LOAN AGREEMENT BY AND BETWEEN NOMURA ASSET CAPITAL CORPORATION, as Lender and M-SIX PENVEST II BUSINESS TRUST, as Owner
Exhibit
10.5
Pool
IX
BY AND
BETWEEN
NOMURA
ASSET CAPITAL CORPORATION,
as
Lender
and
M-SIX
PENVEST II BUSINESS TRUST,
as
Owner
EXHIBITS
Exhibit
A Form
of Note
Exhibit
B Form
of Indenture
Exhibit
C Form
of Master Lease
Exhibit
D Form
of Master Lease Assignment
Exhibit
E Form
of Tenant Consent
Exhibit
F Form
of Opinions
Exhibit
G Form
of Certificates
Exhibit
H Form
of Master Lease Guaranty
Exhibit
I Form
of Residual Value Insurance Policy
Exhibit
J Form
of Central Account Agreement
LOAN
AGREEMENT (this "Agreement"), dated as of April 30, 1998, by and between NOMURA
ASSET CAPITAL CORPORATION, a Delaware corporation, as lender (together with its
successors and assigns, "Lender"), and M-SIX PENVEST II BUSINESS TRUST, a
Delaware business trust, as borrower (together with each other Owner listed on
Schedule I to the Indenture referred to below and their respective permitted
successors and assigns, "Owner").
The obligation of Lender to make the
Loan on the Closing Date is subject to (A) the accuracy and correctness on the
Closing Date, with the same effect as if made on and as of such date, of the
representations and warranties of Owner and Remainderman, if any, contained in
the Indenture, (B) the accuracy and correctness on the Closing Date of the
representations and warranties of the other parties to the transactions
contemplated hereby contained in any certificate or other Operative Document (as
hereinafter defined) delivered pursuant hereto, (C) the performance by such
other parties of their respective agreements contained in any certificate or
other Operative Document delivered pursuant hereto and to be performed by them
on or prior to the Closing Date, (D) the performance by Owner of its agreements
contained herein and to be performed by it on or prior to the Closing Date, and
(E) the satisfaction of all of the following conditions on or prior to the
Closing Date:
(2) Indenture;
(3) Master
Lease;
(5) Tenant
Consent;
(6) Master
Lease Guaranty;
(7) Residual
Value Policy;
(8) Option
and Subordination Agreement, if any;
(9) Tripartite
Agreement, if any;
(10) Central
Account Agreement; and
(11) the
indemnification agreements required pursuant to Section 3(y).
(except
only Lender or its counsel, on Lender's behalf, shall have received the original
executed Note). The Operative Documents (or memoranda thereof) and any financing
statements under the Uniform Commercial Code shall have been recorded,
registered and filed, if necessary, in order for the Title Insurance Policy to
be issued in accordance with paragraph (e) below and for Lender to hold a first
Lien on and a fully perfected first security interest in each Mortgaged Property
subject only to Permitted Encumbrances.
(e) Title
Insurance Policy. Lender shall have received a Title Insurance Policy, or an
irrevocable commitment therefor with respect to each Mortgaged Property, issued
by a nationally recognized title insurance company acceptable to Lender and
authorized to do business in the State in which such Mortgaged Property is
located (or, at Lender's request, with an endorsement to each such policy
"tieing in" all other policies relating to Mortgaged Properties), and each such
policy shall insure that the Indenture constitutes a first lien on such
Mortgaged Property, subject only to Permitted Encumbrances (which, in the case
of Permitted Encumbrances described in clause (vi) of the definition thereof,
are acceptable to Lender). Each such Title Insurance Policy shall name Lender,
or a trustee, as insured, and shall include any and all endorsements thereto as
shall be required by Lender including, without limitation, mechanics' lien
endorsements, survey endorsements and comprehensive endorsements, shall be
satisfactory in form and substance to Lender and shall insure Lender against
loss in an amount not less than the Allocated Property Debt with respect to the
Mortgaged Property to which such policy relates or such greater amount as Lender
may reasonably request. The Title Insurance Policies, or the irrevocable
commitments therefor, as applicable, shall be assignable.
(1) Local
Counsel Opinion. Local counsel in each State in which the Mortgaged Property is
located and local counsel in New York State shall have issued to Lender its
opinion with respect to the laws of such state in form and substance
satisfactory to Lender and its counsel. Owner agrees that it will not assert any
defense with respect to an Event of Default or any other claim by Lender under
any of the Operative Documents based on the fact that Lender and Owner have
jointly relied upon the opinion of such counsel with respect to matters of laws
of any State in which the Mortgaged Property is located.
(o) Insurance
Certificates. Lender and Owner shall have received copies of insurance policies
or valid certificates for the insurance (meeting Lender's customary
requirements) required by the Master Lease and by the Indenture satisfactory to
Lender in its reasonable discretion, and evidence of payment of all premiums
payable for the existing policy period.
(p) No
Proceedings, No action or proceeding shall have been instituted nor shall any
governmental action be threatened before any Governmental Authority, nor shall
any order, judgment or decree have been issued or proposed to be issued by any
court or Governmental Authority, to set aside, restrain, enjoin or prevent the
performance of this Agreement, any other Operative Document or any transaction
contemplated hereby or thereby,
(q) Environmental
Report. Lender shall have received a Phase I Environmental Report with respect
to each Mortgaged Property and a reliance letter with respect thereto
satisfactory in form and substance to Lender prepared by an environmental
engineering firm approved by Lender in accordance with the scope of ASTM
Standard E1527, Lender may require the preparation of an additional Phase II
environmental assessment report satisfactory in form and substance to Lender, if
the Phase I environmental assessment report reveals conditions which in Lender's
opinion warrant further testing.
(s) [Intentionally
Omitted.]
(u) Perfection
of Security Interests. UCC-1 Financing Statements with respect to the Mortgaged
Property showing Owner, as debtor, and Lender, as secured party, shall be filed
and/or recorded in each office in each state where necessary to permit Owner to
make its representation that Lender has a first perfected security interest in
that portion of the Mortgaged Property which is subject to the UCC.
(w) [Intentionally
Omitted.]
(x) Closing
Costs. Owner shall pay, or cause to be paid, all costs referenced in Section
4(a) which are invoiced at or prior to closing.
4. Lender
shall have received a satisfactory indemnification agreement from Owner and a
satisfactory ACCOR Group Indemnification Agreement, of even date herewith, from
Seller, Tenant and Master Lease Guarantor indemnifying Lender, its affiliates
and certain related Persons with respect to certain securities law
matters.
Owner will:
(a) pay
or cause to be paid all fees, expenses and disbursements of Lender's counsel,
local counsel in each State in which the Mortgaged Property is located and
New,
York local counsel, in connection with this transaction, including, without
limitation, any expenses of such counsel in connection with any modification or
waiver under any Operative Document and the exercise of any rights and remedies
under this Agreement or any Operative Document and all other expenses in
connection therewith, including, without limitation, filing fees, document
reproduction expenses, environmental site assessment costs, title insurance
premiums, survey expenses, appraisal expenses, and all fees, taxes and expenses
for the recording, registration and filing of documents;
(b) reimburse
Lender or cause Lender to be reimbursed for its reasonable out-of-pocket
expenses (other than income or franchise taxes or similar tax) in connection
with such transactions and any items of the character referred to in Section
4(a) above which shall have been paid by Lender, including expenses incurred in
connection with any modification or waiver of any Operative Document and the
exercise of rights and remedies under this Agreement or any Operative
Document;
(c) pay
or cause to be paid, and save Lender harmless from and against any and all
liability and loss with respect to or resulting from (i) any claim for or on
account of any brokers' or finders' fees with respect to the transactions
contemplated herein, or (ii) the nonpayment or delayed payment of any such fees
and any and all stamp, mortgage and other similar taxes, fees and excises
(except Lender's income franchise or similar taxes and fees), if any, including
any interest and penalties, which are payable in connection with the
transactions contemplated by this Agreement; and
(d) pay
or cause to be paid all reasonable costs and expenses incurred by Lender
(including, without limitation, 'special and local counsel fees and expenses and
Rating Agencies fees, costs and expenses) in entering into or giving or
withholding any future amendments, supplements, modifications, waivers and
consents with respect to any Operative Document, whether or not such amendments,
supplements, modifications, waivers and consents are entered into, given or
withheld pursuant hereto or thereto, which have been requested by Owner,
Remainderman, if any, Tenant, Seller, Master Lease Guarantor or Residual Value
Insurer.
provided, however, that all legal fees,
costs and expenses which Owner has agreed to pay hereunder shall be limited to
reasonable legal fees, costs and expenses except no such limitations shall exist
when Lender is enforcing any right or exercising any remedy under the Operative
Documents.
So long as any Event of Default shall
have occurred and be continuing, Lender may, in addition to any other rights or
remedies available to it pursuant to this Agreement, the Note, the Indenture or
the other Loan Documents, or at law or in equity, take such action, without
notice;: or demand, as Lender deems advisable to protect and enforce its rights
against Owner and in and to all or any portion of the Mortgaged Property,
including, without limitation, declaring by written notice to Owner the entire
Indebtedness to be immediately due and payable and Lender may enforce or avail
itself of any or all rights or remedies provided in the Loan Documents,
including, without limitation, all rights or remedies available at law or in
equity, subject to Section 4.3(z) of the Indenture.
Section
6.2 Lender's
Discretion. Whenever pursuant to this Agreement, Lender exercises any right
given to it to approve or disapprove, or any arrangement or term is to be
satisfactory to Lender, the decision of Lender to approve or disapprove or to
decide whether arrangements or terms are satisfactory or not satisfactory shall
(except as is otherwise specifically provided in this Agreement) be in the sole
discretion of Lender and shall be final and conclusive.
Section
6.3 Governing
Law. This Agreement and the obligations arising hereunder shall be governed by,
and construed in accordance with, the laws of the State of New York. To the
fullest extent permitted by law, Owner hereby unconditionally and irrevocably
waives any claim to assert that the law of any other jurisdiction governs this
Agreement.
Section
6.5 Delay
Not a Waiver. Neither any failure nor any delay on the part of Lender in
insisting upon strict performance of any term, condition, covenant or agreement,
or exercising any right, power, remedy or privilege hereunder (other than any
condition set forth in Section 3 hereof), or under the Note, or of any other
Loan Document, or any other instrument given as security therefor, shall operate
as or constitute a waiver thereof, nor shall a single or partial exercise
thereof preclude any other future exercise, or the exercise of any other right,
power, remedy or privilege. In particular, and not by way of limitation, by
accepting payment after the due date of any amount payable under this Agreement,
the Note or any other Loan Document, Lender shall not be deemed to have waived
any right either to require prompt payment when due of all other amounts due
under this Agreement, the Note or the other Loan Documents, or to declare a
default for failure to effect prompt payment of any such other
amount.
Section
6.22 [Intentionally
Omitted.]
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NOMURA ASSET CAPITAL
CORPORATION,
a Delaware corporation
By:
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/s/
Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Director