EXHIBIT 10.1
CREDIT AGREEMENT
Dated as of June 28, 1996
among
RIVER BANK AMERICA and
the other Borrowers named herein,
Borrowers
and
MARINE MIDLAND BANK
Lender
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TABLE OF CONTENTS
Page
I. DEFINITIONS....................................................................1
SECTION 1.01. Certain Defined Terms......................................1
SECTION 1.02. Accounting Terms..........................................18
II. THE LOANS....................................................................18
SECTION 2.01. Commitment................................................18
SECTION 2.02. Loans.....................................................18
SECTION 2.03. Notes; Repayment of Loans.................................19
SECTION 2.04. Interest on Loans.........................................19
SECTION 2.05. Alternate Rate of Interest................................20
SECTION 2.06. Payments and Computations.................................21
SECTION 2.07. Overdue Amounts...........................................21
SECTION 2.08. Prepayment of Loans.......................................21
SECTION 2.09. Extension of the Maturity Date............................22
SECTION 2.10. Change in Circumstances...................................23
SECTION 2.11. Indemnity.................................................25
SECTION 2.12. Taxes.....................................................25
III. COLLATERAL SECURITY.........................................................27
SECTION 3.01. In General................................................27
SECTION 3.02. Filing and Recording......................................27
IV. REPRESENTATIONS AND WARRANTIES...............................................28
SECTION 4.01. General...................................................28
SECTION 4.02. Controlled Properties.....................................34
SECTION 4.03. Pledged Loans.............................................39
SECTION 4.04. Visutton Co-operatives....................................40
SECTION 4.05. Co-operatives and Condominiums Generally..................42
SECTION 4.06. Secondary Collateral......................................44
V. CONDITIONS OF BORROWING.......................................................44
SECTION 5.01. Contemporaneous Transactions..............................44
SECTION 5.02. Initial Borrowing.........................................44
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Page
SECTION 5.03. Xxxxx Xxxx and Xxxx Xxxxxxxx Loan
Disbursements...................................................48
VI. AFFIRMATIVE COVENANTS........................................................50
SECTION 6.01. Legal Existence...........................................51
SECTION 6.02. Businesses and Properties.................................51
SECTION 6.03. Insurance.................................................51
SECTION 6.04. Taxes.....................................................55
SECTION 6.05. Financial Statements, Reports, etc........................56
SECTION 6.06. Refinancings..............................................58
SECTION 6.07. ERISA.....................................................58
SECTION 6.08. Maintaining Records; Access to Properties and
Inspections; Right to Audit.....................................60
SECTION 6.09. Use of Proceeds...........................................60
SECTION 6.10. Environmental Laws........................................60
SECTION 6.11. Pay Obligations to Lender and Perform Other
Covenants.......................................................63
SECTION 6.12. Termination of Property Managers.......................63
SECTION 6.13. Co-operatives and Condominiums.........................63
SECTION 6.14. Further Assurances........................................64
VII. NEGATIVE COVENANTS..........................................................64
SECTION 7.01. Liens.....................................................64
SECTION 7.02. Indebtedness..............................................65
SECTION 7.03. Sales of Assets...........................................66
SECTION 7.04. Consolidations and Mergers................................67
SECTION 7.05. Investments...............................................67
SECTION 7.06. Sales of Receivables......................................68
SECTION 7.07. Use of Proceeds...........................................68
SECTION 7.08. ERISA.....................................................68
SECTION 7.09. Accounting Changes........................................69
SECTION 7.10. Prepayment of Indebtedness; Dividends.....................69
SECTION 7.11. Transactions with Affiliates..............................69
SECTION 7.12. Modification of Documents.................................69
SECTION 7.13. Property Management.......................................69
VIII. EVENTS OF DEFAULT..........................................................70
IX-A FHLB LOAN.............................................................74
SECTION 9A.01. Conflicts................................................74
SECTION 9A.02. FHLB Representations.....................................74
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Page
SECTION 9A.03. FHLB Covenants...........................................75
SECTION 9A.04. Mandatory Prepayment.....................................75
IX. MISCELLANEOUS................................................................76
SECTION 9.01. Notices...................................................76
SECTION 9.02. Survival of Agreement.....................................77
SECTION 9.03. Successors and Assigns; Participations....................77
SECTION 9.04. Expenses; Indemnity.......................................78
SECTION 9.05. Applicable Law............................................79
SECTION 9.06. Right of Setoff...........................................80
SECTION 9.07. Payments on Business Days.................................80
SECTION 9.08. Waivers; Amendments.......................................80
SECTION 9.09. Severability..............................................81
SECTION 9.10. Entire Agreement; Waiver of Jury Trial, etc...............81
SECTION 9.11. Submission to Jurisdiction................................82
SECTION 9.12. Counterparts..........................................82
SECTION 9.13. Headings..................................................83
SECTION 9.14. Exercise of Cure Rights...................................83
X. CROSS-GUARANTEES..............................................................83
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SCHEDULES
1.1 Collateral Properties, Owned Properties,
Controlled Properties, Pledged Loans
1.2 Secondary Collateral
2.01 Commitments
2.02 Initial Advances
2.04 Example of Pricing Option Application
4.01(f) Litigation
4.01(o) Subsidiaries
4.02(b) Exceptions to Legal Compliance
4.02(c) Exceptions to Environmental Compliance
4.02(f) Rent Roll
4.02(g) Management and Leasing Agreements
4.03(b) Pledged Loan Documents
4.03(c) Defaults under Pledged Loan Documents
4.03(d) Xxxxxx Rent Rolls
4.04(a) Visutton Offering Plans
4.04(c) Visutton Unsold Units
4.04(h) Bonds, Security Deposit, Letters of Credit, Etc.
4.05(a) York/Xxxxxxxxx Offering Plans
4.05(c) York/Xxxxxxxxx Unsold Units
7.03 Release Price Schedules
9A.02 Letter to FHLB
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CREDIT AGREEMENT
CREDIT AGREEMENT dated as of June 28, 1996, among RIVER BANK
AMERICA, a New York banking corporation, 000 XXXX XXXXXXX XXXX., x Xxx Xxxx
corporation, XXXXXXX STOWE, INC., a California corporation, XXXXXX PROPERTY
CORP., a New York corporation, ACACIAS-MURRIETA, INC., a California corporation,
OLD CROW CANYON OFFICE, INC., a California corporation, and R.R. IRVINGTON
ASSOCIATES, L.P., a New York limited partnership, each having offices c/o RB
Management Company, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (each
individually, a "Borrower" and, collectively, "Borrowers"); and MARINE MIDLAND
BANK, a New York banking corporation having an office at Xxx XXX Xxxxxx,
Xxxxxxx, Xxx Xxxx 00000 ("Lender").
W I T N E S S E T H :
WHEREAS, Borrowers have applied to Lender for loans up to an
aggregate principal amount of $99,060,000.
WHEREAS, Lender is willing to extend such loans to Borrowers
subject to the terms and conditions hereinafter set forth.
NOW THEREFORE, in consideration of the premises and for good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Borrowers and Lender hereby agree as follows:
I. DEFINITIONS
SECTION 1.01. Certain Defined Terms. For purposes
hereof, the following terms shall have the meanings specified
below:
"Adjusted LIBOR" shall mean, with respect to any Interest
Period for any Loan, a rate per annum (rounded to the nearest 1/10 of 1%)
determined by Lender to be equal to sum of (1) the quotient of (a) LIBOR for
such Interest Period, divided
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by (b) one minus the LIBOR Reserve Requirement; plus (2) the
Interest Margin.
"Adjusted Prime Rate" shall mean a rate per annum equal to the
Prime Rate plus the Interest Margin.
"Affiliate" shall mean, with respect to any person, any other
person which, directly or indirectly, controls or is controlled by or is under
common control with such person. For the purposes of this definition, the term
"control" (including, with correlative meanings, the terms "controlled by" and
"under common control with"), as used with respect to any person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such person, whether through the
ownership of voting securities or by contract or otherwise.
"AJM Loan" shall mean the Loan to River Bank in the maximum
principal amount of $3,175,000 secured by, among other things, the Pledged Loan
relating to the Xxxxx Terrace Apartments, Xxxxx Xxxxxx Apartments and the Van
Buren Apartments.
"Xxxxx Xxxx Loan" shall mean the Loan to River Bank in the
maximum principal amount of $42,750,000 secured by, among other things, the
Pledged Loan relating to the Xxxxx Xxxx Property.
"Xxxxx Xxxx Property" shall mean the real property owned by
Eastview and commonly known as the Xxxxx Xxxx Apartments, 5500 Wissahickon
Avenue, Philadelphia, Pennsylvania.
"Applicable Laws" shall have the meaning assigned to such term
in Section 4.02(b) hereof.
"Xxxx Xxxxxxxx Loan" shall mean the Loan to Acacias-
Murrieta, Inc. in the maximum principal amount of $7,500,000
secured by, among other things, the Mortgages encumbering the
Xxxx Xxxxxxxx Property.
"Xxxx Xxxxxxxx Property" shall mean the real property
owned by Acacias-Murrieta, Inc. at Xxxx Xxxxxxxx and Xxxxxxx
Xxxxxxx Xxxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx.
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"Board" shall mean the Board of Governors of the Federal
Reserve System of the United States.
"Borrowers" shall have the meaning assigned to such term in
the preamble to this Agreement.
"Business Day" shall mean any day, other than a Saturday,
Sunday or legal holiday in the State of New York, on which banks are open for
substantially all their banking business in New York City except that, if any
determination of a "Business Day" shall relate to an Adjusted LIBOR Loan, the
term "Business Day" shall in addition exclude any day on which banks are not
open for dealings in dollar deposits in the London interbank market.
"Capital Proceeds" shall mean the cash proceeds received by,
or paid to or for the benefit of, a Loan Party or Subsidiary in connection with
a Capital Transaction after payment of all reasonable costs and expenses which
are approved by Lender and are payable in connection with such Capital
Transaction, including (a) all approved brokers' commissions, loan fees, loan
payments, repayments of indebtedness, other closing costs, (b) the cost of any
alteration, improvement, restoration, or repair necessitated by or incurred in
connection with such Capital Transaction and (c) the funding of any reserves
required to be funded pursuant to applicable Pledged Loan Documents or a
Collateral Property Lockbox Agreement. Lender may pre-approve certain expenses
in connection with asset sales by listing same on the Release Price Schedule for
the subject asset, if any.
"Capital Transaction" shall mean a transaction pursuant to
which (a) assets of a Loan Party or Subsidiary are sold, (b) any Loan Party or
Subsidiary incurs, creates or assumes Indebtedness, (c) any treasury stock of
River Bank is sold or any stock of River Bank is issued, (d) insurance proceeds
are recovered by a Loan Party or Subsidiary in respect of any damage or
destruction, (e) amounts are paid or payable to a Loan Party or Subsidiary in
connection with any taking by condemnation or eminent domain or other similar
proceeding; or (f) any other transaction which, in accordance with GAAP, is
considered capital in nature.
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"Cash Available for Principal Reduction" shall have the
meaning assigned to such term in the Master Account Agreement.
"Certificate of Occupancy" shall have the meaning assigned to
such term in Section 4.02(b) hereof.
"Closing Date" shall mean the date of the first borrowing
under this Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Collateral" shall mean all collateral and security as
described in the Security Documents.
"Collateral Assignment of Loan" shall mean a pledge and
security agreement, dated as of the date hereof, and granted to Lender by River
Bank, together with such other documents as Lender may require in order to grant
to Lender a perfected security interest in a Pledged Loan, as amended, modified
or supplemented from time to time. Each Collateral Assignment of Loan secures
the obligations of River Bank under its Notes and this Agreement, and requires
that River Bank irrevocably direct its Ultimate Borrower to pay all amounts due
to River Bank directly into the applicable Collateral Property Lockbox Account.
"Collateral Properties" shall mean, collectively, the
properties listed on Schedule 1.1 hereto.
"Collateral Property Lockbox Accounts" shall mean the blocked
account for each Collateral Property established and maintained pursuant to the
Collateral Property Lockbox Agreement for such Collateral Property.
"Collateral Property Lockbox Agreement" shall mean a
cash collateral account and security agreement dated as of the
date hereof and granted to Lender by a Borrower, as amended,
modified or supplemented from time to time. Each Collateral
Property Lockbox Agreement secures the applicable Borrower's
obligations under its Note and this Agreement.
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"Commercial Space" shall mean 000-00/00 Xxxxxx Xxxxxxxxx,
Xxxxxx, Xxx Xxxx.
"Commitment" shall mean the Commitment of Lender as set forth
in Section 2.01, as adjusted from time to time pursuant to this Agreement.
"Condominiums" shall mean, collectively, the Xxxxxxxxx
Condo and the York Condo.
"Controlled Owners" shall mean, collectively, the Owner
Borrowers, Eastview and Royal York Associates, L.P., a New York limited
partnership.
"Controlled Properties" shall mean, collectively, the
properties listed as "controlled" on Schedule 1.1 hereto.
"Co-op and Condo Laws" shall mean all governmental laws, rules
and regulations pertaining, directly or indirectly, to the operation,
maintenance and sale of co-operatives and condominium units, including without
limitation, any filings with or pursuant to the rules, regulations or
requirements of the Department of Law, Bureau of Real Estate Finance, State of
New York in effect on the date hereof.
"Co-operative Corporations" shall mean Xxxxx Terrace
Apartment, Xxxxx Xxxxxx Apartments, Van Buren Apartments and the residential
unit of the York Condo.
"Crow Canyon Property" shall mean the real property
owned by Old Crow Canyon Office, Inc. and commonly known as 0000
Xxx Xxxx Xxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxxxx.
"Default" shall mean any condition, act or event which, with
notice or lapse of time or both, would constitute an Event of Default.
"Default Rate" shall mean the lesser of (a) a rate per annum
equal to four percent (4%) in excess of the Adjusted Prime Rate, and (b) the
maximum rate permitted by law.
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"Deposit" shall mean all deposits and downpayments, together
with interest thereon, made by a purchaser in connection with a Purchase
Agreement or other document delivered in connection therewith, including without
limitation, any payment for special work or items.
"dollars" or the symbol "$" shall mean dollars in lawful
currency of the United States of America.
"Eastview" shall mean Eastview Realty Associates, L.P., a New
Jersey limited partnership.
"Xxxxxxxxx Condo" shall mean The Royal Xxxxxxxxx Condominium,
a condominium located at 00 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx.
"Environmental Claim" shall mean any written notice received
by a Borrower of violation, claim, demand, abatement or other order by any
governmental authority or any person for bodily injury (including sickness,
disease or death), tangible or intangible property damage, damage to the
environment, nuisance, pollution, contamination or other adverse effects on the
environment, or for fines, penalties or deed or use restrictions, resulting from
or based upon (i) the existence, or the continuation of the existence, of a
Release (including, without limitation, sudden or non-sudden, accidental or
nonaccidental Releases), of, or exposure to, any Hazardous Material at, in, by
or from any of the Controlled Properties, (ii) the transportation, storage,
treatment or disposal of Hazardous Materials in connection with the operation of
any of the Controlled Properties (other than Routine Uses in compliance with
Environmental Laws) or (iii) the violation, or alleged violation by Borrowers or
any of the Subsidiaries, of any statutes, ordinances, orders, rules,
regulations, Permits or licenses of or from any governmental authority, agency
or court relating to environmental matters connected with any of the Controlled
Properties, under any applicable Environmental Law.
"Environmental Laws" shall mean the Comprehensive
Environmental Response, Compensation, and Liability Act (42
U.S.C. ss. 9601 et seq.), the Hazardous Material Transportation Act
(49 U.S.C. ss. 1801 et seq.), the Resource Conservation and
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Recovery Act (42 U.S.C. ss. 6901 et seq.), the Federal Water
Pollution Control Act (33 U.S.C. ss. 1251 et seq.), the Oil
Pollution Act of 1990 (33 U.S.C. ss. 2701 et. seq.), the Safe
Drinking Water Act (42 U.S.C. ss. 300f, et seq.), the Clean Air Act
(42 U.S.C. ss. 7401 et seq.), the Toxic Substances Control Act, as
amended (15 U.S.C. ss. 2601 et seq.), the Federal Insecticide,
Fungicide, and Rodenticide Act (7 U.S.C. ss. 136 et seq.), and the
Occupational Safety and Health Act (29 U.S.C. ss. 651 et seq.), as
such laws have been and hereafter may be amended or supplemented,
and any related or analogous present or future Federal, state or
local, statutes, rules, regulations, ordinances, licenses,
permits and interpretations and orders of regulatory and
administrative bodies.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended, and the rules and regulations promulgated thereunder, as in
effect from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or
not incorporated) which together with any of Borrowers or any subsidiary of any
thereof would be treated as a single employer under the provisions of Title I or
Title IV of ERISA.
"Events of Default" shall have the meaning assigned to such
term in Article VIII hereof.
"FHLB" shall mean the Federal Home Loan Bank of New
York.
"FHLB Loan" shall mean the Loan to River Bank in the principal
amount of $7,200,000.
"FHLB Stock" shall mean all capital stock in FHLB held by
River Bank.
"FHLB Stock Certificate" shall mean the certificate(s)
evidencing the FHLB Stock.
"First Extension Period" shall have the meaning assigned to
such term in Section 2.09 hereof.
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"First Mortgage" shall mean a first mortgage and/or deed of
trust, dated as of the date hereof, and granted to or for the benefit of Lender
by an Owner Borrower, as amended, modified or supplemented from time to time.
Each First Mortgage granted by an Owner Borrower secures such Owner Borrower's
Note.
"Xxxxxx Loan" shall mean the Loan to River Bank in the maximum
principal amount of $7,650,000 secured by, among other things, the Pledged Loan
relating to the Xxxxxx Property.
"Xxxxxx Property" shall mean the real property owned by
Washington Group LLC and commonly known as 00 Xxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx.
"GAAP" shall have the meaning assigned to such term in Section
1.02 hereof.
"General Security Agreement" shall mean the Enhancement
Collateral Pledge and Security Agreement with respect to the Secondary
Collateral, dated as of the date hereof, and granted to Lender by River Bank and
various Subsidiaries, as amended, modified or supplemented from time to time.
"Grantors" shall mean, collectively, the owners of the
Secondary Collateral.
"Guarantee" shall mean any obligation, contingent or
otherwise, of any person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or obligation of any other person in any manner,
whether directly or indirectly, and shall include, without limitation, any
obligation of such person, direct or indirect, to (i) purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or
obligation or to purchase (or to advance or supply funds for the purchase of)
any security for the payment of such Indebtedness or obligation, (ii) purchase
property, securities or services for the purpose of assuring the owner of such
Indebtedness or obligation of the payment of such Indebtedness or obligation, or
(iii) maintain working capital, equity capital, available cash or other
financial condition of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or obligation.
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"Xxxxx Irvington Property" shall mean the real property
owned by RR Irvington Associates, L.P. and commonly known as 000
Xxxxx Xxxxx Xxxx, Xxxxxxxxx, Xxx Xxxx.
"Hazardous Material" shall mean any pollutant, contaminant,
chemical, or industrial or hazardous, toxic or dangerous waste, substance or
material, defined or regulated as such in (or for purposes of) any Environmental
Law and any other toxic, reactive, or flammable chemicals, including (without
limitation) any asbestos, any petroleum (including crude oil or any fraction),
any radioactive substance and any polychlorinated biphenyls; provided, in the
event that any Environmental Law is amended so as to broaden the meaning of any
term defined thereby, such broader meaning shall apply subsequent to the
effective date of such amendment.
"HPC" shall mean Xxxxxx Property Corp.
"Impositions" shall mean all real estate taxes, personal
property taxes, betterments, assessments (general and special), imports, levies,
water, utility and sewage charges, any and all income, franchise, withholding,
profits and gross receipts taxes, all other taxes and public charges, imposed
upon or assessed against a Controlled Owner or a Controlled Property or upon the
revenues, rents, issues, income and profits of use or possession thereof, any
stamp or other taxes which may be required to be paid with respect to any of the
Loan Documents, any of which might, if unpaid, result in a Lien on the
Controlled Properties, regardless to whom paid or assessed, any assessment,
license fee, license tax, business license fee or tax, commercial rental tax,
levy, charge, penalty, tax or similar imposition, imposed by any governmental
authority having the direct power to tax, or any school, architectural,
lighting, drainage or other improvement or special assessment district thereof,
against any legal or equitable interest in the Controlled Properties.
"Indebtedness" shall mean, with respect to any person, (a) all
obligations of such person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such person evidenced by bonds,
debentures, notes or other similar instruments or upon which interest charges
are customarily paid, (c) all obligations of such person for the
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deferred purchase price of property or services, except current accounts payable
arising in the ordinary course of business and not overdue beyond such period as
is commercially reasonable for such person's business, (d) all obligations of
such person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real and/or personal property which
obligation is required to be classified and accounted for as a capital lease on
a balance sheet prepared in accordance with GAAP, (e) all payment obligations of
such person with respect to interest rate or currency protection agreements, (f)
all obligations of such person as an account party under any letter of credit or
in respect of bankers' acceptances, (g) all obligations of any third party
secured by property or assets of such person (regardless of whether or not such
person is liable for repayment of such obligations), (h) all Guarantees of such
person and (i) the redemption price of all redeemable preferred stock of such
person (other than redeemable preferred stock of River bank existing on the date
hereof).
"Indemnitees" shall have the meaning assigned to such
term in Section 9.04(b) hereof.
"Interest Margin" shall mean, with respect to any Loan, the
amounts set forth below for the periods indicated:
LIBOR Prime Rate
Period Interest Margin Interest Margin
From the Closing Date through
December 31, 1996 + 1.75% - 0.50%
January 1, 1997 through
June 30, 1997 + 2.00% - 0.25%
July 1, 1997 through
December 31, 1997 + 2.25% 0%
January 1, 1998 through
June 30, 1998 + 2.50% + 0.25%
July 1, 1998 through
June 30, 1999 + 2.75% + 0.50%
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First Extension Period + 3.00% + 0.75%
Second Extension Period + 3.25% + 1.00%
"Interest Payment Date" shall mean the first Business Day of
each calendar month, commencing August 1, 1996.
"Interest Period" shall have the meaning assigned to such term
in Section 2.04(c).
"Leases" shall have the meaning assigned to such term in
Section 4.02(f) hereof.
"Lender" shall have the meaning assigned to such term in the
preamble to this Agreement.
"LIBOR" shall mean the rate of interest that Lender, on the
first day of the applicable Interest Period, pays at its London office, on
Eurodollar deposits from leading banks in London interbank market in principal
amounts of $1,000,000 or more.
"LIBOR Reserve Requirement" shall mean the daily average of
the stated maximum rate (expressed as a decimal) at which reserves (including
any marginal, supplemental, or emergency reserves) are required to be maintained
by Lender, if any, during such time period under Regulation D against
"Eurocurrency Liabilities" (as such term is used in Regulation D), but without
benefit of or credit for proration, exemptions or offsets that might otherwise
be available to Lender from time to time under Regulation D. Without limiting
the affect of the foregoing, the LIBOR Reserve Requirement shall reflect any
other reserves required to be maintained by Lender against (i) any category of
liabilities that includes deposits by reference to which Adjusted LIBOR is to be
determined or (ii) any category of extension of credit or other assets that
include loans where interest is determined at LIBOR.
"Lien" shall mean, with respect to any asset, (i) any
mortgage, lien, pledge, encumbrance, charge or security interest in or on such
asset, (ii) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or other
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title retention agreement relating to such asset, (iii) in the case of
securities, any purchase option, call or similar right of a third party with
respect to such securities or (iv) any other right of or arrangement with any
creditor to have such creditor's claim satisfied out of such assets, or the
proceeds therefrom, prior to the general creditors of the owner thereof.
"Loan" shall mean a Loan made pursuant to Section 2.01
hereof. "Loans" shall mean, collectively, all the Loans made
pursuant to Section 2.01 hereof.
"Loan Documents" shall mean this Agreement, each Security
Document, each Guarantee executed and delivered at any time with respect to the
Obligations, the Notes and each other document, instrument, or agreement now or
hereafter delivered to Lender in connection herewith or therewith.
"Loan Parties" shall mean, collectively, Borrowers, XX Xxxxx
Corp., the Grantors and any other Subsidiary that is a party to a Loan Document.
"Margin Stock" shall have the meaning assigned to such term in
Regulation U.
"Master Account" shall have the meaning assigned to such term
in the Master Account Agreement.
"Master Account Agreement" shall mean the master cash
collateral agreement, dated as of the date hereof, among Borrowers and Lender,
as amended, modified or supplemented from time to time.
"Material Adverse Effect" shall mean a material adverse effect
on (i) the business, assets, prospects, operations or financial or other
condition of any Borrower, (ii) the ability of any Borrower to perform or pay
the Obligations in accordance with the terms hereof or of any other Loan
Document, (iii) the rights of, or benefits available to, Lender under any Loan
Document or (iv) Lender's Lien on any material portion of the Collateral or the
priority of such Lien.
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"Maturity Date" shall mean June 30, 1999, subject to extension
as provided in Section 2.09.
"Mortgages" shall mean, collectively, the First
Mortgages and the Second Mortgages.
"Multiemployer Plan" shall mean a "multiemployer plan" as
defined in Section 4001(a)(3) of ERISA.
"New Xxxxx Xxxx Building Loan Agreement" shall mean
Building Loan Agreement between Eastview and River Bank of even
date herewith.
"Notes" shall mean the Notes of Borrowers, executed and
delivered as provided in Section 2.03, as amended, modified or supplemented from
time to time.
"Obligations" shall mean all obligations, liabilities and
Indebtedness of Borrowers to Lender, whether now existing or hereafter created,
direct or indirect, due or not, whether created directly or acquired by
assignment, participation or otherwise, including, without limitation, all
obligations, liabilities and Indebtedness of the Loan Parties with respect to
the Security Documents and other Loan Documents, the principal of and interest
on the Loans and the payment or performance of all other obligations,
liabilities, and Indebtedness of Borrowers to Lender hereunder or under any one
or more of the other Loan Documents, including, without limitation, all fees,
costs, expenses and indemnity obligations hereunder and thereunder.
"Offering Plans" shall mean the offering plans for the
Condominiums and the Co-operative Corporations, as amended.
"Other Taxes" shall have the meaning assigned to such term in
Section 2.12(b) hereof.
"Owned Properties" shall mean, collectively, the properties
listed as "owned" on Schedule 1.1 hereto.
"Owner Borrowers" shall mean, collectively, the Borrowers
other than River Bank.
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"Partnership Pledge" shall mean a partnership pledge and
security agreement, dated as of the date hereof, and granted to Lender by XX
Xxxxx Corp. with respect to its general partnership interest in Eastview, as
amended, modified or supplemented from time to time. The Partnership Pledge
secures Borrowers' obligations under this Agreement.
"PBGC" shall mean the Pension Benefit Guaranty
Corporation.
"Pension Plan" shall mean any Plan which is subject to the
provisions of Title IV of ERISA.
"Permits" shall have the meaning assigned to such term in
Section 4.18 hereof.
"person" shall mean any natural person, corporation, business
trust, association, company, joint venture, partnership, limited liability
company or government or any agency or political subdivision thereof.
"Plan" shall mean any employee benefit plan within the meaning
of Section 3(3) of ERISA and which is maintained (in whole or in part) for
employees of Borrowers or any ERISA Affiliate.
"Pledged Loans" shall mean, collectively, the loans secured by
the Collateral Properties, which Pledged Loans are pledged to Lender pursuant to
the Collateral Assignments of Loan and are more particularly described in
Schedule 1.1 hereto.
"Pledged Loan Documents" shall mean, collectively, the Pledged
Notes and the other documents evidencing or securing the Pledged Loans, which
Pledged Loan Documents are pledged to Lender pursuant to the Collateral
Assignments of Loan and are listed on Schedule 4.03(b) annexed hereto.
"Prime Rate" shall mean the rate of interest publicly
announced by Lender from time to time as its prime rate and being a base rate
for calculating interest on certain loans. The Prime Rate shall mean such rate
as Lender announces periodically as its
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prime rate and may not necessarily be the lowest rate charged by
Lender.
"Purchase Agreement" shall mean that certain Purchase
of Assets and Liability Assumption Agreement between River Bank and Lender,
dated as of December 17, 1995.
"Regulations D, G, T, U and X" shall mean Regulations D, G, T,
U and X, respectively, of the Board, as the same are from time to time in
effect, and all official rulings and interpretations thereunder or thereof.
"Release" shall mean any releasing, spilling, leaking,
seepage, pumping, pouring, emitting, emptying, discharging, injecting, escaping,
leaching, disposing or dumping, in each case as defined in any Environmental
Laws, and shall include any "Threatened Release," as defined in any
Environmental Laws.
"Release Price Schedule" shall have the meaning assigned to
such term in Section 7.03 hereof.
"Remedial Work" shall mean any investigation, site monitoring,
containment, cleanup, removal, restoration or other remedial work of any kind or
nature with respect to any Controlled Property, including, without limitation,
with respect to Hazardous Materials and the Release thereof.
"Rent Rolls" shall have the meaning assigned to such term in
Section 4.02(f) hereof.
"Reportable Event" shall mean a Reportable Event as defined in
Section 4043(c) of ERISA.
"River Bank" shall mean River Bank America, a banking
corporation organized and existing under the laws of the State of New York,
together with its successors and assigns.
"Routine Use" shall mean the use of Hazardous Materials at a
Collateral Property in connection with the routine operation thereof, including
cleaning and maintenance fluids, office supplies and other similar items, in
each case used in accordance with, and so as not to cause a violation of,
Environmental Laws,
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and in quantities and in a manner which are consistent with such routine use and
do not violate Environmental Laws.
"Royal York Loan" shall mean the Loan to River Bank in the
maximum principal amount of $11,400,000 secured by, among other things, the
Pledged Loan relating to the York Condo.
"RYP" shall mean Royal York Properties, Inc.
"Scenic View Property" shall mean the real property
owned by Xxxxxxx Xxxxx, Inc. at the corner of Xxxxx & Xxxxxxx in
Poway, California.
"Second Extension Period" shall have the meaning assigned to
such term in Section 2.09 hereof.
"Second Mortgage" shall mean a second mortgage and/or deed of
trust, dated as of the date hereof, and granted to or for the benefit of Lender
by an Owner Borrower, as amended, modified or supplemented from time to time.
Each Second Mortgage granted by an Owner Borrower secures such Owner Borrower's
obligations under this Agreement (other than its obligations under its Note).
"Secondary Collateral" shall mean the Collateral covered by
the General Security Agreement including, without limitation, the Collateral
described in Schedule 1.2 annexed hereto.
"Security Documents" shall mean the Mortgages, the Collateral
Assignments of Loan, the Collateral Property Lockbox Agreements, the General
Security Agreement, the Partnership Pledge, the Stock Pledge, the Master Account
Agreement and each other agreement now existing or hereafter created providing
security for the payment or performance of any Obligations.
"Senior Executive" shall mean any vice president or president,
chief financial officer, controller or other senior executive of River Bank or
RB Management Company, in their capacity as an officer and not as an individual.
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"Similarly Situated Borrowers" shall mean other borrowers of
Lender with loans from Lender having LIBOR-based pricing options.
"Stock Pledge" shall mean a stock pledge and security
agreement, dated as of the date hereof, and granted to Lender by Rivercity
Realty Corp. with respect to its stock in Royal York Properties, Inc., as
amended, modified or supplemented from time to time. The Stock Pledge secures
Borrowers' obligations under this Agreement.
"Subsidiaries" shall mean, collectively, the direct and
indirect subsidiaries of River Bank that own any material assets, which
subsidiaries are listed in Schedule 4.01(o) annexed hereto.
"Sunrise Property" shall mean the ground leasehold
owned by 260 West Sunrise Corp. and commonly known as 000 Xxxx
Xxxxxxx Xxxxxxx, Xxxxxx Xxxxxx, Xxx Xxxx.
"Taxes" shall have the meaning assigned to such term in
Section 2.13(a) hereof.
"Transactions" shall mean, collectively (a) the transactions
contemplated by this Agreement, and (b) the transactions contemplated by the
Purchase Agreement.
"Ultimate Borrower" shall mean a borrower under a
Pledged Loan.
"Unsold Spaces" shall mean the unsold parking spaces in the
Co-operative Corporations or the Condominiums owned by an Owner Borrower or
pledged to a Borrower in connection with a Pledge Loan.
"Work" shall have the meaning assigned to such term in Section
5.03 hereof.
"Unsold Units" shall mean the unsold units and unsold
apartments in the Co-operative Corporations or Condominiums listed on Schedule
4.04(c) owned by an Owner Borrower or pledged to a Borrower in connection with a
Pledged Loan.
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"York Associates" shall mean Royal York Associates,
L.P.
"York Condo" shall mean The Royal York Condominium, a
condominium located at 000 Xxxx 00xx Xxxxxx and 000 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx.
"York Co-op" shall mean the residential unit (consisting of
86,865 shares allocated to 496 apartments) of the York Condo.
SECTION 1.02. Accounting Terms. Unless otherwise expressly
provided herein, each accounting term used herein shall have the meaning given
it under generally accepted accounting principles in effect from time to time in
the United States applied on a basis consistent with those used in preparing the
financial statements referred to in Section 6.05 hereof ("GAAP"); provided,
however, that each reference in Article VII hereof, or in the definition of any
term used in Article VII hereof, to GAAP shall mean GAAP as in effect on the
date hereof.
II. THE LOANS
SECTION 2.01. Commitment. Subject to the terms and conditions
and relying upon the representations and warranties herein set forth, Lender
agrees to make a Loan to each Borrower in the maximum principal amount for each
Borrower set forth on Schedule 2.01 annexed hereto.
SECTION 2.02. Loans. The Loans shall be made by Lender on the
Closing Date against delivery of Notes, payable to the order of Lender, as
referred to in Section 2.03. The principal amount of each Loan to be advanced on
the Closing Date is set forth on Schedule 2.02 annexed hereto. The portion of
the Xxxxx Xxxx Loan not advanced on the Closing Date shall be disbursed subject
to and in accordance with Section 5.03. The portion of the Xxxx Xxxxxxxx Loan
not advanced on the Closing Date shall be disbursed subject to and in accordance
with Section 5.03.
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SECTION 2.03. Notes; Repayment of Loans. (a) Each
Loan shall be evidenced by a single Note in a principal amount
equal to the Commitment for such Loan, duly executed on behalf of
the applicable Borrower, dated the Closing Date.
(b) To the extent not previously paid, the principal balance
of, and all accrued and unpaid interest on, the Loans, and all other sums
payable under the Loan Documents, shall become due and payable on the Maturity
Date. Each Note shall bear interest from its date on the outstanding principal
balance thereof, as provided in Section 2.04.
SECTION 2.04. Interest on Loans. (a) Borrowers may
from time to time elect to have either of the following pricing
options apply to the outstanding principal balance of the Loans: (i) Adjusted
LIBOR (if available to Lender) or (ii) the Adjusted Prime Rate; provided,
however, that during the continuance of an Event of Default, Borrowers shall not
have the right to select the Adjusted LIBOR pricing option. If at any time more
than one pricing option is in effect, then, notwithstanding any contrary request
or direction by Borrower, each pricing option shall be allocated among all Loans
on a pro rata basis, so that the principal balance of any particular Loan to
which such pricing option applies shall bear the same proportion to the entire
outstanding principal balance of that Loan as the principal balance of the Loans
(in the aggregate) to which such pricing option applies bears to the outstanding
principal balance of the Loans (in the aggregate). An example of such
application of pricing options to the Loans is set forth in Schedule 2.04
annexed hereto.
(b) Borrowers shall elect to have one of the foregoing pricing
options apply to the outstanding principal balance of the Loans by providing
written notice of such election to Lender. In the case of an election to have
all or any portion of the Loans bear interest at Adjusted LIBOR, Borrowers shall
notify Lender (by telephone followed by prompt written confirmation of such
election), such notice to be received by Lender by 11:00 a.m. (Eastern time) not
less than two (2) Business Days prior to the effective date of such rate in the
principal amount of the Loan.
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(c) If Borrowers elect to have all or any portion of the Loans
bear interest at Adjusted LIBOR, Borrowers shall also select an interest period
(an "Interest Period") of 30, 60, 90, 120 (to the extent available), 180 or 360
(to the extent available) days and, during that period, any prepayment of the
affected portion of the Loans shall be made subject to the provisions of Section
2.11. At the expiration of such Interest Period, Borrowers may, by notice to
Lender (by telephone followed by prompt written confirmation), such notice to be
received by Lender by 11:00 a.m. (Eastern time) not less than two (2) Business
Days prior to the expiration of such Interest Period, select either Adjusted
LIBOR for an additional time period or a rate equal to the Adjusted Prime Rate
from time to time. In no event shall any Interest Period selected for the
application of Adjusted LIBOR extend beyond the Maturity Date. If Borrowers fail
to make timely selection (or continuation) of a pricing option or Interest
Period with respect to all or any portion of the Loans, then, subject to Section
2.05 and the other provisions of this Section 2.04, Borrower shall be deemed to
have selected that such portion bear interest at Adjusted LIBOR for a 30-day
Interest Period.
(d) No more than three pricing options for the Loans
(in the aggregate) shall be available at any one time.
(e) Whenever the Adjusted Prime Rate option is in effect, the
Interest Rate payable by the undersigned shall change simultaneously with each
change in the Prime Rate.
(f) Following an Event of Default, the outstanding principal
balance of each Loan shall bear interest at the Default Rate.
SECTION 2.05. Alternate Rate of Interest. If any change in any
law or regulation or in the interpretation thereof by any governmental authority
charged with the administration or interpretation thereof shall make it unlawful
for Lender to make or maintain any Loan at Adjusted LIBOR, or if Adjusted LIBOR
is not available to Lender when selected by Borrowers, then, by written notice
to Borrowers, Lender may require that all outstanding Loans bear interest at the
Adjusted Prime Rate, in which event all Loans shall bear interest at the
Adjusted Prime
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Rate until further notice to Borrowers; provided, however, that such requirement
may not be imposed against Borrowers by Lender in a discriminatory manner
vis-a-vis other Similarly Situated Borrowers. Each determination by Lender made
hereunder shall be conclusive absent manifest error.
SECTION 2.06. Payments and Computations. Interest on each Loan
shall be payable in arrears on the first Business Day of each calendar month and
on the Maturity Date. Each payment hereunder and under any instrument delivered
hereunder (other then payments made by application of amounts on deposit in the
Master Account or any Collateral Property Lockbox Account) shall be made not
later than 2:00 p.m. (New York City time) for credit on the day when due in
lawful money of the United States to Lender at its offices at Xxx XXX Xxxxx,
Xxxxxxx, Xxx Xxxx 00000 in immediately available funds. All rates of interest
shall be computed on the basis of a 360-day year, applied to the actual number
of days elapsed.
SECTION 2.07. Overdue Amounts. (a) If Borrowers shall default
in the payment of the principal of or interest on any Loan or any other amount
becoming due hereunder or under any other Loan Document, by acceleration or
otherwise, Borrowers shall on demand from time to time pay interest, to the
extent permitted by law, on all Obligations outstanding up to the date of actual
payment of such defaulted amount (after as well as before judgment) at the
Default Rate.
(b) If any payment to be made by Borrowers under the Notes or
any other Loan Document is not made within ten (10) days after written notice
from Lender, Borrowers shall pay to Lender a late charge equal to four percent
(4%) of such late payment; provided, however, that such late payment charge
shall not apply to (i) payments of interest where there are sufficient funds
available to Lender pursuant to Section 4(b) of the Master Account Agreement to
pay same when due or (ii) the principal repayment required on the Maturity Date.
SECTION 2.08. Prepayment of Loans. (a) The Loans may
be prepaid in full or part at any time without advance written
notice, penalty or premium except as otherwise provided in
Section 2.11.
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(b) Subject to the proviso set forth in Section 2.08(d), on
the first Business Day of each calendar month (or earlier if Borrowers so
elect), Borrowers shall make a mandatory prepayment of the Loans in an amount
equal to 100% of the Cash Available for Principal Reduction in the Master
Account.
(c) In instances of insured casualty or condemnation,
Borrowers shall make a mandatory prepayment of the Loans to the extent required
by the Security Documents.
(d) Notwithstanding any contrary direction or request by
Borrowers, prepayments shall be applied to all of the Loans on a pro rata basis
and otherwise in such order and manner as Lender may determine in its sole
discretion and, in determining such order and manner of application, Lender
shall have no obligation to minimize Borrowers' liability under Section 2.11;
provided, however, that so long as no Default or Event of Default is continuing,
(i) prepayments shall first be applied to portions of the Loans to which the
Adjusted Prime pricing option applies, and then to portions for which the
Interest Period is expiring, and (ii) to the extent Lender would apply any such
prepayment to Loans bearing interest at Adjusted LIBOR with respect to which the
relevant Interest Periods have not expired, Lender shall, at Borrower's request,
defer such prepayment until the expiration of such Interest Period(s) (or until
the occurrence of a Default or Event of Default, whichever first occurs) and,
pending such prepayment, the amounts to be prepaid shall be held in the Master
Account.
(e) Amounts prepaid may not be reborrowed.
SECTION 2.09. Extension of the Maturity Date. (a) Not later
than April 30, 1999, Borrowers may notify Lender in writing that Borrowers
desire to extend the Maturity Date for a one year period (the "First Extension
Period") to June 30, 2000. In such event the Maturity Date will be extended to
June 30, 2000 upon the satisfaction of the following conditions:
(i) the aggregate outstanding principal balance of the
Loans shall have been reduced to no more than $60,000,000 by June 30, 1999;
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(ii) no Event of Default or Default is continuing
at the time such request is made and on June 30, 1999; and
(iii) Lender shall have received a certificate signed by a
Senior Executive, confirming compliance with the conditions precedent set forth
in clause (ii) above.
(b) If, and only if, Borrowers shall have validly extended the
Maturity Date for the First Extension Period in accordance with Section 2.09(a),
then, not later than April 30, 2000, Borrowers may notify Lender in writing that
Borrowers again desire to extend the Maturity Date for a one year period (the
"Second Extension Period") to June 30, 2001. In such event the Maturity Date
will be extended to June 30, 2001 upon the satisfaction of the following
conditions:
(i) the aggregate outstanding principal balance of the
Loans shall have been reduced to $30,000,000 by June 30, 2000;
(ii) no Event of Default or Default is continuing at the
time such request is made and on June 30, 2000; and
(iii) Lender shall have received a certificate signed by a
Senior Executive confirming compliance with the conditions precedent set forth
in clause (ii) above.
(c) The Maturity Date may not be extended by Borrowers except
as provided in this Section 2.09.
SECTION 2.10. Change in Circumstances. (a) Notwithstanding any
other provision herein, if after the date of this Agreement any change in
applicable law or regulation or in the interpretation or administration thereof
by any governmental authority charged with the interpretation or administration
thereof (whether or not having the force of law), or any change in GAAP or
regulatory accounting principles applicable to Lender, shall: (i) subject Lender
(which shall for the purpose of this Section 2.10 include any lending office of
Lender) to any charge, fee, deduction or withholding of any kind or to any tax
with respect to any amount paid or to be paid by Lender with respect to any
Loans (other than (x) taxes imposed on the overall net
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income of Lender and (y) franchise taxes imposed on Lender, in either case by
the jurisdiction in which Lender has its principal office or its lending office
with respect to the Loans or any political subdivision or taxing authority of
either thereof); (ii) change the basis of taxation of payments to Lender of the
principal of or interest on any Loan or otherwise hereunder (other than taxes
imposed on the overall net income of Lender by the jurisdiction in which Lender
has its principal office or by any political subdivision or taxing authority
therein); (iii) impose, modify or deem applicable any reserve, special deposit
or similar requirement against assets of, deposits with or for the account of,
or loans or loan commitments extended by, Lender; or (iv) impose on Lender or
the London interbank market any other condition affecting this Agreement or the
Loans made by Lender; and the result of any of the foregoing shall be to
increase the cost to Lender of making or maintaining any Loan, or to reduce the
amount of any payment (whether of principal, interest, fee, compensation or
otherwise) receivable by Lender or to require Lender to make any payment in
respect of any Loan, then Borrowers shall pay to Lender, upon Lender's demand,
such additional amount or amounts as will compensate Lender for such additional
costs or reduction; provided, however, that such requirement may not imposed
against Borrowers by Lender in a discriminatory manner vis-a-vis other Similarly
Situated Borrowers.
(b) A statement of Lender setting forth such amount or
amounts, supported by calculations in reasonable detail, as shall be necessary
to compensate Lender as specified in paragraph (a) shall be delivered to
Borrowers and shall be conclusive absent manifest error. Borrowers shall pay
Lender the amount shown as due on any such statement within ten (10) days after
its receipt of the same.
(c) Failure on the part of Lender to demand compensation for
any increased costs, reduction in amounts received or receivable for any period
or reduction in the rate of return earned on Lender's capital, shall not
constitute a waiver of Lender's rights to demand compensation for any increased
costs or reduction in amounts received or receivable or reduction in rate of
return in such period. The protection under this Section 2.10 shall be available
to Lender regardless of any possible contention of the invalidity or
inapplicability of any law,
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regulation or other condition which shall give rise to any demand by Lender for
compensation. Borrowers' obligations under this Section 2.10 shall survive the
repayment of the Loans and the expiration or termination of this Agreement;
provided that any claims based thereon shall be made on or prior to (x) the
second anniversary of the repayment in full of the Loans or (y) the later to
occur of (i) dissolution and final distribution of assets of River Bank and (ii)
repayment of the Loans in full, whichever of (x) or (y) is earlier.
SECTION 2.11. Indemnity. Borrowers shall indemnify Lender
against any loss or reasonable expense which Lender may sustain or incur as a
consequence of any one or more of the following events (regardless of whether
such events occur as a result of the occurrence of an Event of Default or the
exercise of any right or remedy of Lender under this Agreement or any other
agreement, or at law): any failure of Borrowers to fulfill on the date of any
borrowing the applicable conditions set forth in Article V hereof applicable to
it; any failure of Borrowers to borrow hereunder after notice of borrowing
pursuant to Section 2.04(b) has been given; any payment or prepayment of Loan on
a date other than the last day of the relevant Interest Period; any failure of
Borrower to convert to an Adjusted Libor pricing option after notice has been
given or after an election is deemed to have been made. Lender shall provide to
Borrowers a statement explaining any loss or expense, and such statement shall
be conclusive absent manifest error. Borrowers shall pay Lender the amount shown
as due on any such statement within ten (10) days after the receipt of the same.
The indemnities contained herein shall survive the repayment of the Loans and
the expiration or termination of this Agreement; provided that any claims based
thereon shall be made on or prior to (x) the second anniversary of the repayment
in full of the Loans or (y) the later to occur of (i) dissolution and final
distribution of assets of River Bank and (ii) repayment of the Loans in full,
whichever of (x) or (y) is earlier.
SECTION 2.12. Taxes. (a) Any and all payments by the
Borrowers hereunder shall be made, in accordance with Sec
tion 2.06 hereof, free and clear of and without deduction for any
and all present or future taxes, levies, imposts, deductions,
charges or withholdings in any such case imposed by the United
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States or any political subdivision thereof, excluding taxes imposed or based on
its net income, and franchise or capital taxes imposed on it under the laws of
the United States or any political subdivision thereof (all such nonexcluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If Borrowers shall be required by law to
deduct any Taxes from or in respect of any sum payable hereunder to Lender, (x)
the sum payable shall be increased by the amount necessary so that after making
all required deductions (including without limitation deductions applicable to
additional sums payable under this Section 2.12) Lender receives an amount equal
to the sum it would have received had no such deductions been made, (y)
Borrowers shall make such deductions and (z) Borrowers shall pay the full amount
deducted to the relevant tax authority or other authority in accordance with
applicable law; provided, however, that such requirement may not imposed against
Borrowers by Lender in a discriminatory manner vis-a-vis other Similarly
Situated Borrowers.
(b) In addition, Borrowers agree to pay any present or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or from the
execution, delivery or registration of, or otherwise with respect to, this
Agreement, the Notes or the Obligations (hereinafter referred to as "Other
Taxes").
(c) Borrowers will indemnify Lender for the full amount of
Taxes or Other Taxes (including, without limitation, any Taxes or Other Taxes
imposed by any jurisdiction on amounts payable under this Section 2.12) paid by
Lender and any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto. This indemnification shall be made within 30
days from the date Lender makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes or
Other Taxes withheld by Borrowers in respect of any payment to Lender, Borrowers
will furnish to Lender such certifi xxxxx, receipts and other documents as may
be reasonably required to evidence payment thereof.
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(e) The agreements and obligations contained in this Section
2.12 shall survive the repayment of the Loans and the expiration or termination
of this Agreement; provided that any claims based thereon shall be made on or
prior to (x) the second anniversary of the repayment in full of the Loans or (y)
the later to occur of (i) dissolution and final distribution of assets of River
Bank and (ii) repayment of the Loans in full, whichever of (x) or (y) is
earlier.
III. COLLATERAL SECURITY
SECTION 3.01. In General. The Obligations shall be secured by
the Owned Properties and the Pledged Loans as described in the Security
Documents and are entitled to the benefits thereof. Borrowers shall duly execute
and deliver the Security Documents, financing statements pursuant to the Uniform
Commercial Code and other documents, all in form and substance satisfactory to
Lender, as may be reasonably required by Lender to grant to Lender a valid,
perfected and enforceable first priority Lien on and security interest in
(subject only to the Liens permitted under Section 7.01 hereof) the Owned
Properties and the Pledged Loans.
SECTION 3.02. Filing and Recording. Borrowers shall, at their
sole cost and expense, cause all instruments and documents given as evidence of
security pursuant to this Agree ment to be duly recorded and/or filed or
otherwise perfected in all places necessary, in the opinion of Lender, and take
such other actions as Lender may reasonably request, in order to perfect and
protect the Liens of Lender in the Collateral. Borrowers, to the extent
permitted by law, hereby authorize Lender to file any financing statement in
respect of any Lien created pursuant to the Security Documents which may at any
time be required or which, in the opinion of Lender, may at any time be
desirable although the same may have been executed only by Lender or, at the
option of Lender, to sign such financing statement on behalf of Borrowers and
file the same, and Borrowers hereby irrevocably designate Lender, its agents,
representatives and designees as its agent and attorney-in-fact, coupled with an
interest, for this purpose. In the event that any re-recording or refiling
thereof (or the filing of any statements of continuation or assignment of any
financing statement) is
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required to protect and preserve such Lien, Borrowers shall, at Borrowers' cost
and expense, cause the same to be recorded and/or refiled at the time and in the
manner requested by Lender.
IV. REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants to Lender (which
representations and warranties shall survive execution and delivery of this
Agreement and the making of all Loans) that, as of the date hereof, both before
and after giving effect to the consummation of the Transactions on the Closing
Date:
SECTION 4.01. General.
(a) Organization and Legal Existence. Each Borrower and each
of the Loan Parties is a legal entity duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, has the
requisite power and authority to own its property and assets and to carry on its
business as now conducted and as currently proposed to be conducted and is
qualified to do business in every jurisdiction where such qualification is
required. Each Borrower has the corporate power to execute, deliver and perform
its obligations under this Agreement and the other Loan Documents to which it is
a party, and to borrow hereunder and to execute and deliver the Notes.
(b) Authorization. The execution, delivery and performance by
each of Borrower of this Agreement and each of the other Loan Documents to which
it is a party, the borrowings hereunder by Borrowers, the execution and delivery
by Borrowers of the Notes, the grant of security interests in the Collateral
created by the Security Documents (i) have been duly authorized by all requisite
corporate action and (ii) will not violate (A) any provision of law, statute,
rule or regulation or the certificate or articles of incorporation or other
applicable constitutive documents or the by-laws of Borrowers or the Loan
Parties, as the case may be, (B) any order of any court, or any rule, regulation
or order of any other agency of government binding upon Borrowers, or the Loan
Parties, or (C) any provisions of any material indenture, agreement or other
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instrument to which Borrowers, the Loan Parties, or any of their respective
properties or assets are or may be bound, (iii) will not be in conflict with,
result in a breach of or constitute (alone or with notice or lapse of time or
both) a default under any material indenture, agreement or other instrument
referred to in (ii)(C) above, or (iv) result in the creation or imposition of
any Lien of any nature whatsoever (other than in favor of Lender as contemplated
by this Agreement and the Security Documents) upon any property or assets of
Borrowers or the Loan Parties.
(c) Governmental Approvals. Except for any amendments required
to the Offering Plans, No registration or filing (other than the filings
necessary to perfect the Liens created by the Security Documents) with consent
or approval of, or other action by, any Federal, state or other governmental
agency, authority or regulatory body is or will be required in connection with
the Loans, other than any which have been made or obtained.
(d) Binding Effect. This Agreement and each of the other Loan
Documents to which it is a party constitutes, and each of the Notes when duly
executed and delivered will constitute, a legal, valid and binding obligation of
Borrowers enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, or similar debtor/creditor laws and general principals
of equity and public policy.
(e) Material Adverse Change. There has been no
material adverse change in the business, assets, operations or
financial condition of River Bank since September 30, 1995.
(f) Litigation; Compliance with Laws; etc. (i) Except for
claims fully covered by insurance and as set forth in Schedule 4.01(f) annexed
hereto, there are no actions, suits or proceedings at law or in equity or by or
before any governmental instrumentality or other agency or regulatory authority
now pending or, to the knowledge of any Senior Executive, threatened against or
affecting any Borrower or the Loan Parties or the businesses, assets or rights
of any Borrower or any Loan Parties (A) which involve any of the Transactions,
(B) which relate, directly or indirectly, to any Collateral Property or (C) as
to which it is probable (within the meaning of Statement of Financial Accounting
Standards No. 5) that there will be an
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adverse determination and which, if adversely determined, would, individually or
in the aggregate, materially impair the ability of any Borrower to conduct
business substantially as now conducted, or have a Material Adverse Effect.
(ii) No Loan Party is in violation of any law, or
in default with respect to any judgment, writ, injunction, decree, rule or
regulation of any court or governmental agency or instrumentality which has a
Material Adverse Effect.
(g) Financial Statements. (i) Borrowers have heretofore
furnished to Lender balance sheets and statements of income and cash flows of
Borrowers dated as of September 30, 1995. Such balance sheets and statements of
income and cash flows present fairly the financial condition and results of
operations of Borrowers and the Loan Parties as of the dates and for the periods
indicated, and such balance sheets and the notes thereto disclose all material
liabilities, direct or contingent, of Borrowers and the Loan Parties, as of the
dates thereof in accordance with the reporting requirements of GAAP.
(ii) Borrowers have heretofore furnished to
Lender quarterly projected income statements, balance sheets and cash flows of
Borrowers on a consolidated basis through the Maturity Date. The projections are
based upon reasonable estimates and assumptions, all of which are reasonable in
light of the conditions which existed at the time the projections were made,
have been prepared on the basis of the assumptions stated therein, and reflect
as of the Closing Date the reasonable estimate of Borrowers of the results of
operations and other information projected therein.
(iii) Borrowers have heretofore furnished to
Lender a consolidated pro forma balance sheet of Borrowers which sets forth
information before and after giving effect to the Transactions on the Closing
Date.
(iv) The financial statements referred to in this
Section 4.01(g) have been prepared in accordance with GAAP.
(h) Federal Reserve Regulations. (i) No Loan Party
is engaged principally, or as one of its important activities, in
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the business of extending credit for the purpose of purchasing or
carrying Margin Stock.
(ii) No part of the proceeds of the Loans will be
used, whether directly or indirectly, and whether immediately, incidentally or
ultimately, (A) to purchase or carry Margin Stock or to extend credit to others
for the purpose of purchasing or carrying Margin Stock or to refund indebtedness
originally incurred for such purpose, or (B) for any purpose which entails a
violation of, or which is inconsistent with, the provisions of the Regulations
of the Board, including, without limitation, Regulation G, T, U or X thereof. If
requested by Lender, Borrowers or any Loan Party shall furnish to Lender a
statement on Federal Reserve Form U-1 referred to in said Regulation U.
(i) Taxes. Borrowers and each of the Loan Parties has filed or
caused to be filed (or requested an extension for filing of) all Federal, state,
local and foreign tax returns which are required to be filed by it, on or prior
to the date hereof. Each Borrower and each of the Loan Parties has paid or
caused to be paid all taxes shown to be due and payable on such filed returns or
on any assessments received by it.
(j) Employee Benefit Plans. With respect to the
provisions of ERISA:
(i) No Reportable Event has occurred or is
continuing with respect to any Pension Plan.
(ii) No prohibited transaction (within the
meaning of Section 406 of ERISA or Section 4975 of the Code) has occurred with
respect to any Plan subject to Part 4 of Subtitle B of Title I of ERISA.
(iii) None of Borrowers or any ERISA Affiliate is
now, or has been during the preceding five years, obligated to contribute to a
Multiemployer Plan. None of Borrowers or any ERISA Affiliate has (A) ceased
operations at a facility so as to become subject to the provisions of Section
4062(e) of ERISA, (B) withdrawn as a substantial employer so as to become
subject to the provisions of Section 4063 of ERISA, (C) ceased making
contributions to any Pension Plan subject to the provisions of
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Section 4064(a) of ERISA to which Borrowers or any ERISA Affiliate made
contributions, (D) incurred or caused to occur a "complete withdrawal" (within
the meaning of Section 4203 of ERISA) or a "partial withdrawal" (within the
meaning of Section 4205 of ERISA) from a Multiemployer Plan that is a Pension
Plan so as to incur withdrawal liability under Section 4201 of ERISA (without
regard to subsequent reduction or waiver of such liability under Section 4207 or
4208 of ERISA), or (E) been a party to any transaction or agreement under which
the provisions of Section 4204 of ERISA were applicable.
(iv) No notice of intent to terminate a Pension
Plan has been filed, nor has any Plan been terminated pursuant to the provisions
of Section 4041(e) of ERISA.
(v) The PBGC has not instituted proceedings to
terminate (or appoint a trustee to administer) a Pension Plan and no event has
occurred or condition exists which might constitute grounds under the provisions
of Section 4042 of ERISA for the termination of (or the appointment of a trustee
to administer) any such Plan.
(vi) With respect to each Pension Plan that is
subject to the provisions of Title I, Subtitle B, Part 3 of ERISA, the funding
method used in connection with such Plan is acceptable under ERISA, and the
actuarial assumptions and methods used in connection with funding such Pension
Plan satisfy the requirements of Section 302 of ERISA. The present value of
neither (A) accrued benefits (both vested and non-vested) under each such
Pension Plan (other than the Multiemployer Plans), nor (B) the "benefit
liabilities" (within the meaning of Section 4001(a)(16) of ERISA) under such
Plan, in each case as of the latest actuarial valuation date for such Plan
(determined in accordance with the same actuarial assumptions and methods as
those used by the Plan's actuary in its valuation of such Plan as of such
valuation date), exceeds the assets of such Pension Plan by more than
$1,200,000. No such Pension Plan has incurred any "accumulated funding
deficiency" (as defined in Section 412 of the Code), whether or not waived.
(vii) There are no actions, suits or claims
pending (other than routine claims for benefits) or, to the
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knowledge of Borrowers or any ERISA Affiliate, which are likely to be asserted,
against any Plan or the assets of any such Plan. No civil or criminal action
brought pursuant to the provisions of Title I, Subtitle B, Part 5 of ERISA is
pending or threatened against any fiduciary or any Plan. None of the Plans or
any fiduciary thereof (in its capacity as such) has been the direct or indirect
subject of any audit, investigation or examination by any governmental or
quasi-governmental agency.
(viii) All of the Plans in all material respects
comply currently, and have complied in the past, both as to form and operation,
with their terms and with the provisions of ERISA and the Code, and all other
applicable laws, rules and regulations; all necessary governmental approvals for
the Plans have been obtained and a favorable determination as to the
qualification under Section 401(a) of the Code of each of the Plans which is an
employee pension benefit plan (within the meaning of Section 3(2) of ERISA) has
been made by the Internal Revenue Service and a recognition of exemption from
federal income taxation under Section 501(c) of the Code of each of the funded
employee welfare benefit plans (within the meaning of Section 3(1) of ERISA) has
been made by the Internal Revenue Service, and nothing has occurred since the
date of each such determination or recognition letter that would adversely
affect such qualification.
(k) No Material Misstatements. No information, report,
financial statement, exhibit or schedule prepared or furnished by or on behalf
of Borrowers to Lender in connection with this Agreement, the Security
Documents, the Notes or any other Loan Documents or included therein contained
or contains any material misstatement of fact or omitted or omits to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(l) Investment Company Act; Public Utility Holding Company
Act. No Loan Party is an "investment company" as defined in, or is otherwise
subject to regulation under, the Investment Company Act of 1940. No Loan Party
is a "holding company" as that term is defined in or is otherwise subject to
regulation under, the Public Utility Holding Company Act of 1935.
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(m) Security Interest. To the best knowledge of Borrowers,
each of the Security Documents creates and grants to Lender a legal, valid and
perfected first (except as permitted pursuant to Section 7.01 hereof) priority
security interest in the collateral identified therein. Such collateral or
property is not subject to any other Liens whatsoever, except Liens permitted by
Section 7.01 hereof.
(n) Use of Proceeds. All proceeds of the Loans shall be used
to (i) refinance Federal Home Loan Bank debt owing by River Bank's predecessor,
and (ii) develop the Xxxxx Xxxx Property and the Xxxx Xxxxxxxx Property.
(o) Subsidiaries. As of the Closing Date, Schedule 4.01(o)
annexed hereto sets forth each Subsidiary, its jurisdiction of incorporation and
ownership of capital stock of each such Subsidiary.
SECTION 4.02. Controlled Properties.
(a) Title. The Controlled Owners hold the fee simple or
leasehold estate in and to the Controlled Properties, for their own account, not
as an agent or trustee for another party, and the Owned Properties are free and
clear of all agreements, liens and encumbrances except those specifically set
forth in Schedule B of the Lender's title insurance policies. No notice of any
mechanic's or materialmen's Lien or similar Lien, or of any claim or right to
any such lien has been received, asserted and/or, to the best knowledge of
Borrowers, threatened in writing in connection with the Controlled Properties.
No material default, breach or violation exists under any covenants, conditions,
restrictions, rights of way, easements or encumbrances affecting the Controlled
Properties.
(b) Compliance with Law. Except as disclosed in the violation
searches and municipal letters delivered to Lender and/or Lender's counsel and
those additional items set forth on Schedule 4.02(b), the Controlled Properties
are in compliance in all material respects with all applicable building codes,
zoning regulations, subdivision requirements and other applicable laws,
ordinances, directions, rules, regulations and orders (collectively, "Applicable
Laws") and such compliance is not
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dependent upon any land and/or improvements not a part of the Controlled
Properties, and the requirements of the local, state and federal governmental
authorities having jurisdiction over the Controlled Properties have been met and
Borrowers have received no written notice of any violation of any Applicable
Laws which has not been cured. Without limitation of the foregoing, neither the
Controlled Properties nor any part thereof constitute a nonconforming use under
any Applicable Laws. Except as previously disclosed to Lender with respect to
the Xxxxxx Property, the Crow Canyon Property, the Xxxxx Xxxx Property and the
York Condo, permanent certificates of occupancy (the "Certificates of
Occupancy"), permitting the full and complete use and occupancy of the
Controlled Properties as required by Applicable Laws have been issued and are in
full force and effect. Each Controlled Owner possesses all other licenses,
permits, approvals and consents, including, without limitation, all
environmental, health and safety licenses, permits, approvals and consents
(collectively, "Permits") of all Federal, state and local governmental
authorities as required to conduct properly its business, each such Permit is in
full force and effect, each Controlled Owner is in compliance in all material
respects with all such Permits, and no event (including, without limitation, any
violation of any law, rule or regulation) has occurred which allows the
revocation or termination of any such Permit or any restriction thereon.
(c) Compliance with Environmental Laws. Except as disclosed in
the environmental reports listed in Schedule 4.02(c) hereto: (i) the operations
of the Controlled Owners comply in all material respects with all applicable
Environmental Laws; (ii) the Controlled Owners and the Loan Parties and all of
their present facilities or operations and, to the best knowledge of Borrowers,
their past facilities or operations, are not subject to any judicial proceeding
or administrative proceeding or any outstanding written order or agreement with
any governmental authority or private party respecting (A) any Environmental
Law, (B) any Remedial Work, or (C) any Environmental Claims arising from the
Release of a Hazardous Material into the environment; (iii) to the best of the
knowledge of Borrowers, none of the Controlled Owners' operations is the subject
of any Federal or state investigation evaluating whether any Remedial Work is
needed to respond to a Release of any Contaminant into the
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environment; (iv) none of the Controlled Owners has filed any notice under any
Environmental Law indicating past or present treatment, storage, or disposal of
a Hazardous Material or reporting a spill or Release of a Hazardous Material
into the environment; (v) to the best of the knowledge of Borrowers, none of the
Controlled Owners has any contingent liability in connection with any Release of
any Hazardous Material into the environment; (vi) none of the operations of the
Controlled Owners involve the generation, transportation, treatment or disposal
of Hazardous Materials; (vii) none of the Controlled Owners has disposed of any
Hazardous Material by placing it in or on the ground or waters of any premises
owned, leased or used by any of them and, to the best knowledge of Borrowers,
neither has any lessee, prior owner, or other person; (viii) no underground
storage tanks or surface impoundments are on any property of the Controlled
Owners; and (ix) no Lien in favor of any governmental authority for (A) any
liability under any Environmental Law or regulations, or (B) damages arising
from or costs incurred by such governmental authority in response to a Release
of a Hazardous Material into the environment, has been filed or attached to the
property of the Controlled Owners.
(d) Eminent Domain. There are no pending or concluded
condemnation or similar proceedings affecting the Controlled Properties, and
Borrowers have received no written notice and have no knowledge of any such
proceedings that are threatened.
(e) Casualty Damage; Insurance. No unrestored fire or other
casualty damage affects the Controlled Properties, and all insurance policies
required by Section 6.03(a) are in full force and effect.
(f) Leases. Attached hereto as Schedule 4.02(f) are rent rolls
(the "Rent Rolls") for each of the Controlled Properties (other than the Xxxxx
Irvington Property and the Xxxx Xxxxxxxx Property). The Rent Rolls are true,
correct and complete with respect to the subject matter thereof. The only
leases, subleases, licenses or other occupancy agreements affecting the
Controlled Properties are those leases (the "Leases") reflected in the Rent
Rolls. As to the commercial leases, except as set forth in Schedule 4.02(f): (i)
all improvements in the spaces demised pursuant to the Leases which
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are required to be performed by the landlord have been completed in accordance
with the terms of such Leases, (ii) the terms of the Leases have commenced and
each Lease is in full force and effect; (iii) the tenants under the Leases have
accepted possession of and are in occupancy of all of their respective demised
premises and have commenced the conduct of their business therein; (iv) the
tenants under the Leases have commenced the payment of rent under such Leases
and there are no offsets, claims or defenses to the enforcement thereof; (v) all
rents due and payable under the Leases have been paid and no portion thereof has
been paid for any period more than thirty (30) days in advance; (vi) the rent
payable under each Lease is the amount of fixed rent provided for in such Lease
and there is no claim or basis for a claim by the tenant thereunder for an
adjustment to the rent; (vii) no tenant has made any claim against the landlord
under the Leases which remains outstanding and there are no defaults on the part
of the landlord under any Lease and no event has occurred which, with the giving
of notice or passage of time, or both, would constitute such default; (viii) to
the best knowledge of Borrowers, there is no present material default by any
tenant under any Lease, nor do any facts exist which with the giving of notice
and/or the passage of time, would constitute a default; (ix) the Controlled
Owners do not hold (and no person holds on behalf of any Controlled Owner) any
security deposits under the Leases; and (x) the Controlled Owners have not
assumed or agreed to assume the obligations of any tenant of the Controlled
Properties (or any affiliate of such tenant) under any lease, sublease or
occupancy agreement for space in the Controlled Properties or elsewhere. True
and complete copies of the Leases have been delivered to Lender. The Leases for
the Sunrise Property and the Scenic View Property have not been modified,
extended or renewed except as set forth on Schedule 4.02(f) and are in full
force and effect in accordance with their terms. The Leases are the only
agreements between the Controlled Owners and the tenants thereunder affecting
the Controlled Properties and all material agreements and understandings between
the tenants and the landlord under the Leases with respect to the Controlled
Properties and the use and occupancy thereof are set forth therein. None of the
Leases contains any option to purchase or right of first refusal to purchase the
Controlled Properties or any part thereof. The Leases have not been assigned or
pledged except to Lender or River Bank, and no other
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person whatsoever has any interest therein except the tenants
thereunder.
(g) Property Management and Leasing. Except as set forth in
Schedule 4.02(g), there are no outstanding contracts or agreements with respect
to the management, operation or leasing of the Controlled Properties. A true,
correct and complete copy of each agreement set forth on Schedule 4.02(g),
including all amendments thereto, if any, have been delivered to Lender.
(h) Access; Utilities. The Controlled Properties are directly
served by public streets. The sewer, water and utility services of the
Controlled Properties are directly connected with sources or systems serving the
general public, without traversing property owned by others, or, if not directly
connected, valid perpetual recorded easements have been established for rights
of way over intervening property.
(i) No Claims. No claim exists against the Controlled Owners
for brokerage or leasing commissions, or for any participation in the income
from, or ownership of, the Controlled Properties, and, except for real estate
taxes which are not yet due and payable, and to the best knowledge of Borrowers,
no liens or claims for money exist which are or may be superior to the lien and
charge of the Security Documents and Borrowers have received no notice of any
such claim or lien.
(j) Taxes and Assessments. The Controlled Properties are taxed
separately from all property which is not subject to the Security Documents. All
taxes relating to the Controlled Properties, to the extent due, have been paid
in full. Borrowers have received no written notice and have no knowledge of any
pending or proposed special or other assessments for public improvements
affecting the Controlled Properties or any contemplated improvements to the
Controlled Properties that may result in such special or other assessments,
except for any increase in the assessed valuation of the Controlled Properties
resulting from improvements to be made in the premises demised to tenants under
Leases.
(k) Flood Hazard Area. The Controlled Properties are not
located in an area identified by the Secretary of Housing and
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Urban Development as an area having special flood hazards pursuant to the terms
of the National Flood Insurance Act of 1968, or the Flood Disaster Protection
Act of 1973, as amended. If after the date hereof the area in which the
Controlled Properties are located is identified or designated as such an area,
Borrowers will obtain and maintain insurance against damage or loss by flood on
such basis and in such amounts as shall be required from time to time by Lender.
SECTION 4.03. Pledged Loans.
(a) Title. River Bank is and will be the legal and beneficial
owner of, and has good and indefeasible title to, the Pledged Loans, subject to
no pledge, lien, mortgage, hypothecation, security interest, charge, option or
other encumbrance whatsoever, except the lien and security interest created by
the Security Documents. Except as expressly set forth in the Pledged Loan
Documents securing the Royal York Loan, none of the Pledged Loans are subject to
any options to purchase or similar rights of any person.
(b) Pledged Loan Documents. Schedule 4.03(b) is true, correct
and complete list of the Pledged Loan Documents. Except as set forth on Schedule
4.03(b), all of the Pledged Loan Documents (1) to the best knowledge of River
Bank, have been duly executed and delivered by the parties thereto, (2) to the
best knowledge of River Bank, have been made in compliance with all requirements
of applicable laws and regulations, (3) to the best knowledge of River Bank, are
and will continue to be valid, binding and enforceable in accordance with their
terms, without offset or defense of any kind against River Bank, and (4) have
not been modified, amended or supplemented, except in writing, which writing is
part of the instruments constituting the Pledged Loan Documents. Each of the
Pledged Notes is due and payable in accordance with its terms.
(c) No Default. To the best knowledge of River Bank, except as
disclosed in Schedule 4.03(c), no default, nor any event which, with notice or
lapse of time or both, would become a default, has occurred and is continuing
under any of the instruments constituting the Pledged Loan Documents on the part
of any party to any of such instruments.
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(d) Leases. Attached hereto as Schedule 4.03(d) is a rent roll
for the Xxxxxx Property which, to the best knowledge of Borrowers, is true,
correct and complete with respect to the subject matter thereof.
SECTION 4.04. Visutton Co-operatives.
(a) To the knowledge of River Bank, without independent inquiry: (i) Schedule
4.04(a) attached hereto sets forth a complete and accurate list of the Offering
Plans with respect to the Visutton Co-operatives; and (ii) no amendments to any
of such Offering Plans have been made except as set forth on Schedule 4.04(a).
To the knowledge of River Bank, without independent inquiry, such Offering Plans
contain no material misrepresentations.
(b) To the knowledge of River Bank, without independent
inquiry, all filings required to be made and all approvals required to be
obtained with regard to the sale of Unsold Units or Unsold Spaces in the
Visutton Co-operatives under all Co-op and Condo Laws have been made or
obtained.
(c) To the knowledge of River Bank, without independent
inquiry, Schedule 4.04.(c) attached hereto is a true, complete and accurate list
of all of the Unsold Units and Unsold Spaces.
(d) To the knowledge of River Bank, without independent
inquiry, (i) the remaining amount of the Reserve Fund contributions required to
be funded by Visutton Associates, and (ii) the date (5 years from the date of
the first sale) that such remaining required contributions, not previously made,
must be funded, is as set forth in the Estoppel Letter of Visutton Associates
delivered to Lender in connection with the closing of the Loans.
(e) To the knowledge of River Bank, without independent
inquiry, Visutton Associates controls the Board of Directors for each of the
Visutton Co-operatives.
(f) River Bank has not received any notice that any
governmental instrumentality or other agency or regulatory
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authority is claiming that any action or failure to act by River Bank or by
Visutton Associates, the sponsor, with respect to the Visutton Co-operatives or
any of the Offering Plans therefor, including, without limitation, with respect
to the restructuring of the mortgages and/or the loan secured by the Unsold
Units and the Unsold Spaces, is or may be a violation of any law, rule or
regulation and, to the knowledge of River Bank, there is no active ongoing
investigation respecting such possible violation.
(g) River Bank has not received any notice of any action, suit
or proceeding, actual or threatened, by Xxxxx Terrace Owners, Inc., Xxxxx Xxxxxx
Owners, Inc. or Van Buren Owners, Inc., any Board of Directors thereof or any
organization, person, individual or governmental agency (i) against Visutton
Associates which would affect in any material respect the use, sale, or value of
the Unsold Units or (ii) which would seek to disaffirm, revoke or revise any
mortgage, lease, contract or other agreement with Visutton Associates or River
Bank.
(h) The "Proceeds" as defined in the Consolidated, Amended and
Restated Collateral Pledge and Security Agreement between Visutton Associates
and River Bank paid to River Bank by Visutton Associates for the Loan Years 1
and 2 were $2,758,900, representing 79% of the $3,500,000 Target Proceeds for
such
period.
(i) The calculation of Proceeds and Target Proceeds has not
included funds deposited in the Operating Reserve Account, Renovation Reserve
Account and the Additional Cash Pledge Account and the Cash Pledge, as such
terms are defined in the loan documents delivered in connection with the loans
made by River Bank to Visutton Associates, unless and until the excess amounts
in such accounts have been delivered to River Bank.
(j) The Commercial Space was sold by Visutton Associates in
April 1998 and thereafter the mortgage to River Bank encumbering such Commercial
Space was released in connection with the payment to River Bank of the sum of
$1,000,000. The amount of the Proceeds paid to River Bank does not include the
net proceeds paid by reason of the sale of the Commercial Space. No rents,
income, costs or expenses arising out of or incurred in connection with the
Commercial Space from and after the sale of
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the Commercial Space have been included in the determination of Proceeds and/or
Target Proceeds.
SECTION 4.05. Co-operatives and Condominiums
Generally.
(a) To the best knowledge of River Bank, Schedule 4.05(a)
attached hereto sets forth a complete and accurate list of the Offering Plans
with respect to the York Co-op, York Condo and Xxxxxxxxx Condo. To the best
knowledge of River Bank, no amendments to any of such Offering Plans has been
made, except as set forth on Schedule 4.05(a). The amendments to such Offering
Plans filed by an Owner Borrower or Controlled Owner contain no material
misrepresentations.
(b) All filings required to be made and all approvals required
to be obtained under all Co-op and Condo Laws with regard to the sale by an
Owner Borrower or a Controlled Owner of Unsold Units or Unsold Space in the York
Co-op, York Condo and Xxxxxxxxx Condo have been made or obtained.
(c) Schedule 4.05(c) attached hereto is a true, complete and
accurate list of all of the Unsold Units and Unsold Spaces in the York Co-op and
Xxxxxxxxx Condo.
(d) HPC, as the sponsor under its Offering Plan for the
Xxxxxxxxx Condo, has the full right, power and authority to designate Lender and
its designees as a Holder of Unsold Units, as such term is defined in its
Offering Plan. RYP as the general partner of York Associates has the full right,
power and authority under the Royal York Associates Limited Partnership
Agreement to cause York Associates to designate Lender and its designees as a
Holder of Unsold Shares as such phrase is defined in its Offering Plan.
(e) All of the obligations of HPC as sponsor with respect to
Xxxxxxxxx Condo have been fulfilled except the payment of regular common
charges.
(f) The remaining balance of the additional $2,500,000
contribution to the Reserve Fund for York Co-op required to be funded by Royal
York Associates, L.P. is $2,140,349.50 as of 6/25/96, and such amount is
required to be funded only if, as and
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when the Unsold Units are sold. The $250,000 advance contribution to the Reserve
Fund of the York Co-op has been fully credited to prior sales.
(g) The sponsor is not obligated to cause any work or
improvements to be completed pursuant to the Offering Plans for the York Co-op,
York Condo or Xxxxxxxxx the aggregate cost of which would exceed $100,000.
(h) Schedule 4.05(h) attached hereto lists all bonds, security
deposits, letters of credit or other undertakings furnished by or on behalf of
any Owner Borrower, Controlled Borrower or River Bank in connection with the
sale of the Unsold Units and/or the Unsold Spaces pursuant the Offering Plans.
(i) The sponsors have relinquished control of the Board of
Directors of the York Co-op and the Board of Managers of the York Condo and the
Xxxxxxxxx Condo.
(j) No alterations have been performed with respect to any
Unsold Units in the Xxxxxxxxx Condo or the York Co-op that would require an
amendment to the respective certificates of occupancy therefor that has not been
obtained, except alterations affecting not more than 11 units in the aggregate.
(k) All sums due to any Condominium or Co-operative
Corporation by HPC or York Associates are now, and at the time of Closing will
be, fully paid to the end of the payment period in effect at such time.
(l) The remaining amount of the $2,000,000 "Sales Reserve" as
such term is defined in the Agreement of Limited Partnership of Royal York
Associates, L.P. is approximately $2,000,000.
(m) The Maintenance Reimbursement Program, as defined in the
Offering Plan for York Co-op, has been fully funded and the "Escrow Fund"
described in the Ninth Amendment to such Plan has been fully disbursed except
for not more than $15,000. There is no new maintenance rebate or other rebate
program in effect for the York Co-op or the Xxxxxxxxx Condo, except such rebate,
if
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any, which may be negotiated specifically for an individual
contract of sale.
(n) As of June 30, 1996, the principal balance of the
outstanding loans made by RYP to York Associates is zero.
SECTION 4.06. Secondary Collateral. The Grantors are and will
be the legal and beneficial owner of, and have good and indefeasible title to,
the Secondary Collateral, subject to no pledge, lien, mortgage, hypothecation,
security interest, charge, option or other encumbrance whatsoever, except the
lien and security interest created by the Security Documents. None of the
Secondary Collateral is subject to any options to purchase or similar rights of
any person.
V. CONDITIONS OF BORROWING
SECTION 5.01. Contemporaneous Transactions. It is the
intention of the parties hereto that all of the Transactions shall be
consummated contemporaneously. Accordingly, none of the transactions
contemplated by this Agreement shall be consummated unless the transactions
contemplated by the Purchase Agreement are consummated contemporaneously
therewith.
SECTION 5.02. Initial Borrowing. The obligation of
Lender in respect of the initial borrowing hereunder is subject
to the following conditions precedent:
(a) The representations and warranties set forth in Article IV
hereof and in any documents delivered herewith, including, without limitation,
the Loan Documents, shall be true and correct in all material respects.
(b) Each Borrower shall be in compliance with all the terms
and provisions contained herein on its part to be observed or performed, and at
the time of and immediately after consummation of the Transactions on the
Closing Date.
(c) Lender shall have received a certificate, dated the
Closing Date and signed by a Senior Executive, confirming
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compliance with the conditions precedent set forth in this
Section 5.02.
(d) Lender shall have received the favorable written opinion
of counsel for the Loan Parties, dated the Closing Date, addressed to Lender.
(e) Lender shall have received (i) a copy of the certificate
or articles of incorporation or constitutive documents, in each case as amended
to date, of each Loan Party, certified as of a recent date by the Secretary of
State or other appropriate official of the state of its organization, and a
certificate as to the good standing of each from such Secretary of State or
other official, in each case dated as of a recent date; (ii) a certificate of
the Secretary of each Loan Party, dated the Closing Date and certifying (A) that
attached thereto is a true and complete copy of such person's By-laws as in
effect on the date of such certificate and at all times since a date prior to
the date of the resolution described in item (B) below, (B) that attached
thereto is a true and complete copy of a resolution adopted by such person's
Board of Directors authorizing the execution, delivery and performance of this
Agreement, the Security Documents, the Notes, the other Loan Documents and the
borrowing hereunder, as applicable, and that such resolution has not been
modified, rescinded or amended and is in full force and effect, (C) that such
person's certificate or articles of incorporation or constitutive documents has
not been amended since the date of the last amendment thereto shown on the
certificate of good standing furnished pursuant to (i) above, and (D) as to the
incumbency and specimen signature of each of such person's officers executing
this Agreement, the Notes, each Security Document or any other Loan Document
delivered in connection herewith or therewith, as applicable; (iii) a
certificate of another of such person's officers as to incumbency and signature
of its Secretary; and (iv) such other documents as Lender may reasonably
request.
(f) Lender shall have received the Notes duly executed by
Borrowers, payable to its order and otherwise complying with the provisions of
Section 2.03 hereof.
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(g) Lender shall have received the Security Documents, each
duly executed by the applicable Loan Parties, and the Pledged Notes.
(h) Lender shall have received certified copies of requests
for copies or information on Form UCC-11 or certificates satisfactory to Lender
of a UCC Reporter Service, listing all effective financing statements which name
as debtor any Loan Party and which are filed in the appropriate offices in the
states in which are located the chief executive office and other operating
offices of such person, together with copies of such financing statements. With
respect to any Liens not permitted pursuant to Section 7.01 hereof, Lender shall
have received termination statements in form and substance satisfactory to it.
(i) Each document (including, without limitation, each
Mortgage and Uniform Commercial Code financing statement) required by law or
requested by Lender to be filed, registered or recorded in order to create in
favor of Lender a first priority perfected security interest in the Collateral
shall have been properly filed, registered or recorded in each jurisdiction in
which the filing, registration or recordation thereof is so required or
requested.
(j) Lender shall have received the results of a search of tax
and other Liens, and judgments and of the Uniform Commercial Code filings made
with respect to each Loan Party (excluding Grantors) in the jurisdictions in
which it is doing business and/or in which any Collateral is located, and in
which Uniform Commercial Code filings have been made against each Loan Party
pursuant to paragraph (i) above.
(k) Lender shall have received and determined to be in form
and substance satisfactory in all respects:
(i) evidence of the compliance by Borrowers with Section
6.03 hereof;
(ii) the financial statements described in Section
4.01(g) hereof;
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(iii) environmental audits with respect to the
Collateral Properties, conducted by a firm satisfactory to Lender, and the
scope, methodology and results of which are satisfactory to Lender in all
respects;
(iv) evidence that all requisite third party consents to
the Transactions have been received; and
(v) one of the following for each Collateral
Property: (A) a letter or other evidence from the appropriate municipal
authorities (or other persons) concerning applicable zoning and building laws,
(ii) an ALTA 3.1 zoning endorsement for the applicable title insurance policy,
or (iii) a zoning opinion letter.
(l) Lender shall have received title insurance policies with
respect to the Collateral Properties issued by Lawyers Title Insurance Company,
Commonwealth Title Insurance Company or another title company acceptable to
Lender, which title insurance policy shall (i) provide coverage in amounts
satisfactory to Lender, (ii) insure Lender free and clear of all exceptions from
coverage other than Liens permitted under Section 7.01 and standard exceptions
and exclusions from coverage (as modified by the terms of any endorsements), and
(C) contain such endorsements and affirmative coverages as Lender may require.
(m) Lender shall have received a current title survey for each
Collateral Property, certified to the title company, Lender and their successors
and assigns, that (A) is in form and content reasonably satisfactory to Lender,
(B) is prepared by a professional and properly licensed land surveyor
satisfactory to Lender, and (C) contains a certification in form and substance
acceptable to Lender.
(n) Lender shall have received and approved a three-year Asset
Management Plan for Borrowers and all of their assets, which shall demonstrate
to Lender's reasonable satisfaction, that Borrowers shall have adequate
resources, including the proceeds of the Loans, to perform in accordance with
their general corporate obligations, and perform financially within requirements
of the Loan Documents.
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(o) Lender shall have received and had the opportunity to
review and determine to be in form and substance satisfactory to it, copies of
all Leases, Permits, and all loan agreements, notes and other documentation
evidencing Indebtedness for borrowed money of any Loan Party.
(p) Counsel to Lender, shall have received payment in full for
all legal fees charged, and all costs and expenses incurred, by such counsel
through the Closing Date in connection with the transactions contemplated under
this Agreement, the Security Documents and the other Loan Documents and
instruments in connection herewith and therewith.
(q) All legal matters in connection with the Transactions
shall be satisfactory to Lender and its counsel in their sole discretion.
(r) Borrowers shall have executed and delivered to Lender a
disbursement authorization letter with respect to the disbursement of the
proceeds of the Loans on the Closing Date, in form and substance satisfactory to
Lender.
(s) Lender shall have received such other documents as Lender or
its counsel shall reasonably deem necessary.
SECTION 5.03. Xxxxx Xxxx and Xxxx Xxxxxxxx Loan Disbursements.
Subject to the terms and conditions of this Section 5.03, Lender shall disburse
the remaining proceeds of the Xxxxx Xxxx Loan to enable River Bank to fund
advances to the Eastview under the New Xxxxx Xxxx Building Loan Agreement, and
shall disburse the remaining proceeds of the Xxxx Xxxxxxxx Loan. Such
disbursements shall pay or reimburse the cost of work (hereinafter, the "Work")
in connection with the development of the Xxxxx Xxxx Property and the Xxxx
Xxxxxxxx Property. Lender shall have no obligation to make disbursements in
respect of the Xxxxx Xxxx Loan after June 30, 1997. Disbursements shall be made
in accordance with approved requests for disbursements in the form of Exhibit A
hereto. The obligation of Lender to make each such disbursement is subject to
the following conditions precedent:
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(a) No Default or Event of Default shall be continuing.
(b) Lender shall have received a certificate, dated the
Closing Date and signed by a Senior Executive, confirming compliance with the
conditions precedent set forth in this Section 5.03.
(c) Lender shall have received and had the opportunity to
review and determine to be in form and substance satisfactory to it:
(i) the plans and specifications for the Work prepared by
a licensed architect, and any changes thereto; and
(ii) hard and soft cost budgets for the Work, and any
changes thereto.
(d) Lender shall have approved of all contractors, architects
and engineers retained for the Work.
(e) Lender shall have received satisfactory evidence that all
permits, licenses and approvals required for the Work have been obtained and are
in full force and effect.
(f) Lender shall have received such affidavits and
certificates as to such matters as Lender may request, including, without
limitation, certificates of the approved architect or engineer, or of a
construction consultant retained by Lender at Borrowers' expense, that (i) all
of the Work completed has been done in compliance with the approved plans and
specifications, (ii) such disbursement is justly required to reimburse payments
to, or are justly due to, contractors, subcontractors, materialmen, laborers,
engineers, architects or other persons rendering services or materials for the
Work, (iii) the amount of the subject disbursement, when added to all sums
previously disbursed by Lender, does not exceed the value of the Work done to
the date of such certificate, (iv) the amount of the Commitment remaining
unfunded after such disbursement will be sufficient on completion of the Work to
pay for the same in full.
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(g) Lender shall have received waivers or releases of lien for
work completed in form and substance reasonably satisfactory to it and title
searches confirming that there has not been filed with respect to the Collateral
Property any mechanics' or other lien or instrument for the retention of title
in respect of any part of the Work not discharged of record.
(h) Delivery when the Work has been completed of a copy of any
certificate or certificates required by law to render occupancy of the
improvements legal.
(i) Disbursements in respect of Work at the Xxxx Xxxxxxxx
Property shall be limited to Work on no more than 18 homesites which are not
under contract to be sold for a purchase price in excess of the minimum sales
price set forth on the applicable Release Price Schedule.
(j) Lender shall have received in form and substance
reasonably satisfactory to Lender a written instrument, from each party other
than an Owner Borrower to any contract deemed material by Lender, consenting to
the collateral assignment to Lender of the Owner Borrower's rights and interests
in such contract and certifying and agreeing to such matters as Lender may
determine.
(k) Lender shall not have received a bonded or unbonded stop
notice, unless Borrower files a release bond satisfactory to Lender in its
reasonable judgment.
(l) Lender shall have approved all material contracts, utility
agreements or "will serve" letters with respect to all utilities, access rights,
easements and other arrangements necessary, in the reasonable judgment of
Lender, for the uninterrupted and orderly operation of the project.
VI. AFFIRMATIVE COVENANTS
Each of the Borrowers covenants and agrees with Lender that,
so long as this Agreement shall remain in effect or the principal of or interest
on any Note, or any fee, expense or
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other Obligation payable hereunder or in connection with any of
the Transactions shall be unpaid:
SECTION 6.01. Legal Existence. Each Borrower shall do
or cause to be done all things necessary to preserve, renew and
keep in full force and effect its legal existence.
SECTION 6.02. Businesses and Properties. Each Borrower shall
do or cause to be done all things necessary to preserve, renew and keep in full
force and effect the rights, licenses and Permits material to the conduct of its
businesses; comply with all laws, rules, regulations and governmental orders
(whether Federal, state or local) applicable to the operation of such businesses
whether now in effect or hereafter enacted (including, without limitation, all
applicable laws, rules, regulations and governmental orders relating to public
and employee health and safety and all Environmental Laws) and with any and all
other applicable laws, rules, regulations and governmental orders, the lack of
compliance with which would have a Material Adverse Effect; take all actions
which may be required to obtain, preserve, renew and extend all Permits and
other authorizations which are material to the operation of such businesses; and
at all times maintain, preserve and protect all property material to the conduct
of such businesses and keep such property in good repair, working order and
condition and from time to time make, or cause to be made, all needful and
proper repairs, renewals, additions, improvements and replacements thereto
necessary in order that the business carried on in connection therewith may be
properly conducted at all times.
SECTION 6.03. Insurance. (a) Borrowers shall
provide, maintain and keep in force (or shall cause the
Controlled Owners to be provide, maintain and keep in force) the
following policies of insurance:
(i) Property insurance against loss or damage to the
Improvements by fire and all other risks of physical loss or damage with
coverage known as "all risk" in an amount not less than the full replacement
cost of the Controlled Properties (other than the York Co-op and the
Condominiums), without deduction for depreciation and including, without
limitation, sprinkler leakage, demolition cost, cost of debris removal,
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increased cost of construction arising from operation or enforcement of building
laws and ordinances, and such additional endorsements as Lender may reasonably
require, with not more than $10,000 deductible from the loss payable for any
casualty, and total coverage of not less than $20,000,000 per occurrence, and
containing an "agreed amount endorsement" or other endorsement to eliminate
application of the coinsurance clause;
(ii) If any of the Controlled Properties is located in an
area designated as a Federal "flood zone", flood insurance in an amount not less
than the full replacement cost of the Improvements (without deduction for
depreciation) or such lesser amounts, and with such deductibles, as are required
by Lender;
(iii) If Lender determines that any of the Controlled
Properties is in an earthquake zone, insurance against loss or damage to the
Improvements from earthquake and/or earth movement, in such amounts and with
such deductibles as are required by Lender;
(iv) Insurance against loss of rental income caused by the
perils required to be insured against in (i), (ii), (iii), and (v) of this
Section, on an "actual loss sustained" basis, in an amount not less than one (1)
year's gross rental income, excluding only non-continuing expenses;
(v) Boiler and machinery insurance covering damage to
pressure vessels, air tanks, boilers, machinery, pressure piping, electrical,
heating, ventilation and air conditioning equipment, and elevator and escalator
equipment, provided the Controlled Properties contain equipment of such nature,
in such amounts as are required by Lender;
(vi) Commercial public liability insurance, on an
"occurrence" basis, without deductible, against claims for bodily injury
including death, property damage and "Personal Injury" occurring in, on or about
the Controlled Properties and the adjoining streets, sidewalks and passageways,
such insurance to name Lender as an additional insured and to be in such amounts
as are required by Lender;
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(vii) Workers' compensation insurance (including
Employers' Liability) in accordance with the laws of the state in which the
Controlled Properties is situated for all employees of the Controlled Owners
engaged on or with respect to the Controlled Properties;
(viii) During the course of any construction, alteration
or repair of the Controlled Properties or any portion thereof:
(A) Workers' compensation insurance
(including Employers' Liability) in accordance with the laws of the state in
which the Land is situated on all employees of contractors, sub-contractors,
consultants and vendors engaged on or with respect to the Controlled Properties;
(B) Commercial general liability insurance
naming Lender as additional insured covering operations of all contractors and
sub-contracts, including completed operations coverage for two (2) years after
construction of such Improvements, with such other endorsements and in such
amounts as Lender may require; and
(C) Builders' risk completed value insurance
against "all risks of physical loss," including collapse, transit and, if
required by Lender, "soft costs" coverage, with deductibles not to exceed
$10,000, in nonreporting form, covering the total value of work performed and
equipment, supplies and materials furnished, and containing the "permission to
occupy before completion of work" endorsement;
(ix) Such other insurance and any replacements or
substitutions therefor or additions thereto as may at any time and from time to
time be required by Lender against other insurable hazards or casualties,
including, but not limited to, war, nuclear reaction or radioactive
contamination, each in such amount as Lender shall determine.
Borrowers shall not carry separate or additional insurance concurrent in form or
contributing, in the event of loss, with that required hereunder unless endorsed
in favor of Lender as loss payee or additional insured, as applicable,
designating that
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such insurance shall contain endorsements providing coverage secondary to the
insurance required to be carried hereunder and otherwise acceptable to Lender in
all respects.
(b) All policies of insurance shall be issued by companies
satisfactory to Lender which are authorized to do business in the states in
which the Controlled Properties are situated and shall have a Best's rating of
not less than A/XIII (or are otherwise reasonably acceptable to Lender). All
policies of insurance shall show Lender as mortgagee and shall have attached
thereto a lender's loss payable endorsement for the benefit of Lender in form
satisfactory to Lender. Borrowers shall furnish Lender with originals of all
policies of insurance. If Lender consents to Borrowers providing any of the
required insurance through blanket policies carried by Mortgagor and covering
more than one location, then Borrowers shall furnish Lender with a certified
copy of each such policy and a certificate of insurance for each such policy
setting forth the coverage as to each Controlled Property, including the
exclusive allocation of the insured amount, the limits of liability, the name of
the carrier, the policy number, the expiration date and such additional
information as Lender may require.
(c) Every policy of insurance required by this Agreement shall
contain (i) the endorsement or agreement of the insurer thereunder to waive all
rights of setoff, counterclaims or deductions against Lender and to pay all
losses payable in accordance with the terms of such policy notwithstanding any
act, omission or negligence of Lender which might otherwise result in forfeiture
of such insurance, and (ii) a provision that such policies will not be canceled
or materially amended, which term shall include any reduction in the scope or
limits of coverage, without at least thirty (30) days' prior written notice to
Lender.
(d) At least thirty (30) days prior to the expiration of each
insurance policy, Borrowers shall furnish Lender with evidence satisfactory to
Lender of the payment of the premium and arrangements for the reissuance of a
policy continuing insurance in force as required by this Agreement.
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SECTION 6.04. Taxes. Borrowers will pay all Impositions and
other prior charges and liens now or hereafter assessed or liened on or levied
against the Controlled Properties or any part thereof or interest therein when
and as the same become due and payable. Upon request of Lender, Borrowers will
exhibit to Lender receipts for the payment of Impositions and all other prior
charges and liens before the date when the same shall become delinquent.
Borrowers shall have the right to contest or object to the amount or validity of
any Impositions imposed against the Controlled Properties by appropriate legal
proceedings, but no such contest shall be deemed or construed in any way to
relieve, modify or extend Borrowers' covenant to pay such Impositions unless (x)
Borrowers have given written notice to Lender of Borrowers' intent to so contest
or object to the imposition of such Impositions not less than thirty (30) days
prior to the date on which such Impositions are due and payable and (y)
Borrowers have demonstrated to Lender's satisfaction in its sole and absolute
discretion that (a) payment of the Impositions Borrowers intend to contest or
object to would by operation of law constitute a waiver of Borrowers' right to
contest the same and (b) the conduct of legal proceedings to contest or object
to such Impositions will conclusively operate to prevent the sale of the
Controlled Properties or any part thereof or interest therein in payment of such
Impositions prior to final determination of such proceedings. In no event shall
Borrowers' decision to contest the imposition of any Impositions affect
Borrowers' obligation to continue to make payments on account of Impositions
into escrow with Lender or its designee as elsewhere provided herein. If the
conditions set forth in the foregoing clauses (x) and (y) are satisfied, neither
Lender nor its designee shall pay any Impositions being contested out of such
escrow as long as (1) Borrowers promptly commence and thereafter continue to
conduct such contest with due diligence and in good faith, (2) Borrowers provide
evidence of the same satisfactory to Lender, in its sole and absolute
discretion, from time to time within ten (10) days after written request
therefor, (3) Borrowers deposit into escrow with Lender or its designee, in
addition to all Impositions which would, absent such contest, be due and
payable, such additional sums as Lender or its designee shall determine from
time to time in its sole and absolute discretion as sufficient to pay all
interest, late payment fees, penalties and other charges which may be imposed
for nonpayment
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of such Impositions as if the same were not being contested, and (4) Lender is
satisfied in its sole and absolute discretion that neither the Controlled
Properties nor any part thereof is in danger of sale, foreclosure or forfeiture
by reason of the nonpayment of such Impositions or any interest, late payment
fees, penalties and other charges imposed in connection therewith.
SECTION 6.05. Financial Statements, Reports, etc. In addition
to all other deliveries which Borrowers are required to make to Lender elsewhere
in this Agreement and without limiting Borrowers' obligations with respect
thereto, Borrowers shall deliver the following to Lender, all of which shall be
prepared at Borrowers' sole cost and expense and shall be in such form and
contain such detail as Lender may at any time and from time to time require in
its sole and absolute discretion:
(a) No later than February 1st of each calendar year, a
current rent roll for each of the Controlled Properties, certified as true,
complete and correct by a Senior Executive. The rent roll shall include, without
limitation, the name of every tenant, the space demised thereby, the expiration
date of such tenant's Lease (taking into account all periods, if any, covered by
extension or renewal options granted to such tenant which have been theretofore
exercised), any extension and/or renewal periods covered by options granted such
tenant which have not yet been exercised, the amounts of all current rents and
arrearages, and such other information as Lender may reasonably request at any
time and from time to time.
(b) Promptly upon filing thereof, copies of any public filings
required by law with respect to any of the Loan Parties.
(c) No later than forty-five (45) days after the end of each
calendar quarter, "Quarterly Asset Reports", in the same form and containing the
same substance as the "March 31, 1996 Targeted Asset Book" previously supplied
to Lender for the Collateral properties and Pledged Loans. Such reports shall
include, without limitation, operating budgets, valuation information, actual
operating and sales information and rent rolls (or summaries thereof).
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(d) No later than forty-five days after the end of each
calendar month, a detailed presentation of "sources" and "uses" of cash, with a
variance analysis, in form and substance in conformity with the financial
information described in Section 4.01(g).
(e) No later than ten (10) Business Days following Lender's
request therefor, a current rent roll for the Controlled Properties and a status
report on the leasing program, in each case certified as true, complete and
correct by a Senior Executive.
(f) No later than thirty (30) days following Lender's demand
therefor, copies of all Leases and other agreements relating to or affecting
Borrowers or the Controlled Properties, certified as true and complete by a
Senior Executive.
(g) No later than May 1 of each calendar year, an updated
Asset Management Plan for the succeeding three-year period, and within 60 days
of the end of each calendar quarter, status updates for individual Collateral
Properties and a variance analysis indicating actual performance of Borrowers
relative to the Asset Management Plan.
(h) No later than ten (10) Business Days following Lender's
demand therefor, a certificate of Borrowers in form satisfactory to Lender
stating the amount of the then unpaid principal balance of each Loan, the amount
of any unpaid interest accrued thereon, the interest rate then being earned on
the outstanding principal balance of each Loan, the date to which the last
installment of interest or principal and interest has been paid, whether or not,
to the best of Borrowers' knowledge, any Event of Default then exists or any
event has occurred which, with the giving of notice or passage of time or both,
would constitute an Event of Default and that no offsets, counterclaims or
defenses exist with respect to the Obligations.
(i) No later than ten (10) Business Days after Borrowers'
receipt thereof, true and complete copies of (1) all notices of default given to
Borrowers by any tenant under a Lease (other than a Lease for a residential
apartment), by any Ultimate Borrower under a Pledged Loan or other agreement
with respect to
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or affecting Borrowers or the Controlled Properties, (2) all notices issued by
any governmental or quasi governmental authority or corporation having
jurisdiction over Borrowers or the Controlled Properties of any violation of law
at the Controlled Properties and (3) all notices, correspondence, legal papers
or other documents relating to any suits, proceedings or other actions
threatened, being commenced or pending against Borrowers or the Controlled
Properties before any court of law, administrative agency, arbitration panel or
other adjudicating body.
(j) notice of any Default of Event of Default, specifying the
nature and extent thereof and the action (if any) which is proposed to be taken
with respect thereto.
(k) notice of any development in the business or affairs of
any Borrower or any of the Loan Parties which has had or which is likely, in the
reasonable judgment of any Senior Executive, to have, a Material Adverse Effect.
(l) such other information as Lender may reasonably request.
SECTION 6.06. Refinancings. Borrowers will use their best
efforts subsequent to the Closing Date to refinance with other lenders the Loans
so as to reduce the aggregate amount advanced by Lender, provided that any such
refinancing shall be subject to Lender's approval and the entire net proceeds
thereof, even if greater than the Loan being refinanced, shall be applied to
prepayment of the Loans.
SECTION 6.07. ERISA. Borrowers shall, and shall cause
their ERISA Affiliates to:
(a) Pay and discharge promptly any liability imposed upon it
pursuant to the provisions of Title IV of ERISA; provided, however, that neither
Borrowers nor any ERISA Affiliate shall be required to pay any such liability if
(1) the amount, applicability or validity thereof shall be diligently contested
in good faith by appropriate proceedings, and (2) such person shall have set
aside on its books reserves which, in the opinion
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of the independent certified public accountants of such person, are adequate
with respect thereto.
(b) Deliver to the Lender, promptly, and in any event within
30 days, after (i) the occurrence of any Reportable Event, a copy of the
materials that are filed with the PBGC, or the materials that would have been
required to be filed if the 30-day notice requirement to the PBGC was not
waived, (ii) any Borrower or any ERISA Affiliate or an administrator of any
Pension Plan files with participants, beneficiaries or the PBGC a notice of
intent to terminate any such Plan, a copy of any such notice, (iii) the receipt
of notice by any Borrower or any ERISA Affiliate or an administrator of any
Pension Plan from the PBGC of the PBGC's intention to terminate any Pension Plan
or to appoint a trustee to administer any such Plan, a copy of such notice, (iv)
the filing thereof with the Internal Revenue Service, copies of each annual
report that is filed on Treasury Form 5500 with respect to any Plan, together
with certified financial statements (if any) for the Plan and any actuarial
statements on Schedule B to such Form 5500, (v) any Borrower or any ERISA
Affiliate knows or has reason to know of any event or condition which might
constitute grounds under the provisions of Section 4042 of ERISA for the
termination of (or the appointment of a trustee to administer) any Pension Plan,
an explanation of such event or condition, (vi) the receipt by any Borrower or
any ERISA Affiliate of an assessment of withdrawal liability under Section 4201
of ERISA from a Multiemployer Plan, a copy of such assessment, (vii) any
Borrower or any ERISA Affiliate knows or has reason to know of any event or
condition which might cause any one of them to incur a liability under Section
4062, 4063, 4064 or 4069 of ERISA or Section 412(n) or 4971 of the Code, an
explanation of such event or condition, and (viii) any Borrower or any ERISA
Affiliate knows or has reason to know that an application is to be, or has been,
made to the Secretary of the Treasury for a waiver of the minimum funding
standard under the provisions of Section 412 of the Code, a copy of such
application, and in each case described in clauses (i) through (iii) and (v)
through (vii) together with a statement signed by a Senior Executive setting
forth details as to such Reportable Event, notice, event or condition and the
action which such Borrower or such ERISA Affiliate proposes to take with respect
thereto.
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SECTION 6.08. Maintaining Records; Access to Properties and
Inspections; Right to Audit. Borrowers shall keep or cause to be kept full, true
and complete records and books of account in accordance with income tax
accounting principles. Borrowers' fiscal year shall be the calendar year (or a
fiscal year ending June 30), and its accounts shall be kept on such basis.
Borrowers' accounts shall be kept current at all times, and all transactions
shall be promptly and accurately entered therein. All Borrowers' records and
books of account, originals of all documents with respect to its organization,
all minute books and other records relating to its continued existence, complete
and accurate records of all persons, directly or indirectly through one or more
intermediary persons, owning a legal or beneficial interest in a Borrower as
shareholders, partners or otherwise, originals of all Leases, contracts,
insurance policies and any and all other agreements relating to or affecting the
Controlled Properties and the Pledged Loans, all correspondence and other files
relating thereto, originals of all licenses and Permits, all plans and
specifications with respect to the Controlled Properties, all environmental
reports, financial analyses, engineering reports, appraisals and other studies
undertaken by, for or at the direction of Borrowers with respect to the
Collateral Properties and all other documents and materials of any kind
whatsoever relating to Borrowers, the Controlled Properties and/or the business
of Borrowers conducted thereat normally and usually maintained by owners of
similar properties shall be kept and maintained by Borrowers at the Controlled
Properties or at Borrowers' principal office.
SECTION 6.09. Use of Proceeds. Borrowers shall use
the proceeds of the Loans only for the purposes set forth in
Section 4.01(n) hereof.
SECTION 6.10. Environmental Laws. (a) Borrowers shall comply,
and cause each of the Controlled Owners to comply, in all material respects with
the provisions of all Environmental Laws, and shall keep the Controlled
Properties free of any Lien imposed pursuant to any Environmental Law. Borrowers
shall not cause or suffer or permit the Controlled Properties to be used for the
generation, production, processing, handling, storage, transporting or disposal
of any Hazardous Material, except for
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Hazardous Materials used in the ordinary course of business of the Controlled
Owners, in which case such Hazardous Materials shall be used, stored, generated,
treated and disposed of only in compliance with Environmental Law.
(b) Borrowers shall supply to Lender copies of all submissions
by Borrowers or the Controlled Owners to any governmental body pursuant to the
Environmental Laws and of the reports of all environmental audits and of all
other environmental tests, studies or assessments (including the data derived
from any sampling or survey of asbestos, soil, or subsurface or other materials
or conditions) that may be conducted or performed (by or on behalf of Borrowers
or the Controlled Owners) on or regarding the Controlled Properties or regarding
any conditions that might have been affected by Hazardous Materials on or
Released or removed from the Controlled Properties. Borrowers shall also permit
and authorize the consultants, attorneys or other persons that prepare such
submissions or reports or perform such audits, tests, studies or assessments to
discuss such submissions, reports or audits with Lender.
(c) Promptly (and in no event more than two Business Days
after Borrowers become aware or are otherwise informed of such event) provide
oral and written notice to Lender upon the happening of any of the following:
(i) any Borrower, any Controlled Owner, or any tenant or
other occupant of any property of such Borrower or Controlled Owner receives
written notice of any claim, complaint, charge or notice of a violation or
potential violation of any Environmental Law;
(ii) there has been a spill or other Release of
Hazardous Materials upon, under or about or affecting any of the Controlled
Properties in amounts that may have to be reported under Environmental Law, or
Hazardous Materials at levels or in amounts that may have to be reported,
remedied or responded to under Environmental Law are detected on or in the soil
or groundwater;
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(iii) any Borrower or Controlled Owner is or may be liable
for any costs of cleaning up or otherwise responding to a Release of Hazardous
Materials;
(iv) any part of the Controlled Properties is or may be
subject to a Lien under any Environmental Law; or
(v) any Borrower or Controlled Owner undertakes any
Remedial Work with respect to any Hazardous Materials.
(d) Without in any way limiting the scope of Section 9.04(c)
and in addition to any obligations thereunder, each Borrower hereby indemnifies
and agrees to hold Lender harmless from and against any liability, loss, damage,
suit, action or proceeding arising out of its business or the business of the
Subsidiaries pertaining to Hazardous Materials, including, but not limited to,
claims of any governmental body or any third person arising under any
Environmental Law or under tort, contract or common law. To the extent laws of
the United States or any applicable state or local law in which a Controlled
Property is located provide that a Lien upon such Controlled Property may be
obtained for the removal of Hazardous Materials which have been or may be
Released, no later than sixty days after notice that a Release has occurred is
given by Lender to such Borrower, such Borrower shall deliver to Lender a report
issued by a qualified third party engineer assessing the existence and extent of
any Hazardous Materials located upon or beneath the specified property. To the
extent any Hazardous Materials located therein or thereunder either subject the
Controlled Property to Lien or require removal to safeguard the health of any
persons, the removal thereof shall be an affirmative covenant of Borrowers
hereunder.
(e) In the event that any Remedial Work is required to be
performed by any Borrower or any Controlled Owner under any applicable
Environmental Law, any judicial order, or by any governmental entity, such
Borrower or Controlled Owner shall commence all such Remedial Work at or prior
to the time required therefor under such Environmental Law or applicable
judicial orders and thereafter diligently prosecute to completion all such
Remedial Work in accordance with and within the time allowed under such
applicable Environmental Laws or judicial orders.
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SECTION 6.11. Pay Obligations to Lender and Perform Other
Covenants. Borrowers shall (a) make full and timely payment of their respective
Obligations, whether now existing or hereafter arising, (b) duly comply with all
the terms and covenants contained in this Agreement (including, without
limitation, the borrowing limitations and mandatory prepayments in accordance
with Article II hereof) in each of the other Loan Documents, all at the times
and places and in the manner set forth therein, and (c) except for the filing of
continuation statements and the making of other filings by Lender as secured
party or assignee, at all times take all actions necessary to maintain the Liens
and security interests provided for under or pursuant to this Agreement and the
Security Documents as valid and perfected first Liens on the property intended
to be covered thereby (subject only to Liens expressly permitted hereunder) and
supply all information to Lender necessary for such maintenance.
SECTION 6.12. Termination of Property Managers. During the
continuance of an Event of Default, Lender may instruct Borrowers to remove the
property manager with respect to any or all of the Controlled Properties and to
designate a replacement property manager acceptable to Lender and Borrowers
shall so remove the property manager(s) and so designate replacement(s).
SECTION 6.13. Co-operatives and Condominiums. At Lender's
request, Borrowers shall designate, or shall cause the designation of, Lender or
Lender's designee as a holder of Unsold Shares or holder of Unsold Units.
Promptly after the appointment of any officer or member of the boards of
directors or boards of managers of any of the Co-operatives or Condominiums
which had been appointed by River Bank, any Owner Borrower or any Controlled
Owner, River Bank shall deliver to Lender an original undated executed
resignation from such director, manager or officer. In addition, at Lender's
request after the occurrence and during the continuance of an Event of Default,
River Bank shall direct the resignation of any director, manager or officer
appointed by River Bank, any Owner Borrower or any Controlled Owner. If River
Bank receives any undated executed resignations of officers or members of the
boards of directors or boards of managers with respect to any of the
Co-operatives or
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Condominiums, River Bank shall deliver same to Lender promptly upon receipt
thereof.
SECTION 6.14. Further Assurances. Borrowers shall execute any
and all further documents and take all further actions which may be required
under applicable law, or which Lender may reasonably request, to grant,
preserve, protect and perfect the first priority security interest created by
the Security Documents in the Collateral.
VII. NEGATIVE COVENANTS
Each of the Borrowers covenants and agrees with Lender that,
so long as this Agreement shall remain in effect or the principal of or interest
on any Note, or any fee, expense or other Obligation payable hereunder or in
connection with any of the Transactions shall be unpaid:
SECTION 7.01. Liens. Borrowers shall not, and
shall not cause or permit any of the Controlled Owners to,
incur, create, assume or permit to exist any Lien on any of its property or
assets (including the stock of any direct or indirect subsidiary), whether owned
at the date hereof or hereafter acquired, or assign or convey any rights to or
security interests in any future revenues, except for the following:
(a) Liens incurred and pledges and deposits made in the
ordinary course of business in connection with workers' compensation,
unemployment insurance, old-age pensions and other social security benefits (not
including any lien described in Section 412(m) of the Code);
(b) Liens imposed by law, such as carriers', xxxx housemen's,
mechanics', materialmen's and vendors' liens and other similar liens, incurred
in good faith in the ordinary course of business and securing obligations which
are not overdue for a period of more than 15 days or which are being contested
in good faith by appropriate proceedings as to which any Borrower or any of the
Controlled Owners, as the case may be, shall, to the extent required by GAAP,
have set aside on its books adequate reserves;
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(c) Liens securing the payment of taxes, assessments and
governmental charges or levies, that are not delinquent or are being diligently
contested in good faith by appropriate proceedings and as to which adequate
reserves have been established in accordance with GAAP; provided, however, that
in no event shall the aggregate amount of such reserves be less than the
aggregate amount secured by such Liens;
(d) zoning restrictions, easements, licenses, xxxxx vations,
provisions, covenants, conditions, waivers, restrictions on the use of property
which are excepted in Lender's title insurance policies or do not in the
aggregate materially detract from the value of its property or assets or
materially impair the use thereof in the operation of its business; or
(e) Liens created in favor of Lender.
Borrowers shall also not permit any stop notice or claim to be asserted against
Lender by any person or entity furnishing labor, services, equipment or
materials to the Collateral Properties. In the event that any such claim is
asserted against Lender, without limiting any other rights or remedies Lender
may have at law or in equity, Borrowers shall take such action as Lender may
reasonably require to release Lender from any obligation or liability with
respect to such stop notice or claim, including (i) if the claim is being
contested in good faith by appropriate proceedings, obtaining a bond or other
security in form, substance and amount satisfactory to Lender, or (ii) payment
of such claim. If Borrowers fail to take such action, Lender may, in its sole
discretion, file an interpleader action requiring all claimants to interplead
and litigate their respective claims, and in any such action Lender shall be
released and discharged from all obligations with respect to any funds deposited
in court.
SECTION 7.02. Indebtedness. Borrowers shall not, and shall not
cause or permit any of the Controlled Owners to, incur, create, assume or permit
to exist any Indebtedness other than (i) Indebtedness secured by Liens permitted
under Section 7.01, (ii) Indebtedness existing on the date hereof, but not the
extension, renewal or refunding thereof, (iii) Indebtedness incurred hereunder,
(iv) Indebtedness to trade creditors incurred
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in the ordinary course of business, and (v) Guarantees of the Obligations,
without the prior written consent of Lender in each instance. Lender will
consider a proposal by a Borrower to refinance a Loan (and to release its Liens
on the Collateral Property) to the extent that Borrower is in full compliance
with the Loan Documents, such refinancing is for an amount exceeding the balance
of such Loan and such refinancing will not, in Lender's judgement, adversely
affect the aggregate loan to value or debt service coverage ratios for the
Loans, and provided that the Capital Proceeds in respect of such refinancing
shall be applied first to repay such Loan in full, and any balance shall be
applied to prepay the other Loans. Lender shall reasonably consider any
additional Indebtedness proposed to be incurred by Borrower or its subsidiaries;
provided, that (a) the Capital Proceeds in respect thereof are utilized in a
manner approved by Lender (including, if required by Lender, the application of
a percentage of such proceeds, which percentage shall be determined by Lender at
the time it approves the additional Indebtedness, to prepay the Loans in such
manner as Lender may elect), (b) such additional Indebtedness is not secured by
Liens on the Collateral Properties, (c) an adequate period of review is provided
for Lender to review the loan documents for the additional Indebtedness, and (d)
intercreditor agreements satisfactory in all respects to Lender are entered into
by Lender and the holder of such additional Indebtedness.
SECTION 7.03. Sales of Assets. (a) Except as set forth in
Section 7.03(b) and 7.03(c), Borrowers shall not, and shall not cause or permit
any of the Controlled Owners, XX Xxxxx Corp., Rivercity Realty Corp. or Grantors
to, sell, lease, transfer or assign to any persons or otherwise dispose of
(whether in one transaction or a series of transactions) any portion of its
assets (whether now owned or hereafter acquired), or sell any of its inventory
other than in the normal course of business, without the prior written consent
of Lender in each instance. Lender shall reasonably consider any proposed sale
of Secondary Collateral by a Grantor; provided, that the Capital Proceeds in
respect thereof are utilized in a manner approved by Lender (including, if
required by Lender, the application of a percentage of such proceeds, which
percentage shall be determined by Lender at the time it approves the sale, to
prepay the Loans in such manner as Lender may elect).
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(b) Annexed hereto as Schedule 7.03 are the initial approved
schedules of minimum sales prices and closing expenses for the homesites at the
Xxxx Xxxxxxxx Property, Unsold Units and Unsold Spaces (such schedules, together
with any revisions thereto proposed by Borrowers and approved by Lender, are
referred to herein as the "Release Price Schedules"). Borrowers may, without the
prior consent of Lender, enter into agreements to sell individual homesites at
the Xxxx Xxxxxxxx Property, individual Unsold Units and individual Unsold
Spaces; provided, that (i) the sales price thereof is at least equal to the
minimum sales price therefor as set forth on the applicable Release Price
Schedule, and (ii) the purchaser under such agreement is an unrelated third
party. Provided that Lender is paid 100% of the Capital Proceeds in respect of
any such sale, Lender agrees to release the Lien of the Security Documents from
the property sold at the time of closing thereof.
(c) Borrowers may, without the prior consent of Lender, enter
into an agreement to sell a Collateral Property; provided, that (i) the sales
price thereof is at least equal to the net sales price therefor as set forth in
the then current Asset Management Plan approved in writing by Lender, (ii) the
terms of the sale are no less favorable to the seller than the terms of sale, if
any, set forth in the then current Asset Management Plan approved in writing by
Lender, and (iii) the purchaser under such agreement is an unrelated third
party. Provided that Lender is paid 100% of the Capital Proceeds in respect of
any such sale, Lender agrees to release the Lien of the Security Documents from
the Collateral Property sold at the time of closing thereof.
SECTION 7.04. Consolidations and Mergers. Borrowers shall not,
and shall not cause or permit any of the Controlled Owners to, consolidate with
or merge into any other person, or permit another person to merge into it, or
acquire all or substantially all the capital stock or assets of any other
person.
SECTION 7.05. Investments. Borrowers shall not, and
shall not cause or permit any of the Controlled Owners to, own,
purchase or acquire any stock, obligations, assets (not in the
ordinary course of business) or securities of, or any interest
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in, or make any capital contribution or loan or advance to, any
other person.
SECTION 7.06. Sales of Receivables. Except as expressly
permitted by the Loan Documents, Borrowers shall not, and shall not cause or
permit any of the Controlled Owners to, sell, assign, discount, transfer, or
otherwise dispose of any accounts receivable, promissory notes, drafts or trade
acceptances or other rights to receive payment held by it, with or without
recourse, except for the purpose of collection or settlement in the ordinary
course of business.
SECTION 7.07. Use of Proceeds. Borrowers shall not permit the
proceeds of the Loans to be used for any purpose which entails a violation of,
or is inconsistent with, Regulation G, T, U or X of the Board, or for any
purpose other than those set forth in Section 4.01(n) hereof.
SECTION 7.08. ERISA. Borrowers shall not, and shall
not cause or permit any of their ERISA Affiliates to:
(a) Engage in any transaction in connection with which any
Borrowers or any ERISA Affiliate could be subject to either a material civil
penalty assessed pursuant to the provisions of Section 502 of ERISA or a
material tax imposed under the provisions of Section 4975 of the Code.
(b) Terminate any Pension Plan in a "distress termination"
under Section 4041 of ERISA, or take any other action which could result in a
material liability of any Borrower or any ERISA Affiliate to the PBGC.
(c) Fail to make payment when due of all amounts which, under
the provisions of any Plan, Borrowers or any ERISA Affiliate is required to pay
as contributions thereto, or, with respect to any Pension Plan, permit to exist
any material "accumulated funding deficiency" (within the meaning of Section 302
of ERISA and Section 412 of the Code), whether or not waived, with respect
thereto.
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(d) Adopt an amendment to any Pension Plan requiring the
provision of security under Section 307 of ERISA or Section 401(a)(29) of the
Code.
SECTION 7.09. Accounting Changes. Borrowers shall not, and
shall not cause or permit any of the Controlled Owners to, make any change in
their accounting treatment or financial reporting practices except as required
or permitted by GAAP.
SECTION 7.10. Prepayment of Indebtedness; Dividends. Borrowers
shall not, without the prior written consent of Lender in each instance,
directly or indirectly (a) prepay, redeem, purchase or retire any Indebtedness
(other than Indebtedness incurred hereunder) other than in the ordinary course
of such Borrower's business or (b) make any distributions, dividends or
repurchases or redemptions of capital stock.
SECTION 7.11. Transactions with Affiliates. Borrowers shall
not directly or indirectly purchase, acquire or lease any property from, or
sell, transfer or lease any property to, or enter into any other transaction
with, any stockholder, Affiliate or agent of any Borrower, except at prices and
on terms not less favorable to it than that which would have been obtained in an
arm's-length transaction with a non-affiliated third party.
SECTION 7.12. Modification of Documents. Borrowers shall not,
and shall not cause or permit any Loan Party to, modify, amend or alter (a)
their certificates or articles of incorporation in any material respect, (b) the
Pledged Loan Documents except as permitted by the Collateral Assignments of
Loan, (c) all loan agreements, notes and other documentation evidencing
Indebtedness for borrowed money of any Loan Party or (d) River Bank's Plan of
Dissolution in any material respect.
SECTION 7.13. Property Management. Except as provided in
Section 6.12, Borrowers shall not, and shall not cause or permit any Loan Party
to (a) surrender, terminate or cancel the property management agreement for any
of the Collateral Properties, or (b) otherwise modify, change, supplement, alter
or amend, or waive or release any of its rights and remedies under any such
property management agreement, without the prior written
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consent of Lender in each instance, which consent shall not be unreasonably
withheld, delayed or conditioned.
VIII. EVENTS OF DEFAULT
In case of the happening of any of the following events
(herein called "Events of Default"):
(a) any representation or warranty made or deemed made in or
in connection with this Agreement, any of the Security Documents, the Notes or
other Loan Documents or any borrowing hereunder, shall prove to have been
incorrect in any material respect when made and results in a material adverse
effect on (i) the ability of Borrowers, in the aggregate, to perform or pay the
Obligations in accordance with the terms hereof or of any other Loan Document,
or (ii) Lender's Lien on any material portion of the Collateral or the priority
of such Lien;
(b) default shall be made in the payment of any principal of
any Note when and as such principal shall become due and payable, whether at the
due date thereof or at a date fixed for prepayment thereof or by acceleration
thereof or otherwise;
(c) default shall be made in the payment of any interest on
any Note, or any fee or any other amount payable hereunder, or under the Notes,
or any other Loan Document when and as the same shall become due and payable,
and such default shall continue for 10 days after notice from Lender or for 20
days, whichever is later (provided that no Event of Default shall exist under
this clause (c) to the extent that there are sufficient funds available to
Lender pursuant to Section 4(b) of the Master Account Agreement to pay same when
due);
(d) default (other than a default enumerated in any other
paragraph of this Article VIII) shall be made in the due observance or
performance of any covenant, condition or agreement to be observed or performed
on the part of any Loan Party pursuant to the terms of this Agreement, any of
the Notes, any of the Security Documents or any other Loan Document and such
default continues for twenty (20) days after notice from Lender; provided, that,
if such default cannot with the exercise of
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reasonable diligence by cured within such twenty (20) day period, then such
period shall be extended for so long as is reasonably necessary with the
exercise of reasonable diligence to cure such default provided that Borrower
commences such cure within such twenty day period and thereafter diligently
prosecutes such cure to completion, and provided, further, that in no event
shall such cure period exceed a total of ninety (90) days from the date notice
of such default is first given by Lender to Borrower;
(e) any Loan Party shall (i) voluntarily commence any
proceeding or file any petition seeking relief under Title 11 of the United
States Code or any other Federal, state or foreign bankruptcy, insolvency,
liquidation or similar law, (ii) consent to the institution of, or fail to
contravene in a timely and appropriate manner, any such proceeding or the filing
of any such petition, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator or similar official for any Loan
Party or for a substantial part of its property or assets, (iv) file an answer
admitting the material allegations of a petition filed against it in any such
proceeding, (v) make a general assignment for the benefit of creditors, (vi)
become unable, admit in writing its inability or fail generally to pay its debts
as they become due or (vii) take corporate action for the purpose of effecting
any of the foregoing;
(f) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent jurisdiction seeking
(i) relief in respect of any Loan Party, or of a substantial part of the
property or assets of any Loan Party, under Title 11 of the United States Code
or any other Federal state or foreign bankruptcy, insolvency, receivership or
similar law, (ii) the appointment of a receiver, trustee, custodian,
sequestrator or similar official for any Loan Party or for a substantial part of
the property of any Loan Party, or (iii) the winding-up or liquidation of any
Loan Party; and such proceeding or petition shall continue undismissed for 120
days or an order or decree approving or ordering any of the foregoing shall
continue unstayed and in effect for 120 days;
(g) default shall be made with respect to Indebtedness of the
Loan Parties in excess of $10,000,000 in the aggregate (excluding Indebtedness
outstanding hereunder) if the effect of
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any such default shall be to accelerate, or to permit the holder or obligee of
any such Indebtedness (or any trustee on behalf of such holder or obligee) at
its option to accelerate, the maturity of such Indebtedness;
(h) (i) a Reportable Event shall have occurred with respect to
a Pension Plan, (ii) the filing by any Loan Party, any ERISA Affiliate, or an
administrator of any Plan of a notice of intent to terminate such a Plan in a
"distress termination" under the provisions of Section 4041 of ERISA, (iii) the
receipt of notice by any Loan Party, any ERISA Affiliate, or an administrator of
a Plan that the PBGC has instituted proceedings to terminate (or appoint a
trustee to administer) such a Pension Plan, (iv) any other event or condition
exists which might, in the opinion of Lender, constitute grounds under the
provisions of Section 4042 of ERISA for the termination of (or the appointment
of a trustee to administer) any Pension Plan by the PBGC, (v) a Pension Plan
shall fail to maintain the minimum funding standard required by Section 412 of
the Code for any plan year or a waiver of such standard is sought or granted
under the provisions of Section 412(d) of the Code, (vi) any Loan Party or any
ERISA Affiliate has incurred, or is likely to incur, a liability under the
provisions of Section 4062, 4063, 4064 or 4201 of ERISA, (vii) any Loan Party or
any ERISA Affiliate fails to pay the full amount of an installment required
under Section 412(m) of the Code, (viii) the occurrence of any other event or
condition with respect to any Plan which would constitute an event of default
under any other agreement entered into by any Loan Party or any ERISA Affiliate,
and in each case in clauses (i) through (viii) of this subsection (h), such
event or condition, together with all other such events or conditions, if any,
could subject any Loan Party or any ERISA Affiliate to any taxes, penalties or
other liabilities which, in the opinion of Lender, could have a Material Adverse
Effect;
(i) an Event of Default (as defined in any of the Loan
Documents) shall occur;
(j) any Loan Party or any ERISA Affiliate (i) shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred any
material withdrawal liability to such Multiemployer Plan, and (ii) does not have
reasonable grounds for
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contesting such withdrawal liability and is not in fact
contesting such withdrawal liability in a timely and appropriate
manner;
(k) a judgment (not reimbursed by insurance policies of any
Loan Party) or decree for the payment of money, a fine or penalty shall be
rendered by a court or other tribunal against any Borrower or Controlled Owner
which, when taken together with all other such judgments, decrees, fines and
penalties, exceeds $100,000 ($250,000 for River Bank, Eastview and Royal York
Associates, L.P.), or and (i) shall remain undischarged or unbonded for a period
of 30 consecutive days during which the execution of such judgment, decree, fine
or penalty shall not have been stayed effectively or (ii) any judgment creditor
or other person shall legally commence actions to collect on or enforce such
judgment, decree, fine or penalty;
(l) this Agreement, any Note, any of the Security Documents,
any Guarantee or other Loan Documents shall for any reason cease to be, or shall
be asserted by any Loan Party not to be, a legal, valid and binding obligation
of any Loan Party, en forceable in accordance with its terms, or the security
interest or Lien purported to be created by any of the Security Documents shall
for any reason cease to be, or be asserted by any Loan Party not to be, a valid,
first priority perfected security interest in any Collateral (except to the
extent otherwise permitted under this Agreement or any of the Security
Documents);
(m) an event or series of events shall occur after which Xxxxx
Xxxxxxx ceases to (i) own at least 39% of the common stock of River Bank or (ii)
be actively involved in the oversight and general management of Borrowers'
affairs and assets, and, in case of Xx. Xxxxxxx'x death or disability, Borrowers
shall have failed to appoint a substitute chief executive officer reasonable
acceptable to lender within six months after the occurrence thereof; or
(n) any representation or warranty in Article IX-A shall prove
to have been incorrect in any material respect when made, or default shall be
made in the payment or performance of any obligation of River Bank set forth in
Article IX-A, or the FHLB Stock Redemption Price (as defined in Section 9A.02)
is less
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than $8,900,000, or if the FHLB Stock Redemption Price is not paid in full
(i.e., $8,900,000) by FHLB on or before the FHLB Maturity Date, then, and in any
such event (other than an event described in paragraph (e) or (f) above), and at
any time thereafter during the continuance of such event, Lender may, by written
notice (or facsimile notice promptly confirmed in writing) to Borrowers, take
any or all of the following actions at the same or different times: (i)
terminate forthwith all or any portion of the Commitment; and (ii) declare the
Notes to be forthwith due and payable, whereupon the principal of such Notes,
together with accrued interest and fees thereon and other liabilities of
Borrowers accrued hereunder, shall become forthwith due and payable both as to
principal and interest, without presentment, demand, protest or any other notice
of any kind, all of which are hereby expressly waived by Borrowers, anything
contained herein or in the Notes to the contrary notwithstanding; provided,
however, that with respect to a default described in paragraph (e) or (f) above,
the Commitment shall automatically terminate and the principal of the Notes,
together with accrued interest and fees thereon and any other liabilities of
Borrowers accrued hereunder shall automatically become due and payable, both as
to principal and interest, without presentment, demand, protest or other notice
of any kind, all of which are hereby expressly waived by Borrowers, anything
contained herein or in the Notes to the contrary notwithstanding.
IX-A FHLB LOAN
SECTION 9A.01. Conflicts. In the event of any conflict between
the provisions of this Article IX-A and any other provision of this Credit
Agreement, or between the provisions of this Article IX-A and any other Loan
Document, the provisions of this Article IX-A shall control.
SECTION 9A.02. FHLB Representations. River Bank
represents and warrants to Lender as follows:
(a) On the date hereof River Bank has submitted to FHLB a
request to redeem the FHLB Stock.
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(b) On the date hereof River Bank has submitted to FHLB a
letter in form of Schedule 9A.02 hereof.
(c) The FHLB Stock Certificate is in the possession of FHLB.
(d) The redemption price for the FHLB Stock is $8,900,000 (the
"FHLB Stock Redemption Price").
(e) River Bank reasonably expects that the FHLB Stock
Redemption Price will (and River Bank knows of no reason why the FHLB Stock
Redemption Price would not) be paid in full by FHLB within 60 days after the
date hereof, and that such payment will be made by FHLB directly to Lender.
XXXXXXX 0X.00. XXXX Xxxxxxxxx. River Bank hereby
covenants and agrees as follows:
(a) River Bank shall not take possession of the FHLB Stock
Certificate or request that FHLB deliver such certificate to any other person
other than Lender.
(b) River Bank shall not assign, pledge, grant a security
interest in or otherwise transfer or encumber in any manner the FHLB Stock or
the proceeds thereof or any interest therein. River Bank shall not make any
request or give any direction to FHLB that is contrary to the request set forth
in the letter referred to in Section 9A.02(b) above.
(c) River Bank shall, within two (2) business days after
Lender's request, give any further direction or request to FHLB regarding
payment of the FHLB Stock Redemption Price as Lender may reasonably require.
SECTION 9A.04. Mandatory Prepayment.
(a) Upon the payment by FHLB of any portion of the FHLB Stock
Redemption Price, River Bank shall immediately make a payment to Lender in the
full amount of such payment from FHLB (which payment shall be deemed to have
been made by River Bank to to the extent FHLB made such payment directly to
Lender). Such
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payment to Lender, whether made by River Bank or made directly from FHLB, shall
be applied as follows:
(i) First, to pay any accrued and unpaid interest and
other sums of any kind (other than principal) outstanding with respect to the
FHLB Loan;
(ii) Second, subject to the proviso contained in Section
2.08(d), to payment of the outstanding principal balance of the FHLB Loan; and
(iii) Third, into the Master Account for application in
the same manner as any other amounts deposited into the Master Account under
Section 4(a) of the Master Account Agreement.
(b) (i) The entire outstanding balance of the FHLB Note shall
become due and payable on the FHLB Maturity Date or the date on which FHLB pays
the FHLB Stock Redemption Price, whichever is earlier.
(ii) "FHLB Maturity Date" means August 31, 1996, provided
that if (x) for reasons beyond River Bank's reasonable control the FHLB has not
paid FHLB Stock Redemption Price by August 31, 1996, (y) River Bank has made
diligent efforts to obtain such payment and has, upon Lender's request,
delivered to Lender reasonable evidence of such efforts, and (z) no Event of
Default exists as of such maturity date, then the FHLB Maturity Date shall be
extended to September 30, 1996. River Bank may further extend the FHLB Maturity
Date, provided River Bank satisfies the same conditions as are applicable with
respect to the first extension under the preceding sentence, for successive one
month periods, provided that in no event shall the FHLB Maturity Date be
extended beyond December 31, 1996.
IX. MISCELLANEOUS
SECTION 9.01. Notices. Notices, consents and other
communications provided for herein shall be in writing and shall
be delivered or mailed (or in the case of telex or facsimile
communication, delivered by telex, graphic scanning, telecopier
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or other telecommunications equipment, with receipt confirmed)
addressed,
(a) if to all or any Loan Parties, c/o RB Management Company,
8th Floor, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xx.
Xxxxx Xxxxxxx, with a copy to Battle Xxxxxx LLP, 00 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx X. Xxxxxx, Esq.;
(b) if to Lender, at Marine Midland Bank, Xxx XXX Xxxxxx, 00xx
Xxxxx, Xxxxxxx, Xxx Xxxx 00000, Attention: Xxxx X. Xxxxxxxx, Senior
Vice President, with a copy to Xxxx, Scholer, Fierman, Xxxx & Handler,
LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx
Xxxxxx, Esq.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on the
date of receipt if hand delivered or three days after being sent by registered
or certified mail, postage prepaid, return receipt requested, if by mail, or
upon receipt if by any telex, facsimile or other telecommunications equipment,
in each case addressed to such party as provided in this Section 9.01 or in
accordance with the latest unrevoked direction from such party.
SECTION 9.02. Survival of Agreement. All covenants,
agreements, representations and warranties made by any Borrower or Loan Party
herein and in the certificates or other instruments prepared or delivered in
connection with this Agreement, any of the Security Documents, any Guarantee or
any other Loan Document, shall be considered to have been relied upon by Lender
and shall survive the making by Lender of the Loans and the execution and
delivery to Lender of the Notes and shall continue in full force and effect as
long as the principal of or any accrued interest on the Notes or any other fee
or amount payable under the Notes or this Agreement or any other Loan Document
is outstanding and unpaid and so long as the Commitment has not been terminated.
SECTION 9.03. Successors and Assigns; Participations. Whenever
in this Agreement any of the parties hereto is referred to, such reference shall
be deemed to include the successors and assigns of such party; and all
covenants, promises and agreements
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by or on behalf of any Loan Party or any ERISA Affiliate, or Lender, that are
contained in this Agreement shall bind and inure to the benefit of their
respective successors and assigns. No Borrower may assign or transfer any of its
rights or obligations hereunder without the written consent of Lender. Lender
may not assign or transfer any of its rights or obligations hereunder or under
the Loans to an unaffiliated third party without the written consent of
Borrowers; provided, however, that Lender may, without the consent of Borrowers,
assign or transfer any of its rights or obligations hereunder to a successor by
virtue of the merger or consolidation of Lender with or into an unaffiliated
third party.
SECTION 9.04. Expenses; Indemnity. (a) Each Borrower agrees to
pay all reasonable out-of-pocket expenses incurred by Lender in connection with
the preparation of this Agreement and the other Loan Documents or with any
amendments, modifications, waivers, extensions, renewals, renegotiations or
"workouts" of the provisions hereof or thereof (whether or not the transactions
hereby contemplated shall be consummated) or incurred by Lender in connection
with the enforcement or protection of its rights in connection with this
Agreement or any of the other Loan Documents or with the Loans made or the
Notes, or in connection with any pending or threatened action, proceeding, or
investigation relating to the foregoing, including but not limited to the
reasonable fees and disbursements of counsel for Lender and ongoing field
examination expenses and charges, and, in connection with such enforcement or
protection, the reasonable fees and disbursements of counsel for Lender. Each
Borrower further indemnifies Lender from and agrees to hold Lender harmless
against any documentary taxes, assessments or charges made by any governmental
authority by reason of the execution and delivery of this Agreement or the
Notes.
(b) Each Borrower indemnifies Lender and its directors,
officers, employees and agents (collectively, the "Indemnitees") against, and
agrees to hold the Indemnitees harmless from, any and all losses, claims,
damages, liabilities and related expenses, including reasonable counsel fees and
expenses, incurred by or asserted against the Indemnitees arising out of, in any
way connected with, or as a result of (i) the use of any of the proceeds of the
Loans, (ii) this Agreement, the
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Guarantees, any of the Security Documents or the other documents contemplated
hereby or thereby, (iii) the performance by the parties hereto and thereto of
their respective obligations hereunder and thereunder (including but not limited
to the making of the Commitment) and consummation of the Transactions, (iv)
breach of any representation or warranty, or (v) any claim, litigation,
investigation or proceedings relating to any of the foregoing, whether or not
Lender or any such person is a party thereto; provided, however, that such
indemnity shall not, as to Lender, apply to any such losses, claims, damages,
liabilities or related expenses to the extent that they result from the gross
negligence or willful misconduct of Lender.
(c) Each Borrower indemnifies, and agrees to defend and hold
harmless the Indemnitees from and against any loss, cost, damage, liability,
lien, deficiency, fine, penalty or expense (including, without limitation,
reasonable attorneys' fees and reasonable expenses for investigation, removal,
cleanup and remedial costs and modification costs incurred to permit, continue
or resume normal operations of any property or assets or business of Borrowers
or any Subsidiary) arising from a violation of, or failure to comply with any
Environmental Law and to remove any Lien arising therefrom except to the extent
caused by the gross negligence or willful misconduct of any Indemnitee, which
any of the Indemnitees may incur or which may be claimed or recorded against any
of the Indemnitees by any person.
(d) The provisions of this Section 9.04 shall remain operative
and in full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the Transactions, the repayment of any of the
Loans, the invalidity or unenforceability of any term or provision of this
Agreement or the Notes, or any investigation made by or on behalf of Lender. The
indemnities contained herein shall survive the repayment of the Loans and the
expiration or termination of this Agreement; provided that any claims based
thereon shall be made on or prior to (x) the second anniversary of the repayment
in full of the Loans or (y) the later to occur of (i) dissolution and final
distribution of assets of River Bank and (ii) repayment of the Loans in full,
whichever of (x) or (y) is earlier. All amounts due under this Section 9.04
shall be payable on written demand therefor.
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SECTION 9.05. Applicable Law. THIS AGREEMENT AND THE
NOTES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS EXECUTED
AND TO BE PERFORMED IN NEW YORK.
SECTION 9.06. Right of Setoff. If an Event of Default shall
have occurred and be continuing, Lender shall and is hereby authorized at any
time and from time to time, 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) at any time held and other indebtedness at any time owing by Lender to
or for the credit or the account of any Borrower against any and all of the
obligations of Borrowers now or hereafter existing under this Agreement and the
Notes, irrespective of whether or not Lender shall have made any demand under
this Agreement or the Notes and although such obligations may be unmatured. The
rights of Lender under this Section are in addition to other rights and remedies
(including, without limitation, other rights of setoff) which may be available
to Lender.
SECTION 9.07. Payments on Business Days. Should the principal
of or interest on the Notes or any fee or other amount payable hereunder become
due and payable on other than a Business Day, payment in respect thereof may be
made on the next succeeding Business Day, and such extension of time shall in
such case be included in computing interest, if any, in connection with such
payment.
SECTION 9.08. Waivers; Amendments. (a) No failure or delay of
Lender in exercising any power or right hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of Lender hereunder are cumulative and
not exclusive of any rights or reme dies which they may otherwise have. No
waiver of any provision of this Agreement or the Notes nor consent to any
departure by any Borrower therefrom shall in any event be effective unless the
same shall be authorized as provided in paragraph (b) below, and then such
waiver or consent shall be effective only in the spe-
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cific instance and for the purpose for which given. No notice to or demand on
any Borrower in any case shall entitle it to any other or further notice or
demand in similar or other circum stances.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agree ment or agreements in
writing entered into by Borrowers and Lender.
SECTION 9.09. Severability. In the event any one or more of
the provisions contained in this Agreement or in the Notes should be held
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or therein shall not
in any way be affected or impaired thereby.
SECTION 9.10. Entire Agreement; Waiver of Jury Trial, etc. (a)
This Agreement, the Notes and the other Loan Documents constitute the entire
contract between the parties hereto relative to the subject matter hereof. Any
previous agreement among the parties hereto with respect to the Transactions is
superseded by this Agreement, the Notes and the other Loan Documents. Nothing in
this Agreement, the Notes or in the other Loan Documents, expressed or implied,
is intended to confer upon any party, other than the parties hereto, any rights,
remedies, obligations or liabilities under or by reason of this Agreement, the
Notes or the other Loan Documents.
(b) EXCEPT AS PROHIBITED BY LAW, EACH PARTY HERETO HEREBY
WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT, THE NOTES, ANY OF THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS.
(c) Except as prohibited by law, each party hereto hereby
waives any right it may have to claim or recover in any litigation referred to
in paragraph (b) of this Section 9.10 any special, exemplary, punitive or
consequential damages or any damages other than, or in addition to, actual
damages.
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(d) Each party hereto (i) certifies that no representative,
agent or attorney of Lender has represented, expressly or otherwise, that Lender
would not, in the event of litigation, seek to enforce the foregoing waivers and
(ii) acknowledges that it has been induced to enter into this Agreement, the
Notes or the other Loan Documents, as applicable, by, among other things, the
mutual waivers and certifications herein.
SECTION 9.11. Submission to Jurisdiction. (a) Any legal action
or proceeding with respect to this Agreement or the Notes or any other Loan
Document may be brought in the courts of the State of New York or of the United
States of America for the Southern District of New York, and, by execution and
delivery of this Agreement, each Borrower hereby accepts for itself and in
respect of its property, generally and unconditionally, the jurisdiction of the
aforesaid courts.
(b) Each Borrower hereby irrevocably waives, in connection
with any such action or proceeding, any objection, including, without
limitation, any objection to the laying of venue or based on the grounds of
forum non conveniens, which it may now or hereafter have to the bringing of any
such action or proceeding in such respective jurisdictions.
(c) Each Borrower hereby irrevocably consents to the service
of process of any of the aforementioned courts in any such action or proceeding
by the mailing of copies thereof by registered or certified mail, postage
prepaid, to each such person, as the case may be, at its address set forth in
Section 9.01 hereof.
(d) Nothing herein shall affect the right of Lender to serve
process in any other manner permitted by law or to commence legal proceedings or
otherwise proceed against any Borrower in any other jurisdiction.
SECTION 9.12. Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute an original but all of which when
taken together shall constitute but one contract, and shall become effective
when copies hereof
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which, when taken together, bear the signatures of each of the parties hereto
shall be delivered to Lender.
SECTION 9.13. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only and are not
to affect the construction of, or to be taken into consideration in
interpreting, this Agreement.
SECTION 9.14. Exercise of Cure Rights. Wherever in any
provision of any Loan Document Lender is granted the right to advance money for
the account of any Loan Party and such provision makes reference to this Section
9.14, Lender shall, before expending such sum, give River Bank 10 days prior
notice (unless an Event of Default is then continuing, in which case lender
shall have no obligation to give such notice); provided, however, that if Lender
in good faith believes that it may be materially prejudiced (e.g., without
limitation, lapse of insurance, emergencies, impairment of any lien or the
priority thereof, etc.) if it does not act prior to the expiration of such ten
day period, then Lender need only give River Bank such prior notice, if any, as
Lender in good faith determines to be feasible under the circumstances and
notice thereof shall be delivered to Borrowers thereafter.
X. CROSS-GUARANTEES
Each Borrower absolutely, irrevocably and unconditionally
guarantees the due and punctual payment of the principal of and interest on each
of the Notes (other than the Note or Notes that it is the maker of), when and as
due, whether at maturity, by acceleration, by notice of prepayment or otherwise,
and the due and punctual performance of all other Obligations of the other
Borrowers. Each Borrower further agrees that the Obligations, or any of them,
may be extended and renewed, in whole or in part, without notice to or further
assent from it, and that it will remain bound upon its guarantee notwithstanding
any extension or renewal of any Obligations.
Each Borrower waives presentment to, demand of payment from
and protest to Borrowers of any of the Obligations, and also waives notice of
acceptance of its guarantee and notice of
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protest for nonpayment. The obligations of a Borrower hereunder shall not be
affected by (a) the failure of Lender to assert any claim or demand or to
enforce any right or remedy against any other Borrower under the provisions of
this Agreement, the Notes or any of the other Loan Documents or otherwise; (b)
any rescission, waiver, amendment or modification of any of the terms or
provisions of this Agreement, the Notes, any of the other Loan Documents, any
guarantee or any other agreement; (c) the release of any security held by Lender
for the Obligations or any of them; or (d) the failure of Lender to exercise any
right or remedy against any other Borrower in respect of the Obligations. Each
Borrower waives any rights or defenses it may have based upon the taking or
failure to take of any of the actions described in the preceding sentence, or
based upon the taking or failure to take by Lender of any other actions with
respect to any other obligor, the obligations guaranteed, or any security
therefor, including without limitation, any rights or defenses pursuant to
Sections 2787 to 2855, inclusive, of the California Civil Code or similar laws
of any other jurisdiction.
Each Borrower further agrees that its guarantee constitutes a
guarantee of payment when due and not of collec tion, and waives any right to
require that any resort be had by Lender to any security held for payment of the
Obligations or to any balance of any deposit account or credit on the books of
Lender in favor of any Borrower or any other person.
The obligations of each Borrower hereunder shall not be
subject to any reduction, limitation, impairment or termination for any reason,
including, without limitation, any claim of waiver, release, surrender,
alteration or compromise, and shall not be subject to any defense or setoff,
counterclaim, recoupment or termination whatsoever by reason of the invalidity,
illegality or unenforceability of the Obligations or otherwise. Without limiting
the generality of the foregoing, the obligations of each Borrower hereunder
shall not be discharged or impaired or otherwise affected by the failure of
Lender to assert any claim or demand or to enforce any remedy under this
Agreement, the Notes or under any other Loan Document, any guarantee or any
other agreement, by any waiver or modification of any provision thereof, by any
default, failure or delay, willful or otherwise, in the performance of the
Obligations, or by any other act or
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omission which may or might in any manner or to any extent vary the risk of such
Borrower or otherwise operate as a discharge of such Borrower as a matter of law
or equity.
Each Borrower further agrees that its guarantee shall continue
to be effective or be reinstated, as the case may be, if at any time payment, or
any part thereof, of principal of or interest on any Obligation is rescinded or
must otherwise be returned by Lender upon the bankruptcy or reorganization of
any other Borrower or otherwise.
Until the Obligations have been paid and satisfied in full,
each Borrower hereby waives and releases all rights of subrogation,
indemnification, contribution and/or reimbursement from or against any of the
other Borrowers or their respective properties in connection with this guarantee
and any payments made hereunder, and regardless of whether such rights arise by
operation of law, pursuant to contract or otherwise.
Each Borrower hereby waives any rights and defenses it might
have as guarantor by reason of protection afforded to any other Borrower with
respect to the obligations guaranteed pursuant to the antideficiency or other
laws of the State of California or any other state limiting or discharging the
obligation guaranteed, including, without limitation, Sections 580a, 580b, 580d
or 726 of the California Code of Civil
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Procedure. Each Borrower hereby waives all rights and defenses arising out of an
election of remedies by Lender, even if that election of remedies, such as
nonjudicial foreclosure with respect to security for a guaranteed obligation,
has destroyed the guarantor's right of subrogation and reimbursement against the
principal by the operation of Section 580d of the California Code of Civil
Procedure or otherwise. Nothing herein, including without limitation citation of
California statutes, shall be construed as indicating that California law is or
should be applicable to this guaranty or any of the other provisions of, or
transactions contemplated by, the Loan Documents, it being the parties' express
intent and agreement, as set forth in Section 9.05 hereof, that New York law
shall apply.
IN WITNESS WHEREOF, Borrowers and Lender have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
RIVER BANK AMERICA
By:/s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx
President
260 WEST SUNRISE CORP.
By:/s/ Xxxxxx X. Xxxxxxx, III
Xxxxxx X. Xxxxxxx, III
Vice President
XXXXXXX STOWE, INC.
By:/s/ Xxxxxx X. Xxxxxxx, III
Xxxxxx X. Xxxxxxx, III
Vice President
XXXXXX PROPERTY CORP.
By:/s/ Xxxxxx X. Xxxxxxx, III
Xxxxxx X. Xxxxxxx, III
Vice President
ACACIAS-MURRIETA, INC.
By:/s/ Xxxxxx X. Xxxxxxx, III
Xxxxxx X. Xxxxxxx, III
Vice President
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OLD CROW CANYON OFFICE, INC.
By:/s/ Xxxxxx X. Xxxxxxx, III
Xxxxxx X. Xxxxxxx, III
Vice President
RR IRVINGTON ASSOCIATES, L.P.
By: RR Irvington Development
Corp., general partner
By:/s/ Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxxxx
Vice President
MARINE MIDLAND BANK
By:/s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx
Senior Vice President
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MASTER CASH COLLATERAL AGREEMENT
THIS MASTER CASH COLLATERAL AGREEMENT (this "Agreement"),
dated as of June 28, 1996, between MARINE MIDLAND BANK ("Lender"), a New York
banking corporation having an office at Xxx XXX Xxxxxx, Xxxxxxx, Xxx Xxxx 00000,
and RIVER BANK AMERICA, a New York banking corporation, 000 XXXX XXXXXXX XXXX.,
x Xxx Xxxx corporation, XXXXXXX STOWE, INC., a California corporation, XXXXXX
PROPERTY CORP., a New York corporation, ACACIAS-MURRIETA, INC., a California
corporation, OLD CROW CANYON OFFICE, INC., a California corporation, and RR
IRVINGTON ASSOCIATES, L.P., a New York limited partnership, each having an
office c/o RB Management Company, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(each individually, a "Borrower" and, collectively, "Borrowers").
W I T N E S S E T H
A. Borrowers are the owners of the property (the "Collateral
Property") described on Exhibit A hereto, which Collateral Property consists of
(i) fee and leasehold interests in real properties and all improvements thereon
and (ii) promissory notes or bonds, the loans evidenced thereby and the
collateral therefor.
B. Borrowers and Lender have entered into a Credit Agreement
(as amended, modified or supplemented from time to time, the "Credit Agreement")
of even date herewith pursuant to which Lender agreed to make loans to
Borrowers.
C. The loans to Borrowers under the Credit Agreement are
evidenced by notes (as amended, modified or supplemented from time to time, the
"Notes") of even date herewith, and are secured by, among other things, the
Collateral Property.
D. Each Borrower has entered into one or more Cash Collateral
Agreements (as amended, modified or supplemented from time to time, the "Cash
Collateral Agreements" and, each individually, a "Cash Collateral Agreement")
with Lender of even date herewith, pursuant to which Borrowers agreed to deposit
certain proceeds in respect of the Collateral Property into
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Collateral Accounts (as defined in the Cash Collateral
Agreements).
E. Pursuant to the Credit Agreement, Borrower agreed to enter
into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the sum
of Ten Dollars ($10.00) in hand paid by Borrowers to Lender and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Definitions.
(a) As used herein, the following terms shall have the
meanings set forth below:
"Xxxxx Xxxx Construction Expenses" shall mean
expenses in respect of the redevelopment of the Xxxxx Xxxx Property, which
expenses are not funded by Lender as advances under Section 5.03 of the Credit
Agreement, but are funded by River Bank to Eastview pursuant to, and in
accordance with, the New Xxxxx Xxxx Building Loan Agreement.
"General Reserve Amount" shall mean the dollar
amount designated by Borrowers, in their sole discretion, from time to time as
the General Reserve Amount by written notice thereof to Lender.
"Payment Amount" shall have the meaning assigned
to such term in the WTC Agreement.
"Payment Date" shall have the meaning assigned to
such term in the WTC Agreement.
"Permitted Expenses" shall mean (i) general and
administrative expenses of River Bank, RB Management Company and their
respective subsidiaries, (ii) working capital needs of River Bank, RB Management
Company and their respective subsidiaries, (iii) operating shortfalls for the
Collateral Property (to the extent there are insufficient funds available in the
applicable Operating Shortfall Reserve Subaccount under the
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applicable Cash Collateral Agreement), (iv) operating shortfalls for the
Secondary Collateral and (v) up to $2,000,000 of Xxxxx Xxxx Construction
Expenses.
"Secondary Collateral Net Cash Flow" shall mean,
as of any date of determination, the positive balance in the
Secondary Collateral Operating Account.
"Secondary Collateral Operating Account" shall
mean an account in the name of, and controlled by, River Bank at Lender
established for purposes of collecting and distributing income and expenses in
respect of the Secondary Collateral.
"WTC Agreement" shall mean the World Trade Center
Branch Deposit Protection Agreement, of even date herewith, between River Bank
and Lender.
(b) The following terms shall have the meanings assigned to
them in the Cash Collateral Agreements: Available Cash, Collateral Account,
Reserve Subaccount.
(c) Any capitalized term used herein but not otherwise defined
herein shall have the same meaning as it has in the Credit Agreement.
2. Master Account.
(a) Borrowers have established a restricted, interest-bearing
money market account in the name of River Bank at Lender (the "Master Account").
Subject to the provisions of this Agreement and the Credit Agreement, Lender
shall have the sole right to make withdrawals from the Master Account and to
exercise all rights with respect to the cash from time to time therein. The
Master Account may contain one or more subaccounts (each, a "Master Reserve
Subaccount") maintained by Lender on a ledger basis for purposes of holding the
reserves to be funded under Section 4.
(b) On the first Business Day of each calendar month, Lender
shall transfer to the Master Account 100% of the Available Cash in each of the
Collateral Accounts pursuant to Section 4(a)(3) of the Cash Collateral
Agreements (after funding of
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expenses and reserves under Sections 4(a)(1) and (2) of the Cash
Collateral Agreements).
(c) On the first Business Day of each calendar month, and at
such other times as River Bank may elect, River Bank shall deposit, or shall
cause to be deposited, into the Master Account all Secondary Collateral Net Cash
Flow.
3. Pledge of Collateral. As collateral security for the prompt
payment by Borrowers, as and when due and payable, of all of the Obligations,
Borrowers hereby pledge, transfer and assign to Lender, and grant to Lender, as
additional security for (y) the payment and performance of the Notes and the
obligations of Borrowers under the other Loan Documents, and (z) the obligations
of River Bank under Section 3 of the WTC Agreement, a continuing perfected
security interest in and to, and a general first lien upon, the following
(collectively, the "Collateral"): (a) the Master Account and all of Borrowers'
right, title and interest in and to all cash, property or rights transferred to
or deposited in the Master Account from time to time by Borrowers or on behalf
of Borrowers in accordance with the provisions of this Agreement, (b) all
earnings, investments and securities held in the Master Account in accordance
with this Agreement and the Credit Agreement and (c) any and all proceeds of the
foregoing.
4. Application of Cash in Master Account.
(a) On the first Business Day of each calendar month, the sums
in the Master Account, including the interest thereon but excluding sums held in
any Master Reserve Subaccounts, shall be paid and applied by Lender as follows
and in the following order of priority:
(1) FIRST, to pay accrued and unpaid interest due in respect of
the Notes;
(2) SECOND, the balance, if any, to the WTC Reserve Subaccount until there
is on deposit therein (exclusive of funds constituting interest accrued
on the WTC Reserve Subaccount) an amount equal to $500,000 multiplied
by the number of complete calendar months that have elapsed since the
date hereof, up to a maximum of $5,000,000.
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(3) THIRD, the balance, if any, to the General Reserve
Subaccount until an amount equal to the General Reserve
Amount is on deposit therein; and
(4) FOURTH, the balance, if any ("Cash Available for Principal Reduction"),
shall be paid to Lender for application to the Obligations as provided
in the Credit Agreement, subject to the proviso set forth in Section
2.08(d) of the Credit Agreement.
Except as provided in Section 4(b) below, Lender shall have no liability to
Borrower for Lender's failure to make any payments from the Master Account.
Notwithstanding anything to the contrary in this Section 4, upon the occurrence
and during the continuance of an Event of Default, Lender may apply all or part
of the monies in the Master Account to the payment of all or any part of the
Obligations, in such manner as Lender may elect in its sole discretion.
(b) To the extent there are insufficient sums in the Master
Account, including the interest thereon but excluding sums held in any Master
Reserve Subaccounts, to make the payments of interest required under Section
4(a)(1), then Lender shall apply any sums on deposit in the General Reserve
Subaccount to make the required interest payments. To the extent there are still
insufficient sums to make the payments of interest required under Section
4(a)(1), then Lender shall apply any sums on deposit in any of the Reserve
Subaccounts (other than any Tax Reserve Subaccounts) under the Cash Collateral
Agreements to make the required interest payments.
(c) Lender shall release funds from the General Reserve
Subaccount for payment of Permitted Expenses to operating accounts of River Bank
or its designee on the first Business Day of each calendar month, provided (1)
no Event of Default shall have occurred and be continuing, (2) River Bank shall
have delivered to Lender a Request for Disbursement in the form of Exhibit B
annexed hereto on or before the twentieth day of the preceding calendar month,
which Request for Disbursement sets forth in detail reasonably satisfactory to
Lender the unpaid Permitted Expenses for the next following calendar month
and/or for a previous calendar month which are proposed to be paid from
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the requested disbursement, (3) such costs and expenses are in conformance with
the then current operating budget for River Bank and its subsidiaries prepared
by River Bank or RB Management Company LLC and approved by Lender (or are
otherwise reasonably approved by Lender), (4) Lender has received evidence
satisfactory to Lender of the application of the funds released during the
previous month to the costs and expenses for which such funds were released, and
(5) in the case of any Xxxxx Xxxx Construction Expenses, each of the conditions
set forth in Section 5.03 of the Credit Agreement shall have been satisfied
(notwithstanding that the disbursement does not constitute an advance
thereunder). Disbursements for operating shortfalls in respect of the Secondary
Collateral shall be transferred to the Secondary Collateral Operating Account.
(d) Lender shall pay and apply the funds from the WTC Reserve
Subaccount to payment of the Payment Amount on the Payment Date. Upon payment of
the Payment Amount, or the determination by Lender under Section 3(b)(i) of the
WTC Agreement that River Bank has no further obligation to keep any funds in the
WTC Reserve Subaccount, any funds remaining in the WTC Reserve Subaccount shall
be treated in the same manner as any other amounts deposited in the Master
Account under Section 4(a). Upon such payment and/or application, Borrower's
obligations to fund the WTC Reserve Subaccount pursuant to Section 4(a)(2) shall
cease.
5. Reallocation of Reserve Subaccounts. Except with
respect to the Tax Reserve Subaccounts, Lender shall not withhold
its consent to a proposed change by Borrowers to the required
level of any Reserve Subaccount or to any reallocation among the
Reserve Subaccounts of balances therein.
6. Secondary Collateral Operating Account. Borrowers shall
deposit, or cause to be deposited, into the Secondary Collateral Operating
Account any and all rents, issues, profits, dividends, and income of every kind
(whether in the form of cash or any kind of cash equivalent described in Section
363(a) of the Bankruptcy Code) actually received by the Loan Parties which arise
from or are generated by the Secondary Collateral and any and all rentals,
operations or sales thereof. Borrowers shall pay, or cause to be paid, any and
all costs and expenses of every
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kind which arise from or are generated by the Secondary Collateral and any and
all rentals, operations or sales thereof. Borrowers shall not commingle funds on
deposit in the Secondary Collateral Operating Account with any other funds of
Borrowers. Pursuant to Section 6.05(d) of the Credit Agreement, Borrowers shall
prepare and deliver to Lender a statement of "sources" and "uses" of cash from
the Secondary Collateral Operating Account.
7. Further Assurances. Borrowers agree that at any time and
from time to time, at Borrowers' expense, they will promptly execute and deliver
all further instruments and documents and take all further action that may be
necessary or that Lender may reasonably request in order to perfect and protect
the security interest created hereby or to enable Lender to exercise and enforce
its rights and remedies hereunder in respect of the Collateral. If Borrowers
fail to perform any agreement or obligation contained herein, Lender itself may
perform or cause performance of such agreement or obligation, and the reasonable
out-of-pocket expenses of Lender incurred in connection therewith shall be
payable to Lender by Borrowers pursuant to Section 8 hereof.
8. Reasonable Care. Other than the exercise of reasonable care
to assure the safe custody of the Collateral while held hereunder, Lender shall
have no duty or liability to preserve rights pertaining thereto and shall be
relieved of all responsibility for the Collateral upon releasing it or tendering
release of it to Borrowers. For purposes of this Section 8, Lender shall be
deemed to have exercised reasonable care in the custody and preservation of the
Collateral in its possession if the Collateral is accorded treatment
substantially equal to that which Lender accords its own property, it being
understood that Lender shall not have any responsibility for ascertaining or
taking action with respect to any matters relative to any Collateral, whether or
not Lender has or is deemed to have knowledge of such matters. Nothing contained
herein shall be deemed to create any fiduciary obligation on the part of Lender
to Borrowers hereunder.
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9. Remedies Upon Event of Default. Borrowers acknowledge that:
(a) Lender may exercise in respect of the Collateral, in
addition to other rights and remedies provided for herein or in any other Loan
Document (including, without limitation, Section 9.06 of the Credit Agreement)
or otherwise available to it, all of the rights and remedies of a secured party
on default under the Uniform Commercial Code then in effect in the State of New
York (whether or not the Uniform Commercial Code applies to all or any portion
of the Collateral), and Lender may also, without notice except as specified
below, sell the Collateral or any part thereof in one or more parcel at public
or private sale, at any exchange, broker's board or at any of Lender's offices
or elsewhere, for cash, on credit, or for future delivery, and at such price or
prices and upon such other terms as Lender may deem commercially reasonable.
Borrowers agree that, to the extent notice of sale shall be required by law, at
least twenty days' notice to Borrower of the time and place of any public sale
or the time after which any private sale is to be made shall constitute
reasonable notification. Lender shall not be obligated to make any sale of
Collateral regardless of notice of sale having been given. Lender may adjourn
any public or private sale from time to time (by announcement, in the case of
any public sale, at the time and place fixed therefor), and such sale may,
without further notice, be made at the time and place to which it was so
adjourned.
(b) Any cash held by Lender as Collateral and all cash
proceeds received by Lender in respect of any sale of, collection from, or other
realization upon all or any part of the Collateral shall be applied (after
payment of any amounts payable to Lender hereunder) by Lender against all or any
part of the Obligations in such order as Lender may elect or held for future
application against such Obligations. Each Borrower for itself and its
successors and assigns, hereby irrevocably waives and releases, to the extent
permitted by law, and whether now or hereafter in force, (i) the benefit of any
and all valuation and appraisement laws, (ii) any right or redemption whether
statutory or otherwise, in respect of the Collateral Property, (iii) any
applicable homestead or dower laws, and (iv) all exemption laws
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whatsoever and all moratoriums, extensions or stay laws or rules, or orders of
court in the nature of any one or more of them.
10. No Liability; Expenses.
(a) Borrowers hereby agree that Lender and its officers,
directors, employees, agents and representatives shall not have any liability
whatsoever for any damages (whether consequential, compensatory, punitive,
special or any other type of damage) to Borrowers or any third party for any
error, act, delay or omission by Lender or such officers, directors, employees,
agents and representatives, except as result of their gross negligence or wilful
misconduct. Under no circumstances whatsoever shall Lender be or be deemed to be
a fiduciary of a Borrower and Lender shall have no duty to account to any party
whatsoever for sums received by or disbursed from the Master Account or
otherwise (except for delivery of bank statements in the ordinary course of
business). Lender shall in no event be liable to any party whatsoever for any
failure to pay expenses or for insufficiency of funds with which to pay same.
(b) Lender may deduct from the Collateral and pay to itself
all actual, out-of-pocket expenses incurred by Lender in connection with this
Agreement.
(c) Nothing in this Agreement is intended in any way to limit
any indemnifications set forth in the Loan Documents.
(d) The provisions of this Section 10 shall survive the
expiration or earlier termination of this Agreement.
11. Notices. All notices and other communications provided for
hereunder shall be in writing and shall be given in accordance with Section 9.01
of the Credit Agreement.
12. Continuing Security Interest; Termination.
(a) This Agreement shall create a continuing security interest
in and lien on the Collateral and shall (i) remain in full force and effect
until all of the Obligations shall have been paid in full or the Collateral
Property shall have ben
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DOC #1293162
released from the Lien of the Security Documents, (ii) be binding on Borrower
and its successors and assigns and (iii) inure, together with all rights and
remedies of Lender hereunder, to the benefit of Lender and its successors,
transferees and assigns in respect of the Loan Documents.
(b) None of the rights or obligations of Borrowers hereunder
may be assigned or otherwise transferred without the prior written consent of
Lender, which consent may be granted or withheld by Lender in its sole and
absolute discretion.
13. No Waiver or Modification.
(a) No failure or delay of Lender in exercising any power or
right hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of Lender hereunder are cumulative and not exclusive of any rights
or remedies which it may otherwise have. No waiver of any provision of this
Agreement nor consent to any departure by Borrowers therefrom shall in any event
be effective unless the same shall be authorized as provided in paragraph (b)
below, and then such waiver or consent shall be effective only in the spe cific
instance and for the purpose for which given. No notice to or demand on
Borrowers in any case shall entitle it to any other or further notice or demand
in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to an agree ment or agreements in
writing entered into by Borrower and Lender.
14. Miscellaneous.
(a) In the event any one or more of the provisions contained
in this Agreement should be held invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein or therein shall not in any way be affected or impaired
thereby.
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(b) This Agreement shall be construed in accordance with and
governed by the laws of the state of New York applicable to agreements executed
and to be performed in New York.
(c) EXCEPT AS PROHIBITED BY LAW, EACH PARTY HERETO HEREBY
WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date and year first above written.
MARINE MIDLAND BANK
By:/s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx
Senior Vice President
RIVER BANK AMERICA
By:/s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx
President
260 WEST SUNRISE CORP.
By:/s/ Xxxxxx X. Xxxxxxx, III
Xxxxxx X. Xxxxxxx, III
Vice President
XXXXXXX STOWE, INC.
By:/s/ Xxxxxx X. Xxxxxxx, III
Xxxxxx X. Xxxxxxx, III
Vice President
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DOC #1293162
XXXXXX PROPERTY CORP.
By:/s/ Xxxxxx X. Xxxxxxx, III
Xxxxxx X. Xxxxxxx, III
Vice President
ACACIAS-MURRIETA, INC.
By:/s/ Xxxxxx X. Xxxxxxx, III
Xxxxxx X. Xxxxxxx, III
Vice President
OLD CROW CANYON OFFICE, INC.
By:/s/ Xxxxxx X. Xxxxxxx, III
Xxxxxx X. Xxxxxxx, III
Vice President
RR IRVINGTON ASSOCIATES, L.P.
By: RR Irvington Development
Corp., general partner
By:/s/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx
Vice President
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DOC #1293162
MARINE MIDLAND BANK
Xxx XXX Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
July 15, 0000
Xxxxx Xxxx Xxxxxxx
c/o RB Management Company
000 Xxxxx Xxx. - 0xx Xxxxx
Xxx Xxxx, XX 00000
Gentlemen:
We refer to the Credit Agreement dated as of June 28, 1996
among River Bank America ("RBA"), Marine Midland Bank ("Marine") and certain
affiliates of RBA (the "Credit Agreement") pursuant to which Marine agreed to
lend the Borrowers (as defined in the Credit Agreement) up to $99,060,000.
This will confirm that the closing of the facility
contemplated by the Credit Agreement (the "Facility") occurred on June 28, 1996
and that, as an accommodation to Borrowers, on such date Marine funded the
portion of the Facility that was required to be funded at the closing,
notwithstanding that, due to time constraints, the documentation for the
Facility was not then fully complete and that certain last minute changes agreed
to by the parties prior to funding (including, without limitation, the increase
in the size of the Facility from $91,860,000 to $99,060,000 and the agreement of
the parties set forth in Article IX-A of the Credit Agreement) were, because of
time constraints, incorporated into the closing documents by counsel for the
parties only following such funding.
This will evidence our agreement that (i) the final documents,
as agreed to by Marine's counsel, Xxxx, Scholer, Fierman, Xxxx & Handler, LLP,
and Borrowers' counsel, Battle Xxxxxx LLP, after full disclosure to and
consultation with their respective clients, and delivered on the date hereof,
constitute the final
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and complete agreement of the parties with respect to the Facility and, as such,
are fully binding on the parties and (ii) all such documents, whether executed
and/or finalized before or after the funding, shall be deemed to have been
executed and delivered immediately prior to the funding.
Sincerely,
MARINE MIDLAND BANK
By: /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Vice President
AGREED TO:
RIVER BANK AMERICA
By: /s/ Xxxxxx X. XxXxxxxx
Xxxxxx X. XxXxxxxx
Chief Executive Officer
260 WEST SUNRISE CORP.
By: /s/ Xxxxx Xxxxxx
Xxxxx Xxxxxx
Assistant Secretary
XXXXXXX XXXXX, INC.
By: /s/ Xxxxx Xxxxxx
Xxxxx Xxxxxx
Assistant Secretary
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XXXXXX PROPERTY CORP.
By: /s/ Xxxxx Xxxxxx
Xxxxx Xxxxxx
Assistant Secretary
ACACIAS-MURRIETA, INC.
By: /s/ Xxxxx Xxxxxx
Xxxxx Xxxxxx
Assistant Secretary
OLD CROW CANYON OFFICE, INC.
By: /s/ Xxxxx Xxxxxx
Xxxxx Xxxxxx
Assistant Secretary
RR IRVINGTON ASSOCIATES, L.P.
By: RR Irvington Development Corp.,
general partner
By: /s/ Xxxxx Xxxxxx
Xxxxx Xxxxxx
Assistant Secretary
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