the Deed or any other Loan Document that extends beyond any applicable
cure or grace period. Upon the occurrence of a Default, subject to the terms of
Section 4.2 of the Deed, Administrative Agent on behalf of the Lenders shall
have the rights to declare the unpaid principal balance and accrued but unpaid
interest on this Note, and all other amounts due hereunder and under the other
Loan Documents, at once due and payable (and upon such declaration, the same
shall be at once due and payable), to foreclose any liens and security interests
securing payment hereof and to exercise any of its other rights, powers and
remedies under this Note, under any other Loan Document, or at law or in equity.
(b) All of the rights, remedies, powers and privileges (together,
"Rights") of Administrative Agent on behalf of the Lenders provided for in this
------
Note and in any other Loan Document are cumulative of each other and of any and
all other Rights at law or in equity. The resort to any Right shall not prevent
the concurrent or subsequent employment of any other appropriate Right. No
single or partial exercise of any Right shall exhaust it, or preclude any other
or further exercise thereof, and every Right may be exercised at any time and
from time to time. No failure by Administrative Agent or any Lender to exercise,
nor delay in exercising any Right, including but not limited to the right to
accelerate the maturity of this Note, shall be construed as a waiver of any
Default or as a waiver of any Right. Without limiting the generality of the
foregoing provisions, the acceptance by Lender from time to time of any payment
under this Note which is past due or which is less than the payment in full of
all amounts due and payable at the time of such payment, shall not (i)
constitute a waiver of or impair or extinguish the right of Administrative Agent
or any Lender to accelerate the maturity of this Note or to exercise any other
Right at the time or at any subsequent time, or nullify any prior exercise of
any such Right, or (ii) constitute a waiver of the requirement of punctual
payment and performance or a novation in any respect.
(c) If Lender retains an attorney in connection with any Default or
at maturity or to collect, enforce or defend this Note or any other Loan
Document in any lawsuit or in any probate, reorganization, bankruptcy,
arbitration or other proceeding, or if Borrower sues Lender in connection with
this Note or any other Loan Document and does not prevail, then Borrower agrees
to pay to Lender, in addition to principal, interest and any other sums owing to
Lender hereunder and under the other Loan Documents, all costs and expenses
incurred by Lender in trying to collect this Note or in any such suit or
proceeding, including, without limitation, reasonable attorneys' fees and
expenses actually incurred by Lender, investigation costs and all court costs,
whether or not suit is filed hereon, whether before or after the Maturity Date,
or whether in connection with bankruptcy, insolvency or appeal, or whether
collection is made against Borrower or any guarantor or endorser or any other
person primarily or secondarily liable hereunder.
PAGE 2
4. Heirs, Successors and Assigns. The terms of this Note and of the
-----------------------------
other Loan Documents shall bind and inure to the benefit of the successors and
assigns of the parties. The foregoing sentence shall not be construed to permit
Borrower to assign the Loan except as otherwise permitted under the Loan
Documents. As further provided in the Loan Agreement, a Lender may, at any time,
sell, transfer, or assign all or a portion of its interest in this Note, the
Deed and the other Loan Documents, as set forth in the Loan Agreement.
5. General Provisions. Time is of the essence with respect to
------------------
Borrower's obligations under this Note. If more than one person or entity
executes this Note as Borrower, all of said parties shall be jointly and
severally liable for payment of the indebtedness evidenced hereby. Borrower and
all sureties, endorsers, guarantors and any other party now or hereafter liable
for the payment of this Note in whole or in part, hereby severally (a) waive
demand, presentment for payment, notice of dishonor and of nonpayment, protest,
notice of protest, notice of intent to accelerate, notice of acceleration and
all other notices (except any notices which are specifically required by this
Note or any other Loan Document), filing of suit and diligence in collecting
this Note or enforcing any of the security herefor; (b) agree to any
substitution, subordination, exchange or release of any such security or the
release of any party primarily or secondarily liable hereon; (c) agree that
Lender shall not be required first to institute suit or exhaust its remedies
hereon against Borrower or others liable or to become liable hereon or to
perfect or enforce its rights against them or any security herefor; (d) consent
to any extensions or postponements of time of payment of this Note for any
period or periods of time and to any partial payments, before or after maturity,
and to any other indulgences with respect hereto, without notice thereof to any
of them; and (e) submit (and waive all rights to object) to non-exclusive
personal jurisdiction of any state or federal court sitting in the State of
Georgia, and venue in the county in which payment is to be made as specified in
Section 1 of this Note, for the enforcement of any and all obligations under
this Note and the Loan Documents; (f) waive the benefit of all homestead and
similar exemptions as to this Note; (g) agree that their liability under this
Note shall not be affected or impaired by any determination that any title,
security interest or lien taken by Lender to secure this Note is invalid or
unperfected; and (h) hereby subordinate to the Loan and the Loan Documents any
and all rights against Borrower and any of the security for the payment of this
Note, whether by subrogation, agreement or otherwise, until this Note is paid in
full. A determination that any provision of this Note is unenforceable or
invalid shall not affect the enforceability or validity of any other provision
and the determination that the application of any provision of this Note to any
person or circumstance is illegal or unenforceable shall not affect the
enforceability or validity of such provision as it may apply to other persons or
circumstances. This Note may not be amended except in a writing specifically
intended for such purpose and executed by the party against whom enforcement of
the amendment is sought. Captions and headings in this Note are for convenience
only and shall be disregarded in construing it. THIS NOTE, AND ITS VALIDITY,
ENFORCEMENT AND INTERPRETATION, SHALL BE GOVERNED BY GEORGIA LAW (WITHOUT REGARD
TO ANY CONFLICT OF LAWS PRINCIPLES) AND APPLICABLE UNITED STATES FEDERAL LAW.
6. Notices. Any notice, request or demand to or upon Borrower or Lender
-------
shall be deemed to have been properly given or made when delivered in accordance
with the Loan Agreement.
PAGE 3
7. No Usury. It is expressly stipulated and agreed to be the intent of
--------
Borrower, Administrative Agent and Lenders at all times to comply with
applicable state law or applicable United States federal law (to the extent that
it permits Lender to contract for, charge, take, reserve, or receive a greater
amount of interest than under state law) and that this Section shall control
every other covenant and agreement in this Note and the other Loan Documents. If
applicable state or federal law should at any time be judicially interpreted so
as to render usurious any amount called for under this Note or under any of the
other Loan Documents, or contracted for, charged, taken, reserved, or received
with respect to the Loan, or if Lender's exercise of the option to accelerate
the Maturity Date, or if any prepayment by Borrower results in Borrower having
paid any interest in excess of that permitted by applicable law, then it is
Lender's express intent that all excess amounts theretofore collected by Lender
shall be credited on the principal balance of this Note and all other
indebtedness secured by the Deed, and the provisions of this Note and the other
Loan Documents shall immediately be deemed reformed and the amounts thereafter
collectible hereunder and thereunder reduced, without the necessity of the
execution of any new documents, so as to comply with the applicable law, but so
as to permit the recovery of the fullest amount otherwise called for hereunder
or thereunder. All sums paid or agreed to be paid to Lender for the use or
forbearance of the Loan shall, to the extent permitted by applicable law, be
amortized, prorated, allocated, and spread throughout the full stated term of
the Loan.
THE LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES.
THERE ARE NO ORAL AGREEMENTS BETWEEN THE PARTIES.
PAGE 4
IN WITNESS WHEREOF, Borrower has duly executed this Note under seal as of
the date first above written.
BORROWER:
XXXXX OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
By: XXXXX REAL ESTATE INVESTMENT
TRUST, INC., a Maryland corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxxxx
Executive Vice President
[CORPORATE SEAL]
PAGE 5
PROMISSORY NOTE
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(SOUTHTRUST BANK)
$11,400,000.00 November 30, 2001
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FOR VALUE RECEIVED, XXXXX OPERATING PARTNERSHIP, L.P., a Delaware limited
partnership ("Borrower"), hereby promises to pay to the order of SOUTHTRUST
--------
BANK, a national banking association (together with any and all of its
successors and assigns and/or any other holder of this Note, "Lender"), in
------
accordance with that certain Loan Agreement (defined below) among Borrower, Bank
of America, N.A., a national banking association (together with any and all of
its successors and assigns, "Administrative Agent"), as agent for the benefit of
--------------------
the Lenders from time to time a party to that certain Construction Loan
Agreement (Syndication) (the "Loan Agreement") dated of even date herewith,
--------------
without offset, in immediately available funds in lawful money of the United
States of America, at Bank of America Plaza, 600 Peachtree Street, N.E., in the
City of Atlanta, Xxxxxx County, Georgia, the principal sum of ELEVEN MILLION
FOUR HUNDRED THOUSAND AND NO/100 DOLLARS ($11,400,000.00) (or the unpaid
balance of all principal advanced against this Note, if that amount is less),
together with interest on the unpaid principal balance of this Note from day to
day outstanding as hereinafter provided.
1. Note; Interest; Payment Schedule and Maturity Date. This Note is one
--------------------------------------------------
of the Notes referred to in the Loan Agreement and is entitled to the benefits
thereof and subject to prepayment in whole or part as provided therein. The
entire principal balance of this Note then unpaid shall be due and payable at
the times as set forth in the Loan Agreement. Accrued unpaid interest shall be
due and payable at the times and at the interest rate as set forth in the Loan
Agreement until all principal and accrued interest owing on this Note shall have
been fully paid and satisfied. Any amount not paid when due and payable
hereunder shall, to the extent permitted by applicable law, bear interest and if
applicable a late charge as set forth in the Loan Agreement.
2. Security; Loan Documents. The security for this Note includes a Deed
------------------------
of Trust, Assignment, Security Agreement and Financing Statement (which, as it
may have been or may be amended, restated, modified or supplemented from time to
time, is herein called the "Deed") of even date herewith from Borrower to
----
Administrative Agent, for itself and as Administrative Agent for the lenders
from time to time a party to that certain Construction Loan Agreement
(Syndication) among Borrower, Lender and such other Lenders dated of even date
herewith (the "Loan Agreement"), conveying and encumbering certain property in
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Irving, Dallas County, Texas described therein (the "Property"). This Note, the
--------
Deed, the Loan Agreement and all other documents now or hereafter securing,
guaranteeing or executed in connection with the loan evidenced by this Note (the
"Loan"), are, as the same have been or may be amended, restated, modified or
----
supplemented from time to time, herein sometimes called individually a "Loan
----
Document" and together the "Loan Documents."
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PAGE 1
3. Defaults.
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(a) It shall be a default ("Default") under this Note and each of the
-------
other Loan Documents if (i) any principal, interest or other amount of money due
under this Note is not paid in full when due, regardless of how such amount may
have become due; (ii) any covenant, agreement, condition, representation or
warranty herein or in any other Loan Document is not fully and timely performed,
observed or kept; or (iii) there shall occur any default or event of default
under the Deed or any other Loan Document that extends beyond any applicable
cure or grace period. Upon the occurrence of a Default, subject to the terms of
Section 4.2 of the Deed, Administrative Agent on behalf of the Lenders shall
have the rights to declare the unpaid principal balance and accrued but unpaid
interest on this Note, and all other amounts due hereunder and under the other
Loan Documents, at once due and payable (and upon such declaration, the same
shall be at once due and payable), to foreclose any liens and security interests
securing payment hereof and to exercise any of its other rights, powers and
remedies under this Note, under any other Loan Document, or at law or in equity.
(b) All of the rights, remedies, powers and privileges (together,
"Rights") of Administrative Agent on behalf of the Lenders provided for in this
-----
Note and in any other Loan Document are cumulative of each other and of any and
all other Rights at law or in equity. The resort to any Right shall not prevent
the concurrent or subsequent employment of any other appropriate Right. No
single or partial exercise of any Right shall exhaust it, or preclude any other
or further exercise thereof, and every Right may be exercised at any time and
from time to time. No failure by Administrative Agent or any Lender to exercise,
nor delay in exercising any Right, including but not limited to the right to
accelerate the maturity of this Note, shall be construed as a waiver of any
Default or as a waiver of any Right. Without limiting the generality of the
foregoing provisions, the acceptance by Lender from time to time of any payment
under this Note which is past due or which is less than the payment in full of
all amounts due and payable at the time of such payment, shall not (i)
constitute a waiver of or impair or extinguish the right of Administrative Agent
or any Lender to accelerate the maturity of this Note or to exercise any other
Right at the time or at any subsequent time, or nullify any prior exercise of
any such Right, or (ii) constitute a waiver of the requirement of punctual
payment and performance or a novation in any respect.
(c) If Lender retains an attorney in connection with any Default or
at maturity or to collect, enforce or defend this Note or any other Loan
Document in any lawsuit or in any probate, reorganization, bankruptcy,
arbitration or other proceeding, or if Borrower sues Lender in connection with
this Note or any other Loan Document and does not prevail, then Borrower agrees
to pay to Lender, in addition to principal, interest and any other sums owing to
Lender hereunder and under the other Loan Documents, all costs and expenses
incurred by Lender in trying to collect this Note or in any such suit or
proceeding, including, without limitation, reasonable attorneys' fees and
expenses actually incurred by Lender, investigation costs and all court costs,
whether or not suit is filed hereon, whether before or after the Maturity Date,
or whether in connection with bankruptcy, insolvency or appeal, or whether
collection is made against Borrower or any guarantor or endorser or any other
person primarily or secondarily liable hereunder.
PAGE 2
4. Heirs, Successors and Assigns. The terms of this Note and of the
-----------------------------
other Loan Documents shall bind and inure to the benefit of the successors and
assigns of the parties. The foregoing sentence shall not be construed to permit
Borrower to assign the Loan except as otherwise permitted under the Loan
Documents. As further provided in the Loan Agreement, a Lender may, at any time,
sell, transfer, or assign all or a portion of its interest in this Note, the
Deed and the other Loan Documents, as set forth in the Loan Agreement.
5. General Provisions. Time is of the essence with respect to
------------------
Borrower's obligations under this Note. If more than one person or entity
executes this Note as Borrower, all of said parties shall be jointly and
severally liable for payment of the indebtedness evidenced hereby. Borrower and
all sureties, endorsers, guarantors and any other party now or hereafter liable
for the payment of this Note in whole or in part, hereby severally (a) waive
demand, presentment for payment, notice of dishonor and of nonpayment, protest,
notice of protest, notice of intent to accelerate, notice of acceleration and
all other notices (except any notices which are specifically required by this
Note or any other Loan Document), filing of suit and diligence in collecting
this Note or enforcing any of the security herefor; (b) agree to any
substitution, subordination, exchange or release of any such security or the
release of any party primarily or secondarily liable hereon; (c) agree that
Lender shall not be required first to institute suit or exhaust its remedies
hereon against Borrower or others liable or to become liable hereon or to
perfect or enforce its rights against them or any security herefor; (d) consent
to any extensions or postponements of time of payment of this Note for any
period or periods of time and to any partial payments, before or after maturity,
and to any other indulgences with respect hereto, without notice thereof to any
of them; and (e) submit (and waive all rights to object) to non-exclusive
personal jurisdiction of any state or federal court sitting in the State of
Georgia, and venue in the county in which payment is to be made as specified in
Section 1 of this Note, for the enforcement of any and all obligations under
this Note and the Loan Documents; (f) waive the benefit of all homestead and
similar exemptions as to this Note; (g) agree that their liability under this
Note shall not be affected or impaired by any determination that any title,
security interest or lien taken by Lender to secure this Note is invalid or
unperfected; and (h) hereby subordinate to the Loan and the Loan Documents any
and all rights against Borrower and any of the security for the payment of this
Note, whether by subrogation, agreement or otherwise, until this Note is paid in
full. A determination that any provision of this Note is unenforceable or
invalid shall not affect the enforceability or validity of any other provision
and the determination that the application of any provision of this Note to any
person or circumstance is illegal or unenforceable shall not affect the
enforceability or validity of such provision as it may apply to other persons or
circumstances. This Note may not be amended except in a writing specifically
intended for such purpose and executed by the party against whom enforcement of
the amendment is sought. Captions and headings in this Note are for convenience
only and shall be disregarded in construing it. THIS NOTE, AND ITS VALIDITY,
ENFORCEMENT AND INTERPRETATION, SHALL BE GOVERNED BY GEORGIA LAW (WITHOUT REGARD
TO ANY CONFLICT OF LAWS PRINCIPLES) AND APPLICABLE UNITED STATES FEDERAL LAW.
6. Notices. Any notice, request or demand to or upon Borrower or Lender
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shall be deemed to have been properly given or made when delivered in accordance
with the Loan Agreement.
PAGE 3
7. No Usury. It is expressly stipulated and agreed to be the intent of
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Borrower, Administrative Agent and Lenders at all times to comply with
applicable state law or applicable United States federal law (to the extent that
it permits Lender to contract for, charge, take, reserve, or receive a greater
amount of interest than under state law) and that this Section shall control
every other covenant and agreement in this Note and the other Loan Documents. If
applicable state or federal law should at any time be judicially interpreted so
as to render usurious any amount called for under this Note or under any of the
other Loan Documents, or contracted for, charged, taken, reserved, or received
with respect to the Loan, or if Lender's exercise of the option to accelerate
the Maturity Date, or if any prepayment by Borrower results in Borrower having
paid any interest in excess of that permitted by applicable law, then it is
Lender's express intent that all excess amounts theretofore collected by Lender
shall be credited on the principal balance of this Note and all other
indebtedness secured by the Deed, and the provisions of this Note and the other
Loan Documents shall immediately be deemed reformed and the amounts thereafter
collectible hereunder and thereunder reduced, without the necessity of the
execution of any new documents, so as to comply with the applicable law, but so
as to permit the recovery of the fullest amount otherwise called for hereunder
or thereunder. All sums paid or agreed to be paid to Lender for the use or
forbearance of the Loan shall, to the extent permitted by applicable law, be
amortized, prorated, allocated, and spread throughout the full stated term of
the Loan.
THE LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES.
THERE ARE NO ORAL AGREEMENTS BETWEEN THE PARTIES.
PAGE 4
IN WITNESS WHEREOF, Borrower has duly executed this Note under seal as of
the date first above written.
BORROWER:
XXXXX OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
By: XXXXX REAL ESTATE INVESTMENT
TRUST, INC., a Maryland corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxxx
Executive Vice President
[CORPORATE SEAL]
