MASTER LOAN AGREEMENT
Dated: As of November 24, 2003
Among
THE XXXXXXX MASTER LIMITED PARTNERSHIP, a Delaware
limited partnership
("NMLP")
and
FLEET NATIONAL BANK ("Agent"),
and
FLEET NATIONAL BANK
and any other Lenders, which are, or may become,
parties to this Agreement ("Lenders")
$208,473,427.27 Credit Facility
------------------------------------------------------------------------------
T-TWO PARTNERS, L.P. , a Delaware
limited partnership
("T-Two")
and
FLEET NATIONAL BANK,
and
FLEET NATIONAL BANK
and any other Lenders, which are, or may become, parties to this Agreement
$316,526,572.73 Credit Facility
----------------
FLEET SECURITIES, INC. ("Syndication Agent")
----------------
TABLE OF CONTENTS
Page
----
1. BACKGROUND...............................................................................................1
1.1 Defined Terms...................................................................................1
1.2 Borrowers.......................................................................................1
1.3 NMLP Loan.......................................................................................1
1.4 T-Two Loan......................................................................................1
1.5 Guaranties and Indemnities......................................................................2
1.6 Loans...........................................................................................2
2. LOAN PROVISIONS..........................................................................................3
2.1 Amount of Loans.................................................................................3
2.2 Term of Loans; Extension Rights.................................................................3
2.3 Interest Rate and Payment Terms.................................................................3
2.3.1 Options..............................................................................3
2.3.2 Selection To Be Made.................................................................3
2.3.3 Notice ..............................................................................4
2.3.4 Conversion of Other Advances.........................................................4
2.3.5 Telephonic Notice....................................................................4
2.3.6 Limits On Options, One Selection Per Month...........................................4
2.3.7 Payment and Calculation of Interest..................................................4
2.3.8 Principal............................................................................4
2.3.9 Prepayment...........................................................................8
2.3.10 Maturity.............................................................................9
2.3.11 Method of Payment; Date of Credit....................................................9
2.3.12 Xxxxxxxx.............................................................................9
2.3.13 Default Rate.........................................................................9
2.3.14 Late Charges.........................................................................9
2.3.15 Prepayment Costs.....................................................................9
2.4 Loan Fees; Agent's Fees........................................................................10
2.4.1 Agent's Fees........................................................................10
2.4.2 Extension Fees......................................................................10
2.5 Acceleration...................................................................................10
2.6 Conditions to Extending Loan...................................................................10
2.6.1 No Default..........................................................................10
2.6.2 Notice From Borrowers...............................................................10
2.6.3 Covenant Compliance.................................................................10
2.6.4 Exercise of Remainder Ground Lease Options and Ground Lease
Extension Options...................................................................10
2.6.5 Conditions Satisfied................................................................11
2.6.6 Extension Fee.......................................................................11
2.6.7 Additional Documents................................................................11
2.6.8 Before End of Term..................................................................11
2.7 Additional Provisions Related to Interest Rate Selection.......................................11
2.7.1 Increased Costs.....................................................................11
2.7.2 Illegality..........................................................................12
2.7.3 Additional Eurodollar Conditions....................................................12
(i)
2.7.4 Variable Rate Advances..............................................................14
3. SECURITY FOR THE LOANS; LOAN AND SECURITY DOCUMENTS.....................................................14
3.1 Security for NMLP Loan.........................................................................14
3.1.1 Security Agreement..................................................................14
3.1.2 NMLP Ownership Interest Pledge and Security Agreement...............................14
3.1.3 Depository Account Pledge and Security Agreements...................................16
3.1.4 Collateral Assignment of Interest Rate Protection Agreement.........................16
3.1.5 NMLP Subsidiaries and NMLP Loan Parties Security
Agreements..........................................................................16
3.1.6 NMLP Partnership GPs Ownership Interest Pledge and Security
Agreement...........................................................................16
3.1.7 Xxxxxxx XX LLC Ownership Interest Pledge and Security
Agreement...........................................................................17
3.1.8 Xxxxxxx XX Holding LLC Ownership Interest Pledge and
Security Agreement..................................................................17
3.1.9 Collateral Assignment by Xxxxxxx Xxxxx LLC of Administrator
LLC Loan............................................................................17
3.1.10 Xxxxxxx MLP Unit LLC Ownership Interest Pledge and Security
Agreement...........................................................................17
3.1.11 Pledge of Ownership Interest in NK-Leyden Loan, L.P.................................17
3.1.12 Pledge of Ownership Interest in Subsidiary Limited Partnerships.....................17
3.1.13 Pledge of Ownership Interest in NK-Dautec Loan, L.P.................................17
3.1.14 Collateral Assignment of Tustin Loan................................................18
3.1.15 Pledge of Ownership Interest in T-Two Partners, L.P.................................18
3.1.16 Pledge of Ownership Interest in Holding Subsidiary LLC..............................18
3.1.17 Pledge of Ownership Interest in NK-CR Corp..........................................18
3.1.18 Pledge of Ownership Interest in NK-CR Holdings LLC..................................18
3.1.19 Pledge of Ownership Interest in Xxxxxxx Stock LLC...................................18
3.1.20 Pledge of Ownership Interest by MLP GP LLC of General
Partnership Interest in NMLP........................................................18
3.1.21 Pledge of Ownership Interest in MLP GP LLC..........................................18
3.1.22 Xxxxxxx Indemnification.............................................................19
3.1.23 Guaranties..........................................................................19
3.1.24 Environmental Compliance and Indemnification Agreement..............................19
3.1.25 Escrow Agreement Respecting Ground Lease Extensions and
Lease Options.......................................................................19
3.1.26 Additional Documents................................................................20
3.2 NMLP Loan Documents and NMLP Security Documents................................................20
3.3 Security for T-Two Loan........................................................................20
3.3.1 Security Agreement..................................................................20
3.3.2 Collateral Assignment of Beneficial Interest in Grantor Trust.......................20
3.3.3 Collateral Assignment of Intercompany Loan..........................................20
3.3.4 Depository Account Pledge and Security Agreement....................................20
3.3.5 Guaranties..........................................................................20
3.3.6 Collateral Assignment of Interest Rate Protection Agreement.........................21
3.3.7 Additional Documents................................................................21
3.4 T-Two Loan Documents and T-Two Security Documents..............................................21
4. CONTINUING AUTHORITY OF AUTHORIZED REPRESENTATIVES......................................................21
(ii)
5. CONDITIONS PRECEDENT....................................................................................21
5.1 Closing NMLP Loan and Funding NMLP Loan Advance................................................21
5.1.1 Satisfactory NMLP Loan Documents and Related Documents;
Loan Agenda Items...................................................................22
5.1.2 Financial Information; No Material Change...........................................22
5.1.3 Warranties and Representations Accurate.............................................22
5.1.4 Validity and Sufficiency of NMLP Security Documents.................................22
5.1.5 Payment Direction And Authorization.................................................23
5.1.6 Integrated Matters..................................................................23
5.1.7 Litigation..........................................................................23
5.1.8 Formation Documents and Entity Agreements...........................................23
5.1.9 Compliance With Law.................................................................24
5.1.10 Compliance With Financial Covenants.................................................24
5.1.11 Due Diligence.......................................................................24
5.1.12 Condition of Property...............................................................25
5.1.13 Insurance...........................................................................25
5.1.14 Third Party Consents and Agreements.................................................25
5.1.15 Management Agreements...............................................................25
5.1.16 Cash Management.....................................................................25
5.1.17 Loan Facility Rating................................................................25
5.1.18 Interest Rate Protection Agreement..................................................26
5.1.19 Legal Opinions......................................................................26
5.1.20 No Default..........................................................................26
5.2 Closing T-Two Loan and Funding T-Two Loan Advance..............................................26
5.2.1 Satisfactory T-Two Loan Documents and Related Documents;
Loan Agenda Items...................................................................26
5.2.2 Financial Information; No Material Change...........................................26
5.2.3 Warranties and Representations Accurate.............................................27
5.2.4 Validity and Sufficiency of T-Two Security Documents................................27
5.2.5 Payment Direction And Authorization.................................................27
5.2.6 Litigation..........................................................................27
5.2.7 Formation Documents and Entity Agreements...........................................28
5.2.8 Compliance With Law.................................................................28
5.2.9 Due Diligence.......................................................................29
5.2.10 Condition of Property...............................................................29
5.2.11 Insurance...........................................................................29
5.2.12 Third Party Consents and Agreements.................................................29
5.2.13 Cash Management.....................................................................29
5.2.14 Interest Rate Protection Agreement..................................................29
5.2.15 Legal Opinions......................................................................29
5.2.16 Refinance...........................................................................29
5.2.17 No Default..........................................................................30
6. WARRANTIES AND REPRESENTATIONS..........................................................................30
6.1 NMLP...........................................................................................30
6.1.1 Formation...........................................................................30
6.1.2 Proceedings; Enforceability.........................................................30
(iii)
6.1.3 Conflicts...........................................................................30
6.1.4 Ownership and Taxpayer Identification Numbers.......................................31
6.1.5 Litigation..........................................................................31
6.1.6 Information.........................................................................31
6.1.7 Taxes.............................................................................31
6.1.8 Financial Information...............................................................32
6.1.9 Management Agreements...............................................................32
6.1.10 Control Provisions..................................................................32
6.1.11 Formation Documents.................................................................32
6.1.12 Related Documents...................................................................32
6.1.13 Bankruptcy Filings..................................................................32
6.1.14 Options.............................................................................33
6.1.15 Investment Company..................................................................33
6.1.16 Holding Company.....................................................................33
6.1.17 Securitization Documents............................................................33
6.1.18 Individual Properties...............................................................33
6.1.19 Use of Proceeds.....................................................................36
6.1.20 Insurance...........................................................................36
6.1.21 Deferred Compensation and ERISA.....................................................36
6.1.22 No Default..........................................................................36
6.1.23 Xxxxxxx Loans.......................................................................37
6.1.24 Integrated Documents................................................................37
6.1.25 Other NMLP Loan Parties' Warranties and Representations.............................37
6.2 T-Two..........................................................................................37
6.2.1 Formation...........................................................................37
6.2.2 Proceedings; Enforceability.........................................................37
6.2.3 Conflicts...........................................................................38
6.2.4 Ownership and Taxpayer Identification Numbers.......................................38
6.2.5 Litigation..........................................................................38
6.2.6 Information.........................................................................38
6.2.7 Taxes .............................................................................38
6.2.8 Financial Information...............................................................39
6.2.9 Formation Documents.................................................................39
6.2.10 Related Documents...................................................................39
6.2.11 Bankruptcy Filings..................................................................39
6.2.12 Options.............................................................................39
6.2.13 Investment Company..................................................................39
6.2.14 Holding Company.....................................................................39
6.2.15 Securitization Documents............................................................39
6.2.16 Use of Proceeds.....................................................................39
6.2.17 Insurance...........................................................................40
6.2.18 Deferred Compensation and ERISA.....................................................40
6.2.19 No Default..........................................................................40
6.2.20 Other T-Two Loan Parties' Warranties and Representations............................40
7. AFFIRMATIVE COVENANTS...................................................................................40
7.1 NMLP...........................................................................................40
7.1.1 Notices.............................................................................40
7.1.2 Financial Statements; Reports; Officer's Certificates...............................40
7.1.3 Existence...........................................................................46
7.1.4 Payment of Taxes....................................................................46
(iv)
7.1.5 Insurance; Casualty, Taking.........................................................46
7.1.6 Inspection..........................................................................47
7.1.7 NMLP Loan Documents.................................................................47
7.1.8 Further Assurances..................................................................47
7.1.9 Books and Records...................................................................47
7.1.10 Business and Operations.............................................................48
7.1.11 Title. .............................................................................48
7.1.12 Estoppel............................................................................48
7.1.13 ERISA. .............................................................................48
7.1.14 Depository Accounts.................................................................49
7.1.15 Cash Flow; NMLP Payment Direction Letters...........................................49
7.1.16 Distributions.......................................................................52
7.1.17 Exercise of Ground Lease Extension Options and Remainder
Ground Lease Options................................................................53
7.1.18 Control Preservation................................................................53
7.1.19 Costs and Expenses..................................................................53
7.1.20 Appraisals..........................................................................54
7.1.21 Indemnification.....................................................................54
7.1.22 Leasing Matters.....................................................................55
7.1.23 Future Collateral Obligations.......................................................56
7.1.24 Economic Discontinuance.............................................................58
7.1.25 Replacement Documentation...........................................................59
7.1.26 Other Covenants.....................................................................59
7.1.27 Related Documents...................................................................59
7.1.28 T/I Fund Account....................................................................60
7.1.29 Single-Purpose Entity...............................................................61
7.1.30 Ratings.............................................................................61
7.2 T-Two..........................................................................................61
7.2.1 Notices.............................................................................62
7.2.2 Financial Statements; Reports; Officer's Certificates...............................62
7.2.3 Existence...........................................................................64
7.2.4 Payment of Taxes....................................................................64
7.2.5 Insurance; Casualty, Taking.........................................................64
7.2.6 Inspection..........................................................................64
7.2.7 T-Two Loan Documents................................................................64
7.2.8 Further Assurances..................................................................65
7.2.9 Books and Records...................................................................65
7.2.10 Business and Operations.............................................................65
7.2.11 Title. .............................................................................65
7.2.12 Estoppel............................................................................66
7.2.13 ERISA. .............................................................................66
7.2.14 Depository Accounts.................................................................66
7.2.15 Cash Flow; T-Two Payment Direction Letters..........................................67
7.2.16 Costs and Expenses..................................................................67
7.2.17 Indemnification.....................................................................68
7.2.18 Replacement Documentation...........................................................68
7.2.19 Other Covenants.....................................................................68
7.2.20 Single-Purpose Entity...............................................................68
7.2.21 Intercompany Loan...................................................................69
7.3 Financial Covenants............................................................................69
7.3.1 Debt Service Coverage Ratios........................................................69
7.3.2 Consolidated Leverage Ratio.........................................................71
7.3.3 Minimum Liquidity...................................................................71
(v)
7.3.4 Minimum Consolidated Net Worth......................................................72
8. NEGATIVE COVENANTS......................................................................................72
8.1 NMLP...........................................................................................72
8.1.1 No Changes to NMLP and other NMLP Loan Parties......................................73
8.1.2 Restrictions on Liens...............................................................73
8.1.3 Consolidations, Mergers, Sales of Assets, Issuance and Sale of
Equity..................................................................................................74
8.1.4 Restrictions on Debt................................................................75
8.1.5 Respecting Individual Properties....................................................76
8.1.6 Respecting Ground Lease Extension Options and Remainder
Ground Lease Options................................................................76
8.1.7 Other Business......................................................................76
8.1.8 Change of Control...................................................................76
8.1.9 Forgiveness of Debt.................................................................77
8.1.10 Affiliate Transactions..............................................................77
8.1.11 Amendments; Terminations of Related Documents.......................................77
8.1.12 ERISA. .............................................................................77
8.1.13 Bankruptcy Filings..................................................................77
8.1.14 Investment Company..................................................................77
8.1.15 Holding Company.....................................................................77
8.1.16 Use of Proceeds.....................................................................77
8.1.17 Advances and Loans..................................................................77
8.1.18 Distributions.......................................................................77
8.1.19 Restrictions on Investments.........................................................78
8.1.20 Contracts of a Material or Significant Nature.......................................78
8.1.21 Consulting or Management Fees.......................................................78
8.1.22 Negative Pledges, etc...............................................................78
8.1.23 Xxxxxxx Business Transactions.......................................................79
8.1.24 Limitations On Certain Transactions.................................................79
8.2 T-Two..........................................................................................79
8.2.1 No Changes to T-Two and other T-Two Loan Parties....................................79
8.2.2 Restrictions on Liens...............................................................79
8.2.3 Consolidations, Mergers, Sales of Assets, Issuance and Sale of
Equity..............................................................................80
8.2.4 Restrictions on Debt................................................................80
8.2.5 Other Business......................................................................81
8.2.6 Change of Control...................................................................81
8.2.7 Forgiveness of Debt.................................................................81
8.2.8 Affiliate Transactions..............................................................81
8.2.9 Amendments; Terminations of Related Documents.......................................81
8.2.10 ERISA. .............................................................................81
8.2.11 Bankruptcy Filings..................................................................81
8.2.12 Investment Company..................................................................81
8.2.13 Holding Company.....................................................................81
8.2.14 Use of Proceeds.....................................................................81
8.2.15 Advances and Loans..................................................................82
8.2.16 Distributions.......................................................................82
8.2.17 Restrictions on Investments.........................................................82
8.2.18 Contracts of a Material or Significant Nature.......................................82
8.2.19 Negative Pledges, etc...............................................................82
(vi)
8.2.20 Limitations On Certain Transactions.................................................82
9. SPECIAL PROVISIONS......................................................................................83
9.1 Legal Requirements.............................................................................83
9.2 NMLP Distributions.............................................................................83
9.2.1 Notice of Intention to Distribute...................................................83
9.2.2 Conditions Must Be Satisfied........................................................83
9.2.3 Current Information.................................................................83
9.3 Limited Recourse Provisions....................................................................84
9.3.1 Borrower Fully Liable...............................................................84
9.3.2 Certain Non-Recourse................................................................84
9.3.3 Additional Matters..................................................................84
9.4 Payment of Obligations.........................................................................84
10. EVENTS OF DEFAULT.......................................................................................85
10.1 Default and Events of Default..................................................................85
10.1.1 NMLP .............................................................................85
10.1.2 T-Two .............................................................................88
10.2 Grace Periods and Notice.......................................................................91
10.2.1 No Notice or Grace Period...........................................................91
10.2.2 Nonpayment of Interest and Principal................................................91
10.2.3 Other Monetary Defaults.............................................................91
10.2.4 Nonmonetary Defaults................................................................91
11. REMEDIES................................................................................................92
11.1 Remedies.......................................................................................92
11.1.1 Accelerate Debt.....................................................................92
11.1.2 Pursue Remedies.....................................................................92
11.2 Written Waivers................................................................................92
11.3 Power of Attorney..............................................................................92
12. SECURITY INTEREST AND SET-OFF...........................................................................92
12.1 Security Interest..............................................................................92
12.2 Set-Off........................................................................................92
12.3 Application....................................................................................93
12.4 Right to Freeze................................................................................93
12.5 Additional Rights..............................................................................93
13. THE AGENT AND THE LENDERS...............................................................................93
13.1 Rights, Duties and Immunities of the Agent.....................................................93
13.1.1 Appointment of Agent................................................................93
13.1.2 Administration of Loan by Agent.....................................................94
13.1.3 Delegation of Duties................................................................94
(vii)
13.1.4 Exculpatory Provisions..............................................................94
13.1.5 Reliance by Agent...................................................................95
13.1.6 Notice of Default...................................................................95
13.1.7 Lenders' Credit Decisions...........................................................95
13.1.8 Agent's Reimbursement and Indemnification...........................................95
13.1.9 Agent in its Individual Capacity....................................................96
13.1.10 Successor Agent.....................................................................96
13.1.11 Duties in the Case of Enforcement...................................................96
13.2 Respecting Loans and Payments..................................................................97
13.2.1 Procedures for Loans................................................................97
13.2.2 Nature of Obligations of Lenders....................................................97
13.2.3 Payments to Agent...................................................................97
13.2.4 Distribution of Liquidation Proceeds................................................98
13.2.5 Adjustments.........................................................................98
13.2.6 Setoff .............................................................................99
13.2.7 Distribution by Agent...............................................................99
13.2.8 Delinquent Lender...................................................................99
13.2.9 Holders............................................................................100
13.3 Assignment and Participation..................................................................100
13.3.1 Conditions to Assignment by Lenders................................................100
13.3.2 Certain Representations and Warranties.............................................101
13.3.3 Register...........................................................................102
13.3.4 Register Notation..................................................................102
13.3.5 Participations.....................................................................102
13.3.6 Disclosure.........................................................................102
13.3.7 Miscellaneous Assignment Provisions................................................102
13.4 Administrative Matters........................................................................103
13.4.1 Amendment, Waiver, Consent, Etc....................................................103
13.4.2 Deemed Consent or Approval.........................................................103
13.5 Syndication Agent.............................................................................104
14. GENERAL PROVISIONS.....................................................................................104
14.1 Notices.......................................................................................104
14.2 Limitations on Assignment.....................................................................107
14.3 Further Assurances............................................................................107
14.4 Payments......................................................................................107
14.5 Parties Bound.................................................................................107
14.6 Governing Law; Consent to Jurisdiction; Mutual Waiver of Jury Trial...........................107
14.6.1 Substantial Relationship...........................................................107
14.6.2 Place of Delivery..................................................................108
14.6.3 Governing Law......................................................................108
14.6.4 Consent to Jurisdiction............................................................108
14.6.5 JURY TRIAL WAIVER..................................................................108
14.7 Survival......................................................................................108
14.8 Cumulative Rights.............................................................................108
14.9 Claims Against Agent or Lenders...............................................................109
14.9.1 Borrower Must Notify...............................................................109
14.9.2 Remedies...........................................................................109
14.9.3 Limitations........................................................................109
14.10 Regarding Consents............................................................................109
14.11 Obligations Absolute..........................................................................109
(viii)
14.12 Table of Contents, Title and Headings.........................................................110
14.13 Counterparts..................................................................................110
14.14 Satisfaction of Commitment....................................................................110
14.15 Time Of the Essence...........................................................................110
14.16 No Oral Change................................................................................110
14.17 Monthly Statements............................................................................110
(ix)
EXHIBITS
Exhibit A -- Definitions
Exhibit B-1 -- Sources and Uses of NMLP Loan
Exhibit B-2 -- Sources and Uses of T-Two Loan
Exhibit C-1 -- NMLP Note
Exhibit C-2 -- T-Two Note
Exhibit D -- Authorized Representatives
Exhibit E -- Required Property, Hazard and Other Insurance
Exhibit F -- Ownership Interests and Taxpayer Identification Numbers
Exhibit G-1 -- Compliance Certificate for NMLP Loan
Exhibit G-2 -- Compliance Certificate for T-Two Loan
Exhibit G-3 -- Financial Covenant Compliance Certificate
Exhibit H -- Form of Assignment and Acceptance
Exhibit I -- Lenders' Commitments
Exhibit J -- Individual Properties
Exhibit K -- Loan Agenda
Exhibit L -- Other Partnerships
Exhibit M -- Xxxxxxx Partnerships
Exhibit N -- Allocated Payment Amounts
Exhibit P -- Cash Flow Projections
Exhibit Q -- GMAC Borrowers
Exhibit R -- Accounts
(xiii)
SCHEDULES
Schedule 2.6.4 ..............................................................10
Schedule 6.1.4(iii)..........................................................31
Schedule 6.1.4(iv)...........................................................31
Schedule 6.1.5...............................................................31
Schedule 6.1.18(ii)(i).......................................................34
Schedule 6.1.18(ii)(ii)(x)...................................................34
Schedule 6.1.18(ii)(ii)(y)...................................................34
Schedule 6.1.18(ii)(ii)(z)...................................................34
Schedule 6.1.18(ii)(iii).....................................................35
Schedule 6.1.18(v)...........................................................35
Schedule 6.1.18(v)(vi).......................................................35
Schedule 6.1.18(vi)..........................................................35
Schedule 6.1.18(vii).........................................................35
Schedule 6.1.18(viii)........................................................35
Schedule 6.1.18(xi)..........................................................36
Schedule 6.1.23..............................................................38
Schedule 6.1.24..............................................................38
Schedule 6.2.5...............................................................39
Schedule 6.2.15..............................................................39
Schedule 7.1.22(iii).........................................................56
Schedule 8.1.4(iii)..........................................................76
Schedule 8.2.4(ii)...........................................................81
(xiv)
MASTER LOAN AGREEMENT
This agreement ("Loan Agreement" or "Agreement") is made and entered
into as of the 24th day of November, 2003, by and between THE XXXXXXX MASTER
LIMITED PARTNERSHIP, a Delaware limited partnership having an address c/o
Winthrop Financial Associates, Seven Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxxxxxxx ("NMLP"), and T-TWO PARTNERS, L.P., a Delaware limited partnership
having an address c/o Winthrop Financial Associates, Seven Xxxxxxxx Xxxxx, Xxxxx
000, Xxxxxx, Xxxxxxxxxxxxx ("T-Two"; NMLP and T-Two are sometimes hereinafter
referred to individually as a "Borrower" and collectively as the "Borrowers")
and FLEET NATIONAL BANK, a national banking association, with a place of
business at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, 00000 and the other
lending institutions which are, or may become, parties to this Agreement
pursuant to Section 13.3 (the "Lenders") and FLEET NATIONAL BANK, a national
banking association, with a place of business at 000 Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx, 00000, as agent for itself and such other lending institutions
(the "Agent").
WITNESSETH:
1. BACKGROUND.
1.1 Defined Terms. Capitalized terms used in this Agreement are
defined either in Exhibit A, or in specific sections of this Agreement, or in
another Loan Document, as referenced in Exhibit A.
1.2 Borrowers.
1.2.1 NMLP is a limited partnership organized under the laws
of the State of Delaware of which the sole general partner is MLP GP
LLC, a Delaware limited liability company ("NMLP GP").
1.2.2 T-Two is a limited partnership organized under the laws
of the State of Delaware of which the sole general partner is Holding
Subsidiary LLC, a Delaware limited liability company ("T-Two GP").
1.3 NMLP Loan.
1.3.1 NMLP entered into a certain loan arrangement (the
"Existing Loan") with Fleet National Bank as agent on behalf of certain
lenders in the original principal amount of $225,000,000.00, as
evidenced by, among other documents and instruments, that certain Loan
Agreement dated January 30, 2002 entered into between NMLP and Fleet
National Bank.
1.3.2 NMLP has applied to Lenders for a loan of TWO HUNDRED
EIGHT MILLION FOUR HUNDRED SEVENTY THREE THOUSAND FOUR HUNDRED TWENTY
SEVEN DOLLARS AND TWENTY SEVEN CENTS ($208,473,427.27) (the "NMLP
Loan"), the proceeds of which are to be used to repay the Existing Loan
in full, to pay certain closing and transactional costs as approved by
the Agent, to provide funding for a working capital reserve, and to
provide certain initial funding into the T/I Fund Account, all in
accordance with the schedule of sources and uses annexed hereto as
Exhibit B-1.
1.4 T-Two Loan. T-Two has applied to the Lenders for a loan of
THREE HUNDRED SIXTEEN MILLION FIVE HUNDRED TWENTY SIX THOUSAND FIVE HUNDRED
SEVENTY TWO DOLLARS AND SEVENTY THREE CENTS ( $316,526,572.73) (the "T-Two
-1-
Loan"), the proceeds of which will utilized by T-Two to pay certain closing and
transactional costs as approved by the Agent, and to effect the following
transactions (the "Refinance"), each of which shall occur simultaneously with
the closing and funding of the T-Two Loan, all in accordance with the schedule
of sources and uses annexed hereto as Exhibit B-2.
1.4.1 T-Two shall make a distribution to its respective equity
holders in the amount of $182,515,321.01(the "Closing Distribution");
1.4.2 T-Two shall purchase a 100% interest in the Grantor
Trust T-1 Certificate from the REMIC under the Pooling Agreement in
consideration of a purchase price of $152,001,061.59;
1.4.3 The REMIC shall be liquidated, and T-Two will cause the
Grantor Trust Agreement to be amended to provide for, among other
things, that all amounts received by the Grantor Trust with respect to
the Securitized Notes and the Securitized Mortgages shall immediately
be forwarded to the T-Two Account maintained at Fleet to be
administered as set forth in the Cash Management Agreement.
1.5 Guaranties and Indemnities.
1.5.1 As an inducement to Lenders to make the NMLP Loan,
NK-Leasehold II LLC, NK-Leyden GP LLC, NK-Dautec GP LLC, NK-First Loan
E Cert LLC, NK-First Loan F Cert LLC, NK-First Loan G Cert LLC, MLP
Manager Corp., Xxxxxxx MLP Unit LLC, NMLP GP, T-Two, Xxxxxxx XX LLC,
Xxxxxxx Xxxxx LLC, XX-XX Holdings LLC, Holding Subsidiary LLC, the MLP
Holders, Xxxxxxx Martall L.P., Xxxxxxx Segair L.P., Xxxxxxx Calcraf
L.P., NK-CR Corp, Xxxxxxx Stock LLC, VNK L.L.C., Xxxxxxx XX Holdings
LLC, and Xxxxxxx XX Holding LLC (in such capacity, severally and
collectively called "NMLP Guarantor") have agreed to furnish either
recourse or non-recourse guaranties to the Agent with respect to the
NMLP Loan.
1.5.2 As a further inducement to Lenders to make the NMLP
Loan, Xxxxxxx XX Holdings, LLC, a Delaware limited liability company,
Xxxxxxx MLP Corp., a Delaware corporation, Apollo Real Estate
Investment Fund III, L.P., a Delaware limited partnership, Vornado
Realty, L.P., a Delaware limited partnership, Vornado Xxxxxxx LLC, a
Delaware limited liability company, and VNK L.L.C., a Delaware limited
liability company (severally and collectively called "Xxxxxxx
Indemnitor") have agreed to furnish certain indemnities to the Agent
with respect to the NMLP Loan.
1.5.3 As an inducement to Lenders to make the T-Two Loan,
NMLP, NK-CR Holdings LLC, Holding Subsidiary LLC, NK-CR Corp., Xxxxxxx
Stock LLC, VNK L.L.C., and Xxxxxxx XX Holdings LLC (in such capacity,
severally and collectively called "T-Two Guarantor") have agreed to
furnish either recourse or non-recourse guaranties to the Agent with
respect to the T-Two Loan.
1.6 Loans.
1.6.1 Subject to all of the terms, conditions and provisions
of this Agreement, and of the agreements and instruments referred to
herein, each of the Lenders agrees severally to make a loan to the NMLP
equal to such Lender's NMLP Commitment, and NMLP agrees to accept and
repay the NMLP Loan.
1.6.2 Subject to all of the terms, conditions and provisions
of this Agreement, and of the agreements and instruments referred to
herein, each of the Lenders agrees severally to
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make a loan to the T-Two equal to such Lender's T-Two Commitment,
and T-Two agrees to accept and repay the T-Two Loan.
1.6.3 The NMLP Loan and the T-Two Loan are sometimes
hereinafter referred to individually as a "Loan" and collectively as
the "Loans".
2. LOAN PROVISIONS.
2.1 Amount of Loans.
2.1.1 In no event shall the aggregate amount of the NMLP Loan
and Total NMLP Commitment exceed $208,473,427.27
2.1.2 In no event shall the aggregate amount of the T-Two Loan
and Total T-Two Commitment exceed $316,526,572.73.
2.1.3 Any and all advances of proceeds of the each Loan shall
be made by the Lenders pro rata in accordance with each Lender's
Commitment Percentage.
2.2 Term of Loans; Extension Rights. The Loans shall be for a term
("Initial Term") commencing on the date hereof and ending on November 24, 2006
("Maturity Date"). The Initial Term of each Loan may be extended for one year
("First Extended Term") until November 24, 2007 ("First Extended Maturity Date")
and thereafter may be further extended for an additional one year ("Second
Extended Term") until November 24, 2008 ("Second Extended Maturity Date"), in
each instance upon satisfaction of the conditions set forth in Section 2.6
(hereinafter, the First Extended Term and the Second Extended Term may be
referred to herein sometimes as the "Extended Term" as may be
applicable)(hereinafter, the First Extended Maturity Date and the Second
Extended Maturity Date may be referred to herein sometimes as the "Extended
Maturity Date" as may be applicable).
2.3 Interest Rate and Payment Terms. The Loans shall be payable as to
interest and principal in accordance with the provisions of this Agreement and
the Notes. This Agreement also provides for interest at a Default Rate, Late
Charges and prepayment rights and fees. All payments for the account of Lenders
made by either Borrower shall be applied to the respective accounts of the
Lenders in accordance with each Lender's Commitment Percentage of the respective
Loans. The Agent will disburse such payments to the Lenders on the date of
receipt thereof if received prior to 10:00 a.m. on such date and, if not, on the
next Business Day. Any and all interest rate selection and conversion provisions
in this Agreement are to be administered by the Agent and to be allocated on a
pro rata basis to the portion of the balance due under the Notes held by each
Lender based upon such Lender's Commitment Percentage.
2.3.1 Options.
(i) Principal amounts outstanding under the NMLP Loan
shall bear interest at the following rates, at NMLP's
selection, subject to the conditions and limitations provided
for in this Agreement: (i) Variable Rate or (ii) Effective
LIBO Rate.
(ii) Principal amounts outstanding under the T-Two
Loan shall bear interest at the following rates, at T-Two's
selection, subject to the conditions and limitations provided
for in this Agreement: (i) Variable Rate or (ii) Effective
LIBO Rate.
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2.3.2 Selection To Be Made. Each Borrower shall separately
select, and thereafter may change the selection of, the applicable
interest rate, from the alternatives otherwise provided for in this
Agreement, by giving Agent a Notice of Rate Selection (in accordance
with the requirements of Section 2.3.3, below): (i) prior to the
respective Loan, (ii) prior to the end of each Interest Period
applicable to an Effective LIBO Rate Advance, or (iii) on any Business
Day on which Borrower desires to convert an outstanding Variable Rate
Advance to an Effective LIBO Rate Advance.
2.3.3 Notice. A "Notice of Rate Selection" shall be a written
notice, given by cable, tested telex, telecopier (with authorized
signature), or by telephone if immediately confirmed by such a written
notice, from an Authorized Representative of the respective Borrower
which: (i) is irrevocable; (ii) is received by Agent not later than
10:00 o'clock A.M. Eastern Time: (a) if an Effective LIBO Rate is
selected, at least two (2) Business Days prior to the first day of the
Interest Period to which such selection is to apply, (b) if a Variable
Rate is selected, on the first day of the Interest Period to which it
applies; and (iii) as to each selected interest rate option, sets forth
the aggregate principal amount(s) to which such interest rate option(s)
shall apply and the Interest Period(s) applicable to each Effective
LIBO Rate Advance.
2.3.4 Conversion of Other Advances. At the end of each
applicable Interest Period, the applicable Effective LIBO Rate Advance
shall be converted to an Effective LIBO Rate Advance with an Interest
Period of thirty (30) days unless the respective Borrower selects
another option in accordance with the provisions of this Agreement.
2.3.5 Telephonic Notice. Without in any way limiting each
Borrower's obligation to confirm in writing any telephonic notice,
Agent may act without liability upon the basis of telephonic notice
believed by Agent in good faith to be from the subject Borrower prior
to receipt of written confirmation. In each case the subject Borrower
hereby waives the right to dispute Agent's record of the terms of such
telephonic Notice of Rate Selection in the absence of manifest error.
2.3.6 Limits On Options, One Selection Per Month. Each
Effective LIBO Rate Advance shall be in a minimum amount of $1,000,000.
At no time shall there be outstanding a total of more than six (6)
Effective LIBO Rate Advances combined at any time under the NMLP Loan,
and a total of more than six (6) Effective LIBO Rate Advances combined
at any time under the T-Two Loan. If either Borrower shall make more
than one (1) interest rate selection in any thirty (30) day period,
excluding conversions of outstanding advances made at the end of an
applicable Interest Period of any previously outstanding Effective LIBO
Rate Advance, Agent may impose and such Borrower shall pay a reasonable
processing fee for each such additional selection.
2.3.7 Payment and Calculation of Interest. All interest under
each Loan shall be: (a) payable in arrears commencing December 31, 2003
and on the last Business Day of each month thereafter until the
principal together with all interest and other charges payable with
respect to each Loan shall be fully paid; and (b) calculated on the
basis of a 360 day year and the actual number of days elapsed. Each
change in the Prime Rate shall simultaneously change the Variable Rate
payable under this Agreement. Interest at the Effective LIBO Rate shall
be computed from and including the first day of the applicable Interest
Period to, but excluding, the last day thereof.
2.3.8 Principal.
(1) Scheduled Payments.
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(1) T-Two. Commencing on March 31, 2004 and
continuing on the last Business Day of each calendar
quarter thereafter, T-Two shall pay principal in
quarterly installments of $1,312,500.00 (the "T-Two
Scheduled Payment"). To the extent the Maturity Date
is extended to any Extended Maturity Date, the
required quarterly principal payment set forth above
shall continue to be due on the last day of each
calendar quarter. The entire principal balance of the
T-Two Loan shall be due and payable in full on the
Maturity Date (or as may be applicable, any Extended
Maturity Date).
(2) NMLP Commencing on the last Business Day
of each calendar quarter after repayment in full of
the T-Two Loan, NMLP shall pay principal in quarterly
installments of $1,312,500.00. To the extent the
Maturity Date is extended to any Extended Maturity
Date, the required quarterly principal payment set
forth above shall continue to be due on the last day
of each calendar quarter. The entire principal
balance of the Loan shall be due and payable in full
on the Maturity Date (or as may be applicable, any
Extended Maturity Date).
(2) NMLP Mandatory Principal Repayments. In addition
to the scheduled payments of principal, as provided above, the
NMLP shall make the following mandatory prepayments of
principal (singly and collectively, the "NMLP Mandatory
Principal Prepayments") each of which shall be due and payable
on the later of (x) within five (5) Business Days of the event
giving rise to such NMLP Mandatory Principal Prepayment
obligation (the "NMLP Mandatory Prepayment Event") or (y)
within three (3) Business Days of written demand therefor by
the Agent; provided, however, at the request of NMLP, the
Agent agrees to hold the amount of any such NMLP Mandatory
Principal Prepayment in the NMLP Mandatory Principal Payment
Account (as defined in the Cash Management Agreement, pledged
to the Agent, on behalf of the Lenders, to secure the
repayment of the NMLP Obligations, until the earlier of (x)
the expiration of any relevant Interest Period so that the
prepayment can be made without NMLP incurring any costs under
Section 2.3.15. or (y) ninety (90) days:
(1) Except for a transfer in connection with
an Economic Discontinuance Sale, seventy-five (75%)
percent of the Net Sales Proceeds, as determined in
the reasonable judgment of the Agent, (x) received by
any NMLP Partnership from the sale, transfer, or
other disposition of any Individual Property or any
portion thereof or (y) received by NMLP from the
sale, transfer, dissolution, or other disposition of
the ownership interest in any NMLP Partnership,
provided: (1) if such Individual Property secures a
Securitized Note as to which the Agent has not yet
received Mandatory Principal Prepayments in an amount
equal to the Allocated Payment Amount, such NMLP
Mandatory Principal Prepayment shall be the lesser of
(A) one hundred (100%) percent of the Net Sales
Proceeds or (B) the Shortfall Amount plus, if such
NMLP Mandatory Principal Prepayment results in the
payment in full of the Allocated Payment Amount,
seventy-five (75%) percent of (I) the Net Sales
Proceeds less (II) the Shortfall Amount to be paid by
NMLP in connection with such transaction; and (2) if
such Individual Property is the last or only
Securitized Property which secures a Securitized Note
as to which the Agent has not yet received Mandatory
Principal Prepayments in an amount equal to the
Allocated Payment Amount, such NMLP Mandatory
Principal Prepayment shall be equal (A) the
Shortfall Amount, plus (B) seventy-five (75%) percent
of (I) the Net Sales Proceeds
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less (II) the Shortfall Amount to be paid by NMLP in
connection with such transaction;
(2) Except for a transfer in connection with
an Economic Discontinuance Sale, seventy-five (75%)
percent of the Net Sales Proceeds, as determined in
the reasonable judgment of the Agent, (x) distributed
to any limited partnership interest held by NMLP, any
NMLP Subsidiary, or any other Xxxxxxx Group Entity
from the sale, transfer, or other disposition of any
Individual Property or any portion thereof by a Other
Partnership, Partially Owned Limited Partnership, or
Subsidiary Limited Partnership (based upon the
aggregate percentage limited partnership interest in
such Other Partnership, Partially Owned Limited
Partnership, NMLP Subsidiary, and any other Xxxxxxx
Group Entity) or (y) received by NMLP from the sale,
transfer, dissolution, or other disposition of the
ownership interest in any Other Partnership,
Partially Owned Limited Partnership, or Subsidiary
Limited Partnership;
(3) One hundred (100%) percent of the Net
Refinancing Proceeds, as determined in the reasonable
judgment of the Agent, received by any NMLP
Partnership on account of any financing or
refinancing of any Individual Property, provided, if
such Individual Property is the last or only
Securitized Property which secures a Securitized Note
as to which the Agent has not yet received Mandatory
Principal Prepayments in an amount equal to the
Allocated Payment Amount, such NMLP Mandatory
Principal Prepayment shall be the greater of (A) one
hundred (100%) percent of the Net Refinancing
Proceeds or (B) the Shortfall Amount;
(4) One hundred (100%) percent of the Net
Refinancing Proceeds, as determined in the reasonable
judgment of the Agent, distributed to any limited
partnership interest held by NMLP, any NMLP
Subsidiary, or any other Xxxxxxx Group Entity from
the financing or refinancing of any Individual
Property by a Other Partnership, Partially Owned
Limited Partnership, or Subsidiary Limited
Partnership (based upon the aggregate percentage
limited partnership interest in such Other
Partnership, Partially Owned Limited Partnership, or
Subsidiary Limited Partnership owned by NMLP, any
NMLP Subsidiary, and any other Xxxxxxx Group Entity);
(5) One hundred (100%) percent of the Net
Sales Proceeds, as determined in the reasonable
judgment of the Agent, received by any NMLP
Partnership from an Economic Discontinuance Sale of
any Individual Property or any portion thereof;
(6) One hundred (100%) percent of the Net
Sales Proceeds, as determined in the reasonable
judgment of the Agent, distributed to any limited
partnership interest held by NMLP, any NMLP
Subsidiary, or any other Xxxxxxx Group Entity from an
Economic Discontinuance Sale of any Individual
Property or any portion thereof by a Other
Partnership, Partially Owned Limited Partnership, or
Subsidiary Limited Partnership (based upon the
aggregate percentage limited partnership interest in
such Other Partnership, Partially Owned Limited
Partnership, or Subsidiary Limited Partnership owned
by NMLP, any NMLP Subsidiary, and any other Xxxxxxx
Group Entity);
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(7) One hundred (100%) percent of the Net
Proceeds, as determined in the reasonable judgment of
the Agent, received by any NMLP Partnership from any
casualty or taking regarding any Individual Property
or any portion thereof which proceeds are not to be
utilized within a reasonable period of time following
such event for the repair or reconstruction thereof;
(8) One hundred (100%) percent of the Net
Proceeds, as determined in the reasonable judgment of
the Agent, distributed to any limited partnership
interest held by NMLP, any NMLP Subsidiary or any
other Xxxxxxx Group Entity from any casualty or
taking regarding any Individual Property or any
portion thereof owned by a Other Partnership,
Partially Owned Limited Partnership, or Subsidiary
Limited Partnership which proceeds are not to be
utilized within a reasonable period of time following
such event for the repair or reconstruction thereof
(based upon the aggregate percentage limited
partnership interest in such Other Partnership or
Partially Owned Limited Partnership owned by NMLP,
any NMLP Subsidiary, and any other Xxxxxxx Group
Entity);
(9) Seventy-five (75%) percent of the Net
Sales Proceeds, as determined in the reasonable
judgment of the Agent, received by NMLP or any
wholly-owned NMLP Subsidiary from the sale, transfer,
or other disposition of any asset (other than a sale
of any Individual Property) of NMLP or any wholly
owned Borrower Subsidiary;
(10) Seventy-five (75%) percent of the Net
Sales Proceeds, as determined in the reasonable
judgment of the Agent, distributed to any limited
partnership, membership or other ownership interest
held by NMLP, any NMLP Subsidiary, or any other
Xxxxxxx Group Entity from the sale, transfer, or
other disposition of any asset (other than a sale of
any Individual Property) of any Other Partnership or
any Partially Owned Limited Partnership or any non
wholly-owned NMLP Subsidiary (based upon the
aggregate percentage ownership interest in such Other
Partnership or Partially Owned Limited Partnership or
non-wholly owned Borrower Subsidiary owned by NMLP,
any NMLP Subsidiary, and any other Xxxxxxx Group
Entity).
Any NMLP Mandatory Principal Prepayment shall be applied first
to the outstanding principal balance due under the NMLP Loan,
and then to the principal obligations outstanding under the
NMLP T-Two Guaranty, if any, in each instance in inverse order
of maturity.
(3) T-Two Mandatory Principal Repayments. In
addition to the scheduled payments of principal, as provided
above, T-Two shall make the following mandatory prepayments of
principal (singly and collectively, the "T-Two Mandatory
Principal Prepayments"), each of which shall be due and
payable on the later of (x) within five (5) Business Days of
the event giving rise to such T-Two Mandatory Principal
Prepayment obligation (the "T-Two Mandatory Prepayment Event")
or (y) within three (3) Business Days of written demand
therefor by the Agent; provided, however, at the request of
T-Two, the Agent agrees to hold the amount of any such T-Two
Mandatory Principal Prepayment in the T-Two Mandatory
Principal Payment Account (as defined in the Cash Management
Agreement, pledged to the Agent, on behalf of the Lenders, to
secure the repayment of the T-Two Obligations, until the
earlier of (x) the expiration of any relevant Interest Period
so that the prepayment can
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be made without T-Two incurring any costs under Section
2.3.15. or (y) ninety (90) days:
(1) One hundred (100%) percent of the
amounts, as determined in the reasonable judgment of
the Agent, received by the Grantor Trust Trustee upon
any prepayment of principal or interest of any
Securitized Note, whether voluntary or involuntary,
or arising from any sale (including any Economic
Discontinuance Sale), refinancing, casualty or
condemnation loss or otherwise.
(2) One hundred (100%) percent of the
amounts, as determined in the reasonable judgment of
the Agent, received by T-Two, NK-CR Holdings LLC
and/or Holdings Subsidiary LLC on account of any
payment or other consideration due under the Call
Option Agreement.
(3) One Hundred (100%) percent of any
Balancing Amount as determined from time to time in
the reasonable judgment of the Agent.
Any T-Two Mandatory Principal Prepayment shall be applied
first to the outstanding principal balance due under the T-Two
Loan, and then to the principal obligations outstanding under
the T-Two NMLP Guaranty, if any, in each instance in inverse
order of maturity.
2.3.9 Prepayment. Except for the payment of any applicable
Prepayment Fee, as hereinafter provided, the Loans or any portion
thereof may be prepaid in full or in part at any time upon fifteen (15)
days prior written notice from the respective Borrower to the Agent,
without premium or penalty with respect to Variable Rate Advances and,
with respect to Effective LIBO Rate Advances subject to the payment of
any additional amounts provided for in Section 2.3.15. Any Mandatory
Principal Prepayment and any other partial prepayment of principal
shall first be applied to the principal due in the reverse order of
maturity, and no such partial prepayment shall relieve the subject
Borrower of the obligation to pay each installment of principal when
due. Any amounts prepaid may not be reborrowed.
(1) Each Borrower shall pay the Agent on behalf of
the Lenders (solely with respect to any prepayment on the
respective Loan of the subject Borrower) a "Prepayment Fee"
(so referred to herein) as follows, which Prepayment Fee shall
be due with respect to any prepayments in the aggregate as to
both Loans in excess of the Allowed Prepayment Amount:
(1) subject to clause (ii) below, with
respect to any and all prepayments made on or before
November 24, 2004, the subject Borrower shall pay a
Prepayment Fee of one percent (1.0%) of the principal
amount so prepaid; and
(2) subject to clause (ii) below, with
respect to any and all prepayments made after
November 24, 2004, but on or before November 24,
2005, the subject Borrower shall pay a Prepayment Fee
of one half of one percent (0.5%) of the principal
amount so prepaid; and
(3) with respect to any and all prepayments
made after November 24, 2005, the Borrowers shall not
be required to pay any Prepayment Fee.
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(2) Any applicable Prepayment Fee shall be payable
in respect of all prepayments of principal whether voluntary
or involuntary including, without limitation, prepayments made
upon acceleration of the subject Loan; provided, however, in
connection with any Mandatory Principal Prepayments, the
Prepayment Fee shall only apply to (x) any prepayments in a
calender year after the Agent has received in the aggregate
Fifty Million Dollars ($50,000,000.00) in prepayments combined
as to both Loans in each calender year and/or (y) any
Mandatory Principal Prepayment which is part of a related
series of transactions to repay the Loan in full. If by reason
of an Event of Default Agent elects to declare either Loan to
be immediately due and payable, then any applicable Prepayment
Fee with respect to the Loan shall become due and payable in
the same manner as though such Borrower had exercised such
right of prepayment.
2.3.10 Maturity. At maturity all accrued interest, principal
and other charges due with respect to the Loans shall be due and
payable in full and the principal balance and such other charges, but
not unpaid interest, shall bear interest at the Default Rate until so
paid.
2.3.11 Method of Payment; Date of Credit. All payments of
interest, principal and fees shall be made in lawful money of the
United States in immediately available funds, without counterclaim or
setoff and free and clear of, and without any deduction or withholding
for, any taxes or other payments: (a) by direct charge to an account of
each Borrower maintained with Agent (or the then holder of the Loans),
(b) by wire transfer to Agent, (c) to such other bank or address as the
Agent may designate in a written notice to the Borrowers, or (d) as
provided in the Cash Management Agreements. Payments shall be credited
on the Business Day on which immediately available funds are received
prior to ten o'clock A.M. Eastern Time; payments received after ten
o'clock A.M. Eastern Time shall be credited to the Loan on the next
Business Day. Payments which are by check, which Agent may at its
option accept or reject, or which are not in the form of immediately
available funds shall not be credited to the Loan until such funds
become immediately available to Agent, and, with respect to payments by
check, such credit shall be provisional until the item is finally paid
by the payor bank.
2.3.12 Xxxxxxxx. Agent may submit monthly xxxxxxxx reflecting
payments due to the applicable Borrower; however, any changes in the
interest rate which occur between the date of billing and the due date
may be reflected in the billing for a subsequent month. Neither the
failure of Agent to submit a billing nor any error in any such billing
shall excuse either Borrower from the obligation to make full payment
of such Borrower's payment obligations when due.
2.3.13 Default Rate. Agent shall have the option of imposing,
and shall impose at the direction of the Required Lenders, and the
subject Borrower shall pay upon billing therefor, an interest rate
which is four and one half percent (4.5%) per annum above the Variable
Rate ("Default Rate"): (a) following the occurrence and during the
continuance of any Event of Default, and (b) after Maturity. Each
Borrower's right to select pricing options shall cease following and
during the continuance of any Event of Default.
2.3.14 Late Charges. Each Borrower shall pay (solely with
respect to such Borrower's respective Loan), upon billing therefor, a
"Late Charge" equal to five percent (5%) of the amount of any regularly
scheduled payment of principal (other than principal due at Maturity or
any Mandatory Principal Prepayment), interest, or both, which is not
paid within ten (10) days of the due date thereof (other than with
respect to any payment as to which the said ten (10) day period expires
after the implementation of the Default Rate). Late charges are: (a)
except as provided above, payable in addition to, and not in limitation
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of, the Default Rate, (b) intended to compensate Agent for
administrative and processing costs incident to late payments, (c) are
not interest, and (d) shall not be subject to refund or rebate or
credited against any other amount due.
2.3.15 Prepayment Costs. Each Borrower shall pay to Agent
(solely with respect to such Borrower's respective Loan), immediately
upon request and notwithstanding contrary provisions contained in any
of the Loan Documents, such amounts as shall, in the conclusive
judgment of Agent (in the absence of manifest error), compensate Agent
and the Lenders for the loss, cost or expense which they may reasonably
incur as a result of (i) any payment or prepayment, under any
circumstances whatsoever, whether voluntary or involuntary, of all or
any portion of an Effective LIBO Rate Advance on a date other than the
last day of the applicable Interest Period of an Effective LIBO Rate
Advance, (ii) the conversion, for any reason whatsoever, whether
voluntary or involuntary, of any Effective LIBO Rate Advance to a
Variable Rate Advance on a date other than the last day of the
applicable Interest Period, (iii) the failure of all or a portion of a
Loan which was to have borne interest at the Effective LIBO Rate
pursuant to the request of Borrower to be made under the Loan Agreement
(except as a result of a failure by any Lender to fulfill such Lender's
obligations to fund), or (iv) the failure of such Borrower to borrow in
accordance with any request submitted by it for an Effective LIBO Rate
Advance. Such amounts payable by the subject Borrower shall be equal to
(a) any administrative costs actually incurred plus (b) the LIBO
Breakage Amount.
2.4 Loan Fees; Agent's Fees.
2.4.1 Agent's Fees. The Borrowers shall pay to the Agent for
its own account an "Agent's Fee" in accordance with the written
agreement between the Borrowers and the Agent.
2.4.2 Extension Fees. Each Borrower (solely with respect to
such Borrower's respective Loan) shall pay to the Agent for the account
of the Lenders "Extension Fees" (so referred to herein) in amounts
representing one quarter of one percent (0.25%) of the then outstanding
principal balance of the Loan at the Maturity Date (and at the First
Extended Maturity Date, as applicable), on each occasion, in connection
with such Borrower's exercise of its extension rights, and as a
condition precedent to the effectiveness thereof, in each instance, as
provided in Section 2.6.
2.5 Acceleration. The Agent may, and upon the request of the Required
Lenders shall, accelerate the applicable Loans, after the occurrence and during
the continuance of an Event of Default. Upon such an acceleration, all
principal, accrued interest and costs and expenses shall be due and payable
together with interest on such principal at the Default Rate and any applicable
Prepayment Fee and any amounts due under Section 2.3.15.
2.6 Conditions to Extending Loan. Upon satisfaction of each of the
following conditions, each Borrower may extend its respective Loan until the
First Extended Maturity Date, and thereafter, again upon satisfaction of each of
the following conditions, each Borrower may further extend its respective Loan
until the Second Extended Maturity Date:
2.6.1 No Default. No Default with respect to such Borrower
shall exist on the date of such Borrower's written notice for an
extension as provided for below and on the Maturity Date (or as may be
applicable, the First Extended Maturity Date).
2.6.2 Notice From Borrowers. Such Borrower shall have given
Agent written notice of its request to exercise its extension right at
least forty-five (45) days, but no more
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than ninety (90) days, before the Maturity Date (or as may be
applicable, the First Extended Maturity Date).
2.6.3 Covenant Compliance. No breach of any covenants imposed
upon such Borrower or Guarantor shall exist including, without
limitation, the Financial Covenants;
2.6.4 Exercise of Remainder Ground Lease Options and Ground
Lease Extension Options. NMLP shall have, or shall have caused the
applicable NMLP Subsidiary to, timely duly exercise all Remainder
Ground Lease Options and Ground Lease Extension Options as to which the
final date to exercise such Remainder Ground Lease Options and Ground
Lease Extension Options is within thirteen months of the Maturity Date
(or with respect to any extension of the Loan for the Second Extended
Term, within thirteen months of the First Extended Maturity Date) (as
of the Closing Date, the applicable Remainder Ground Lease Options and
Ground Lease Extension Options are listed on Schedule 2.6.4);
2.6.5 Conditions Satisfied. All of the conditions set forth in
Section 5.1 or Section 5.2 of this Agreement, to the extent applicable
to the subject Loan being extended, shall continue to be satisfied;
2.6.6 Extension Fee. The Extension Fee of 0.25% of the subject
Loan being extended referred to in Section 2.4 shall have been paid at
least five (5) days prior to the Maturity Date (or as may be
applicable, the First Extended Maturity Date) and shall be returned to
the subject Borrower if the Loan is not extended for any reason;
2.6.7 Additional Documents. Each Borrower and Guarantor shall
have executed and delivered to Agent such agreements and documents as
Agent may reasonably require to effectuate the extension, provided,
however, none of said requested agreements or documents shall provide
for additional collateral or include any substantive modification of
the terms and provisions of the Loan Documents;
2.6.8 Interest Rate Protection. The applicable Borrower shall
have entered into an Interest Rate Protection Agreement, from an issuer
and in form and substance reasonably acceptable to the Agent, with
respect to the subject Loan, which Interest Rate Protection Agreement
shall be collaterally assigned to the Agent, on behalf of the Lenders,
to secure the Loan being extended; and
2.6.9 Before End of Term. Each of the foregoing conditions are
satisfied not later than, and on, the Maturity Date (or as applicable,
the First Extended Maturity Date).
Within twenty (20) days following receipt by Agent of a Borrower's written
notice under clause 2.6.2 above requesting the extension accompanied by the
items described in Section 2.6, Agent shall notify the subject Borrower in
writing if all of the conditions precedent to the extension, other than payment
of the extension fee, have been satisfied, or if further information or
documents set forth in Section 2.6 are required, specifying such missing
information or documents. If Agent determines that the conditions to extension
have been satisfied (or if the Agent notified the Borrower as provided above of
any outstanding information or documents required by this Section 2.6,
specifying such missing information or documents, and such Borrower provides
outstanding information or documents prior to ten (10) days before the Maturity
Date (or as may be applicable, the First Extended Maturity Date)), other than
payment of the Extension Fee, Agent shall so notify such Borrower and upon
Agent's receipt of the Extension Fee not later than five (5) days prior to the
Maturity Date (or as may be applicable, the First Extended Maturity Date), so
long as no Default exists, the term of the subject Loan shall be extended until
the First Extended Maturity Date (or as may be applicable, the Second Extended
Maturity Date).
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2.7 Additional Provisions Related to Interest Rate Selection.
2.7.1 Increased Costs. Subject to Section 2.7.3 hereafter, if,
due to any one or more of: (i) the introduction of any applicable law
or regulation or any change (other than any change by way of imposition
or increase of reserve requirements already referred to in the
definition of Adjusted LIBO Rate) in the interpretation or application
by any authority charged with the interpretation or application thereof
of any law or regulation; or (ii) the compliance with any guideline or
request from any governmental central bank or other governmental
authority (whether or not having the force of law), there shall be an
increase in the cost to any Lender of agreeing to make or making,
funding or maintaining Effective LIBO Rate Advances, including without
limitation changes which affect or would affect the amount of capital
or reserves required or expected to be maintained by any Lender, with
respect to all or any portion of either Loan, or any corporation
controlling any Lender, on account thereof, then the subject Borrower
from time to time shall, upon written demand by Agent, pay, additional
amounts sufficient to indemnify any Lender against the increased cost.
A certificate as to the amount of the increased cost and the reason
therefor submitted to such Borrower by Agent, in the absence of
manifest error, shall be conclusive and binding for all purposes.
2.7.2 Illegality. Notwithstanding any other provision of this
Agreement, if the introduction of or change in any law, treaty,
statute, regulation or interpretation thereof shall make it unlawful,
or any central bank or government authority shall assert by directive,
guideline or otherwise, that it is unlawful, for any Lender to make or
maintain Effective LIBO Rate Advances or to continue to fund or
maintain Effective LIBO Rate Advances then, on written notice thereof
and demand by Agent to the Borrowers, (a) the obligation of Agent to
make Effective LIBO Rate Advances and to convert or continue any Loan
as Effective LIBO Rate Advances shall terminate and (b) the Borrowers
shall convert all principal outstanding under this Agreement into
Variable Rate Advances.
2.7.3 Additional Eurodollar Conditions. The selection by
either Borrower of an Effective LIBO Rate and the maintenance of the
Loan at such rate shall be subject to the following additional terms
and conditions:
(1) Availability. If, before or after such Borrower
has selected to take or maintain an Effective LIBO Rate
Advance, Agent notifies such Borrower that:
(1) dollar deposits in the amount and for
the maturity requested are not available to Lenders
in the London interbank market at the rate specified
in the definition of Effective LIBO Rate, or
(2) reasonable means do not exist for Agent
to determine the Effective LIBO Rate for the amounts
and maturity requested,
then the principal which would have been an Effective LIBO
Rate Advance shall be a Variable Rate Advance.
(2) Payments Net of Taxes. All payments and
prepayments of principal and interest under this Agreement
shall be made without withholding or deduction for or on
account of any present or future tax, assessment or other
governmental charge (including penalties, interest and other
liabilities related thereto) imposed upon or as a result of
such payment by any political subdivision or taxing authority
of any jurisdiction in which each Borrower is organized or
doing business ("Withholding Taxes") unless the withholding or
deduction of such Withholding
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Taxes is required by law. In that event, the subject Borrower
will pay to the Agent such additional amounts as may be
necessary in order that every net payment made hereunder,
after deduction or withholding for or on account of any
Withholding Taxes, will not be less than the amount to be paid
hereunder, except that no such additional amounts shall be
payable for or on account of any tax, assessment or other
governmental charge:
(1) that would not have been imposed but for
the existence of any present or former connection
between the Agent or the applicable Lender and the
jurisdiction imposing such Withholding Taxes
including, without limitation, the Agent or the
applicable Lender having engaged in a trade or
business therein, or having or having had a permanent
establishment therein (other than the mere ownership
of a participation in the Loan or mere receipt of
payment under this Agreement);
(2) that would not have been imposed but for
the failure of the Agent or the applicable Lender to
comply with income tax laws and regulations of any
such jurisdiction or any political subdivision or
taxing authority thereof or therein, if such
compliance is required to establish entitlement to an
exemption from such tax, assessment or other
governmental charge;
(3) that is based on the net income of the
Agent or the applicable Lender and would not have
been imposed but for the mere ownership of a
participation in the Loan or the mere receipt of
payment under this Agreement;
(4) to which any person that is a transferee
of the Agent or any Lender is subject immediately
following the transfer or to which such transferee
will become subject under a tax law, regulation or
other legal pronouncement or holding that has been
enacted, issued or announced as of the date of the
transfer, in either case except to the extent that
the transferor was or would have become subject to
such Withholding Taxes;
(5) any combination of (a), (b), (c) and (d)
above (the Withholding Taxes described in clauses (a)
through (d) for which no additional amounts are
payable, are hereinafter referred to as ("Excluded
Taxes").
(3) Each Lender organized under the laws of a
jurisdiction outside of the United States (a "Foreign Lender")
shall provide to each Borrower and the Agent two properly
completed and executed Internal Revenue Service Forms W-8BEN
or other applicable forms, certificates or documents
prescribed by the Internal Revenue Service of the United
States certifying as to such Foreign Lender's entitlement to
exemption from United States withholding tax under an
applicable statute or tax treaty with respect to payments to
be made to such Foreign Lender hereunder ("Certificates of
Exemption"). Each Foreign Lender shall provide such
Certificates of Exemption on or before the Closing Date, and
shall provide Certificates of Exemption on or before the first
business day of each taxable year of such Foreign Lender
thereafter. Each Foreign Lender that becomes a Lender pursuant
to Section 13.3 after the Closing Date shall provide
Certificates of Exemption on or before the date such Foreign
Lender becomes a Lender and on or before the first business
day of each taxable year of such Foreign Lender thereafter.
Each Foreign Lender further agrees to provide each Borrower
and the Agent with new Certificates of Exemption
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(x) upon the obsolescence of any letter, form, certificate or
document previously delivered by the Foreign Lender to each
Borrower and the Agent hereunder or (y) promptly after the
occurrence of any event requiring a change in the status of
the Foreign Lender or in any of the other information provided
on the most recent letter, form, certificate or document
previously delivered by the Foreign Lender to the Borrowers
and the Agent hereunder. If either Borrower shall provide
written notice to the Foreign Lender that new Certificates of
Exemption are required, and if the Foreign Lender does not
submit them within 30 days following the receipt of such
notice and if the failure to do so increases the amount such
Borrower otherwise must pay to or on behalf of the Foreign
Lender, then such Borrower is relieved of the liability to pay
the Foreign Lender the increased amount caused solely by such
Foreign Lender's failure to provide such Certificates and
shall be permitted to deduct the increased withholding tax
from the payment due to such Foreign Lender. Notwithstanding
anything to the contrary in this clause (iii), each Borrower
will remain liable to the Foreign Lender for all amounts not
caused by such Foreign Lender's failure to provide new
Certificates of Exemption.
(4) Notwithstanding the foregoing, if a Foreign
Lender that originally provided Certificates of Exemption
indicating that such Foreign Lender was exempt from United
States withholding tax thereafter ceases to qualify for such
exemption, each Borrower shall be obligated for the payment of
its allowable portion of all Withholding Taxes resulting from
such subsequent non-exemption, but the Borrowers shall have
the right to require such Foreign Lender to assign its pro
rata share of the Loan (including its pro rata share of the
interest accrued thereon) to one or more Eligible Assignees
identified by such Borrower at a purchase price equal to the
principal of and accrued but unpaid interest, costs, and fees
(to the date of purchase) on such Foreign Lender's pro rata
share of the Loan. Until such Foreign Lender's pro rata share
of the Loan is assigned to an Eligible Assignee, such Foreign
Lender, if eligible for a partial exemption from or a
reduction in the rate of United States withholding tax under
an applicable statute or tax treaty with respect to payments
to be made to such Foreign Lender hereunder, shall provide to
each Borrower and the Agent two properly completed and
executed Internal Revenue Service Forms W-8BEN or other
applicable forms, certificates or documents prescribed by the
Internal Revenue Service of the United States certifying as to
such Foreign Lender's entitlement to said partial exemption or
reduction ("Certificates of Partial Exemption"), and the
provisions of (iii) above shall continue to apply to such
Foreign Lender substituting the words "Certificates of Partial
Exemption" for "Certificates of Exemption" in (iii) above.
2.7.4 Variable Rate Advances. Each Variable Rate Advance shall
continue as a Variable Rate Advance until Maturity of the Loan, unless
sooner converted, in whole or in part, to an Effective LIBO Rate
Advance, subject to the limitations and conditions set forth in this
Agreement.
3. SECURITY FOR THE LOANS; LOAN AND SECURITY DOCUMENTS.
3.1 Security for NMLP Loan. The NMLP Loan, together with interest
thereon and all other charges and amounts payable by, and all other NMLP
Obligations of, NMLP and the other NMLP Loan Parties to the Agent and/or each of
the Lenders, shall be secured by the following collateral (the "NMLP
Collateral") which NMLP agrees to provide and maintain, or cause to be provided
and maintained (whether provided for each in separate agreements or combined
with various other agreements):
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3.1.1 Security Agreement. A first priority security agreement
and collateral assignment granted by NMLP to the Agent, on behalf of
the Lenders, respecting all assets of NMLP, whether now owned, now due,
or in which NMLP has an interest, or hereafter, at any time in the
future, acquired, arising, to become due, or in which NMLP obtains an
interest (other than the assets pledged to the Integrated Group as
provided for in the Integrated Documents), including, without
limitation, all of NMLP's right, title, and interest to and in the Call
Option Agreement.
3.1.2 NMLP Ownership Interest Pledge and Security Agreements.
(i) First priority Ownership Interest Pledge and
Security Agreements granted by NMLP to the Agent, on behalf of
the Lenders, with respect to all right, title, and interest of
NMLP to and in each of the following:
(1) NMLP's 100% limited partnership
interests in each of the NMLP Partnerships, as of the
Funding Date to be as set forth in Exhibit M annexed
hereto;
(2) NMLP's 100% membership interest in
Xxxxxxx XX Holding LLC;
(3) NMLP's 100% membership interest in
NK-Leasehold II LLC;
(4) NMLP's 100% membership interest in
NK-Remainder Interest LLC;
(5) NMLP's 100% membership interest in
NK-Leyden GP LLC;
(6) NMLP's 97.753% limited partnership
interest in NK-Leyden Loan L.P.;
(7) NMLP's 100% membership interest in
NK-Dautec GP LLC;
(8) NMLP's 97.297% limited partnership
interest in NK-Dautec Loan, L.P.;
(9) NMLP's 100% membership interest in
NK First Loan E Certificate LLC;
(10) NMLP's 100% membership interest in
NK First Loan F Certificate LLC;
(11) NMLP's 100% membership interest in
NK First Loan G Certificate LLC;
(l2) NMLP's 100% membership interest in
Xxxxxxx MLP Unit LLC;
(13) NMLP's 100% ownership interest in
MLP Manager Corp.; and
(14) NMLP's 100% membership interest in
BMD Realty LLC.
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(2) Ownership Interest Pledge and Security
Agreements granted by NMLP to the Agent, on behalf of the
Lenders, with respect to all right, title, and interest of
NMLP to and in each of the following, such security interests
to be effective upon the earliest of (x) the repayment in full
of the Integrated Obligations; (y) the release of the lien
held by the Integrated Group in any of the following ownership
interests; or (z) the acceleration of the Obligations as a
result of an Event of Default and the election by the Agent to
vest and perfect such security interests, each as determined
by the Agent:
(1) NMLP's entire membership interest in
Xxxxxxx Xxxxx LLC;
(2) NMLP's 50.01% membership interest in
Xxxxxxx Capital LLC; and
(3) NMLP's 100% membership interest in
Xxxxxxx XX LLC.
3.1.3 Depository Account Pledge and Security Agreements.
(1) A first priority Depository Account Pledge and
Security Agreement granted by NMLP, NK-Leasehold II LLC,
NK-Leyden GP LLC, NK-Dautec GP LLC, NK-First Loan E Cert LLC,
NK-First Loan F Cert LLC, NK-First Loan G Cert LLC, Xxxxxxx
MLP Unit LLC, MLP Manager Corp., Xxxxxxx Martall L.P., Xxxxxxx
Calcraf L.P., Xxxxxxx Segair L.P., and Xxxxxxx XX Holding LLC
to the Agent, on behalf of the Lenders, respecting all NMLP
Accounts and the T/I Fund Account maintained by such Persons
at Fleet National Bank (or any successor thereto or affiliate
thereof).
(2) A Depository Account Pledge and Security
Agreement granted by Xxxxxxx XX LLC and Xxxxxxx Xxxxx LLC to
the Agent, on behalf of the Lenders, respecting all NMLP
Accounts maintained by such NMLP Subsidiaries at Fleet
National Bank (or any successor thereto or affiliate thereof),
such security interests to be effective upon the earliest of
(x) the repayment in full of the Integrated Obligations; (y)
the release of the lien held by the Integrated Group in the
ownership interests of Xxxxxxx XX LLC or Xxxxxxx Xxxxx LLC, or
(z) the acceleration of the Obligations as a result of an
Event of Default and the election by the Agent to vest and
perfect such security interests, each as determined by Agent
(the Depository Account Pledge and Security Agreements
referred to in clauses (i) and (ii), singly and collectively
the "NMLP Depository Account Pledge and Security Agreement").
3.1.4 Collateral Assignment of Interest Rate Protection
Agreement. A first priority Collateral Assignment of Protected Interest
Rate Agreement granted by NMLP to the Agent, on behalf of the Lenders,
respecting the Interest Rate Protection Agreement entered into with
respect to the NMLP Loan.
3.1.5 Collateral Assignment of Call Option Agreement. A first
priority Collateral Assignment of all of NMLP's right, title, and
interest to and in the Call Option Agreement. T-Two, NK-CR Holdings LLC
and Holding Subsidiary LLC shall each join in the Collateral Assignment
for the purpose of consenting thereto and being bound by the provisions
thereof.
3.1.6 NMLP Subsidiaries and NMLP Loan Parties Security
Agreements.
(1) A first priority security agreement granted by
Xxxxxxx MLP Unit LLC, NK-Leasehold II LLC, NK-Leyden GP LLC,
NK-Dautec GP LLC and MLP
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Manager Corp. to the Agent, on behalf of the Lenders,
respecting all the assets of each such Person, whether now
owned, now due, or in which such Person has an interest, or
hereafter, at any time in the future, acquired, arising, to
become due, or in which such Person obtains an interest.
(2) A security agreement granted by Xxxxxxx XX LLC
and Xxxxxxx Xxxxx LLC to the Agent, on behalf of the Lenders,
respecting all the assets of each of such NMLP Subsidiaries,
whether now owned, now due, or in which such NMLP Subsidiaries
have an interest, or hereafter, at any time in the future,
acquired, arising, to become due, or in which such NMLP
Subsidiaries obtain an interest, such security interests to be
effective upon the earliest of (x) the repayment in full of
the Integrated Obligations; (y) the release of the lien held
by the Integrated Group in the ownership interests of Xxxxxxx
XX LLC, or Xxxxxxx Xxxxx LLC, or (z) the acceleration of the
Obligations as a result of an Event of Default and the
election by the Agent to vest and perfect such security
interests, each as determined by Agent.
3.1.7 NMLP Partnership GPs Ownership Interest Pledge and
Security Agreement. A first priority Ownership Interest Pledge and
Security Agreement granted by each of the NMLP Partnership GPs as to
which the applicable NMLP Partnership is not a GMAC Borrower, to the
Agent, on behalf of the Lenders, with respect to all right, title, and
interest of such NMLP Partnership GPs to and in the general partner's
interest in each NMLP Partnership, respectively.
3.1.8 Xxxxxxx XX LLC Ownership Interest Pledge and Security
Agreement. An Ownership Interest Pledge and Security Agreement granted
by Xxxxxxx XX LLC to the Agent, on behalf of the Lenders, with respect
to all right, title, and interest of Xxxxxxx XX LLC to and in its 100%
ownership interest to and in Chader Manager LLC, such security interest
to be effective upon the earliest of (x) the repayment in full of the
Integrated Obligations; (y) the release of the lien held by the
Integrated Group in the said ownership interests; or (z) the
acceleration of the Obligations as a result of an Event of Default and
the election by the Agent to vest and perfect such security interest,
each as determined by Agent.
3.1.9 Xxxxxxx XX Holding LLC Ownership Interest Pledge and
Security Agreement. An Ownership Interest Pledge and Security Agreement
granted by Xxxxxxx XX Holding LLC to the Agent, on behalf of the
Lenders, with respect to all right, title, and interest of Xxxxxxx XX
Holding LLC to and in its 100% ownership interest in each of the NMLP
Partnership GPs as to which the applicable NMLP Partnership is not a
GMAC Borrower.
3.1.10 Collateral Assignment by Xxxxxxx Xxxxx LLC of
Administrator LLC Loan. A Collateral Assignment of Loan Documents
respecting the Administrator LLC Loan granted by Xxxxxxx Xxxxx LLC to
the Agent, on behalf of the Lenders, with respect to all right, title,
and interest of Xxxxxxx Xxxxx LLC to and in the Administrator LLC Loan.
Included as part of the Collateral Assignment of Loan Documents of the
Administrator LLC Loan, Xxxxxxx Xxxxx LLC shall endorse the original
Administrator LLC Note payable to Agent and deliver same to Agent, such
security interests to be effective upon the earliest of (x) the
repayment in full of the Integrated Obligations; (y) the release of the
lien held by the Integrated Group in the ownership interest of Xxxxxxx
Xxxxx LLC, or (z) the acceleration of the Obligations as a result of an
Event of Default and the election by the Agent to vest and perfect such
security interests, each as determined by Agent.
3.1.11 Xxxxxxx MLP Unit LLC Ownership Interest Pledge and
Security Agreement. A first priority Ownership Interest Pledge and
Security Agreement granted by
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Xxxxxxx MLP Unit LLC to the Agent, on behalf of the Lenders, with
respect to all right, title, and interest of Xxxxxxx MLP Unit LLC to
and in the limited partnership interests in Other Partnerships, as of
the Funding Date to be as set forth in Exhibit L annexed hereto.
3.1.12 Pledge of Ownership Interest in NK-Leyden Loan, L.P. A
first priority Ownership Interest Pledge and Security Agreement granted
by NK-Leyden GP LLC to the Agent, on behalf of the Lenders, with
respect to all right, title, and interest of the 100% general
partnership interest of NK-Leyden GP LLC to and in NK-Leyden Loan L.P.
(as the owner of the Leyden Note).
3.1.13 Pledge of Ownership Interest in Subsidiary Limited
Partnerships. A first priority Ownership Interest Pledge and Security
Agreement granted by Xxxxxxx Martall L.P. to the Agent, on behalf of
the Lenders, with respect to all right, title, and interest of the 99%
limited partnership interest of Xxxxxxx Martall L.P. to and in the
Subsidiary Limited Partnerships.
3.1.14 Pledge of Ownership Interest in NK-Dautec Loan, L.P. A
first priority Ownership Interest Pledge and Security Agreement granted
by NK-Dautec GP LLC to the Agent, on behalf of the Lenders, with
respect to all right, title, and interest of the 100% general
partnership interest of NK-Dautec GP LLC, respectively, to and in
NK-Dautec Loan, L.P. (as the owner of the Dautec Note).
3.1.15 Collateral Assignment of Tustin Loan. A first priority
Collateral Assignment of Loan Documents respecting the Tustin Loan
granted by NMLP to the Agent, on behalf of the Lenders, with respect to
all of NMLP's right, title, and interest to and in the Tustin Loan.
Included as part of the Collateral Assignment of Loan Documents, NMLP
shall endorse the original Tustin Note payable to Agent and deliver
same to Agent, and NMLP shall execute and deliver an Assignment of the
mortgage included in the Tustin Loan Documents to Agent in recordable
form.
3.1.16 Pledge of Ownership Interest in T-Two Partners, L.P. A
first priority Ownership Interest Pledge and Security Agreement granted
by NK-CR Holdings LLC and Holding Subsidiary LLC to the Agent, on
behalf of the Lenders, with respect to all right, title, and interest
of the 100% limited partnership interest of NK-CR Holdings LLC and the
100% general partnership interest of Holding Subsidiary LLC,
respectively, to and in T-Two Partners, L.P.
3.1.17 Pledge of Ownership Interest in Holding Subsidiary LLC.
A first priority Ownership Interest Pledge and Security Agreement
granted by NK-CR Holdings LLC and NK-CR Corp. to the Agent, on behalf
of the Lenders, with respect to all right, title, and interest of the
99.8% membership interest of NK-CR Holdings LLC and the 0.20%
membership interest of NK-CR Corp., respectively, to and in Holding
Subsidiary LLC.
3.1.18 Pledge of Ownership Interest in NK-CR Corp. A first
priority Ownership Interest Pledge and Security Agreement granted by
NK-CR Holdings LLC to the Agent, on behalf of the Lenders, with respect
to all right, title, and interest of the 100% stock ownership interest
of NK-CR Holdings LLC to and in NK-CR Corp.
3.1.19 Pledge of Ownership Interest in NK-CR Holdings LLC. A
first priority Ownership Interest Pledge and Security Agreement granted
by Xxxxxxx Stock LLC to the Agent, on behalf of the Lenders, with
respect to all right, title, and interest of the 100% membership
interest of Xxxxxxx Stock LLC to and in NK-CR Holdings LLC.
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3.1.20 Pledge of Ownership Interest in Xxxxxxx Stock LLC. A
first priority Ownership Interest Pledge and Security Agreement granted
by Xxxxxxx XX Holdings LLC and VNK L.L.C. to the Agent, on behalf of
the Lenders, with respect to all right, title, and interest of the 100%
membership interests of Xxxxxxx XX Holdings LLC and VNK L.L.C. to and
in Xxxxxxx Stock LLC.
3.1.21 Pledge of Ownership Interest by MLP GP LLC of General
Partnership Interest in NMLP. A first priority Ownership Interest
Pledge and Security Agreement granted by MLP GP LLC to the Agent, on
behalf of the Lenders, with respect to all right, title, and interest
of MLP GP LLC with respect to its general partnership interest to and
in the NMLP.
3.1.22 Pledge of Ownership Interest in MLP GP LLC. A first
priority Ownership Interest Pledge and Security Agreement granted by
the MLP Holders to the Agent, on behalf of the Lenders, with respect to
all right, title, and interest of such Persons to and in the 100%
membership interest in MLP GP LLC.
3.1.23 Xxxxxxx Indemnification. An indemnification agreement
(the "Xxxxxxx Indemnification") from the Xxxxxxx Indemnitor in favor of
the Agent and each of the Lenders concerning any and all loss or damage
occasioned or otherwise suffered by the Agent and/or the Lenders
resulting in any way from any claim, action, demand, or liability
asserted (whether or not suit is instituted) by, or related to, the
obligations of the Xxxxxxx Group Entities to, or collateral held by,
the Integrated Group as set forth in such Agreement.
3.1.24 Guaranties.
(1) The unconditional, continuing guaranty from each
NMLP Guarantor (except for Xxxxxxx XX LLC and Xxxxxxx Xxxxx
LLC), pursuant to which each NMLP Guarantor shall guaranty the
prompt, punctual, and faithful payment of the NMLP Loan and
the performance of all other NMLP Obligations to the Agent and
each of the Lenders under the NMLP Loan Documents; provided,
however, that any particular Guaranty may be on a non-recourse
basis as, and only to the extent, specifically approved by the
Agent and provided in any such Guaranty.
(2) The unconditional, continuing guaranty from
Xxxxxxx XX LLC and Xxxxxxx Xxxxx LLC pursuant to which each
such NMLP Guarantor shall guaranty the prompt, punctual, and
faithful payment of the NMLP Loan and the performance of all
other NMLP Obligations to the Agent and each of the Lenders
under the NMLP Loan Documents, such guaranty to be effective
upon the earliest of (x) the repayment in full of the
Integrated Obligations; (y) the release of the lien held by
the Integrated Group in the ownership interests of Xxxxxxx XX
LLC or Xxxxxxx Xxxxx LLC, or (z) the acceleration of the NMLP
Obligations as a result of an Event of Default and the
election by the Agent to cause the guaranty to be in full
force and effect, each as determined by Agent (the guaranties
referred to in clauses (i) and (ii), singly and collectively
the "NMLP Guaranty").
3.1.25 Environmental Compliance and Indemnification Agreement.
A compliance and indemnification agreement with respect to
environmental matters ("Environmental Indemnity") from NMLP in favor of
the Agent and each of the Lenders.
3.1.26 Escrow Agreement Respecting Ground Lease Extensions and
Lease Options. An escrow agreement ("Escrow Agreement Respecting Ground
Lease Extensions and Lease Options") pursuant to which the NMLP and
certain Net Lease Partnerships,
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respectively and as applicable, execute and deliver in escrow to the
Agent, on behalf of the Lenders, executed notices and such other
documents and agreements required to exercise all extensions and other
rights respecting the following, as determined in the reasonable
judgment of the Agent.
(1) Those ground lease options (singly and
collectively the "Remainder Ground Lease Options") relating to
the respective remainderman interests held by NK-Remainder
Interest LLC or any third party, as detailed on Schedule
2.6.4; and
(2) Those lease extension options (singly and
collectively, the "Ground Lease Extension Options") relating
to all ground lessor interests held by NK- Remainder Interest
LLC or any third party as detailed on Schedule 2.6.4, whether
with respect to a Ground Lease in effect as of the date hereof
and any other Ground Lease which may be entered into
hereafter, including any Ground Lease entered into in
connection with the exercise of a Remainder Ground Lease
Option.
3.1.27 Additional Documents. Any other documents, instruments
and agreements with respect to the NMLP Loan as set forth on the Loan
Agenda.
3.2 NMLP Loan Documents and NMLP Security Documents. The NMLP Loan
shall be made, evidenced, administered, secured and governed by all of the
terms, conditions and provisions of the "NMLP Loan Documents", each as the same
may be hereafter modified or amended, consisting of: (i) this Loan Agreement;
(ii) a promissory note in the form of Exhibit C-1, annexed hereto, payable by
NMLP to the Agent on behalf of the Lenders in the original principal amount of
up to TWO HUNDRED EIGHT MILLION FOUR HUNDRED SEVENTY THREE THOUSAND FOUR HUNDRED
TWENTY SEVEN DOLLARS AND TWENTY SEVEN CENTS ($208,473,427.27) (the "NMLP Note");
(iii) the various documents and agreements referenced in Section 3.1, above;
(iv) any Consents or NMLP Payment Direction Letters executed by any NMLP
Subsidiary or Xxxxxxx Group Entity; (v) the Interest Rate Protection Agreement,
(vi) the Cash Management Agreement; and (vii) any other documents, instruments,
or agreements heretofore or hereafter executed to further evidence or secure the
NMLP Loan.
Each of the NMLP Loan Documents listed above is dated as of the date
hereof. The NMLP Loan Documents referenced in Section 3.1 (except Section
3.1.27) are sometimes referred to herein, singly and collectively as the "NMLP
Security Documents".
3.3 Security for T-Two Loan. The T-Two Loan, together with interest
thereon and all other charges and amounts payable by, and all other T-Two
Obligations of, T-Two and the other T- Two Loan Parties to the Agent and/or each
of the Lenders shall be secured by the following collateral (the "T-Two
Collateral") which T-Two agrees to provide and maintain, or cause to be provided
and maintained (whether provided for each in separate agreements or combined
with various other agreements):
3.3.1 Security Agreement. A first priority security agreement
and collateral assignment granted by T-Two to the Agent, on behalf of
the Lenders, respecting all assets of T-Two, whether now owned, now
due, or in which T-Two has an interest, or hereafter, at any time in
the future, acquired, arising, to become due, or in which T-Two obtains
an interest, including, without limitation, all of T-Two's right,
title, and interest to and in the Call Option Agreement, the Grantor
Trust T-1 Certificate, the Grantor Trust T-2 Certificate and the
Intercompany Loan.
3.3.2 Collateral Assignment of Beneficial Interest in Grantor
Trust. A first priority pledge and collateral assignment granted by
T-Two to the Agent, on behalf of the
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Lenders, of all of T-Two's right, title, and interest to and in the
Grantor Trust, the Securitized Notes, the Securitized Mortgages and the
other Securitization Documents.
3.3.3 Collateral Assignment of Intercompany Loan. A first
priority pledge and collateral assignment granted by T-Two to the
Agent, on behalf of the Lenders, of all of T- Two's right, title, and
interest to and in the Intercompany Loan and all documents evidencing
the Intercompany Loan.
3.3.4 Depository Account Pledge and Security Agreement. A
first priority Depository Account Pledge and Security Agreement granted
by T-Two to the Agent, on behalf of the Lenders, respecting all
Accounts maintained by T-Two at Fleet National Bank (or any successor
thereto or affiliate thereof), including, without limitation, the T-Two
Cash Collateral Account (the "T-Two Depository Account Pledge and
Security Agreement").
3.3.5 Guaranties. The unconditional, continuing guaranty from
each T-Two Guarantor, pursuant to which each T-Two Guarantor shall
guaranty the prompt, punctual, and faithful payment of the T-Two Loan
and the performance of all other T-Two Obligations to the Agent and
each of the Lenders under the T-Two Loan Documents; provided, however,
that any particular Guaranty may be on a non-recourse basis as, and
only to the extent, specifically approved by the Agent and provided in
any such Guaranty (collectively, the "T- Two Guaranty").
3.3.6 Collateral Assignment of Interest Rate Protection
Agreement A first priority Assignment of Interest Rate Protection
Agreement granted by T-Two to the Agent, on behalf of the Lenders,
respecting the Interest Rate Protection Agreement entered into with
respect to the T-Two Loan.
3.3.7 Additional Documents. Any other documents, instruments
and agreements with respect to the T-Two Loan as set forth on the Loan
Agenda.
3.4 T-Two Loan Documents and T-Two Security Documents. The T-Two Loan
shall be made, evidenced, administered, secured and governed by all of the
terms, conditions and provisions of the "T-Two Loan Documents", each as the same
may be hereafter modified or amended, consisting of: (i) this Loan Agreement;
(ii) a promissory note in the form of Exhibit C-2, annexed hereto, payable by
T-Two to the Agent on behalf of the Lenders in the original principal amount of
up to THREE HUNDRED SIXTEEN MILLION FIVE HUNDRED TWENTY SIX THOUSAND FIVE
HUNDRED SEVENTY TWO DOLLARS AND SEVENTY THREE CENTS ($316,526,572.73)(the "T-Two
Note"); (iii) the various documents and agreements referenced in Section 3.3,
above; (iv) any Consents or T-Two Payment Direction Letters executed by T-Two,
the Grantor Trustee or any other Person; (v) the Interest Rate Protection
Agreement if issued by Fleet National Bank, (vi) the Cash Management Agreement;
and (vii) any other documents, instruments, or agreements heretofore or
hereafter executed to further evidence or secure the T-Two Loan.
Each of the T-Two Loan Documents listed above is dated as of the date
hereof. The T-Two Loan Documents referenced in Section 3.3 (except Section
3.3.7) are sometimes referred to herein, singly and collectively as the "T-Two
Security Documents".
4. CONTINUING AUTHORITY OF AUTHORIZED REPRESENTATIVES. Agent and each
of the Lenders are authorized to rely upon the continuing authority of the
persons, officers, signatories or agents hereafter designated ("Authorized
Representatives") to bind each Borrower with respect to all matters pertaining
to the Loan and the Loan Documents including, but not limited to, the selection
of interest rates, the submission of the request for the Loan Advance and
certificates with regard thereto. Such authorization may be changed only upon
written notice to Agent
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accompanied by evidence, reasonably satisfactory to Agent, of the authority of
the person giving such notice. The present Authorized Representatives as to each
Borrower are listed on Exhibit D. The Agent shall have a right of approval, not
to be unreasonably withheld or delayed, over the identity of the Authorized
Representatives so as to assure Agent and each of the Lenders that each
Authorized Representative is a responsible and senior official of such Borrower.
5. CONDITIONS PRECEDENT.
5.1 Closing NMLP Loan and Funding NMLP Loan Advance. It shall be a
condition precedent of Lenders' obligation to close the NMLP Loan and to fund
the proceeds of the NMLP Loan (the "NMLP Loan Advance") that each of the
following conditions precedent be satisfied in full (as determined by each
Lender in its discretion which discretion shall be exercised in good faith
having due regard for the advice of the Agent), unless specifically waived in
writing by all of the Lenders at or prior to the date of the funding of the NMLP
Loan Advance (the date of the closing of the NMLP Loan and the T-Two Loan shall
be referred to herein as the "Closing Date" and the date of the initial funding
of the NMLP Loan and the T-Two Loan shall be referred to herein as the "Funding
Date"):
5.1.1 Satisfactory NMLP Loan Documents and Related Documents;
Loan Agenda Items. On the Funding Date, each of the NMLP Loan Documents
and the Related Documents shall be satisfactory in form, content and
manner of execution and delivery to Agent and Agent's counsel and all
NMLP Loan Documents and Related Documents shall be in full force and
effect. Without limiting the foregoing, the Agent shall have received
each of the instruments, documents, and agreements itemized on the Loan
Agenda, each executed and delivered in favor of, and/or in form and
substance reasonably satisfactory to, the Agent.
5.1.2 Financial Information; No Material Change.
(1) No change shall have occurred in the financial
condition, business, affairs, operations or control of NMLP,
the NMLP Loan Parties, and/or the NMLP Subsidiaries, since the
date of their respective financial statements or financial
projections most recently delivered to Agent, which change has
had or could reasonably be expected to have a Material Adverse
Effect; and NMLP and the other NMLP Loan Parties shall have
furnished Agent such other financial information, projections,
and certifications as reasonably requested by the Agent.
(2) The absence of any material adverse change in
the loan syndication, financial or capital market conditions
generally from those currently in effect.
(3) NMLP shall have provided to the Agent a copy
certified by an officer of NMLP of its balance sheet after
giving effect to the NMLP Loan, to evidence that NMLP is
solvent, has assets having a fair value in excess of the
amount required to pay NMLP's probable liabilities on NMLP's
existing Debts as such become absolute and mature, and has
adequate capital for the conduct of NMLP's business and the
ability to pay NMLP's Debts from time to time incurred in
connection therewith as such Debts mature.
5.1.3 Warranties and Representations Accurate. All warranties
and representations made by or on behalf of any of NMLP and the other
NMLP Loan Parties, or any of them, to Agent or any of the Lenders shall
be true, accurate and complete in all material respects and, to the
best of NMLP's Knowledge, shall not omit any material fact necessary to
make the same not misleading.
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5.1.4 Validity and Sufficiency of NMLP Security Documents. The
NMLP Security Documents shall create a valid and perfected lien on the
NMLP Collateral described therein and each of the NMLP Security
Documents and related UCC filings shall have been duly recorded and
filed to the satisfaction of Agent and Agent's counsel, including,
without limitation, as follows:
(1) On the Funding Date, NMLP and the other NMLP Loan
Parties shall have delivered to the Agent evidence of the
completion of all recordings and filings of, or with respect
to, the NMLP Security Documents or, in the case of UCC-1
financing statements, delivery of such financing statements in
proper form for recording, and shall have taken all such other
actions as may be necessary or, in the reasonable opinion of
the Agent, desirable to perfect the Liens and security
interests intended to be created by the NMLP Security
Documents in the NMLP Collateral covered thereby. Such
filings, recordings and other actions shall include, without
limitation, in addition to the UCC-1 financing statements, (x)
the delivery to the Agent of the certificates, if any,
representing the capital stock being pledged to Agent, on
behalf of the Lenders, pursuant to the NMLP Security
Documents, together with signed, undated stock powers, (y)
delivery to the Agent of the certificates, if any,
representing the respective partnership and membership
interests in each partnership and limited liability company,
the partnership or membership interests in which are being
pledged to Agent on behalf of the Lenders pursuant to the NMLP
Security Documents, and (z) delivery to the Agent of all
consents, acknowledgments, and approvals relating in any way
to the NMLP Security Documents as the Agent in its reasonable
discretion determines appropriate, including, without
limitation, those consents and approvals set forth in the Loan
Agenda with respect to the granting of the NMLP Security
Documents and the acknowledgment of the interests of the Agent
and the Lenders created therein (the "NMLP Consents"); and
(2) on or prior to the Funding Date, the Agent shall
have received the results of a UCC, tax lien and judgment
search in the jurisdictions in which NMLP, the NMLP
Subsidiaries, and any other NMLP Loan Parties, respectively,
are organized, have assets, or have their chief executive
office, and the results of such search shall indicate there
are no judgments or Liens not permitted under the NMLP Loan
Documents.
5.1.5 Payment Direction And Authorization. Agent shall have
received evidence of such NMLP Payment Direction Letters set forth in
the Loan Agenda in order to evidence the intended management of the
cash flow of NMLP, the NMLP Loan Parties (except the Excepted Loan
Parties), and the NMLP Subsidiaries.
5.1.6 Integrated Matters. Agent shall have received each of
the Integrated Documents, each of which shall be reasonably
satisfactory in form and substance. On the Funding Date the Integrated
Documents shall be in full force and effect, and the Agent shall have
received full and complete copies thereof, certified as such by such
Persons as Agent shall determine appropriate.
5.1.7 Litigation. Except as noted on Schedule 6.1.5, on the
Funding Date, there shall not be any actions, suits or proceedings at
law or in equity or by or before any governmental instrumentality or
other agency or regulatory authority by any entity (private or
governmental) pending or, to the best of NMLP's Knowledge, threatened
with respect to the NMLP Loan, the transactions contemplated in the
NMLP Loan Documents or any documentation executed in connection
therewith, or NMLP, any other NMLP Loan Party, or
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any other NMLP Subsidiary, which the Agent shall determine in good
faith is likely to have a Material Adverse Effect.
5.1.8 Formation Documents and Entity Agreements.
(1) On the Funding Date, the Agent shall have
received a certificate of the general partner or managing
member or manager, as applicable, of NMLP and each other NMLP
Loan Party which is a partnership or limited liability
company, annexing and certifying as to (a) the Formation
Documents of such entity having been duly executed, delivered
and filed and remaining in full force and effect and
unmodified as of the date of such certificate (and annexing a
copy thereof), (b) due authorization, execution and delivery
by such entity of the NMLP Loan Documents to which it is a
party, and (c) such entity being in good standing and
authorized to do business in each jurisdiction where the
ownership of its assets and operation of its business requires
such qualification, as each of the foregoing is set forth in
Loan Agenda;
(2) On the Funding Date, the Agent shall have
received a certificate of the managing member or manager of
each NMLP Loan Party which is a limited liability company
annexing and certifying as to (a) resolutions of such entity
authorizing and approving the transactions contemplated by the
NMLP Loan Documents, and the execution and delivery thereof by
such entity in respect of the documents to which it is a party
and on behalf of the other entities in which such limited
liability company is a general partner or managing member in
respect of any of the NMLP Loan Documents, (b) signatures and
incumbency of all officers of such limited liability company
executing documentation on behalf of such entity or on behalf
of any entity as to which such limited liability company is a
general partner or managing member, as the case may be, in
connection with the transactions contemplated by the NMLP Loan
Documents, (c) the Formation Documents of such entity having
been duly executed, delivered and filed and remaining in full
force and effect and unmodified as of the date of such
certificate (and annexing copies thereof) and (d) such entity
being in good standing and authorized to do business in each
jurisdiction where the conduct of its business and ownership
of its assets requires such qualification, as each of the
foregoing is set forth in the Loan Agenda.
(3) On the Funding Date, the Agent shall have
received a certificate of the secretary of each Loan Party
which is a corporation annexing and certifying as to (a)
corporate resolutions of such entity authorizing and approving
the transactions contemplated by the NMLP Loan Documents, and
the execution and delivery thereof by such entity in respect
of the documents to which it is a party and on behalf of the
other entities in which such corporation is a general partner
or managing member in respect of any of the NMLP Loan
Documents, (b) signatures and incumbency of all officers of
such corporation executing documentation on behalf of such
entity or on behalf of any entity as to which such corporation
is a general partner or managing member, as the case may be,
in connection with the transactions contemplated by the NMLP
Loan Documents, (c) the Formation Documents of such entity
having been duly executed, delivered and filed and remaining
in full force and effect and unmodified as of the date of such
certificate (and annexing copies thereof) and (d) such entity
being in good standing and authorized to do business in each
jurisdiction where the conduct of its business and ownership
of its assets requires such qualification, including, as each
of the foregoing is set forth in the Loan Agenda.
5.1.9 Compliance With Law. There are no Legal Requirements
which prohibit or adversely limit the capacity or authority of NMLP to
enter into the NMLP Loan or any
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NMLP Loan Party to execute the NMLP Loan Documents to which it is a
party, and perform the obligations of such Person with respect thereto.
5.1.10 Compliance With Financial Covenants. Agent shall have
received an Officer's Certificate reflecting compliance with the
Financial Covenants and the terms and conditions hereof.
5.1.11 Due Diligence. Agent shall have received and completed
a review of such due diligence as the Agent may require with respect to
any Individual Property, including, without limitation:
(1) Updated title reports with respect to the
Individual Properties owned (fee simple or land estate) or
ground leased by any Net Lease Partnership, reflecting the
owner thereof, the interest of the NMLP Subsidiary therein,
and any Mortgage Debt (the "Title Reports");
(2) As requested by the Agent, copies of all notes
and mortgages evidencing all Mortgage Debt on any Individual
Property;
(3) As requested by the Agent, copies of all
Ownership Interest Agreements;
(4) A third party certification as to the principal
balance due on all First Mortgage Debt as of November 24,
2003;
(5) As requested by the Agent, the documentation
establishing the remainderman interest of NK-Remainder
Interest LLC in certain of the Individual Properties, as
detailed on Schedule 6.1.18(vii);
(6) As requested by the Agent, the documentation
establishing the ground lessor of NK-Remainder Interest LLC in
certain of the Individual Properties, as detailed on Schedule
6.1.18(vi);
(7) To the extent requested by the Agent for any
Individual Property, third party market rent updates; and
(8) To the extent required by the Agent for any
Individual Property, copies of all Leases.
5.1.12 Condition of Property. There shall have been no
uninsured unrepaired or unrestored damage or destruction by fire or
otherwise to any of the real or tangible personal property comprising
or intended to comprise the Individual Properties which could
reasonably be expected to have a Material Adverse Effect.
5.1.13 Insurance. NMLP shall have provided to Agent and each
of the Lenders evidence of the following insurance, each meeting the
requirements of the Agent: (i) reasonably satisfactory blanket
liability insurance in favor of NMLP and each of the NMLP Subsidiaries,
with the Agent and the Lenders named as additional insureds; (ii) a
reasonably satisfactory report from the third party monitoring the
insurance as to the hazard and other insurance on the Individual
Properties maintained by the respective tenant thereof, evidencing
compliance with Exhibit E and, as applicable, the respective Lease of
each Individual Property, and (iii) a reasonably satisfactory third
party contract regarding the
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monitoring of the insurance to be obtained by tenants under Leases with
respect to the Individual Properties.
5.1.14 Third Party Consents and Agreements. The Agent shall
have received the Consents and such other third party consents and
agreements as the Agent may require with respect to the NMLP Loan.
5.1.15 Management Agreements. The Agent shall have received
copies of the executed Amended and Restated Asset Management Agreement
and Contract to Provide Asset Management Services, each of which shall
be satisfactory as to form and substance.
5.1.16 Cash Management. NMLP, each NMLP Subsidiary (except for
the NMLP Partnership GP's, the Borrower GP, and Xxxxxxx MLP Corp.), and
each other NMLP Loan Party (except the Excepted Loan Parties) shall
open a NMLP Depository Account, as provided for herein, and, except for
the GMAC Borrowers, the NMLP Partnership GP's, the NMLP GP, Xxxxxxx MLP
Corp., and the other NMLP Loan Parties (which are not NMLP
Subsidiaries), enter into a Cash Management Agreement with the Agent.
5.1.17 Loan Facility Rating. The Loans shall have received a
rating (collectively, the "Ratings") from Xxxxx'x Investors Services,
Inc. of at least B1 and a rating from Standard and Poor's Rating Group
of at least B+. NMLP agrees to take all action and provide all
information as may be reasonably requested by the Agent in obtaining
such Ratings.
5.1.18 Interest Rate Protection Agreement NMLP shall have
entered into an Interest Rate Protection Agreement, from an issuer and
in form and substance reasonably acceptable to the Agent, with respect
to the NMLP Loan, which Interest Rate Protection Agreement shall be
collaterally assigned to the Agent, on behalf of the Lenders, to secure
the NMLP Obligations.
5.1.19 Legal Opinions. Agent shall have received and approved
legal opinion letters from counsel representing NMLP and the other NMLP
Loan Parties which meet Agent's legal opinion requirements and covering
such matters incident to the transactions contemplated herein, as the
Agent may reasonably request.
5.1.20 No Default. There shall not be any Default under any of
the NMLP Loan Documents.
5.2 Closing T-Two Loan and Funding T-Two Loan Advance. It shall be a
condition precedent of Lenders' obligation to close the T-Two Loan and to fund
the proceeds of the T-Two Loan (the "T-Two Loan Advance") that each of the
following conditions precedent be satisfied in full (as determined by each
Lender in its discretion which discretion shall be exercised in good faith
having due regard for the advice of the Agent), unless specifically waived in
writing by all of the Lenders at or prior to the Funding Date:
5.2.1 Satisfactory T-Two Loan Documents and Related Documents;
Loan Agenda Items. On the Funding Date, each of the T-Two Loan
Documents and the Related Documents shall be satisfactory in form,
content and manner of execution and delivery to Agent and Agent's
counsel and all T-Two Loan Documents and Related Documents shall be in
full force and effect. Without limiting the foregoing, the Agent shall
have received each of the instruments, documents, and agreements
itemized on the Loan Agenda, each executed and delivered in favor of,
and/or in form and substance reasonably satisfactory to, the Agent.
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5.2.2 Financial Information; No Material Change.
(1) No change shall have occurred in the financial
condition, business, affairs, operations or control of T-Two,
the T-Two Loan Parties, since the date of their respective
financial statements most recently delivered to Agent, which
change has had or could reasonably be expected to have a
Material Adverse Effect; and T- Two and the other T-Two Loan
Parties shall have furnished Agent such other financial
information, projections, and certifications as reasonably
requested by the Agent.
(2) The absence of any material adverse change in
the loan syndication, financial or capital market conditions
generally from those currently in effect.
(3) T-Two shall have provided to the Agent a copy
certified by an officer of T-Two of its balance sheet after
giving effect to the T-Two Loan, to evidence that T-Two is
solvent, has assets having a fair value in excess of the
amount required to pay T-Two's probable liabilities on T-Two's
existing Debts as such become absolute and mature, and has
adequate capital for the conduct of T-Two's business and the
ability to pay T-Two's Debts from time to time incurred in
connection therewith as such Debts mature.
5.2.3 Warranties and Representations Accurate. All warranties
and representations made by or on behalf of any of T-Two and the other
T-Two Loan Parties, or any of them, to Agent or any of the Lenders
shall be true, accurate and complete in all material respects and, to
the best of T-Two's Knowledge, shall not omit any material fact
necessary to make the same not misleading.
5.2.4 Validity and Sufficiency of T-Two Security Documents.
The T-Two Security Documents shall create a valid and perfected lien on
the T-Two Collateral described therein and each of the T-Two Security
Documents and related UCC filings shall have been duly recorded and
filed to the satisfaction of Agent and Agent's counsel, including,
without limitation, as follows:
(1) On the Funding Date, T-Two and the other T-Two
Loan Parties shall have delivered to the Agent evidence of the
completion of all recordings and filings of, or with respect
to, the T-Two Security Documents or, in the case of UCC-1
financing statements, delivery of such financing statements in
proper form for recording, and shall have taken all such other
actions as may be necessary or, in the reasonable opinion of
the Agent, desirable to perfect the Liens and security
interests intended to be created by the T-Two Security
Documents in the T-Two Collateral covered thereby. Such
filings, recordings and other actions shall include, without
limitation, in addition to the UCC-1 financing statements, (x)
the delivery to the Agent of the certificates, if any,
representing the capital stock being pledged to Agent, on
behalf of the Lenders, pursuant to the T-Two Security
Documents, together with signed, undated stock powers, (y)
delivery to the Agent of the certificates, if any,
representing the respective partnership and membership
interests in each partnership and limited liability company,
the partnership or membership interests in which are being
pledged to Agent on behalf of the Lenders pursuant to the
T-Two Security Documents, and (z) delivery to the Agent of all
consents, acknowledgments, and approvals relating in any way
to the T-Two Security Documents as the Agent in its reasonable
discretion determines appropriate, including, without
limitation, those consents and approvals set forth in the Loan
Agenda with respect to the granting of
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the T-Two Security Documents and the acknowledgment of the
interests of the Agent and the Lenders created therein (the
"T-Two Consents"); and
(2) on or prior to the Funding Date, the Agent shall
have received the results of a UCC, tax lien and judgment
search in the jurisdictions in which T-Two, and any other
T-Two Loan Parties, respectively, are organized, have assets,
or have their chief executive office, and the results of such
search shall indicate there are no judgments or Liens not
permitted under the T-Two Loan Documents.
5.2.5 Payment Direction And Authorization. Agent shall have
received evidence of such T-Two Payment Direction Letters set forth in
the Loan Agenda in order to evidence the intended management of the
cash flow of T-Two.
5.2.6 Litigation. On the Funding Date, there shall not be any
actions, suits or proceedings at law or in equity or by or before any
governmental instrumentality or other agency or regulatory authority by
any entity (private or governmental) pending or, to the best of T-Two's
Knowledge, threatened with respect to the T-Two Loan, the transactions
contemplated in the T-Two Loan Documents or any documentation executed
in connection therewith, or T-Two, any other T-Two Loan Party, which
the Agent shall determine in good faith is likely to have a Material
Adverse Effect.
5.2.7 Formation Documents and Entity Agreements.
(1) On the Funding Date, the Agent shall have
received a certificate of the general partner, or managing
member or manager, as applicable, of T-Two and each other
T-Two Loan Party which is a partnership or limited liability
company, annexing and certifying as to (a) the Formation
Documents of such entity having been duly executed, delivered
and filed and remaining in full force and effect and
unmodified as of the date of such certificate (and annexing a
copy thereof), (b) due authorization, execution and delivery
by such entity of the T-Two Loan Documents to which it is a
party, and (c) such entity being in good standing and
authorized to do business in each jurisdiction where the
ownership of its assets and operation of its business requires
such qualification, as each of the foregoing is set forth in
Loan Agenda;
(2) On the Funding Date, the Agent shall have
received a certificate of the manager or managing member of
each T-Two Loan Party which is a limited liability company
annexing and certifying as to (a) resolutions of such entity
authorizing and approving the transactions contemplated by the
T-Two Loan Documents, and the execution and delivery thereof
by such entity in respect of the documents to which it is a
party and on behalf of the other entities in which such
limited liability company is a general partner or managing
member in respect of any of the T-Two Loan Documents, (b)
signatures and incumbency of all officers of such limited
liability company executing documentation on behalf of such
entity or on behalf of any entity as to which such limited
liability company is a general partner or managing member, as
the case may be, in connection with the transactions
contemplated by the T-Two Loan Documents, (c) the Formation
Documents of such entity having been duly executed, delivered
and filed and remaining in full force and effect and
unmodified as of the date of such certificate (and annexing
copies thereof) and (d) such entity being in good standing and
authorized to do business in each jurisdiction where the
conduct of its business and ownership of its assets requires
such qualification, as each of the foregoing is set forth in
the Loan Agenda.
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(3) On the Funding Date, the Agent shall have
received a certificate of the secretary of each Loan Party
which is a corporation annexing and certifying as to (a)
corporate resolutions of such entity authorizing and approving
the transactions contemplated by the T-Two Loan Documents, and
the execution and delivery thereof by such entity in respect
of the documents to which it is a party and on behalf of the
other entities in which such corporation is a general partner
or managing member in respect of any of the T-Two Loan
Documents, (b) signatures and incumbency of all officers of
such corporation executing documentation on behalf of such
entity or on behalf of any entity as to which such corporation
is a general partner or managing member, as the case may be,
in connection with the transactions contemplated by the T-Two
Loan Documents, (c) the Formation Documents of such entity
having been duly executed, delivered and filed and remaining
in full force and effect and unmodified as of the date of such
certificate (and annexing copies thereof) and (d) such entity
being in good standing and authorized to do business in each
jurisdiction where the conduct of its business and ownership
of its assets requires such qualification, including, as each
of the foregoing is set forth in the Loan Agenda.
5.2.8 Compliance With Law. There are no Legal Requirements
which prohibit or adversely limit the capacity or authority of T-Two to
enter into the T-Two Loan or any T- Two Loan Party to execute the T-Two
Loan Documents to which it is a party, and perform the obligations of
such Person with respect thereto.
5.2.9 Due Diligence. Agent shall have received and completed a
review of such due diligence as the Agent may require with respect to
any Securitized Property, including, without limitation:
(1) As requested by the Agent, Title Reports with
respect to any Securitized Property securing any Securitized
Note, reflecting the owner thereof, the interest of the NMLP
Subsidiary therein, and any Mortgage Debt;
(2) Copies of all notes and mortgages evidencing all
Securitized Notes and Securitized Mortgages;
(3) A third party certification as to the principal
balance due on all Securitized Notes as of November 24, 2003;
5.2.10 Condition of Property. There shall have been no
uninsured unrepaired or unrestored damage or destruction by fire or
otherwise to any of the real or tangible personal property comprising
or intended to comprise the Securitized Properties which could
reasonably be expected to have a Material Adverse Effect.
5.2.11 Insurance. T-Two shall have provided to Agent and each
of the Lenders evidence of the following insurance, each meeting the
requirements of the Agent: (i) a reasonably satisfactory report from
the third party monitoring the insurance as to the hazard and other
insurance on the Securitized Properties maintained by the respective
tenant thereof, evidencing compliance with Exhibit E and, as
applicable, the respective Lease of each Individual Property, such
insurance to reflect, and (ii) a reasonably satisfactory third party
contract regarding the monitoring of the insurance to be obtained by
tenants under Leases with respect to the Individual Properties.
5.2.12 Third Party Consents and Agreements. The Agent shall
have received the Consents and such other third party consents and
agreements as the Agent may require with respect to the T-Two Loan.
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5.2.13 Cash Management. T-Two shall open a T-Two Depository
Account, as provided for herein, and enter into the Cash Management
Agreement with the Agent.
5.2.14 Interest Rate Protection Agreement T-Two shall have
entered into an Interest Rate Protection Agreement, from an issuer and
in form and substance reasonably acceptable to the Agent, with respect
to the T-Two Loan, which Interest Rate Protection Agreement shall be
collaterally assigned to the Agent, on behalf of the Lenders, to secure
the T-Two Obligations.
5.2.15 Legal Opinions. Agent shall have received and approved
legal opinion letters from counsel representing T-Two and the other
T-Two Loan Parties which meet Agent's legal opinion requirements and
covering such matters incident to the transactions contemplated herein,
as the Agent may reasonably request.
5.2.16 Refinance. Agent shall have received and completed a
review of such due diligence and documentation as the Agent may require
with respect to the Refinance. All conditions precedent to completion
of the Refinance shall have been satisfied, as determined by the Agent,
and all documentation necessary to complete the Refinance shall have
been approved by the Agent and have been executed, or will be executed
simultaneous with the funding of the T-Two Loan.
5.2.17 No Default. There shall not be any Default under any of
the T-Two Loan Documents.
6. WARRANTIES AND REPRESENTATIONS.
6.1 NMLP. NMLP warrants and represents to Agent and each of the Lenders
for the express purpose of inducing Lenders to enter into this Agreement, to
make the NMLP Loan Advance, and to otherwise complete all of the transactions
contemplated hereby that upon the date of the NMLP Loan Advance and at all times
thereafter until the NMLP Loan has been repaid and all NMLP Obligations have
been satisfied as follows:
6.1.1 Formation. NMLP, each NMLP Subsidiary, and each Other
Partnership, and each Partially Owned Limited Partnership has been duly
formed and is validly existing and in good standing as a corporation,
partnership or limited liability company, as the case may be, under the
laws of the State of its formation. NMLP, each NMLP Subsidiary, and
each Other Partnership has the requisite corporate, partnership or
company power and authority, as applicable, to own its assets and
conduct its businesses as currently conducted and owned, and to enter
into and perform its obligations under each NMLP Loan Document and/or
Related Document to which it is a party. NMLP, each NMLP Subsidiary,
each Other Partnership, and each Partially Owned Limited Partnership is
in good standing and authorized to do business in each jurisdiction
where the ownership of its assets and/or the conduct of its business
requires such qualification except where the failure to be so qualified
would not have a Material Adverse Effect.
6.1.2 Proceedings; Enforceability. NMLP, each NMLP Subsidiary,
each Other Partnership, and each Partially Owned Limited Partnership
has taken all requisite corporate, partnership or company action, as
applicable, to authorize the execution, delivery and performance by
such Person of the Loan Documents and/or the Related Documents to which
it is a party. Each NMLP Loan Document and the Related Document to
which it is a party which is required to be executed and delivered on
or prior to the date on which this representation and warranty is being
made has been duly authorized, executed and delivered and constitutes
the legal, valid and binding obligation of NMLP, each NMLP Subsidiary,
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each Other Partnership, and each Partially Owned Limited Partnership
which is a party thereto, enforceable against each such Person in
accordance with its respective terms except to the extent that the
enforceability thereof may be limited by applicable bankruptcy,
insolvency and similar laws affecting rights of creditors generally and
to general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law).
6.1.3 Conflicts. Neither the execution, delivery and
performance of the Loan Documents and the Related Documents by NMLP,
any NMLP Subsidiary, any Other Partnership, or any Partially Owned
Limited Partnership or compliance by any such Person with the terms and
provisions thereof (including, without limitation, the granting of
Liens pursuant to the NMLP Security Documents), (i) will contravene any
provision of any law, statute, rule or regulation or any order, writ,
injunction or decree of any court or governmental instrumentality, (ii)
will conflict with or result in any breach of any of the terms,
covenants or conditions of, or constitute a default under, or result in
the creation or imposition (or the obligation to create or impose) of
any Lien (except pursuant to the NMLP Security Documents) upon any of
the property or assets of any such Person pursuant to the terms of any
indenture, mortgage, deed of trust, credit agreement or loan agreement
or any other agreement, contract or instrument to which any such Person
is a party or by which it or any of its properties or assets is bound
or to which it may be subject or (iii) will violate any provision of
any Formation Document of any such Person.
6.1.4 Ownership and Taxpayer Identification Numbers.
(1) All of the partners, owners, stockholders, and
members, respectively and as may be applicable, of NMLP, the
NMLP GP, Xxxxxxx Capital LLC, NK- Leyden Loan, L.P. and
NK-Dautec Loan, L.P. are listed in Exhibit F. The exact
correct name and organizational number(s) and federal employer
identification number(s) of NMLP and each NMLP Loan Party are
accurately stated in Exhibits F, L and M.
(2) NMLP is the owner of all of the ownership
interests set forth in Section 3.1.2, above, pledged by it to
the Agent, on behalf of the Lenders. Except for such ownership
interests, NMLP does not directly hold any stock, membership,
partnership or ownership interest in any other Person.
(3) NMLP and each NMLP Subsidiary is the owner of
all of the ownership interests to be pledged to the Agent, on
behalf of the Lenders, pursuant to the NMLP Loan Documents.
Except for such ownership interests and except as shown on
Schedule 6.1.4(iii), NMLP and the NMLP Subsidiaries do not
directly hold any stock, membership, partnership or ownership
interest in any other Person.
(4) Except for the 100% ownership interest in T-Two,
the ownership interests in NMLP and as shown on Schedule
6.1.4(iv), no Xxxxxxx Group Entity, directly or indirectly,
owns or controls any interest in any asset relating to NMLP or
the business operations of the NMLP and the NMLP Subsidiaries.
6.1.5 Litigation. Except as set forth in Schedule 6.1.5, there
are no actions, suits or proceedings at law or in equity or by or
before any governmental instrumentality or other agency or regulatory
authority by any entity (private or governmental) pending or, to the
best of NMLP's Knowledge, threatened with respect to the NMLP Loan, or
the transactions contemplated in the NMLP Loan Documents or the Related
Documents, or any documentation executed in connection therewith, or
NMLP, any NMLP Subsidiary, any
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Other Partnership, or any each Partially Owned Limited Partnership
which could reasonably be expected to have a Material Adverse Effect.
6.1.6 Information. All factual information furnished by or on
behalf of NMLP, any NMLP Subsidiary, any Other Partnership, or any
Partially Owned Limited Partnership to the Agent and/or any of the
Lenders (including, without limitation, all information contained in
the NMLP Loan Documents) for purposes of or in connection with this
Agreement, the other NMLP Loan Documents or any transaction
contemplated herein or therein is, and all other such factual
information hereafter furnished by or on behalf of NMLP, any NMLP
Subsidiary, any Other Partnership, or any Partially Owned Limited
Partnership to the Agent and/or any of the Lenders will be, true and
accurate in all material respects on the date as of which such
information is dated or certified and to the best of the NMLP's
Knowledge, not incomplete by omitting to state any fact necessary to
make such information not misleading in any material respect at such
time in light of the circumstances under which such information was
provided.
6.1.7 Taxes. NMLP, all NMLP Subsidiaries, all Other
Partnerships, and all Partially Owned Limited Partnerships have made
all required tax filings and have paid all federal, state and local
taxes applicable to them and/or their respective assets, except if
contested in accordance with Section 9.1.
6.1.8 Financial Information. The financial statements of the
Xxxxxxx Group Entities (other than Vornado Realty Trust), the NMLP
Subsidiaries, and NMLP provided to the Agent present fairly the
financial conditions of each at the dates of such statements of
financial condition and the results of operations for the periods
covered thereby. The financial projections of the NMLP Subsidiaries and
NMLP present a good faith estimate of the projected financial condition
of each at the reflected dates and the projected results of operations
for the periods covered thereby. Since the dates of the relevant
financial statements, no change has occurred which could have or
reasonably be expected to have a Material Adverse Effect.
6.1.9 Management Agreements. True and correct copies of the
Amended and Restated Management Agreement and the Contract to Provide
Asset Management Services have been delivered to the Agent, each of
which is in full force and effect and no material default has occurred
thereunder. There are no other management agreements or asset
management agreements respecting the management of the assets of NMLP,
any of the NMLP Subsidiaries, any Other Partnership, or any Partially
Owned Limited Partnership.
6.1.10 Control Provisions.
(1) NMLP, controls, directly or indirectly, and
without the requirement for consent of any other Person, the
management of each NMLP Subsidiary.
(2) There are no provisions in any limited
partnership agreement, operating agreement, certificate of
incorporation, bylaws or any other agreement or instrument to
which NMLP or any NMLP Subsidiary is party, under which any
Person (other than NMLP or a NMLP Subsidiary) has the right to
exercise the management or control rights, powers or authority
currently belonging to NMLP or any NMLP Subsidiary, except as
set forth in (i) any mortgage, deed of trust or similar
security agreement encumbering any Individual Property upon
exercise of the rights and remedies upon default set forth in
any of the foregoing, (ii) the Integrated Documents upon
exercise of the rights and remedies upon default set forth
therein, or
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(iii) the Formation Documents of any Other Partnership, or any
Partially Owned Limited Partnership.
6.1.11 Formation Documents. NMLP has delivered or caused to be
delivered to the Agent true and complete copies of all Formation
Documents of the NMLP Loan Parties and other NMLP Subsidiaries, and all
amendments thereto as of the date hereof and as of the date of the NMLP
Loan Advance.
6.1.12 Related Documents. To the extent not provided for
otherwise in this Article 6, true and correct copies of all other
Related Documents, together with all amendments and modifications
thereto, have been delivered to the Agent, each of which is in full
force and effect and no material default has occurred thereunder which
could have a Material Adverse Effect.
6.1.13 Bankruptcy Filings. Neither NMLP, nor any NMLP
Subsidiary, nor any Other Partnership, nor any Partially Owned Limited
Partnership is contemplating either a filing of a petition under any
state or federal bankruptcy or insolvency laws or the liquidation of
all or a major portion of its assets or property, and NMLP has no
Knowledge of any Person contemplating the filing of any such petition
against any of NMLP, any NMLP Subsidiary, any Other Partnership, or any
Partially Owned Limited Partnership.
6.1.14 Options. No Person holds a right of first refusal or
option to purchase with respect to any item of NMLP Collateral, other
than as set forth in the Call Option Agreement.
6.1.15 Investment Company. Neither NMLP, nor any NMLP
Subsidiary, nor any Other Partnership, nor any Partially Owned Limited
Partnership is an "investment company" or a company "controlled" by an
"investment company," within the meaning of the Investment Company Act
of 1940, as amended.
6.1.16 Holding Company. Neither NMLP, nor any NMLP Subsidiary,
nor any Other Partnership, nor any Partially Owned Limited Partnership
is a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company," within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
6.1.17 Securitization Documents. (i) Except as necessary to
effect the Refinance, the Securitization Documents have not been
amended, terminated or rescinded in any material respect, and remain in
full force and effect; (ii) the collateral agent under the
Securitization Documents is the holder of the Securitized Notes and
Securitized Mortgages; (iii) T-Two is the sole and direct beneficial
owner of the Grantor Trust T-2 Certificate and the Grantor Trust T-1
Certificate, free and clear of any Liens except for the rights of NMLP
under the Call Option Agreement; (iv) to the best of NMLP's Knowledge,
none of the Net Lease Partnerships is in default under any NMLP
Securitized Note or NMLP Securitized Mortgage and NMLP does not know of
any event which, but for the passage of time or the giving of notice,
or both, would constitute a default under any of such NMLP Securitized
Note or NMLP Securitized Mortgage; and (vi) except for the interest
held by T-Two in the Grantor Trust T-2 Certificate and the Grantor
Trust T-1 Certificate, no NMLP Loan Party, NMLP Subsidiary, or Xxxxxxx
Group Entity holds, either directly or indirectly, any interest in the
Securitization Documents.
6.1.18 Individual Properties.
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(1) Each of the Net Lease Partnerships possesses such
Licenses and Permits issued by the appropriate federal, state,
or local regulatory agencies or bodies necessary to own and
operate each Individual Property, except where the failure to
possess any such License or Permit would not have a Material
Adverse Effect. The Net Lease Partnerships are in material
compliance with the terms and conditions of all such Licenses
and Permits, except where the failure so to comply would not,
singly or in the aggregate, result in a Material Adverse
Effect. All of the Licenses and Permits are valid and in full
force and effect, except where the invalidity of such Licenses
and Permits or the failure of such Licenses and Permits to be
in full force and effect would not result in a Material
Adverse Effect. Neither the Borrower nor any of the Net Lease
Partnerships has received any notice of proceedings relating
to the revocation or modification of any such Licenses and
Permits which, singly or in the aggregate, if the subject of
an unfavorable decision, ruling or finding, would result in a
Material Adverse Effect.
(2) Except to the extent the failure of the
following to be true would not result in a Material Adverse
Effect, (i) the Net Lease Partnerships have either (x) fee
simple title to the Individual Properties, (y) a land estate
interest for a specified number of years in the Individual
Properties, or (z) a leasehold estate interest in the
Individual Properties, as set forth in Schedule 6.1.18(ii)(i);
(ii) the interests of the Net Lease Partnerships in the
Individual Properties are not subject to any Liens securing
the repayment of money except for those securing the repayment
of (x) the First Mortgage Debt, as set forth in Schedule
6.1.18(ii)(ii)(x), (y) the Other Second Mortgage Debt, as set
forth in Schedule 6.1.18(ii)(ii)(y), or (z) the NMLP
Securitized Notes, as set forth in Schedule 6.1.18(ii)(ii)(z);
and (iii) except as set forth in Schedule 6.1.18(ii)(iii),
each land estate remainderman interest and lessor interest
under a Ground Lease is not, directly or indirectly, owned or
controlled by a Loan Party, Borrower Subsidiary or Xxxxxxx
Group Entity;
(3) Except to the extent the failure of the
following to be true would not result in a Material Adverse
Effect, (i) to the best of NMLP's Knowledge, each Individual
Property is free of any Hazardous Materials in violation of
any Environmental Laws applicable to such property; (ii) none
of the Net Lease Partnerships or Borrower has received any
notice of a claim under or pursuant to any Environmental Laws
applicable to an Individual Property or under common law
pertaining to Hazardous Materials on or originating from any
Individual Property; and (iii) none of the Net Lease
Partnerships or NMLP has received any notice from any
Governmental Authority claiming any material violation of any
Environmental Laws that is uncured or unremediated as of the
date hereof;
(4) The mortgages and deeds of trust encumbering the
Individual Properties of any Net Lease Partnerships are not
cross-defaulted or cross- collateralized to any Individual
Property owned by any other Net Lease Partnerships;
(5) Except to the extent the failure of the following
to be true would not result in a Material Adverse Effect, (i)
with respect to the Individual Properties, each Lease is in
full force and effect, (ii) except as set forth in Schedule
6.1.18(v), to the best of NMLP's Knowledge, none of the Net
Lease Partnerships is in default in the performance of any
material obligation under any Lease and NMLP has no Knowledge
of any circumstances which, with the passage of time or the
giving of notice, or both, would constitute an event of
default by any party under any of the Leases, (iii) except as
set forth in Schedule 6.1.18(v), to the best of NMLP's
Knowledge, no tenant is in monetary default beyond 30 days or
material nonmonetary
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default under its Lease, (iv) except as otherwise expressly
set forth in Schedule 6.1.18(v), to the best of NMLP's
Knowledge, there are no actions, voluntary or involuntary,
pending against any tenant under a Lease under any bankruptcy
or insolvency laws, (v) none of the Leases and none of the
rents or other amounts payable thereunder has been assigned,
pledged or encumbered by any of the Net Lease Partnerships or
any other Person, except in connection with financing secured
by the applicable Individual Property, (vi) the basic terms
and conditions of each Lease are set forth in Schedule
6.1.18(v)(vi) (the foregoing schedule, as updated from time to
time as provided herein, being referred to herein as the
"Lease Schedule"), and (vii) each Master Lease which was
entered into, or assumed, by any Net Lease Partnership has
merged into the applicable Sublease by operation of law, such
that the tenant as to which the credit rating is provided, is
obligated directly to the applicable Net Lease Partnership
under the Lease for the payment of the rent due under the
Lease.
(6) Except to the extent the failure of the
following to be true would not result in a Material Adverse
Effect, (i) each Ground Lease is valid, binding and in full
force and effect as against the applicable Net Lease
Partnerships and, to the best of NMLP's Knowledge, the other
party thereto, (ii) except for tenants under the Leases and
except in connection with security relating to the Mortgage
Debt, none of the Ground Leases is subject to any pledge,
lien, assignment, license or other agreement granting to any
third party any interest therein or any right to the use or
occupancy of any premises leased thereunder, (iii) no payments
under any Ground Lease are delinquent and no notice of default
thereunder has been sent or received by any Loan Party which
has not been cured or waived prior to the date hereof, and to
the best of NMLP's Knowledge, there does not exist under any
of the Ground Leases any default by any Net Lease Partnerships
or any event which merely with notice or lapse of time or
both, would constitute such a default by any of the Net Lease
Partnerships, and (iv) the basic terms and conditions of each
Ground Lease are set forth in Schedule 6.1.18(vi) and Schedule
2.6.4, including, without limitation, all such Ground Lease
Extension Options (x) which have been exercised as of the
Closing Date and (y) as to which the final date to exercise
such Ground Lease Extension Option is within the next twelve
(12) months (including all applicable dates by which notices
must be provided in connection with the exercise of same) (the
foregoing schedule, as updated from time to time as provided
herein, being referred to as the "Ground Lease Extension
Option Schedule").
(7) Except to the extent the failure of the
following to be true would not result in a Material Adverse
Effect, (i) each Ownership Interest Agreement relating to a
Remainder Ground Lease Option is valid, binding and in full
force and effect as against the applicable Net Lease
Partnerships and, to the best of NMLP's Knowledge, the other
party thereto, (ii) except for tenants under the Leases and
except in connection with security relating to the Mortgage
Debt, none of the Remainder Ground Lease Options is subject to
any pledge, lien, assignment, license or other agreement
granting to any third party any interest therein or any right
to the use or occupancy of any premises leased thereunder,
(iii) no payments under any Ownership Interest Agreement
relating to a Remainder Ground Lease Option are delinquent and
no notice of default thereunder has been sent or received by
any NMLP Loan Party which has not been cured or waived prior
to the date hereof, and to the best of NMLP's Knowledge, there
does not exist under any of the Ownership Interest Agreements
relating to the Remainder Ground Lease Options any default by
any Net Lease Partnerships or any event which merely with
notice or lapse of time or both, would constitute such a
default by any of the Net Lease Partnerships, and (iv) the
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basic terms and conditions of each Remainder Ground Lease
Option are set forth in Schedule 6.1.18(vii) and Schedule
2.6.4, including, without limitation, all such Remainder
Ground Lease Options (x) which have been exercised as of the
Closing Date and (y) as to which the final date to exercise
such Remainder Ground Lease Option is within the next twelve
(12) months (including all applicable dates by which notices
must be provided in connection with the exercise of same) (the
foregoing schedule, as updated from time to time as provided
herein, being referred to as the "Remainder Ground Lease
Option Schedule").
(8) Schedule 6.1.18(viii) accurately details in
all material respects the approximate amount, term, and
interest rate applicable to all Mortgage Debt encumbering the
Individual Properties (the foregoing schedule, as updated from
time to time as provided herein, the "Mortgage Debt
Schedule"). Except as noted on Schedule 6.1.18(viii), no
notice of default thereunder has been sent or received by any
Loan Party which has not been cured or waived prior to the
date hereof, and to the best of the Borrower's Knowledge,
there does not exist with respect to any Mortgage Debt any
default by any Net Lease Partnerships or any event which
merely with notice or lapse of time or both, would constitute
such a default by any of the Net Lease Partnerships. Except
for ownership of the E Certificate Representing First Mortgage
Interest (in the GMAC Mortgage Loan), the F Certificate
Representing First Mortgage Interest (in the GMAC Mortgage
Loan), the G Certificate Representing First Mortgage Interest
(in the GMAC Mortgage Loan), and the interests held in the
Grantor Trust by T-Two representing ownership of the
Securitized Notes and the Mortgage Debt set forth in Schedule
6.1.18(viii)(b), neither NMLP, any NMLP Loan Party, any NMLP
Subsidiary, nor any Xxxxxxx Group Entity owns, directly or
indirectly, any material interest in any Mortgage Debt.
(9) Each of the Net Lease Partnerships is a
partnership for federal income tax purposes and does not
constitute a publicly traded partnership within the meaning of
Section 7704 of the Code.
(10) Each of the Net Lease Partnerships possesses
valid owner's policy title insurance from title insurers of
recognized financial responsibility on each of the Individual
Properties in amounts not less than the original purchase
price of such properties, and such title insurance is in full
force and effect.
(11) Except as set forth in Schedule 6.1.18(xi), as
to any of the Individual Properties, there is not pending the
exercise of any Economic Discontinuance Rights by any tenants.
6.1.19 Use of Proceeds. The proceeds of the NMLP Loan shall be
used solely and exclusively as provided in Section 1.3.2. No portion of
the proceeds of the NMLP Loan shall be used by NMLP directly or
indirectly, and whether immediately, incidentally or ultimately (i) to
purchase or carry any margin stock or to extend credit to others for
the purpose thereof or to repay or refund indebtedness previously
incurred for such purpose, or (ii) for any purpose which would violate
or in inconsistent with the provisions of regulations of the Board of
Governors of the Federal Reserve System including, without limitation,
Regulations G, T, U and X thereof.
6.1.20 Insurance. Except to the extent the failure of the
following to be true would not result in a Material Adverse Effect, (i)
to the best of NMLP's Knowledge, the Individual Properties are insured
by insurers of recognized financial responsibility against such losses
and risks in compliance with the requirements of the Leases and as set
forth in Exhibit E,
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hereto, such insurance maintained by the tenants under the Leases; (ii)
NMLP has a monitoring system in place to periodically verify whether
the tenants under the Leases have in place insurance as required by the
applicable Lease; and (iii) NMLP has satisfactory liability insurance
in favor of NMLP and each of the NMLP Subsidiaries in compliance with
the requirements of the Agent in effect on the date hereof.
6.1.21 Deferred Compensation and ERISA. Neither NMLP nor any
NMLP Subsidiary has any pension, profit sharing, stock option,
insurance or other arrangement or Plan for employees covered by ERISA
except as may be designated to Agent in writing by NMLP from time to
time and no Reportable Event has occurred and is now continuing with
respect to any such ERISA Plan. The granting of the NMLP Loan, the
performance by NMLP, the NMLP Subsidiaries, and/or any of the Other
Partnerships or any of the Partially Owned Limited Partnerships of
their respective obligations under the NMLP Loan Documents and such
Persons' conducting of their respective operations do not and will not
violate any provisions of ERISA.
6.1.22 No Default. There is no Default on the part of NMLP or
any of the other NMLP Loan Parties under this Agreement or any of the
other NMLP Loan Documents and no event has occurred and is continuing
which would constitute a Default under any NMLP Loan Document.
6.1.23 Xxxxxxx Loans. Xxxxxxx Xxxxx LLC is the holder of the
Administrator LLC Loan, NK-Leasehold II LLC is the holder of the NK
Leasehold Second Mortgage Loan, NK-Leyden Loan, L.P. is the holder of
the Leyden Note and NK-Dautec Loan, L.P. is the holder of the Dautec
Note. Schedule 6.1.23 accurately details the approximate amount, term,
and interest rate applicable to each of the Xxxxxxx Loans. To the best
of NMLP's Knowledge, there does not exist with respect to any such loan
any default by any obligor thereunder or any event which merely with
notice or lapse of time or both, would constitute such a default by any
obligor under any Xxxxxxx Loan.
6.1.24 Integrated Documents. (i) True and correct copies of
the Integrated Documents, together with all amendments and
modifications thereto, have been delivered to the Agent, each of which
is in full force and effect; (ii) Schedule 6.1.24 sets forth the only
NMLP Collateral as to which a pledge has been granted to the Integrated
Group to secure the Integrated Obligations; (iii) to the best of NMLP's
Knowledge, there does not exist with respect to the Integrated
Obligations any default by any obligor thereunder or any event which
merely with notice or lapse of time or both, would constitute such a
default by any obligor thereunder; (iv) no notice of default
thereunder, indemnification claim, or claim for payment of any amount
due thereunder has been received by any Loan Party or any Xxxxxxx Group
Entity; or threatened by, or on behalf of, the Integrated Group, (v)
NMLP has no Knowledge of any event which could lead to any such
default, indemnification claim or claim, and (vi) neither NMLP nor any
NMLP Subsidiary is obligated for the repayment of the Integrated
Obligations, other than Xxxxxxx XX LLC, Xxxxxxx Capital LLC, and
Xxxxxxx Xxxxx LLC.
6.1.25 Other NMLP Loan Parties' Warranties and
Representations. NMLP has no reason to believe that any warranties or
representations made in writing by any of the NMLP Loan Parties to the
Agent or any of the Lenders are untrue, incomplete or misleading in any
material respect.
6.2 T-Two. T-Two warrants and represents to Agent and each of the
Lenders for the express purpose of inducing Lenders to enter into this
Agreement, to make the T-Two Loan Advance, and to otherwise complete all of the
transactions contemplated hereby that upon the date of
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the T-Two Loan Advance and at all times thereafter until the T-Two Loan has
been repaid and all T-Two Obligations have been satisfied as follows:
6.2.1 Formation. T-Two has been duly formed and is validly
existing and in good standing as a partnership under the laws of the
State of Delaware. T-Two has the requisite partnership power and
authority, as applicable, to own its assets and conduct its businesses
as currently conducted and owned, and to enter into and perform its
obligations under each T-Two Loan Document and/or Related Document to
which it is a party. T-Two is in good standing and authorized to do
business in each jurisdiction where the ownership of its assets and/or
the conduct of its business requires such qualification except where
the failure to be so qualified would not have a Material Adverse
Effect.
6.2.2 Proceedings; Enforceability. T-Two and each T-Two Loan
Party has taken all requisite corporate, partnership or company action,
as applicable, to authorize the execution, delivery and performance by
such Person of the T-Two Loan Documents and/or the Related Documents to
which it is a party. Each T-Two Loan Document and the Related Document
to which it is a party which is required to be executed and delivered
on or prior to the date on which this representation and warranty is
being made has been duly authorized, executed and delivered and
constitutes the legal, valid and binding obligation of T-Two and each
T-Two Loan Party which is a party thereto, enforceable against each
such Person in accordance with its respective terms except to the
extent that the enforceability thereof may be limited by applicable
bankruptcy, insolvency and similar laws affecting rights of creditors
generally and to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).
6.2.3 Conflicts. Neither the execution, delivery and
performance of the Loan Documents and the Related Documents by T-Two,
any T-Two Loan Party or compliance by any such Person with the terms
and provisions thereof (including, without limitation, the granting of
Liens pursuant to the T-Two Security Documents), (i) will contravene
any provision of any law, statute, rule or regulation or any order,
writ, injunction or decree of any court or governmental
instrumentality, (ii) will conflict with or result in any breach of any
of the terms, covenants or conditions of, or constitute a default
under, or result in the creation or imposition (or the obligation to
create or impose) of any Lien (except pursuant to the T- Two Security
Documents and the Call Option Agreement) upon any of the property or
assets of any such Person pursuant to the terms of any indenture,
mortgage, deed of trust, credit agreement or loan agreement or any
other agreement, contract or instrument to which any such Person is a
party or by which it or any of its properties or assets is bound or to
which it may be subject or (iii) will violate any provision of any
Formation Document of any such Person.
6.2.4 Ownership and Taxpayer Identification Numbers.
(1) All of the partners, owners, stockholders, and
members, respectively and as may be applicable, of T-Two are
listed in Exhibit F. The exact correct name and organizational
number(s) and federal employer identification number(s) of T-
Two and each T-Two Loan Party are accurately stated in
Exhibits F, L and M.
(2) T-Two does not directly hold any stock,
membership, partnership or ownership interest in any other
Person, with the exception of its ownership of the Grantor
Trust T-1 Certificate and Grantor Trust T-2 Certificate .
6.2.5 Litigation. Except as set forth in Schedule 6.2.5, there
are no actions, suits or proceedings at law or in equity or by or
before any governmental instrumentality or other
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agency or regulatory authority by any entity (private or governmental)
pending or, to the best of T-Two's Knowledge, threatened with respect
to the T-Two Loan, the transactions contemplated in the T-Two Loan
Documents, the Related Documents, or the transactions contemplated in
connection with the Refinance or any documentation executed in
connection therewith, or T-Two, which could reasonably be expected to
have a Material Adverse Effect.
6.2.6 Information. All factual information furnished by or on
behalf of T-Two to the Agent and/or any of the Lenders (including,
without limitation, all information contained in the T-Two Loan
Documents) for purposes of or in connection with this Agreement, the
other T-Two Loan Documents or any transaction contemplated herein or
therein is, and all other such factual information hereafter furnished
by or on behalf of T-Two to the Agent and/or any of the Lenders will
be, true and accurate in all material respects on the date as of which
such information is dated or certified and to the best of the T-Two's
Knowledge, not incomplete by omitting to state any fact necessary to
make such information not misleading in any material respect at such
time in light of the circumstances under which such information was
provided.
6.2.7 Taxes. T-Two has made all required tax filings and have
paid all federal, state and local taxes applicable to it and/or its
assets, except if contested in accordance with Section 9.1.
6.2.8 Financial Information. The financial statements of T-Two
provided to the Agent present fairly the financial conditions of T-Two
at the dates of such statements of financial condition and the results
of operations for the periods covered thereby. Since the dates of the
relevant financial statements, no change has occurred which could have
or reasonably be expected to have a Material Adverse Effect.
6.2.9 Formation Documents. T-Two has delivered or caused to be
delivered to the Agent true and complete copies of all Formation
Documents of the T-Two Loan Parties, and all amendments thereto as of
the date hereof and as of the date of the T-Two Loan Advance.
6.2.10 Related Documents. To the extent not provided for
otherwise in this Article 6, true and correct copies of all other
Related Documents have been delivered to the Agent, each of which is in
full force and effect and no material default has occurred thereunder.
6.2.11 Bankruptcy Filings. Neither T-Two, nor any T-Two Loan
Party is contemplating either a filing of a petition under any state or
federal bankruptcy or insolvency laws or the liquidation of all or a
major portion of its assets or property, and T-Two has no Knowledge of
any Person contemplating the filing of any such petition against any of
T-Two or any T-Two Loan Party.
6.2.12 Options. No Person holds a right of first refusal or
option to purchase with respect to any item of T-Two Collateral, other
than as set forth in the Call Option Agreement.
6.2.13 Investment Company. T-Two, nor any T-Two Loan Party, is
an "investment company" or a company "controlled" by an "investment
company," within the meaning of the Investment Company Act of 1940, as
amended.
6.2.14 Holding Company. Neither T-Two, nor any T-Two Loan
Party is a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary
company" of a "holding company," within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
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6.2.15 Securitization Documents. (a) Except as necessary to
effect the Refinance, the Securitization Documents have not been
amended, terminated or rescinded in any material respect, and remain in
full force and effect; (b) the Grantor Trust Trustee is the holder of
the Securitized Notes and Securitized Mortgages; (c) T-Two is the sole
and direct beneficial owner of the Grantor Trust, the Grantor Trust T-2
Certificate and the Grantor Trust T-1 Certificate, free and clear of
any Liens other than pursuant to the Call Option Agreement; (d) to the
best of T-Two's Knowledge, none of the current payors is in default
under any Securitized Note or Securitized Mortgage and T-Two does not
know of any event which, but for the passage of time or the giving of
notice, or both, would constitute a default under any of such
Securitized Note or Securitized Mortgage; and (e) Schedule 6.2.15
accurately details the current mortgagor (and proportionate direct
and/or indirect ownership interest of NMLP therein), property location,
current principal amount, current Discounted Payment Option Amount (as
applicable), term, and interest rate applicable to all Securitized
Notes (the foregoing schedule, as updated from time to time as provided
herein, the "Securitized Note Schedule").
6.2.16 Use of Proceeds. The proceeds of the T-Two Loan shall
be used solely and exclusively as provided in Section 1.4. No portion
of the proceeds of the T-Two Loan shall be used by T-Two directly or
indirectly, and whether immediately, incidentally or ultimately (i) to
purchase or carry any margin stock or to extend credit to others for
the purpose thereof or to repay or refund indebtedness previously
incurred for such purpose, or (ii) for any purpose which would violate
or in inconsistent with the provisions of regulations of the Board of
Governors of the Federal Reserve System including, without limitation,
Regulations G, T, U and X thereof.
6.2.17 Insurance. Except to the extent the failure of the
following to be true would not result in a Material Adverse Effect, (i)
to the best of T-Two's Knowledge, the Securitized Properties are
insured by insurers of recognized financial responsibility against such
losses and risks in compliance with the requirements of the Leases and
as set forth in Exhibit E, hereto, such insurance maintained by the
tenants under the Leases; and (ii) T-Two has a monitoring system in
place to periodically verify whether the tenants under the Leases have
in place insurance as required by the applicable Lease.
6.2.18 Deferred Compensation and ERISA. T-Two has no pension,
profit sharing, stock option, insurance or other arrangement or Plan
for employees covered by ERISA except as may be designated to Agent in
writing by NMLP from time to time and no Reportable Event has occurred
and is now continuing with respect to any such ERISA Plan. The granting
of the T-Two Loan, the performance by T-Two or any T-Two Loan Party of
their respective obligations under the T-Two Loan Documents and such
Persons' conducting of their respective operations do not and will not
violate any provisions of ERISA.
6.2.19 No Default. There is no Default on the part of T-Two or
any of the other T- Two Loan Parties under this Agreement or any of the
other T-Two Loan Documents and no event has occurred and is continuing
which would constitute a Default under any T-Two Loan Document.
6.2.20 Other T-Two Loan Parties' Warranties and
Representations. T-Two has no reason to believe that any warranties or
representations made in writing by any of the T-Two Loan Parties to the
Agent or any of the Lenders are untrue, incomplete or misleading in any
material respect.
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7. AFFIRMATIVE COVENANTS.
7.1 NMLP. NMLP covenants and agrees that from the date hereof and so
long as any indebtedness is outstanding hereunder, or any of the NMLP Loan or
other NMLP Obligations remains outstanding, as follows:
7.1.1 Notices. NMLP shall, with reasonable promptness, but in
all events within five (5) days after it has actual Knowledge thereof,
notify Agent and each of the Lenders in writing of the occurrence of
any act, event or condition which constitutes a Default or Event of
Default under any of the NMLP Loan Documents. Such notification shall
include a written statement of any remedial or curative actions which
NMLP proposes to undertake and/or to cause any of the other NMLP Loan
Parties to undertake to cure or remedy such Default or Event of
Default.
7.1.2 Financial Statements; Reports; Officer's Certificates.
NMLP shall furnish or cause to be furnished to Agent as set forth
herein from time to time, the following financial statements, reports,
certificates, and other information, all in form, manner of
presentation and substance acceptable to Agent and each of the Lenders:
(1) Annual Statements.
(1) Within ninety (90) days after the close
of each fiscal year of NMLP, the consolidated
statements of financial condition of NMLP and all
non-consolidated NMLP Subsidiaries as at the end of
such fiscal year and the related consolidated
statements of income and retained earnings and
statements of changes in financial position for such
fiscal year, in each case, commencing with the Fiscal
Year ending December 31, 2003, setting forth
comparative for the preceding fiscal year and
certified by Imowitz, Xxxxxx & Co. LLP or other
independent certified public accountants of
recognized national standing reasonably acceptable to
the Agent, in each case together with a report of
such accounting firm stating that in the course of
its regular audit of the financial statements of such
Party, which audit was conducted in accordance with
GAAP, consistently applied, such accounting firm
obtained no knowledge of any Default or Event of
Default which has occurred and is continuing or, if
in the opinion of such accounting firm such a Default
or Event of Default has occurred and is continuing, a
statement as to the nature thereof; such financial
statements to include and to be supplemented by such
detail and supporting data and schedules as Agent may
from time to time reasonably determine;
(2) Within ninety (90) days after the close
of each fiscal year of NMLP, the statements of
financial condition of each NMLP Subsidiary as at the
end of such fiscal year and the related statements of
income and retained earnings and statements of
changes in financial position for such fiscal year,
in each case, commencing with the Fiscal Year ending
December 31, 2003, setting forth comparative figures
for the preceding fiscal year, internally prepared in
accordance with GAAP, all in form and manner of
presentation acceptable to Agent, such financial
statements to include and to be supplemented by such
detail and supporting data and schedules as Agent may
from time to time reasonably determine, together with
an Officer's Certificate from NMLP certifying that
such financial statements are true, accurate, and
complete in all material respects and that no Default
or Event of Default has occurred and is continuing.
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(3) Periodic Statements Within sixty (60)
days after the close of each calendar quarter (except
for the quarter ending on December 31), the
following: (i) the consolidated statements of
financial condition of NMLP and all non-consolidated
NMLP Subsidiaries, internally prepared in accordance
with GAAP, consistently applied, as at the end of
such quarterly period and the related consolidated
statements of income and retained earnings and
statements of changes in financial position for such
quarterly period and for the elapsed portion of the
Fiscal Year ended with the last day of such quarterly
period, in each case commencing with the Fiscal Year
ending December 31, 2003, setting forth comparative
figures for the related periods in the prior fiscal
year, subject to normal year-end audit adjustments,
all in form and manner of presentation acceptable to
Agent, such financial statements to include and to be
supplemented by such detail and supporting data and
schedules as Agent may from time to time reasonably
determine, (ii) an Officer's Certificate from NMLP
certifying that such financial statements are true,
accurate, and complete in all material respects and
that no Default or Event of Default has occurred and
is continuing, and (iii) an updated Cash Flow
Projection specifically identifying, without
limitation, (a) any changes to the Cash Flow
Projections provided in the then prior Officer's
Certificate and (b) any Distributions by NMLP
Subsidiaries projected during the next one-hundred
and eighty (180) days.
(4) Compliance Certificates. Within sixty
(60) days (or ninety (90) days in the case of the
fourth fiscal quarter) after the close of each
quarterly accounting period in each Fiscal Year of
NMLP, Compliance Certificates in the form of Exhibit
G-1 and Exhibit G-3, annexed hereto, together with an
Officer's Certificate from NMLP providing and
otherwise certifying with respect to the following:
1. the compliance with the Financial Covenants, with
such supporting detail as is deemed necessary by the Agent to
verify the calculations incorporated therein;
2. any changes to the Lease Schedule, including,
without limitation, specific identification of (a) any Leases
which will expire within one (1) calendar year from the date
of the respective Officer's Certificate and the applicable
dates and conditions by and upon which such term may be
extended, (b) any material defaults then existing under any
Lease of which NMLP has Knowledge not included in a prior
Officer's Certificate or Lease Schedule, (c) any Leases as to
which the term thereof has expired since the date of the then
prior Officer's Certificate, without the extension thereof, of
which NMLP has Knowledge, (d) any Leases as to which the
tenant has vacated the subject premises since the date of the
then prior Officer's Certificate, of which NMLP has Knowledge,
(e) any Leases or commitments to lease entered into since the
date of the then prior Officer's Certificate, and (f) an
updated summary of any pending exercise by any tenant under a
Lease of Economic Discontinuance Rights from the date of the
then prior Officer's Certificate, including, without
limitation, (i) the identity of the subject Individual
Property, (ii) the date by which the relevant Net Lease
Partnership must reject the Rejectable Offer, and (iii) the
current calculation of the applicable Rejection Test with such
supporting detail as is deemed necessary by the Agent to
verify the calculations incorporated therein;
3. any changes to the Ground Lease Extension Option
Schedule, including, without limitation, (a) specific
identification of all Ground Lease
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Extension Options (i) which have been exercised since the date
of the then prior Officer's Certificate, and (ii) as to which
the final date for exercising such Ground Lease Extension
Option is within the twelve (12) months following the date of
the Officer's Certificate (including all applicable dates by
which notices must be provided in connection with the exercise
of same), and (b) any defaults then existing under any Ground
Lease not included in a prior Officer's Certificate or Ground
Lease Extension Option Schedule;
4. any changes to the Remainder Ground Lease Options
Schedule, including, without limitation, (a) specific
identification of all Remainder Ground Lease Options (i) which
have been exercised since the date of then prior Officer's
Certificate and (ii) as to which the final date for exercising
such remainder Ground Lease Option is within the twelve (12)
months following the date of the Officer's Certificate
(including all applicable dates by which notices must be
provided in connection with the exercise of same), (b) any
defaults then existing under any Ownership Interest Agreement
relating to a Remainder Ground Lease Option not included in a
prior Officer's Certificate or Remainder Ground Lease Option
Schedule, and (c) a listing of any remainderman interests or
ground lessor interests in Ground Leases (i) acquired by NMLP,
a NMLP Subsidiary, or a Xxxxxxx Group Entity since the date of
the then prior Officer's Certificate, together with specific
detail as to the nature of the interest acquired and the
Person to whom the interest was transferred, and (ii) as to
which an agreement has been entered into since the date of the
then prior Officer's Certificate for the acquisition thereof
by NMLP, a NMLP Subsidiary, or a Xxxxxxx Group Entity,
together with the primary terms of such agreement;
5. any changes to the Mortgage Debt Schedule,
including, without limitation, (a) any prepayments made on any
Mortgage Debt since the date of the then prior Officer's
Certificate, (b) specific identification of all Mortgage Debt
which matures within the twelve (12) months following the date
of the Officer's Certificate, (c) any refinancing of such
Mortgage Debt which has occurred (or for which an application
has been made or a loan commitment received) since the date of
the then prior Officer's Certificate, together with a summary
of the use and disbursement of the proceeds thereof, (d) any
defaults then existing under any Mortgage Debt not included in
a prior Officer's Certificate or Mortgage Debt Schedule, and
(e) the current calculation of the Mortgage Debt Test with
such supporting detail as is deemed necessary by the Agent to
verify the calculations incorporated therein;
6. A listing of any Individual Properties (a) sold by
the applicable Net Lease Partnership since the date of the
then prior Officer's Certificate, together with specific
detail as to the use and disbursement of the proceeds of the
sale, and (b) as to which an agreement has been entered into
since the date of the then prior Officer's Certificate for the
sale thereof, together with the primary terms of such
agreement;
7. a listing of any material assets acquired, or as
to which an agreement to acquire has been entered into, by
NMLP, any NMLP Subsidiary or any NMLP Loan Party (except the
Excepted Loan Parties) since the date of the then prior
Officer's Certificate, together with the primary terms of such
acquisition or agreement;
8. any changes to Schedule 6.1.23 including, without
limitation, (a) any payments made on account of the Xxxxxxx
Loans since the date of the then prior
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Officer's Certificate and (b) any defaults then existing under
any Xxxxxxx Loans not included in a prior Officer's
Certificate or Schedule 6.1.23;
9. a listing of any Other Partnerships as to which
consent has been obtained since the date of the then prior
Officer's Certificate from a sufficient percentage of the
limited partners thereof to merge such Other Partnership into
a NMLP Partnership;
10. except as disclosed in such Officer's
Certificate, to the extent of the knowledge of such officer, a
certification that all insurance premiums in respect of
insurance policies covering the properties owned (directly or
indirectly) by the Net Lease Partnerships have been paid or
are not past due more than sixty (60) days, all debt service
payments in respect of any Mortgage Debt of any Net Lease
Partnership have been made and all real estate taxes and other
impositions relating to any Net Lease Partnership or its
related assets have been paid; and
11. a summary of the status of any pending insurance
claims or condemnation award proceedings.
(5) Data Requested. Within a reasonable
period of time and from time to time such other
financial data or information as Agent may reasonably
request with respect to the Individual Properties,
NMLP, any other NMLP Subsidiary, and/or the other
NMLP Loan Parties (except the Excepted Loan Parties),
including, but not limited to, rent rolls, aged
receivables, aged payables, leases, budgets,
forecasts, reserves, cash flow projections, deposit
accounts, mortgage information, physical condition of
the Individual Properties and pending lease
proposals.
(6) Tax Returns. Upon Agent's request,
copies of all federal and state tax returns of NMLP
and, to the extent prepared and filed, the other NMLP
Subsidiaries.
(7) Lease Notices. Concurrently with the
giving thereof, and within ten (10) Business Days of
receipt thereof, copies of all notices, other than
routine correspondence, given or received by NMLP,
any Net Lease Partnership or other NMLP Subsidiary
with respect to any Lease.
(8) Mortgage Notices. Concurrently with the
giving thereof, and within ten (10) Business Days of
receipt thereof, copies of all notices, other than
routine correspondence, given or received by NMLP,
any Net Lease Partnership, or other NMLP Subsidiary
with respect to any Mortgage Debt.
(9) Ground Lessor/Remainder Interest
Notices. Concurrently with the giving thereof, and
within ten (10) Business Days of receipt thereof,
copies of all notices, other than routine
correspondence, given or received by NMLP, any Net
Lease Partnership or other NMLP Subsidiary
(including, without limitation, NK-Remainder Interest
LLC) with respect to any Ownership Interest
Agreement, Ground Lease Extension Option, and/or
Remainder Ground Lease Option.
(10) Entity Notices. Concurrently with the
issuance thereof, copies of all written notices
(excluding routine correspondence) given to the
partners, owners, stockholders, and/or members,
respectively, of NMLP
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and/or the Other Partnerships and/or any Partially
Owned Limited Partnerships.
(11) Notice of Distributions. Concurrently
with the giving thereof, and within ten (10) Business
Days of receipt thereof, copies of all notices of
Distributions to the extent given by any NMLP
Subsidiaries to NMLP. NMLP shall provide the Agent
with immediate written notice in the event that NMLP
or any NMLP Subsidiaries determines (or reasonably
should be able to determine) that the Cash Flow
Projections are no longer accurate and could
reasonably be expected to have a Material Adverse
Effect.
(l2) Property Acquisition or Sale. Within
ten (10) Business Days of receipt thereof, copies of
all proposed contracts, agreements, or offers in any
way relating to a proposed sale or acquisition of any
material asset by the NMLP or any NMLP Subsidiary.
(13) Notices Regarding NMLP Payment
Direction Letters. Within ten (10) Business Days of
receipt thereof, copies of all notices (excluding
routine correspondence) received by the NMLP, any
NMLP Subsidiary or any other NMLP Loan Party (except
the Xxxxxxx Indemnitor and the MLP Holders) from any
Paying Agent or any other Person who has agreed to
the direction of the payment of funds as provided for
in a Payment Direction Letter.
(14) Notice of Termination of Payment
Direction Letter. Promptly, and in any event within
ten (10) Business Days after an officer of NMLP
obtains Knowledge thereof, written notice of the
termination of any Payment Direction Letter, together
with evidence of the satisfactory reinstatement or
replacement thereof in accordance with the terms and
conditions hereof.
(15) Notices under Securitization Documents.
Within ten (10) Business Days of receipt thereof,
copies of all notices received by NMLP, any other
NMLP Subsidiary or any other NMLP Loan Party (except
the Xxxxxxx Indemnitor and the MLP Holders) from any
agent, trustee or servicer under the Securitization
Documents, including, without limitation, any notice
to the holder of the Grantor Trust T-1 Certificate or
the Grantor Trust T-2 Certificate as to the request
that such holder exercise any direction, consent or
approval rights in such holder's favor as provided
for in the Securitization Documents.
(16) Notices and Reports re: Integrated
Group.
1. Within ten (10) Business Days of receipt thereof,
copies of all notices received by NMLP, any other NMLP
Subsidiary or any other Xxxxxxx Group Entity with respect to a
default under the Integrated Documents, a claim for
indemnification or other payment thereunder, or other
non-performance and/or exercise (or intended exercise) of the
rights of the Integrated Group thereunder.
2. Immediately upon the forwarding of any reports
required under the Integrated Documents to the Integrated
Group, copies of any such reports.
3. Immediately after NMLP obtains Knowledge thereof,
notice of (a) the release of any collateral held by the
Integrated Group to secure the Integrated
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Obligations, or (b) the termination of the "Non-Transfer
Period" as set forth in the Integrated Documents.
(17) Third Party Default Notices.
Immediately upon notice or receipt thereof by NMLP,
the NMLP Loan Parties (except the Excepted Loan
Parties), and/or the NMLP Subsidiaries, copies of all
notices of default, other non-performance, and/or
exercise (or intended exercise) relating in any way
to any one or more of the Related Documents.
(18) Notice of Litigation. Promptly, and in
any event within ten (10) Business Days after NMLP
obtains Knowledge thereof, written notice of any
pending or, to the best of NMLP's Knowledge,
threatened action, suit or proceeding at law or in
equity or by or before any governmental
instrumentality or other agency or regulatory
authority by any entity (private or governmental)
relating in any way to the Loan, the T-Two Loan, the
transactions contemplated in the NMLP Loan Documents
(including, without limitation, with regard to all
Distributions), the Related Documents, or the
transactions contemplated in connection with the
Refinance or any documentation executed in connection
therewith, or relating to NMLP, any other NMLP Loan
Party, or any other NMLP Subsidiary, which could
reasonably be expected to have a Material Adverse
Effect.
(19) Notice of Hazardous Materials Promptly,
and in any event within ten (10) Business Days after
NMLP obtains Knowledge thereof, written notice of (i)
any Release (as defined in the Environmental
Indemnity) or Threat of Release (as defined in the
Environmental Indemnity) of Hazardous Materials on,
in, under or affecting all or any portion of any
Individual Property or (ii) the violation of any
Environmental Law, in each case which could
reasonably be expected to have a Material Adverse
Effect.
(20) XXXXX. No less than six (6) months
prior to the applicable date of such dissolution or
liquidation, written notice of any required
liquidation or dissolution of Apollo Real Estate
Investment Fund III, L.P.
7.1.3 Existence. NMLP shall do or cause to be done all things
necessary to (i) preserve, renew and keep in full force and effect (x)
the partnership, company or corporate existence, as applicable, of each
NMLP Subsidiary and (y) the material rights, licenses, permits and
franchises of each NMLP Subsidiary, (ii) comply with all laws and other
Legal Requirements applicable to it and its assets, business and
operations, and (iii) to the extent applicable, at all times maintain,
preserve and protect all material franchises and trade names and all
the remainder of its property used or useful in the conduct of its
business, and keep its assets in good working order and repair,
ordinary wear and tear excepted, and from time to time make, or cause
to be made, all reasonably necessary repairs, renewals, replacements,
betterments and improvements thereto.
7.1.4 Payment of Taxes. NMLP shall duly pay and discharge, and
cause each NMLP Subsidiary, Other Partnership, or Partially Owned
Limited Partnership to duly pay and discharge, before the same shall
become overdue, all taxes, assessments, impositions, and other
governmental charges payable by it or with respect to the Individual
Properties, to the extent that same are not paid by the tenants under
the respective Leases, except if contested in accordance with Section
9.1.
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7.1.5 Insurance; Casualty, Taking.
(1) NMLP shall at all times maintain or cause the
appropriate Person to maintain in full force and effect the
following insurance: (i) to the best of NMLP's Knowledge, the
Individual Properties shall be insured by insurers of
recognized financial responsibility against such losses and
risks in compliance with the Leases and the requirements set
forth in Exhibit E hereto, such insurance maintained by the
tenants under the Leases; (ii) NMLP shall have a monitoring
system in place to periodically verify whether the tenants
under the Leases have in place insurance as required by the
applicable Lease; and (iii) NMLP shall have satisfactory
liability insurance in favor of NMLP and each of the NMLP
Subsidiaries in compliance with the requirements in effect of
the date hereof.
(2) In the event of any damage or destruction to any
Individual Property (or to the extent now or hereafter
applicable, any NMLP Collateral) by reason of fire or other
hazard or casualty, NMLP shall give immediate written notice
thereof to Agent. If there is any condemnation for public use
of any Individual Property (or to the extent now or hereafter
applicable, any NMLP Collateral), NMLP shall give immediate
written notice thereof to Agent. Further, NMLP shall upon the
request of the Agent provide to the Agent with a report as to
the status of any insurance adjustment, condemnation claim, or
restoration resulting from any casualty or taking.
7.1.6 Inspection. NMLP shall cause the NMLP Subsidiaries to
permit the Agent and the Lenders and its/their agents, representatives
and employees to inspect the Individual Properties and the NMLP
Collateral at reasonable hours upon reasonable notice, except to the
extent prohibited or otherwise limited in the subject Leases.
7.1.7 NMLP Loan Documents. NMLP (i) shall observe, perform and
satisfy all the terms, provisions, covenants and conditions to be
performed by it under, and to pay when due all costs, fees and
expenses, and other NMLP Obligations of NMLP to the extent required
under, the NMLP Loan Documents and (ii) shall cause the other NMLP
Subsidiaries to observe, perform and satisfy all the terms, provisions,
covenants and conditions to be performed by such Person under, and to
pay when due all costs, fees and expenses, and other NMLP Obligations
to the extent required under, the NMLP Loan Documents.
7.1.8 Further Assurances. NMLP shall and shall cause the NMLP
Subsidiaries to execute and deliver to the Agent and the other Lenders
such documents, instruments, certificates, assignments and other
writings, and do such other acts, necessary or desirable in the
reasonable judgment of the Agent, to evidence, preserve and/or protect
the NMLP Collateral at any time securing or intended to secure the NMLP
Obligations and do and execute all and such further lawful acts,
conveyances and assurances as the Agent may reasonably require for the
better and more effective carrying out of the intents and purposes of
this Agreement and the other NMLP Loan Documents.
7.1.9 Books and Records. NMLP shall and shall cause the NMLP
Subsidiaries to keep and maintain in accordance with GAAP (or such
other accounting basis reasonably acceptable to the Agent), proper and
accurate books, records and accounts reflecting all of the financial
affairs of the NMLP and such other Persons and all items of income and
expense in connection with their respective business and operations and
in connection with any services, equipment or furnishings provided in
connection with the operation of the business of the NMLP and such
Persons, whether such income or expense is realized thereby or by any
other Person. The Agent shall have the right, not more than once each
quarter (unless an Event of Default shall have occurred and be
continuing in which case as often as
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the Agent shall determine), during normal business hours and upon
reasonable notice, to examine such books, records and accounts of NMLP
and the NMLP Subsidiaries at the office of the Person maintaining such
books, records, and accounts and to make such copies or extracts
thereof as the Agent shall desire. NMLP shall maintain all of its
business records at the address specified at the beginning of this
Agreement, subject to change upon advance written notification to the
Agent. The Agent may discuss the financial and other affairs of the
NMLP, the NMLP Subsidiaries, Other Partnerships, and Partially Owned
Limited Partnerships with any of their respective partners, owners, and
any accountants (as to accountants, prior to the occurrence of an Event
of Default and following the cure of any Event of Default, upon prior
approval of the NMLP, not to be unreasonably withheld, and at the cost
and expense of the Agent and the Lenders) hired by NMLP, it being
agreed that Agent and each of the Lenders shall use best efforts to not
divulge information obtained from such examination to others except in
connection with Legal Requirements and in connection with administering
the NMLP Loan, enforcing its rights and remedies under the NMLP Loan
Documents and in the conduct, operation and regulation of its banking
and lending business (which may include, without limitation, the
transfer of the Loan or of participation interests therein). Any
assignee or transferee of the NMLP Loan, co-lender, or any holder of a
participation interest in the NMLP Loan shall be entitled to deal with
such information in the same manner and in connection with any
subsequent transfer of its interest in the NMLP Loan or of further
participation interests therein.
7.1.10 Business and Operations. NMLP shall (and shall cause
the NMLP Subsidiaries to) (i) continue to engage in the type of
businesses presently conducted by them as of the Closing Date,
respectively, as and to the extent the same are necessary for the
ownership of, and preservation of the value and utility of, the NMLP
Collateral and the Individual Properties, and (ii) be qualified to do
business and in good standing under the laws of each jurisdiction, and
otherwise to comply with all Legal Requirements, as and to the extent
the same are required for the ownership, maintenance, management and
operation of the assets of such Person except where the failure to be
so qualified could not reasonably be expected to have a Material
Adverse Effect.
7.1.11 Title. NMLP shall and shall cause the NMLP Subsidiaries
to warrant and defend (x) the title to each item of NMLP Collateral
owned by such Person and every part thereof, subject only to the Liens
(if any) permitted hereunder, (y) the validity and priority of the
Liens and security interests held by the Agent pursuant to the NMLP
Loan Documents, in each case against the claims of all Persons
whomsoever, and (z) the title to and in the Individual Properties,
subject only to the Mortgage Debt. NMLP shall be responsible, jointly
and severally, to reimburse Agent and the Lenders for any losses,
costs, damages or expenses (including reasonable attorneys' fees and
court costs) incurred by the Agent and/or any of the Lenders if an
interest in any item of NMLP Collateral, other than as permitted
hereunder, is claimed by another Person.
7.1.12 Estoppel. NMLP shall (and shall cause the NMLP
Subsidiaries to), within ten (10) days after a request therefor from
the Agent, which request shall not be made by Agent more than once each
quarter during each Fiscal Year, furnish to the Agent a statement, duly
acknowledged and certified, setting forth (i) the amount then owing by
NMLP in respect of the NMLP Obligations, (ii) the date through which
interest on the NMLP Loan has been paid, (iii) any offsets,
counterclaims, credits or defenses to the payment by NMLP or any NMLP
Subsidiary to the NMLP Obligations and (iv) whether any written notice
of Default from Agent to NMLP or any of the NMLP Subsidiaries is then
outstanding and acknowledging that this Agreement and the other NMLP
Loan Documents are in full force and effect and unmodified, or if
modified, giving the particulars of such modification.
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7.1.13 ERISA. NMLP shall (and shall cause each of the NMLP
Subsidiaries to) as soon as possible and, in any event, within ten (10)
days after NMLP, any NMLP Subsidiary or any ERISA Affiliate knows or
has reason to know of the occurrence of any of the following which
could have or reasonably be expected to have a Material Adverse Effect,
deliver to Agent a certificate of the an executive officer of NMLP
setting forth details as to such occurrence and the action, if any,
that the applicable NMLP or NMLP Subsidiary or such ERISA Affiliate is
required or proposes to take, together with any notices required or
proposed to be given to or filed with or by such NMLP, NMLP Subsidiary,
the ERISA Affiliate, the PBGC, a Plan participant or the Plan
administrator with respect thereto: (i) that a Reportable Event has
occurred; (ii) that an accumulated funding deficiency has been incurred
or an application may be or has been made to the Secretary of the
Treasury for a waiver or modification of the minimum funding standard
(including any required installment payments) or an extension of any
amortization period under Section 412 of the Code with respect to a
Plan; (iii) that a contribution required to be made to a Plan has not
been timely made; (iv) that a Plan has been or may be terminated,
reorganized, partitioned or declared insolvent under Title IV of ERISA;
(v) that a Plan has an Unfunded Current Liability giving rise to a lien
under ERISA or the Code; (vi) that proceedings may be or have been
instituted to terminate or appoint a trustee to administer a Plan;
(vii) that a proceeding has been instituted pursuant to Section 515 of
ERISA to collect a delinquent contribution to a Plan; (viii) that such
NMLP, NMLP Subsidiary, or ERISA Affiliate will or may incur any
liability (including any indirect, contingent, or secondary liability)
to or on account of the termination of or withdrawal from a Plan under
Section 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or with
respect to a Plan under Section 401(a)(29), 4971, 4975 or 4980 of the
Code or Section 409 or 502(i) or 502(l) of ERISA; (ix) or that such
NMLP or NMLP Subsidiary may incur any material liability pursuant to
any employee welfare benefit plan (as defined in Section 3(l) of ERISA)
that provides benefits to retired employees or other former employees
(other than as required by Section 601 of ERISA) or any employee
pension benefit plan (as defined in Section 3(2) of ERISA). NMLP shall
(and shall cause the NMLP Subsidiaries to) deliver to Agent a complete
copy of the annual report (Form 5500) of each Plan required to be filed
with the Internal Revenue Service. In addition to any certificates or
notices delivered to Agent pursuant to the first sentence hereof,
copies of any material notices received by any NMLP, a NMLP Subsidiary,
or any ERISA Affiliate with respect to any Plan shall be delivered to
Agent no later than ten (10) days after the date such report has been
filed with the Internal Revenue Service or such notice has been
received by such NMLP or NMLP Subsidiary or ERISA Affiliate, as
applicable.
7.1.14 Depository Accounts. NMLP shall (and shall cause each
of the NMLP Subsidiaries and the other NMLP Loan Parties (except the
Excepted Loan Parties) to (i) maintain all operating and other
depository accounts, if any, with Fleet National Bank (or any successor
thereto) (singly and collectively, including the NMLP Depository
Accounts, the "NMLP Accounts"), such NMLP Accounts as of the date
hereof listed on Exhibit R, annexed hereto, unless otherwise agreed by
Agent in writing, except for the accounts maintained by any of the NMLP
Subsidiaries in connection with the GMAC Mortgage Loan, (ii) except for
the NMLP Partnership GP's, the NMLP GP, and Xxxxxxx MLP Corp., maintain
a minimum of one depository account for each such Person) with Fleet
National Bank (or any successor thereto) (singly and collectively, the
"NMLP Depository Accounts"), unless otherwise agreed by Agent in
writing, (iii) except for the GMAC Borrowers, the NMLP Partnership
GP's, the Borrower GP, Xxxxxxx MLP Corp., and the other NMLP Loan
Parties (which are not NMLP Subsidiaries) execute and deliver such Cash
Management Agreements as Agent shall deem customary and appropriate to
provide for terms and conditions satisfactory to the Agent with respect
to the use and disbursement of funds in any NMLP Account, and (iv) with
respect to the GMAC Borrowers, execute and deliver such NMLP Account
disbursement authorizations as the Agent shall deem customary and
appropriate to provide for the disbursement by the
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Agent of any funds in the NMLP Depository Account in the name of any
GMAC Borrower to the NMLP Depository Account in the name of NMLP after
and during the continuance of any period in which NMLP fails to comply
with the Cash Sweep Account Test or any Event of Default. Each of the
NMLP Accounts (except those in the name of any NMLP Partnership, any
Partially Owned Limited Partnership, Xxxxxxx Capital LLC, or Xxxxxxx
Asset Management LLC) shall be subject to the Pledge and Security
Agreement.
7.1.15 Cash Flow; NMLP Payment Direction Letters.
(1) NMLP agrees that appropriate procedures
satisfactory to the Agent will be put in place such that (i)
any Distributions by any NMLP Subsidiary payable to NMLP shall
be directly deposited in the designated NMLP Depository
Account in the name of NMLP, and (ii) except for the Other
Partnerships, the Partially Owned Limited Partnerships,
NK-Leyden Loan, L.P., or NK-Dautec Loan, L.P., any other
Distributions or other revenues or payments received by NMLP
or any NMLP Subsidiary or any other NMLP Loan Party (except
the Excepted Loan Parties) shall be directly deposited in a
designated NMLP Depository Account in the name of such Person
(any such amounts payable to any NMLP Partnership GP shall be
deposited in the NMLP Depository Account of MLP Manager
Corp.).
(2) Subject to the obligations of NMLP or any NMLP
Subsidiary under the Mortgage Debt and to the obligations of
Xxxxxxx XX LLC, Xxxxxxx Capital LLC and Xxxxxxx Xxxxx LLC
under the Integrated Documents, NMLP agrees that appropriate
procedures satisfactory to the Agent will be put in place such
that during any period in which NMLP fails to comply with the
Cash Sweep Account Test, any Distributions or other revenues
or payments received by any NMLP Subsidiary (other than
NK-Leyden Loan, L.P. and NK-Dautec Loan, L.P.) shall be
directly deposited in a designated NMLP Depository Account in
the name of NMLP. Further, during any period in which NMLP
fails to comply with the Cash Sweep Account Test, withdrawals
shall be permitted from such NMLP Depository Accounts only for
the purpose of (i) Distributions by any NMLP Subsidiary
pursuant to the terms of Section 7.1.16, hereof or (ii)
payment of such costs and other obligations in accordance with
the Cash Management Agreement.
(3) NMLP agrees that appropriate procedures
satisfactory to the Agent will be put in place such that after
the occurrence and during the continuance of an Event of
Default, subject to any limitations provided for with respect
to any Mortgage Debt, or the Integrated Documents (as to
Xxxxxxx XX LLC, Xxxxxxx Capital LLC and Xxxxxxx Xxxxx LLC):
(i) any Distributions and other revenues due or payable to any
Borrower Subsidiary (except NK-Leyden Loan, L.P. or NK-Dautec
Loan, L.P.) shall be paid directly in to the designated NMLP
Depository Account in the name of NMLP or as otherwise
directed by the Agent, and (ii) any Distributions by any NMLP
Subsidiary payable to NMLP shall be directly deposited in the
designated NMLP Depository Account in the name of NMLP or as
otherwise directed by the Agent. Further, subject to any
limitations provided for with respect to any Mortgage Debt or
the Integrated Documents (as to Xxxxxxx XX LLC, Xxxxxxx
Capital LLC and Xxxxxxx Xxxxx LLC), after the occurrence and
during the continuance of an Event of Default, Agent shall
have the right to receive any and all such Distributions or
other revenues and make application thereof to the
Obligations.
(4) The use and disbursement of all funds in the
NMLP Depository Accounts and the NMLP Accounts shall be
subject to the terms and provisions hereof and the Cash
Management Agreement.
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(5) NMLP agrees that to the extent that NMLP, any
NMLP Subsidiary (except NK-Leyden Loan, L.P. or NK-Dautec
Loan, L.P.) or any other NMLP Loan Party (except the Excepted
Loan Parties) receives directly any Distributions or revenues
or other payments which are required to be deposited as
provided for herein, NMLP shall, and shall cause any NMLP
Subsidiary (except NK-Leyden Loan, L.P. or NK-Dautec Loan,
L.P.) or any other NMLP Loan Party (except the Excepted Loan
Parties) to, deposit such funds in the applicable designated
NMLP Depository Account.
(6) NMLP shall (and shall cause the other NMLP
Subsidiaries (except NK-Leyden Loan, L.P. or NK-Dautec Loan,
L.P.) and NMLP Loan Parties (except the Excepted Loan
Parties)) to maintain in place during the term of the Loan
such direction letters and agreements as the Agent may from
time to time require in order to effectuate the terms and
provisions hereof relating to the management of the cash flow
of NMLP, the NMLP Subsidiaries (except NK-Leyden Loan, L.P. or
NK- Dautec Loan, L.P.) and the NMLP Loan Parties (except the
Excepted Loan Parties) (together with the Paying Agent
Agreements and the NMLP Consents (to the extent that the NMLP
Consents provide for the management of cash flow), the "NMLP
Payment Direction Letters"), including, without limitation,
and provided that such NMLP Payment Direction Letters are
consistent with Sections 7.1.15, 7.2.15.1, 7.2.15.2, and
7.2.15.3 and the following:
(1) to each tenant under a Lease for any
Individual Property to pay rent, purchase prices, and
any other amounts payable under such Lease to the
holder (or servicer) of the First Mortgage Debt
thereon;
(2) for each NMLP Partnership, with each
holder (or servicer) of the First Mortgage Debt on
any Individual Property to pay excess proceeds after
debt service to the applicable (x) for each
Individual Property which secures a NMLP Securitized
Note, the Paying Agent pursuant to the applicable
Paying Agent Agreement or (y) for any other
Individual Property, to the designated NMLP
Depository Account in the name of the applicable NMLP
Partnership or, subject to the terms of Sections
7.1.15, 7.2.15.1, 7.2.15.2, and 7.2.15.3, as
otherwise may be directed by the Agent;
(3) with each Paying Agent for any
Individual Property to pay amounts due under the
applicable NMLP Securitized Note to the Grantor
Trust;
(4) for each NMLP Partnership, with each
Paying Agent to pay amounts in excess of those
required to be paid to the Grantor Trust to a
designated NMLP Depository Account in the name of the
applicable NMLP Partnership or, subject to the terms
of Sections 7.1.15, 7.2.15.1, 7.2.15.2, and 7.2.15.3,
as otherwise directed by the Agent;
(5) with each NMLP Subsidiary to pay any
Distribution or other amount due to NMLP into a
designated NMLP Depository Account in NMLP's name or,
subject to the terms of Sections 7.1.15, 7.2.15.1,
7.2.15.2, and 7.2.15.3, as otherwise directed by the
Agent;
(6) from and after the date on which the
T-Two Loan shall be repaid in full, with the Grantor
Trust to pay any payments to be made on the
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Grantor Trust T-2 Certificate or the Grantor Trust
T-1 Certificate to, or as directed by, the Agent;
(7) with the obligors with respect to the
Administrator LLC Loan, the NK Leasehold Second
Mortgage Loan, and the Amended and Restated Asset
Management Agreement, to pay any amounts received
with respect thereto into a designated NMLP
Depository Account in the name of NMLP or the NMLP
Subsidiary entitled to the payment thereof, or,
subject to the terms of Sections 7.1.15, 7.2.15.1,
7.2.15.2, and 7.2.15.3, as otherwise directed by the
Agent;
(8) during any period in which NMLP does not
meet the Cash Sweep Account Test, such additional
NMLP Payment Direction Letters so as to direct
payment of all funds due, or Distributions payable,
to NMLP and any NMLP Subsidiaries (except NK-Leyden
Loan, L.P. or NK-Dautec Loan, L.P.) into the
designated NMLP Depository Account in the name of
NMLP or, subject to the terms of Sections 7.1.15,
7.2.15.1, 7.2.15.2, and 7.2.15.3, as otherwise
directed by the Agent;
(9) after the occurrence and during the
continuance of an Event of Default, such additional
NMLP Payment Direction Letters so as to direct
payment of all funds due, or Distributions payable,
to NMLP and any NMLP Subsidiaries (except NK-Leyden
Loan, L.P. or NK-Dautec Loan, L.P.) into the
designated NMLP Depository Account in the name of
NMLP or, subject to the terms of Sections 7.1.15,
7.2.15.1, 7.2.15.2, and 7.2.15.3, as otherwise
directed by the Agent; and
(10) such other NMLP Payment Direction
Letters as Agent may direct from time to time in
accordance with the provisions of this Agreement and
the other Loan Documents.
(7) NMLP shall (and shall cause the other NMLP Loan
Parties (except the Excepted Loan Parties) and the NMLP
Subsidiaries (except NK-Leyden Loan, L.P. or NK-Dautec Loan,
L.P.) to) keep in effect all NMLP Payment Direction Letters,
including, without limitation, any replacements,
substitutions, or renewals thereof as the Agent shall
reasonably deem appropriate from time to time.
(8) Notwithstanding the terms and provisions
hereof, the Agent and NMLP acknowledge and agree that with
respect to any GMAC Borrower and any Individual Property owned
by a GMAC Borrower, (i) the cash flow and lock-box
arrangements established in connection with such GMAC Mortgage
Loan shall remain in effect, shall not be altered or modified
by the terms and provisions hereof, and shall supersede any
inconsistent or conflicting provision hereof or of any other
NMLP Loan Document, and (ii) to the extent that NMLP has
agreed to, or to cause any such GMAC Borrower to, direct the
payment of any revenues or payments received by a GMAC
Borrower, such agreement shall only relate to such revenues or
payments received by a GMAC Borrower after the release of such
funds from the lock-box arrangement established pursuant to
the GMAC Mortgage Loan.
7.1.16 Distributions.
(1) Subject to the requirements set forth in clause
(h)(xvi) of the definition of "Single-Purpose Entity"
contained herein, NMLP shall cause the NMLP
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Subsidiaries to make the maximum amount of all Distributions
to NMLP at the earliest opportunity permitted under the
respective Formation Documents of each of the NMLP
Subsidiaries, but not less often than quarterly or within
three (3) Business Days of the receipt of any funds relating
to a NMLP Mandatory Prepayment Event and shall take all
actions necessary (and as may be directed by the Agent) to
preserve and maintain the Distribution scheme provided for
herein.
(2) During any period in which NMLP fails to comply
with the Cash Sweep Account Test or after the occurrence and
during the continuance of an Event of Default, NMLP shall
cause each NMLP Subsidiary (except NK-Leyden Loan, L.P. or
NK-Dautec Loan, L.P.) to pay as a Distribution to NMLP any and
all funds and other amounts available from time to time in the
NMLP Depository Account of such NMLP Subsidiary.
(3) NMLP shall cause the NMLP Subsidiaries to
deposit all Distributions made or payable to NMLP in a
designated NMLP Depository Account in the name of NMLP or,
subject to the terms of Section 7.1.15, as otherwise directed
by the Agent.
7.1.17 Exercise of Ground Lease Extension Options and
Remainder Ground Lease Options. NMLP shall (and shall cause the Net
Lease Partnerships, as applicable, to) do the following with respect to
the Ground Lease Extension Options and the Remainder Ground Lease
Options:
(1) With respect to all Ground Lease Extension
Options, unless otherwise approved in writing by the Agent,
NMLP shall provide evidence to the Agent of the due exercise
of each and every Ground Lease Extension Option at least
thirty (30) days prior to the last date for such exercise
(being no less than ninety (90) days prior to the subject
Ground Lease term expiration date). In the event that NMLP
fails to provide such evidence to the Agent in a timely
fashion, the Agent shall be authorized to exercise the rights
provided for in the Escrow Agreement Respecting Ground Lease
Extensions and Lease Options with respect thereto.
(2) With respect to all Remainder Ground Lease
Options, unless otherwise approved in writing by the Agent,
NMLP shall provide evidence to the Agent of the due exercise
of each and every Remainder Ground Lease Option, together with
the exercise of such options with respect to the applicable
proposed Ground Lease to establish an initial term thereof
which will expire no earlier than six (6) months after the
expiration of the Extended Term, at least thirty (30) days
prior to the last date for such exercise (being no less than
ninety (90) days prior to the termination of the subject land
estate interest). In the event that NMLP fails to provide such
evidence to the Agent in a timely fashion, the Agent shall be
authorized to exercise the rights provided for in the Escrow
Agreement Respecting Ground Lease Extensions and Lease Options
with respect thereto.
(3) NMLP shall provide the Agent with all
instruments, documents, and agreements requested by the Agent
with respect to foregoing provisions of this Section 7.1.17.
7.1.18 Control Preservation. NMLP shall or shall cause Xxxxxxx
XX LLC and any wholly-owned Subsidiary of Xxxxxxx XX LLC to (i) make
all capital contributions and expense reimbursements that such Persons
may be required to make at any time and from time to time under the
terms of the operating agreements or other organizational documents
of each of the limited liability companies, corporations or
partnerships which, directly or
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indirectly, own or control an interest in the general partner of any
Other Partnership, any Partially Owned Limited Partnership or Other
Partnership, and (ii) take all actions as may be necessary to prevent
any other partner, officer, member or members of any of those limited
liability companies, corporations or partnerships from exercising any
or all of the management or control rights presently held in their
respective capacities, to establish direct or indirect control of the
general partner of any Other Partnership, Partially Owned Limited
Partnership or Other Partnership.
7.1.19 Costs and Expenses. NMLP shall pay all costs and
expenses (excluding salaries or wages of employees of Agent) reasonably
incurred by Agent in connection with the implementation and syndication
of the NMLP Loan and the administration of the NMLP Loan, and
reasonably incurred by the Agent or any of the Lenders in connection
with the enforcement of the Agent's and Lenders' rights under the NMLP
Loan Documents, including, without limitation, legal fees and
disbursements, appraisal fees, inspection fees, plan review fees,
travel costs and fees and out-of-pocket costs of independent engineers
and consultants. NMLP's obligations to pay such costs and expenses
shall include, without limitation, all attorneys' fees and other costs
and expenses for preparing and conducting litigation or dispute
resolution arising from any breach by NMLP or the NMLP Loan Parties of
any covenant, warranty, representation or agreement under any one or
more of the NMLP Loan Documents. Unless an Event of Default has
occurred and is then continuing, the Agent shall use its best efforts
to notify NMLP prior to the incurrence of any such cost or expense if
the aggregate amount of such costs and expenses in any one calendar
year will exceed $25,000.00; provided, however, that the failure shall
provide such notice shall not affect in any manner whatsoever on NMLP's
obligations hereunder.
7.1.20 Appraisals
(1) Appraisal. Agent shall have the right at its
option, from time to time, to order an appraisal of one or
more of the Individual Properties prepared at Agent's
direction by an appraiser selected by Agent (the "Appraisal").
An appraiser selected by Agent shall be an MAI member with not
less than ten (10) years experience appraising commercial
properties in the respective area(s) of the Individual
Properties and otherwise qualified pursuant to provisions of
applicable laws and regulations under and pursuant to which
Agent operates).
(2) Costs of Appraisal. NMLP shall pay for the costs
of each Appraisal and each updated Appraisal only (i) after
the occurrence and during the continuance of an Event of
Default or (ii) during any period in which the Agent has
reasonably determined that NMLP has failed to satisfy the Cash
Sweep Account Test; provided that NMLP shall not be required
to pay for more than one (1) Appraisal of each Individual
Property in any twelve (12) month period.
7.1.21 Indemnification. NMLP shall at all times, both before
and after repayment of the NMLP Loan, at its sole cost and expense
defend, indemnify, exonerate and save harmless Agent and each of the
Lenders and all those claiming by, through or under Agent and each of
the Lenders ("Indemnified Party") (to the extent not paid by NMLP in
this Section 7.1.21 or under the applicable provisions of this or any
other NMLP Loan Document) against and from all damages, losses,
liabilities, obligations, penalties, claims, litigation, demands,
defenses, judgments, suits, proceedings, costs, disbursements or
expenses of any kind whatsoever, including, without limitation,
attorneys' fees and experts' fees and disbursements, which may at any
time (including, without limitation, before or after discharge or
foreclosure of the NMLP Security Documents) be imposed upon, incurred
by or asserted or awarded against the Indemnified Party and arising
from or out of:
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(i) any liability for damage to person or property
arising out of any violation of any Legal Requirement with
respect to NMLP, any NMLP Subsidiary, any NMLP Loan Party or
any Individual Property, or
(ii) any and all liabilities, damages, penalties,
costs, and expenses, relating in any manner to any brokerage
or finder's fees in respect of the Loan, or
(iii) as a result of litigation that may arise in
connection with NMP's activities or payment of any fees to
NMLP GP, or
(iv) any act, omission, negligence or conduct at any
Individual Property, or arising or claimed to have arisen, out
of any act, omission, negligence or conduct of NMLP or any
tenant, occupant or invitee thereof which is in any way
related to any Individual Property.
Notwithstanding the foregoing, an Indemnified Party shall not be
entitled to indemnification in respect of claims arising from acts of
its own gross negligence or willful misconduct to the extent that such
gross negligence or willful misconduct is determined by the final
judgment of a court of competent jurisdiction, not subject to further
appeal, in proceedings to which such Indemnified Party is a proper
party.
7.1.22 Leasing Matters.
(1) Agent's Approval Required.
(1) Except as provided for herein, the Net
Lease Partnerships shall not require the approval of
the Agent or the Lenders for any proposed Lease of an
Individual Property.
(2) Agent's prior written approval shall be
required in each instance as to any proposed Lease
which represents the conversion of a substantially
single-tenant Individual Property to a substantially
multi-tenant Individual Property.
(3) Agent's prior written approval shall be
required in each instance as to any proposed Lease
for 25,000 or more rentable square feet, but less
than 75,000 rentable square feet, unless NMLP
evidences to the Agent that (x) the rental rate under
the proposed Lease is equal to or greater than the
rental rate for the first renewal term in the Lease
in effect for the subject Individual Property as of
the Closing Date and (y) the rating, if any, of the
new tenant is equal to or higher than the rating for
the tenant under such existing Lease.
(4) Agent's and Required Lenders prior
written approval shall be required in each instance
as to any proposed Lease for 75,000 or more rentable
square feet.
(5) For any Lease requiring approval
hereunder, the approval shall relate to: (i) the
economic and other terms of the Lease; (ii) each
tenant under a proposed Lease; (iii) each guarantor,
if any, of a tenant's obligations under a proposed
Lease; (iv) any modification or amendment to the
Lease, if such modification or amendment relates to
the amount of rent payable thereunder,
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the term of the Lease, the Economic Discontinuance
Rights provided for therein, or any other term which
may have a material impact on the value of the
Individual Property or the rental payments due under
the Lease; and (v) any termination, cancellation or
surrender of the Lease.
(2) NMLP's Requests. Any request by NMLP for an
approval from Agent with respect to leasing matters shall be
sent to the Agent and shall be accompanied, at a minimum, by
the following: (i) the proposed lease or amendment or
modification thereof complete with all applicable schedules
and exhibits; (ii) a complete copy of any proposed guaranty;
(iii) comprehensive financial information with respect to the
proposed tenant and, if applicable, the proposed guarantor (as
to new leases or amendments or modifications to existing
leases involving material economic changes); and (iv) an
executive summary of the terms and conditions of the proposed
lease and, if applicable, the proposed guaranty.
(3) Response. The Agent (and the Required Lenders,
as applicable) shall act on requests from NMLP for any
approval required under Section 7.1.22 in a commercially
reasonable manner and shall use commercially reasonable
efforts to respond to any such request within (a) fifteen (15)
Business Days for approvals required under Section
7.1.22(i)(b) and (c) above, and (b) twenty (20) Business Days
for approvals required under Section 7.1.22(i)(d) above, in
each instance following Agent's receipt thereof with all
required supporting information. Agent's response may consist
of an approval or disapproval of the request, or a conditional
approval thereof subject to specified conditions, or a request
for further data or information, or any combination thereof.
If Agent (and the Required Lenders, as applicable) fails to
respond to any such request within such prescribed time
period, such request shall be deemed approved by the Agent
(and the Required Lenders, as applicable). In order to
expedite the processing of requests for such approvals, NMLP
agrees to provide Agent with as much advance information as is
possible in a commercially reasonable manner in advance of
NMLP's formal request for an approval. NMLP has submitted to
Agent and Agent has approved a standard lease form annexed
hereto as Schedule 7.1.22(iii) ("Form Lease"). Whenever
reasonably possible all NMLP's requests for lease approvals
shall be accompanied by an express description of any material
deviations from the Form Lease, other than those deviations
from the Form Lease which relate to the location or nature of
the subject Individual Property.
7.1.23 Future Collateral Obligations. NMLP acknowledges that
the determination by the Agent as to the Collateral was based upon an
analysis of the assets owned by NMLP, the NMLP Subsidiaries, the
pro-rata portion of the assets owned by the Other Partnerships and
Partially Owned Limited Partnerships, and the assets owned by Xxxxxxx
Group Entities that are parties to the NMLP Security Documents. NMLP
shall (and shall cause any other NMLP Loan Party(except for the Xxxxxxx
Indemnitor or the MLP Holders) or any other NMLP Subsidiary to) agree
to the following undertaking:
(1) In the event that at any time NMLP, any NMLP Loan
Party (except any Xxxxxxx Indemnitor or the MLP Holders), or
any NMLP Subsidiary acquires or obtains any interest in any
asset relating to NMLP or the business operations of NMLP and
the NMLP Subsidiaries, including, without limitation, (i) the
fee, remainderman or ground lessor interest in any Individual
Property, (ii) any interest in the Securitization Documents,
(iii) any limited or general partnership interests in Other
Partnerships, Partially Owned Limited Partnership or Other
Partnership, or (iv) any interest in any Mortgage Debt, NMLP
shall notify the Agent in writing and, except with respect to
any interest in an Individual Property owned by a GMAC
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Borrower or any general partnership interest in a GMAC
Borrower, shall execute, or cause the applicable NMLP Loan
Party, or NMLP Subsidiary to execute, such documents as shall
be reasonably requested by the Agent to confirm, or establish,
that the interest so acquired or obtained is included within
the NMLP Collateral and to effectuate the terms and provisions
of this Agreement with respect thereto.
(2) NMLP agrees that without the prior consent of
the Agent, no other Xxxxxxx Group Entity or MLP Holder will
acquire or obtain any interest in any asset related to the
operation, ownership or management of the Individual
Properties or any of the other assets of NMLP or the NMLP
Subsidiaries unless such Person shall execute such documents
as shall be reasonably requested by the Agent to confirm, or
establish, that the interest so acquired or obtained is
included within the NMLP Collateral (or if such Person cannot
grant such security interest to the Agent, that the ownership
interest in the entity holding such asset is included within
the NMLP Collateral) and to effectuate the terms and
provisions of this Agreement with respect thereto; provided,
however, that nothing contained herein shall prohibit any
Xxxxxxx Group Entity or MLP Holder from acquiring additional
limited partnership interests in NMLP and any such limited
partnership interests of NMLP so acquired shall not be
required to be included within the NMLP Collateral.
(3) In the event that at any time an Other
Partnership is merged into a NMLP Partnership, NMLP shall
notify the Agent in writing and shall execute, or cause the
applicable NMLP Subsidiary to execute, such documents as shall
be reasonably requested by the Agent to confirm, or establish,
that the limited partnership interests and, except for a GMAC
Borrower, the general partnership interests in such NMLP
Partnership are included within the NMLP Collateral (subject
to any existing Liens associated with any such asset) and to
effectuate the terms and provisions of this Agreement with
respect thereto.
(4) In the event that at any time NMLP shall
establish or acquire a Person such that such Person is a NMLP
Subsidiary, NMLP shall notify the Agent in writing and shall
execute, or cause the applicable NMLP Subsidiary to execute,
such documents as shall be reasonably requested by the Agent
to confirm, or establish, that the ownership interests in such
NMLP Subsidiary and the assets of such Subsidiary (other than
(i) the assets of Net Lease Partnerships and (ii) the assets
of any general partner of a GMAC Borrower) are included within
the NMLP Collateral (subject to any existing Liens associated
with any such asset) and to effectuate the terms and
provisions of this Agreement with respect thereto.
(5) In the event that at any time NMLP or any NMLP
Subsidiary acquires or obtains any interest in any asset
(other than an Individual Property), NMLP shall notify the
Agent in writing and, except with respect to any general
partnership interest in a GMAC Borrower, shall execute, or
cause the applicable NMLP Subsidiary to execute, such
documents as shall be reasonably requested by the Agent to
confirm, or establish, that the asset so acquired or obtained
is included within the NMLP Collateral (subject to any
existing Liens associated with any such asset) and to
effectuate the terms and provisions of this Agreement with
respect thereto (if the value of the asset acquired is less
than $2,000,000.00, the notification and documentation will be
provided annually).
(6) any interest in any Mortgage Debt, NMLP shall
notify the Agent in writing and, except with respect to any
interest in an Individual Property owned by a GMAC
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Agent, the Net Lease Partnership shall grant to the Agent, on
behalf of the Lenders, a mortgage or deed of trust interest in
and to said Individual Property; provided, however, in the
event of a subsequent Permitted Refinance, or other refinance
with the written consent of the Agent, of the Individual
Property, the Agent shall release the said mortgage or deed of
trust to the refinanced loan subject to the payment of the
NMLP Mandatory Principal Payment relating thereto.
(7) In the event that at any time due to the
acceptance of a Rejectable Offer, a so called "Exchange
Property" is conveyed to the applicable Net Lease Partnership
so that it is the owner of the "Exchange Property" without any
Mortgage Debt thereon, at the option of the Agent, the Net
Lease Partnership shall grant to the Agent, on behalf of the
Lenders, a mortgage or deed of trust interest in and to said
Individual Property; provided, however, in the event of the
subsequent Permitted Refinance, or other refinance with the
written consent of the Agent, of the "Exchange Property", the
Agent shall release the said mortgage or deed of trust to the
refinanced loan subject to the payment of the NMLP Mandatory
Principal Prepayment relating thereto.
(8) Upon the payment in full of the Mortgage Debt
on any Individual Property or if at any time any Individual
Property is free and clear of all Mortgage Debt, at the option
of the Agent, the applicable Net Lease Partnership shall grant
to the Agent, on behalf of the Lenders, a mortgage or deed of
trust interest in and to said Individual Property; provided,
however, in the event of the subsequent Permitted Refinance,
or other refinance with the consent of the Agent of the
Individual Property, the Agent shall release the said mortgage
or deed of trust to the refinanced loan subject to the payment
of the NMLP Mandatory Principal Prepayment relating thereto.
(9) NMLP agrees to provide to the Agent written
notice of any of the events described in this Section 7.1.23
within five (5) Business Days of Knowledge thereof by NMLP and
further agrees to execute and deliver any documents as
reasonably requested by the Agent to effectuate the terms and
provisions hereof within five (5) Business Days of the Agent's
request therefor.
7.1.24 Economic Discontinuance.
(1) Within ten (10) Business Days of receipt thereof,
NMLP shall cause the applicable NMLP Partnership to provide to
the Agent a copy of each Rejectable Offer received by any NMLP
Partnership, and concurrently with the giving thereof, and
within five (5) Business Days of receipt thereof copies of any
subsequent notices received with respect thereto, whether from
the tenant exercising the Economic Discontinuance Rights, the
applicable holder of the remainderman interest in the subject
Individual Property, the applicable ground lessor, the
applicable sublessee, the applicable master lessor, or any
other Person.
(2) No later than forty-five (45) days prior to the
last day for the NMLP Partnership to reject the Rejectable
Offer, NMLP shall provide to the Agent in writing the
determination by NMLP as to whether it requests the approval
of the acceptance or rejection of the Rejectable Offer, which
notice shall include the Officer's Certificate required in
accordance with Section 7.1.24(iv) or 7.1.24(v), below, with
supporting detail necessary for the Agent to verify the
calculations incorporated therein.
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(3) Except as otherwise provided for herein, in
connection with the exercise by a tenant of the Economic
Discontinuance Rights, NMLP shall not, and shall cause each
NMLP Partnership not to grant, approve, reject or object to
any requested consent or approval, including, without
limitation, the acceptance or rejection of a so called
"Exchange Offer", without the written approval of the Agent.
(4) Subject to the compliance with any applicable
terms relating to the Mortgage Debt and, if applicable, the
Ownership Interest Agreement, (i) NMLP may accept any
Rejectable Offer if (a) any required NMLP Mandatory Principal
Prepayment relative thereto is to be paid to the Agent upon
the consummation of the Economic Discontinuance Sale, (b) no
Default or Event of Default is then occurring or will occur as
a result of the consummation of the subject Economic
Discontinuance Sale, (c) NMLP is in compliance with the Cash
Sweep Account Test and will not fail to be in compliance
therewith as a result of the consummation of the subject
Economic Discontinuance Sale, and (d) NMLP submits to the
Agent an Officer's Certificate reflecting a pro-forma
calculation that the Borrower will be in compliance with the
Financial Covenants and the Cash Sweep Account Test after the
consummation of the subject Economic Discontinuance Sale, or
(ii)NMLP shall accept the Rejectable Offer if approved in
writing by the Agent;
(5) Subject to the compliance with any applicable
terms relating to the Mortgage Debt and, if applicable, the
Ownership Interest Agreement, (i)NMLP may reject any
Rejectable Offer if (a) NMLP is in compliance with the
Rejection Test and will not fail to be in compliance therewith
as a result of the consequences of the rejection of the
Rejectable Offer, (b) no Default or Event of Default is then
occurring or will occur as a result of the consequences of the
rejection of the Rejectable Offer, (c) NMLP is in compliance
with the Cash Sweep Account Test and will not fail to be in
compliance therewith as a result of the consequences of the
rejection of the Rejectable Offer, and (d) NMLP submits to the
Agent an Officer's Certificate reflecting a pro-forma
calculation that NMLP will be in compliance with the Financial
Covenants, the Cash Sweep Account Test, and the Rejection Test
after giving effect to the financial consequences of the
rejection of the Rejectable Offer or (ii) NMLP shall reject
the Rejectable Offer if approved in writing by the Agent;
(6) As used herein, the "Rejection Test" shall mean
that the aggregate outstanding Mortgage Debt on all ED
Properties (assuming for purposes of this calculation, that
the subject Rejectable Offer is rejected and included therein)
shall be less than the XX Xxxx Flow. The Term "XX Xxxx Flow"
shall mean the projected Free Cash Flow for the succeeding
twelve (12) month period, excluding (a) all cash flow from all
ED Properties, and (b) all cash flow from any Individual
Property after the date on which the existing term of the
lease for such Individual Property expires, unless an
applicable extension option shall have been exercised.
(7) Notwithstanding the terms and provisions
hereof, the Agent and NMLP agree and acknowledge that with
respect to any Individual Property which is subject to a GMAC
Mortgage Loan, unless the applicable GMAC Mortgage Loan has
been repaid in full or is repaid in full prior to the
rejection of any such Rejectable Offer, the Borrower must
cause each applicable GMAC Borrower to accept any such
Rejectable Offer.
7.1.25 Replacement Documentation. Upon receipt of an affidavit
of an officer of Agent as to the loss, theft, destruction or mutilation
of the NMLP Note or any other NMLP Security Document which is not of
public record, and, in the case of any such loss, theft,
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destruction or mutilation, upon surrender and cancellation of such NMLP
Note or other NMLP Security Document, NMLP will issue, in lieu thereof,
a replacement NMLP Note or other security document in the same
principal amount and otherwise of like tenor upon receipt by NMLP of a
suitable indemnity.
7.1.26 Other Covenants. NMLP hereby represents and warrants
that no NMLP Collateral is in the possession of any third party bailee
(such as at a warehouse). In the event that NMLP and/or any of the
other NMLP Loan Parties, after the date hereof, intends to store or
otherwise deliver any NMLP Collateral or other personal property in
which the Agent has been granted a security interest to such a bailee,
then NMLP shall receive the prior written consent of the Agent and such
bailee must acknowledge in writing that the bailee is holding such NMLP
Collateral or such other personal property for the benefit of the Agent
and the Lenders.
7.1.27 Related Documents.
(1) NMLP will, or will cause each NMLP Subsidiary to,
comply with the terms and provisions of all of the Related
Documents.
(2) Upon the occurrence of a default under the
Integrated Documents, NMLP shall notify the Agent of NMLP's
intention to cause each of the NMLP Partnerships to terminate
the Amended and Restated Asset Management Agreement and, if
approved by the Agent, NMLP shall so cause each of the NMLP
Partnerships to terminate the Amended and Restated Asset
Management Agreement.
(3) Upon the expiration of the Non-Transfer Period
as set forth in the Integrated Loan Documents or upon the
ownership of all of the membership interests in Xxxxxxx
Capital LLC by NMLP, a NMLP Subsidiary or any Xxxxxxx Group
Entities, NMLP shall cause Xxxxxxx Capital LLC and Xxxxxxx
Asset Management LLC to execute and deliver to the Agent, on
behalf of the Lenders, the Guaranty, together with such
documents as may be reasonably requested by the Agent to grant
to the Agent, on behalf of the Lenders, a security interest in
all of the assets of such NMLP Subsidiaries, including,
without limitation, a pledge of any NMLP Depository Accounts
and NMLP Accounts, a pledge of the ownership interest in
Xxxxxxx Asset Management LLC, a pledge of the Amended and
Restated Asset Management Agreement, and a pledge of the
Contract to Provide Asset Management Services.
7.1.28 T/I Fund Account.
(1) NMLP shall create for the benefit of Agent (on
behalf of the Lenders) a reserve account (the "T/I Fund
Account") for the purpose of creating a reserve for projected
tenant improvements, leasing commissions and related costs for
Net Lease Partnerships (the "Permitted Leasing Costs").
(2) NMLP shall deposit with Agent in the T/I Fund
Account on the Funding Date an amount no less than
$5,148,329.97. Thereafter, NMLP shall deposit with the Agent
in the T/I Fund Account One Million ($1,000,000.00) Dollars
quarterly commencing on March 31, 2004 and continuing on the
last day of each calendar quarter thereafter, until there is
on deposit in the T/I Fund Account the Required T/I Amount.
Once there is on deposit in the T/I Fund Account an amount
equal to or more than the Required T/I Amount, the only
quarterly deposits required to be made by NMLP in the T/I Fund
Account shall be the lesser of (i) One-Million
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($1,000,000.00) Dollars or (ii) the amount necessary to
increase the amount on deposit to be equal to the Required T/I
Amount.
(3) Provided that (i) no Default or Event of
Default exists and is continuing, and (ii) the Borrowers are
in compliance with the Cash Sweep Account Test, NMLP may
withdraw funds from the T/I Fund Account as follows:
(1) Upon the written request of NMLP, any
amount by which the balance in the T/I Fund Account
exceeds the Required T/I Amount; and
(2) As necessary, NMLP may request
disbursements from the T/I Fund Account provided:
1. NMLP shall have delivered a written request for
the disbursement to the Agent, which request shall (1) specify
the Permitted Leasing Costs for the period in which the
disbursement is requested, (2) set forth the amount of the
requested disbursement, and (3) if the requested disbursement
exceeds Five Thousand Dollars ($5,000), include an invoice or
signed contract specifying that the work has been done or the
cost incurred;
2. Such disbursement is used to pay the actual cost
of a Permitted Leasing Cost;
3. The Permitted Leasing Cost is in compliance with
the then current Annual Leasing Cost Budget; and
4. All Permitted T/I Debt for the subject year has
been obtained by and fully funded to NMLP to fund Permitted
Leasing Costs previously incurred by NMLP.
(4) The T/I Fund Account shall be an interest
bearing account maintained at the Agent. The T/I Fund Account
shall be subject to the NMLP Depository Account Pledge and
Security Agreement.
(5) As used herein, the "Required T/I Amount" shall
be an amount as reasonably determined from time to time by the
Agent reflecting the projected Permitted Leasing Costs for the
following forty-eight (48) month period. The Agent shall
advise NMLP in writing of any change in the Required T/I
Amount. As used herein, the "Annual Leasing Cost Budget" shall
be a budget submitted annually by NMLP to the Agent reflecting
the projected Permitted Leasing Costs for the next year, with
appropriate itemization on a consolidated (and not Individual
Property) basis as required by the Agent, which annual budget
shall be subject to the approval of the Agent, which approval
shall not be unreasonably withheld.
(6) Provided no Event of Default shall have occurred
and be continuing, upon the satisfaction in full of all the
NMLP Obligations, Agent shall release the sums remaining in
the T/I Fund Account, if any, to NMLP.
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7.1.29 Single-Purpose Entity.
(1) NMLP shall cause each NMLP Subsidiary to be a
Single-Purpose Entity and to comply with the terms and
provisions hereof with respect thereto.
(2) NMLP shall cause Xxxxxxx MLP Corp., the sole
manager of the NMLP GP, to maintain at least one director
which is an Independent Person. The unanimous consent of the
directors of Xxxxxxx MLP Corp. (including the vote of said
Independent Person) shall be required in order to file, or
consent to the filing of, a bankruptcy or insolvency petition
or otherwise institute insolvency proceedings for the NMLP GP,
NMLP, or any NMLP Subsidiary.
7.1.30 Ratings. NMLP will use reasonable efforts to obtain
updated annual Ratings from Xxxxx'x Investors Services, Inc. And
Standard and Poor's Rating Group (or such other rating agency as may be
reasonably acceptable to the Agent) at no cost or expense to the Agent
or any Lender.
7.2 T-Two. T-Two covenants and agrees that from the date hereof and so
long as any indebtedness is outstanding hereunder, or any of the T-Two Loan or
other T-Two Obligations remains outstanding, as follows:
7.2.1 Notices. T-Two shall, with reasonable promptness, but in
all events within five (5) days after it has actual Knowledge thereof,
notify Agent and each of the Lenders in writing of the occurrence of
any act, event or condition which constitutes a Default or Event of
Default under any of the T-Two Loan Documents. Such notification shall
include a written statement of any remedial or curative actions which
T-Two proposes to undertake and/or to cause any of the other T-Two Loan
Parties to undertake to cure or remedy such Default or Event of
Default.
7.2.2 Financial Statements; Reports; Officer's Certificates.
T-Two shall furnish or cause to be furnished to Agent as set forth
herein from time to time, the following financial statements, reports,
certificates, and other information, all in form, manner of
presentation and substance acceptable to Agent and each of the Lenders:
(1) Annual Statements.
(1) Within ninety (90) days after the close
of each fiscal year of T-Two, the consolidated
statements of financial condition of T-Two as at the
end of such fiscal year and the related consolidated
statements of income and retained earnings and
statements of changes in financial position for such
fiscal year, in each case, commencing with the Fiscal
Year ending December 31, 2003, setting forth
comparative for the preceding fiscal year and
certified by Imowitz, Xxxxxx & Co. LLP or other
independent certified public accountants of
recognized national standing reasonably acceptable to
the Agent, in each case together with a report of
such accounting firm stating that in the course of
its regular audit of the financial statements of such
Party, which audit was conducted in accordance with
GAAP, consistently applied, such accounting firm
obtained no knowledge of any Default or Event of
Default which has occurred and is continuing or, if
in the opinion of such accounting firm such a Default
or Event of Default has occurred and is con tinuing,
a statement as to the nature thereof; such financial
statements to include and to be supplemented by such
detail and supporting data and schedules as Agent may
from time to time reasonably determine;
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(2) Periodic Statements Within sixty (60)
days after the close of each calendar quarter (except
for the quarter ending on December 31), the
following: (i) the consolidated statements of
financial condition of T-Two, internally prepared in
accordance with GAAP, consistently applied, as at the
end of such quarterly period and the related
consolidated statements of income and retained
earnings and statements of changes in financial
position for such quarterly period and for the
elapsed portion of the Fiscal Year ended with the
last day of such quarterly period, in each case
commencing with the Fiscal Year ending December 31,
2003, setting forth comparative figures for the
related periods in the prior fiscal year, subject to
normal year-end audit adjustments, all in form and
manner of presentation acceptable to Agent, such
financial statements to include and to be
supplemented by such detail and supporting data and
schedules as Agent may from time to time reasonably
determine, including, without limitation, a
certification as to the Aggregate DPO as of such
quarter end, (ii) an Officer's Certificate from T-Two
certifying that such financial statements are true,
accurate, and complete in all material respects and
that no Default or Event of Default has occurred and
is continuing.
(3) Compliance Certificates. Within sixty
(60) days (or ninety (90) days in the case of the
fourth fiscal quarter) after the close of each
quarterly accounting period in each Fiscal Year of
T-Two, Compliance Certificates in form of Exhibit G-2
and Exhibit G-3, annexed hereto, together with an
Officer's Certificate from NMLP providing and
otherwise certifying with respect to the following:
1. the compliance with the Financial Covenants,
with such supporting detail as is deemed necessary by the
Agent to verify the calculations incorporated therein;
2. any changes to the Securitized Note Schedule
(4) Data Requested. Within a reasonable
period of time and from time to time such other
financial data or information as Agent may reasonably
request with respect to the Securitization Documents,
T-Two, and/or the other T-Two Loan Parties.
(5) Tax Returns. Upon Agent's request,
copies of all federal and state tax returns of T-Two.
(6) Mortgage Notices. Concurrently with the
giving thereof, and within ten (10) Business Days of
receipt thereof, copies of all notices, other than
routine correspondence, given or received by T-Two
with respect to any Securitized Note or Securitized
Mortgage.
(7) Entity Notices. Concurrently with the
issuance thereof, copies of all written notices
(excluding routine correspondence) given to the
partners of T-Two.
(8) Notices Regarding T-Two Payment
Direction Letters. Within ten (10) Business Days of
receipt thereof, copies of all notices (excluding
routine correspondence) received by T-Two from any
Person who has agreed
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to the direction of the payment of funds as provided
for in a Payment Direction Letter.
(9) Notice of Termination of T-Two Payment
Direction Letter. Promptly, and in any event within
ten (10) Business Days after an officer of T-Two
obtains Knowledge thereof, written notice of the
termination of any Payment Direction Letter, together
with evidence of the satisfactory reinstatement or
replacement thereof in accordance with the terms and
conditions hereof.
(10) Notices under Securitization Documents.
Within ten (10) Business Days of receipt thereof,
copies of all notices, reports and other information
received by T-Two from any agent, trustee or servicer
or any other party under or pursuant to the
Securitization Documents.
(11) Third Party Default Notices.
Immediately upon notice or receipt thereof by T-Two,
copies of all notices of default, other non-
performance, and/or exercise (or intended exercise)
relating in any way to any one or more of the Related
Documents.
(l2) Notice of Litigation. Promptly, and in
any event within ten (10) Business Days after T-Two
obtains Knowledge thereof, written notice of any
pending or, to the best of T-Two's Knowledge,
threatened action, suit or proceeding at law or in
equity or by or before any governmental
instrumentality or other agency or regulatory
authority by any entity (private or governmental)
relating in any way to the Loan, the transactions
contemplated in the Documents, the Related Documents,
or the transactions contemplated in connection with
the Refinance or any documentation executed in
connection therewith, or relating to T-Two, which
could reasonably be expected to have a Material
Adverse Effect.
7.2.3 Existence. T-Two shall do or cause to be done all things
necessary to (i) preserve, renew and keep in full force and effect (x)
the partnership, company or corporate existence, as applicable, of each
T-Two Loan Party and (y) the material rights, licenses, permits and
franchises of each T-Two Loan Party, (ii) comply with all laws and
other Legal Requirements applicable to it and its assets, business and
operations, and (iii) to the extent applicable, at all times maintain,
preserve and protect all material franchises and trade names and all
the remainder of its property used or useful in the conduct of its
business, and keep its assets in good working order and repair,
ordinary wear and tear excepted, and from time to time make, or cause
to be made, all reasonably necessary repairs, renewals, replacements,
betterments and improvements thereto.
7.2.4 Payment of Taxes. T-Two shall duly pay and discharge,
before the same shall become overdue, all taxes, assessments,
impositions, and other governmental charges payable by it, except if
contested in accordance with Section 9.1.
7.2.5 Insurance; Casualty, Taking.
(1) T-Two shall at all times maintain or cause the
appropriate Person to maintain in full force and effect the
following insurance: (i) to the best of T-Two's Knowledge, the
Securitized Properties shall be insured by insurers of
recognized financial responsibility against such losses and
risks in compliance with the Leases and the requirements set
forth in Exhibit E hereto, such insurance maintained by the
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tenants under the Leases; and (ii) T-Two shall have a
monitoring system in place to periodically verify whether the
tenants under the Leases have in place insurance as required
by the applicable Lease.
(2) In the event of any damage or destruction to any
Securitized Property (or to the extent now or hereafter
applicable, any T-Two Collateral) by reason of fire or other
hazard or casualty, T-Two shall give immediate written notice
thereof to Agent. If there is any condemnation for public use
of any Securitized Property (or to the extent now or hereafter
applicable, any T-Two Collateral), T-Two shall give immediate
written notice thereof to Agent. Further, T-Two shall upon the
request of the Agent provide to the Agent with a report as to
the status of any insurance adjustment, condemnation claim, or
restoration resulting from any casualty or taking.
7.2.6 Inspection. T-Two shall permit the Agent and the Lenders
and its/their agents, representatives and employees to inspect the
T-Two Collateral at reasonable hours upon reasonable notice, except to
the extent prohibited or otherwise limited in the subject Leases.
7.2.7 T-Two Loan Documents. T-Two (i) shall observe, perform
and satisfy all the terms, provisions, covenants and conditions to be
performed by it under, and to pay when due all costs, fees and
expenses, and other T-Two Obligations of T-Two to the extent required
under, the T-Two Loan Documents.
7.2.8 Further Assurances. T-Two shall and shall cause the
T-Two Loan Parties to execute and deliver to the Agent and the other
Lenders such documents, instruments, certificates, assignments and
other writings, and do such other acts, necessary or desirable in the
reasonable judgment of the Agent, to evidence, preserve and/or protect
the T-Two Collateral at any time securing or intended to secure the
T-Two Obligations and do and execute all and such further lawful acts,
conveyances and assurances as the Agent may reasonably require for the
better and more effective carrying out of the intents and purposes of
this Agreement and the other T-Two Loan Documents.
7.2.9 Books and Records. T-Two shall keep and maintain in
accordance with GAAP (or such other accounting basis reasonably
acceptable to the Agent), proper and accurate books, records and
accounts reflecting all of the financial affairs of T-Two and such
other Persons and all items of income and expense in connection with
their respective business and operations and in connection with any
services, equipment or furnishings provided in connection with the
operation of the business of T-Two and such Persons, whether such
income or expense is realized thereby or by any other Person. The Agent
shall have the right, not more than once each quarter (unless an Event
of Default shall have occurred and be continuing in which case as often
as the Agent shall determine), during normal business hours and upon
reasonable notice, to examine such books, records and accounts of T-Two
at the office of the Person maintaining such books, records, and
accounts and to make such copies or extracts thereof as the Agent shall
desire. T-Two shall maintain all of its business records at the address
specified at the beginning of this Agreement, subject to change upon
advance written notification to the Agent. The Agent may discuss the
financial and other affairs of the T-Two with any of its respective
owners, and any accountants (as to accountants, prior to the occurrence
of an Event of Default and following the cure of any Event of Default,
upon prior approval of the T-Two, not to be unreasonably withheld, and
at the cost and expense of the Agent and the Lenders) hired by T-Two,
it being agreed that Agent and each of the Lenders shall use best
efforts to not divulge information obtained from such examination to
others except in connection with Legal Requirements and in connection
with administering the T-Two Loan, enforcing its rights and remedies
under
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the T-Two Loan Documents and in the conduct, operation and regulation
of its banking and lending business (which may include, without
limitation, the transfer of the Loan or of participation interests
therein). Any assignee or transferee of the T-Two Loan, co-lender, or
any holder of a participation interest in the T-Two Loan shall be
entitled to deal with such information in the same manner and in
connection with any subsequent transfer of its interest in the T-Two
Loan or of further participation interests therein.
7.2.10 Business and Operations. T-Two shall (i) continue to
engage in the type of businesses presently conducted by it as of the
Closing Date, respectively, as and to the extent the same are necessary
for the ownership of, and preservation of the value and utility of, the
T-Two Collateral, and (ii) be qualified to do business and in good
standing under the laws of each jurisdiction, and otherwise to comply
with all Legal Requirements, as and to the extent the same are required
for the ownership, maintenance, management and operation of the assets
of such Person except where the failure to be so qualified could not
reasonably be expected to have a Material Adverse Effect.
7.2.11 Title. T-Two shall warrant and defend (x) the title to
each item of T-Two Collateral owned by such Person and every part
thereof, subject only to the Liens (if any) permitted hereunder, the
validity and priority of the Liens and security interests held by the
Agent pursuant to the T-Two Loan Documents, in each case against the
claims of all Persons whomsoever. T-Two shall be responsible, jointly
and severally, to reimburse Agent and the Lenders for any losses,
costs, damages or expenses (including reasonable attorneys' fees and
court costs) incurred by the Agent and/or any of the Lenders if an
interest in any item of T- Two Collateral, other than as permitted
hereunder, is claimed by another Person.
7.2.12 Estoppel. T-Two shall, within ten (10) days after a
request therefor from the Agent, which request shall not be made by
Agent more than once each quarter during each Fiscal Year, furnish to
the Agent a statement, duly acknowledged and certified, setting forth
(i) the amount then owing by T-Two in respect of the T-Two Obligations,
(ii) the date through which interest on the T-Two Loan has been paid,
(iii) any offsets, counterclaims, credits or defenses to the payment by
T-Two to the T-Two Obligations and (iv) whether any written notice of
Default from Agent to T-Two is then outstanding and acknowledging that
this Agreement and the other T-Two Loan Documents are in full force and
effect and unmodified, or if modified, giving the particulars of such
modification.
7.2.13 ERISA. T-Two shall as soon as possible and, in any
event, within ten (10) days after T-Two, or any ERISA Affiliate knows
or has reason to know of the occurrence of any of the following which
could have or reasonably be expected to have a Material Adverse Effect,
deliver to Agent a certificate of the an executive officer of T-Two
setting forth details as to such occurrence and the action, if any,
that the applicable T-Two or such ERISA Affiliate is required or
proposes to take, together with any notices required or proposed to be
given to or filed with or by such T-Two, the ERISA Affiliate, the PBGC,
a Plan participant or the Plan administrator with respect thereto: (i)
that a Reportable Event has occurred; (ii) that an accumulated funding
deficiency has been incurred or an application may be or has been made
to the Secretary of the Treasury for a waiver or modification of the
minimum funding standard (including any required installment payments)
or an extension of any amortization period under Section 412 of the
Code with respect to a Plan; (iii) that a contribution required to be
made to a Plan has not been timely made; (iv) that a Plan has been or
may be terminated, reorganized, partitioned or declared insolvent under
Title IV of ERISA; (v) that a Plan has an Unfunded Current Liability
giving rise to a lien under ERISA or the Code; (vi) that proceedings
may be or have been instituted to terminate or appoint a trustee to
administer a Plan; (vii) that a proceeding has been instituted pursuant
to Section 515 of ERISA to collect a delinquent contribution to a Plan;
(viii) that such T-Two, or
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ERISA Affiliate will or may incur any liability (including any
indirect, contingent, or secondary liability) to or on account of the
termination of or withdrawal from a Plan under Section 4062, 4063,
4064, 4069, 4201, 4204 or 4212 of ERISA or with respect to a Plan under
Section 401(a)(29), 4971, 4975 or 4980 of the Code or Section 409 or
502(i) or 502(l) of ERISA; (ix) or that such T-Two may incur any
material liability pursuant to any employee welfare benefit plan (as
defined in Section 3(l) of ERISA) that provides benefits to retired
employees or other former employees (other than as required by Section
601 of ERISA) or any employee pension benefit plan (as defined in
Section 3(2) of ERISA). T-Two shall deliver to Agent a complete copy of
the annual report (Form 5500) of each Plan required to be filed with
the Internal Revenue Service. In addition to any certificates or
notices delivered to Agent pursuant to the first sentence hereof,
copies of any material notices received by any T-Two or any ERISA
Affiliate with respect to any Plan shall be delivered to Agent no later
than ten (10) days after the date such report has been filed with the
Internal Revenue Service or such notice has been received by such T-Two
or ERISA Affiliate, as applicable.
7.2.14 Depository Accounts. T-Two shall (i) maintain all
operating and other depository accounts, if any, with Fleet National
Bank (or any successor thereto) (singly and collectively, including the
T-Two Depository Accounts, the "T-Two Accounts"), such T-Two Accounts
as of the date hereof listed on Exhibit R, annexed hereto, unless
otherwise agreed by Agent in writing, (ii) maintain a minimum of one
depository account for each such Person with Fleet National Bank (or
any successor thereto) (singly and collectively, the "T-Two Depository
Accounts"), unless otherwise agreed by Agent in writing, (iii) execute
and deliver the Cash Management Agreement to provide for terms and
conditions satisfactory to the Agent with respect to the use and
disbursement of funds in any T-Two Account. Each of the T-Two Accounts
shall be subject to the T-Two Depository Account Pledge and Security
Agreement.
7.2.15 Cash Flow; T-Two Payment Direction Letters.
(1) T-Two agrees that appropriate procedures
satisfactory to the Agent will be put in place such that (a)
any payments received by the Grantor Trust, directly by T-Two
or by any other Person on account of the Securitized Notes
shall be directly deposited in the designated T-Two Depository
Account in the name of T- Two, and (b) any other receipts or
other revenues or payments received by T-Two shall be directly
deposited in a designated T-Two Depository Account in the name
of T-Two. Further, after the occurrence and during the
continuance of an Event of Default, Agent shall have the right
to receive any and all such payments or other revenues and
make application thereof to the Obligations.
(2) The use and disbursement of all funds in the
T-Two Depository Accounts and the T-Two Accounts shall be
subject to the terms and provisions hereof and the Cash
Management Agreement.
(3) T-Two agrees that to the extent that T-Two or
any T-Two Loan Party receives directly any payments, revenues
or other payments which are required to be deposited as
provided for herein, T-Two shall, and shall cause any other
T-Two Loan Party to, deposit such funds in the applicable
designated T-Two Depository Account.
(4) T-Two shall (and shall cause the other T-Two
Loan Parties to) maintain in place during the term of the Loan
such direction letters and agreements as the Agent may from
time to time require in order to effectuate the terms and
provisions hereof relating to the management of the cash flow
of T-Two (the "T-Two Payment Direction Letters"), including,
without limitation, the payment of all
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amounts due under any Securitized Note or Securitized Mortgage
to the Grantor Trust Trustee.
7.2.16 Costs and Expenses. T-Two shall pay all costs and
expenses (excluding salaries or wages of employees of Agent) reasonably
incurred by Agent in connection with the implementation and syndication
of the T-Two Loan and the administration of the T-Two Loan, and
reasonably incurred by the Agent or any of the Lenders in connection
with the enforcement of the Agent's and Lenders' rights under the T-Two
Loan Documents, including, without limitation, legal fees and
disbursements, appraisal fees, inspection fees, plan review fees,
travel costs and fees and out-of-pocket costs of independent engineers
and consultants. T-Two's obligations to pay such costs and expenses
shall include, without limitation, all attorneys' fees and other costs
and expenses for preparing and conducting litigation or dispute
resolution arising from any breach by T-Two or the T-Two Loan Parties
of any covenant, warranty, representation or agreement under any one or
more of the T-Two Loan Documents. Unless an Event of Default has
occurred and is then continuing, the Agent shall use its best efforts
to notify T-Two prior to the incurrence of any such cost or expense if
the aggregate amount of such costs and expenses in any one calendar
year will exceed $25,000.00; provided, however, that the failure shall
provide such notice shall not affect in any manner whatsoever on
T-Two's obligations hereunder.
7.2.17 Indemnification. T-Two shall at all times, both before
and after repayment of the T-Two Loan, at its sole cost and expense
defend, indemnify, exonerate and save harmless Agent and each of the
Lenders and all those claiming by, through or under Agent and each of
the Lenders ("Indemnified Party") (to the extent not paid by T-Two in
this Section 7.2.17 or under the applicable provisions of this or any
other T-Two Loan Document) against and from all damages, losses,
liabilities, obligations, penalties, claims, litigation, demands,
defenses, judgments, suits, proceedings, costs, disbursements or
expenses of any kind whatsoever, including, without limitation,
attorneys' fees and experts' fees and disbursements, which may at any
time (including, without limitation, before or after discharge or
foreclosure of the T-Two Security Documents) be imposed upon, incurred
by or asserted or awarded against the Indemnified Party and arising
from or out of:
(1) any liability for damage to person or property
arising out of any violation of any Legal Requirement with
respect to T-Two, any T-Two Loan Party or any Securitized
Property, or
(2) any and all liabilities, damages, penalties,
costs, and expenses, relating in any manner to any brokerage
or finder's fees in respect of the Loan, or
(3) as a result of litigation that may arise in
connection with T-Two's activities, or
(4) any act, omission, negligence or conduct at any
Individual Property, or arising or claimed to have arisen, out
of any act, omission, negligence or conduct of T-Two or any
tenant, occupant or invitee thereof which is in any way
related to any Individual Property.
Notwithstanding the foregoing, an Indemnified Party shall not be
entitled to indemnification in respect of claims arising from acts of
its own gross negligence or willful misconduct to the extent that such
gross negligence or willful misconduct is determined by the final
judgment of a court of competent jurisdiction, not subject to further
appeal, in proceedings to which such Indemnified Party is a proper
party.
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7.2.18 Replacement Documentation. Upon receipt of an affidavit
of an officer of Agent as to the loss, theft, destruction or mutilation
of the T-Two Note or any other T-Two Security Document which is not of
public record, and, in the case of any such loss, theft, destruction or
mutilation, upon surrender and cancellation of such T-Two Note or other
T- Two Security Document, T-Two will issue, in lieu thereof, a
replacement T-Two Note or other security document in the same principal
amount and otherwise of like tenor upon receipt by T-Two of a suitable
indemnity.
7.2.19 Other Covenants. With the exception of the T-Two
collateral held by the Grantor Trustee pursuant to the terms of the
Securitization Documents, T-Two hereby represents and warrants that no
T-Two Collateral is in the possession of any third party bailee (such
as at a warehouse). In the event that T-Two and/or any of the other
T-Two Loan Parties, after the date hereof, intends to store or
otherwise deliver any T-Two Collateral or other personal property in
which the Agent has been granted a security interest to such a bailee,
then T-Two shall receive the prior written consent of the Agent and
such bailee must acknowledge in writing that the bailee is holding such
T-Two Collateral or such other personal property for the benefit of the
Agent and the Lenders.
7.2.20 Single-Purpose Entity. T-Two shall continue to be a
Single-Purpose Entity and to comply with the terms and provisions
hereof with respect thereto.
7.2.21 Intercompany Loan. Upon request of the NMLP, T-Two
shall make advances to NMLP (the "Intercompany Loan"), which advances
shall be evidenced and governed by the Intercompany Loan Documents. The
proceeds of the Intercompany Loan shall be utilized by NMLP for general
working capital purposes. The Intercompany Loan shall bear interest and
shall be repaid in accordance with the terms of the Intercompany Loan
Documents.
7.3 Financial Covenants. The Borrower shall comply with the
following financial covenants;
7.3.1 Debt Service Coverage Ratios.
(i) Certain Definitions.
(1) "Calculation Date" shall mean the last
day of each calendar quarter commencing with December
31, 2003.
(2) "Calculation Period" shall mean each
successive twelve (12) month period ending on a
Calculation Date.
(3) "Debt Service" shall mean (A) the sum of
the aggregate regularly scheduled actual principal
and interest paid or payable respecting all Debt of
NMLP and T-Two, but excluding any payments due under
the Intercompany Loan and excluding any Mandatory
Principal Prepayments, less (B) with respect to
interest payments required with respect to the NMLP
Loan or the T-Two Loan, the amount paid to NMLP or
T-Two or the Agent pursuant to any Interest Rate
Protection Agreement relating to interest due during
the subject Calculation Period.
(4) "Debt Service Coverage" shall mean the
ratio for the Calculation Period of: (A) Net Cash
Flow to (B) Debt Service.
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(5) "Net Cash Flow" shall mean the
aggregate of (i) that portion of the Consolidated Net
Cash Flow (exclusive of that portion of Consolidated
Net Cash Flow set forth under section 7.3.1(g)(i)(b)
below) which is available to NMLP, as Distributions
or otherwise, from NMLP Subsidiaries (after payment
of that portion of Consolidated Debt Service in
connection with the First Mortgage Debt and the Other
Second Mortgage Debt, and operating costs and
expenses specifically attributable to the NMLP's
Subsidiaries) or from other of NMLP's Investments
attributable to NMLP, plus (ii) (1) all revenues of
T-Two from regularly scheduled payments of principal
and interest under the Non-Wholly Owned Securitized
Notes less (2) all operating costs and expenses
(excluding any Consolidated Debt Service) of T-Two,
all of the foregoing as reasonably determined by the
Agent in a manner consistent with the procedures and
methods utilized by the Agent in analyzing the
financial information provided by NMLP and T-Two
prior to closing.
(6) "Consolidated Debt Service Coverage"
shall mean the ratio for the Calculation Period of:
(A) Consolidated Net Cash Flow to (B) Consolidated
Debt Service.
(7) "Consolidated Net Cash Flow" shall mean
the sum of (i) (a) all cash revenues from the
aggregate of all of NMLP's Subsidiaries and regularly
scheduled principal and interest from the Xxxxxxx
Loans, including, without limitation, all rents,
management fees, ground rent, common area maintenance
charges, insurance premium and tax reimbursements and
proceeds from rental interruption insurance, plus (b)
all regularly scheduled payments of principal and
interest received by T-Two on account of any Non-
Wholly Owned Securitized Note, less the aggregate of
(ii) all operating costs and expenses (excluding
Consolidated Debt Service) of NMLP, T-Two, and the
NMLP's Subsidiaries related to such investments,
amounts reserved for taxes and insurance, replacement
reserves, and capital expenditures, all of the
foregoing as reasonably determined by the Agent in a
manner consistent with the procedures and methods
utilized by the Agent in analyzing the financial
information provided by NMLP and T-Two prior to
closing.
(8) "Consolidated Debt Service" shall mean
(A) the sum of the aggregate actual principal and
interest paid or payable respecting all Debt of NMLP,
T-Two and the NMLP's Subsidiaries (but excluding, for
the purposes of this definition, debt service with
respect to the Securitized Notes, any payments due
under the Intercompany Loan, and any Mandatory
Principal Prepayments), on a consolidated basis,
during the Calculation Period less (B) with respect
to interest payments required with respect to the
NMLP Loan and the T-Two Loan, the amount paid to NMLP
or T-Two or the Agent pursuant to any Interest Rate
Protection Agreement relating to interest due during
the subject Calculation Period.
(2) Minimum Consolidated Debt Service Coverage.
During the Initial Term, the Consolidated Debt Service
Coverage for each Calculation Period determined on each
Calculation Date shall be not less than 1.15:1. During any
Extended Term, the Consolidated Debt Service Coverage for each
Calculation Period determined on each Calculation Date shall
be not less than 1.25:1. The compliance with the Consolidated
Debt Service Coverage covenant shall be tested by the Agent on
the Calculation Date with results based upon the most recent
Calculation Period
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results, as reasonably determined by the Agent in a manner
consistent with the procedures and methods utilized by the
Agent in analyzing the financial information provided by NMLP
and T-Two prior to closing. If such Consolidated Debt Service
Coverage covenant shall not be satisfied on any Calculation
Date, the Borrower shall prepay a sufficient amount of
principal outstanding on the Loan such that if such principal
reduction had been made on the first day of the Calculation
Period the Consolidated Debt Service Coverage covenant would
have been satisfied. It shall be an Event of Default if the
Borrower fails to make such a prepayment not later than the
first to occur of: (i) ten (10) Business Days after notice
from Agent to the Borrower properly requesting the payment, or
(ii) if the Borrower has failed to give Agent sufficient
reports to enable Agent to make the necessary calculations,
forty-five (45) days following the applicable Calculation
Date, provided the Borrower shall have an additional five days
to supply additional information to the Agent from the date
the Agent notifies the Borrower that the initial reports have
been deemed insufficient by the Agent.
(3) Cash Sweep Account Test. The Agent shall also
determine whether the Borrower has complied with the following
test (the "Cash Sweep Account Test"): (i) during the Initial
Term, the Debt Service Coverage for each Calculation Period
determined on each Calculation Date shall be not less than
1.75:1; (ii) during any Extended Term, the Debt Service
Coverage for each Calculation Period determined on each
Calculation Date shall be not less than 2.00:1.
7.3.2 Consolidated Leverage Ratio. The quotient resulting from
dividing (i) the sum of (1) NMLP's allocable share of the aggregate
amount of all Debt respecting the NMLP's Investments and (2) the
aggregate amount of T-Two's Debt (including, without limitation, the
outstanding balance of the Loan and the T-Two Loan, but excluding the
outstanding balance of the Securitized Notes and the Intercompany Loan)
by (ii) the aggregate of (1) Aggregate Investment Capitalization of
NMLP's allocable share of all the NMLP's Investments (the "Consolidated
Leverage Ratio"), plus (2) plus all cash and cash equivalents of NMLP
and the NMLP Subsidiaries, all as reasonably determined by the Agent in
a manner consistent with the procedures and methods utilized by the
Agent in analyzing the financial information provided by NMLP prior to
closing, shall at all times be less than the following during the
relevant periods indicated:
--------------------------------------------------------------------------------
Relevant period Consolidated Leverage
Ratio
--------------------------------------------------------------------------------
Closing through November 24, 2004 70.0%
--------------------------------------------------------------------------------
November 25, 2004 through November 24, 2005 67.0%
--------------------------------------------------------------------------------
November 25, 2005 through November 24, 2006 65.0%
--------------------------------------------------------------------------------
November 25, 2006 through November 24, 2007, as may be 60.0%
applicable during any First Extended Term
--------------------------------------------------------------------------------
November 25, 2007 through November 24, 2008, as may be 55.0%
applicable during any Second Extended Term
--------------------------------------------------------------------------------
The compliance with the Consolidated Leverage Ratio covenant shall be tested by
the Agent on the Calculation Date with results based upon the then current
financial information, as reasonably determined solely by the Agent. If such
Consolidated Leverage Ratio covenant shall not be satisfied
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on any Calculation Date, the Borrower shall prepay a sufficient amount of
principal outstanding on the Loan such that if such principal reduction had been
made on the Calculation Date the Consolidated Leverage Ratio covenant would have
been satisfied on such Calculation Date. It shall be an Event of Default if the
Borrower fails to make such a prepayment not later than the first to occur of:
(i) ten (10) Business Days after Notice from Agent to the Borrower properly
requesting the payment, or (ii) if the Borrower has failed to give Agent and
each of the Lenders sufficient reports to enable Agent to make the necessary
calculations, forty-five (45) days following the applicable Calculation Date,
provided the Borrower shall have an additional five days to supply additional
information to the Agent from the date the Agent notifies the Borrower that the
initial reports have been deemed insufficient by the Agent.
7.3.3 Minimum Liquidity. The sum of all of NMLP's and the
NMLP's Subsidiaries Liquid Assets (excluding, however, the Liquid
Assets of any NMLP Subsidiary as to which there exists a default or
event of default on any Mortgage Debt of such NMLP Subsidiary) must at
all times be at least $5,000,000.00, all of the foregoing as reasonably
determined by the Agent in a manner consistent with the procedures and
methods utilized by the Agent in analyzing the financial information
provided by NMLP prior to closing. Any amounts in excess of the
Required T/I Amount (calculated for this purpose only based upon the
projected leasing costs (as determined by the Agent) for the following
twelve month period only) contained in the T/I Fund Account shall be
included in the calculation of the minimum required Liquid Assets. If
such Minimum Liquidity shall not be satisfied on any date of testing,
NMLP shall arrange for an infusion of Liquid Assets in an amount
necessary to satisfy the requirements of this Section 7.3.3. It shall
be an Event of Default if NMLP fails to arrange for any required
additional Liquid Assets not later than ten (10) Business Days after
Notice from Agent to the Borrower notifying the Borrower of the
noncompliance.
7.3.4 Minimum Consolidated Net Worth. Minimum Consolidated Net
Worth shall at all times be equal to or greater than the amount set
forth below during each period set forth below:
--------------------------------------------------------
Relevant Period Net Worth
--------------------------------------------------------
Closing through November $500,000,000.00
24, 2006
--------------------------------------------------------
November 25, 2006 $525,000,000.00
through November 24,
2007, as may be applicable
during any First Extended
Term.
--------------------------------------------------------
November 25, 2007 $550,000,000.00
through November 24,
2008, as may be applicable
during any Second
Extended Term.
--------------------------------------------------------
"Minimum Consolidated Net Worth" shall mean the consolidated net worth of NMLP
and the NMLP Subsidiaries using the Aggregate Investment Capitalization for all
NMLP's Investments, plus all cash and cash equivalents of NMLP, T-Two and the
NMLP Subsidiaries, less the allocable share of all liabilities respecting the
Individual Properties (excluding the Securitized Notes), and of NMLP, T-Two, and
the NMLP Subsidiaries, as reasonably determined by the Agent in a manner
consistent with the procedures and methods utilized by the Agent in analyzing
the financial information
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provided by NMLP prior to closing. The compliance with the Minimum Consolidated
Net Worth covenant shall be tested by the Agent on each Calculation Date with
results based upon the then current financial information, as reasonably
determined by the Agent in a manner consistent with the procedures and methods
utilized by the Agent in analyzing the financial information provided by NMLP
prior to closing. If such Minimum Consolidated Net Worth covenant shall not be
satisfied on any Calculation Date, the Borrower shall prepay a sufficient amount
of principal outstanding on the Loan such that if such principal reduction had
been made on the Calculation Date the Minimum Consolidated Net Worth covenant
would have been satisfied on such Calculation Date. It shall be an Event of
Default if the Borrower fails to make such a prepayment not later than the first
to occur of: (i) ten (10) Business Days after Notice from Agent to the Borrower
properly requesting the payment, or (ii) if the Borrower has failed to give
Agent and each of the Lenders sufficient reports to enable Agent to make the
necessary calculations, forty-five (45) days following the applicable
Calculation Date, provided the Borrower shall have an additional five days to
supply additional information to the Agent from the date the Agent notifies the
Borrower that the initial reports have been deemed insufficient by the Agent.
8. NEGATIVE COVENANTS.
8.1 NMLP. NMLP covenants and agrees that from the date hereof and so
long as any NMLP Obligations remain outstanding hereunder, NMLP shall not (and
shall not suffer or permit the other NMLP Loan Parties (except the Excepted Loan
Parties), and/or the NMLP Subsidiaries to):
8.1.1 No Changes to NMLP and other NMLP Loan Parties. Without
the prior written consent of the Agent, which consent will not be
unreasonably withheld, after not less than thirty (30) days' prior
written notice (with reasonable particularity of the facts and
circumstances attendant thereto):(i) change its jurisdiction of
organization, (ii) change its organizational structure or type, (iii)
change its legal name, or (iv) change the organizational number (if
any) assigned by its jurisdiction of formation or its federal employer
identification number (if any).
8.1.2 Restrictions on Liens. Create, incur, assume or suffer
to exist any Lien upon or with respect to any property or assets (real
or personal, tangible or intangible, including, without limitation, the
Individual Properties), whether now owned or hereafter acquired, or
sell any such property or assets subject to an understanding or
agreement, contingent or otherwise, to repurchase such property or
assets (including sales of accounts receivable with recourse) or assign
any right to receive income or permit the filing of any financing
statement under the UCC or any other similar notice of Lien under any
similar recording or notice statute, or grant rights with respect to,
or otherwise encumber or create a security interest in, such property
or assets (including, without limitation, any item of NMLP Collateral)
or any portion thereof or any other revenues therefrom or the proceeds
payable upon the sale, transfer or other disposition of such property
or asset or any portion thereof, or permit or suffer any such action to
be taken, except the following (singly and collectively, "NMLP
Permitted Liens"):
(1) Liens created by the NMLP Loan Documents;
(2) Liens for taxes, assessments or other
governmental charges not yet delinquent or which are being
diligently contested in good faith and by appropriate
proceedings, if (x) reasonable reserves in an amount not less
than the tax, assessment or governmental charge being so
contested shall have been established in a manner reasonably
satisfactory to the Agent or deposited in cash (or cash
equivalents) with the Agent to be held during the pendency of
such contest, or such contested amount shall have been duly
bonded in accordance with applicable law, (y) no risk of sale,
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forfeiture or loss of any interest in any Individual Property
or the NMLP Collateral or any part thereof arises during the
pendency of such contest and (z) such contest does not have
and could not reasonably be expected to have a Material
Adverse Effect;
(3) Liens in respect of property or assets imposed
by law, which were incurred in the ordinary course of business
and do not secure Debt, such as carriers', warehousemen's,
materialmen's and mechanics' liens and other similar Liens
arising in the ordinary course of business, and (x) which do
not in the aggregate materially detract from the value of any
property or assets or have, and could not reasonably be
expected to have, a Material Adverse Effect or (y) which are
being contested in good faith by appropriate proceedings,
which proceedings have the effect of preventing the forfeiture
or sale of the property or assets subject to any such Lien;
(4) Liens existing as of the Closing Date in favor of
(a) the Integrated Group to secure the Integrated Obligations,
and/or (b) the holders of the Mortgage Debt;
(5) A Lien on an Individual Property which may be
granted to secure a Permitted Refinance;
(6) Liens securing Permitted T/I Debt; and
(7) To the extent that NMLP or any NMLP Subsidiary or
any NMLP Loan Party (except the Excepted Loan Parties)
acquires any other asset, any Lien as to which the acquisition
of such asset is subject.
8.1.3 Consolidations, Mergers, Sales of Assets, Issuance and
Sale of Equity. (i) Dissolve, terminate, liquidate, consolidate with or
merge with or into any other Person, (ii) issue, sell, lease, transfer
or assign to any Persons or otherwise dispose of (whether in one
transaction or a series of transactions) any portion of its assets
(whether now owned or hereafter acquired), including, without
limitation, any securities, membership or partnership interests, or
other interests of any kind in any other NMLP Loan Party (except the
Excepted Loan Parties) or NMLP Subsidiary, directly or indirectly
(whether by the issuance of rights of, options or warrants for, or
securities convertible into, any such security, membership or
partnership interests or other interests of any kind), (iii) withdraw
from or resign as general partner or managing member of any Person,
including, without limitation, any withdrawal or resignation of: (x)
NMLP GP as the general partner of the NMLP, (y) any NMLP Partnership GP
as the general partner of a NMLP Partnership, or (z) the general
partner of each Other Partnership, which general partner is subject to
the control, directly and indirectly, of Xxxxxxx XX LLC, (iv) permit
another Person to merge with or into it, (v) acquire all or
substantially all the capital stock, membership or partnership
interests or assets of any other Person, or (vi) take any action which
could have the effect, directly or indirectly, of diluting the economic
interest of any NMLP Loan Party (except the Excepted Loan Parties) in
any other NMLP Loan Party (except the Excepted Loan Parties) or NMLP
Subsidiary; except the following:
(1) Transfers pursuant to the NMLP Security Documents
and other agreements in favor of Agent on behalf of the
Lenders;
(2) Transfers pursuant to the Integrated Documents;
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(3) Transfers or mergers to facilitate a NMLP
Permitted Investment (to the extent required, the Agent shall
release any security interest which it may have thereon to
effectuate such transfer or merger);
(4) Mergers of any Other Partnership into a NMLP
Partnership in accordance with the terms and conditions
hereof;
(5) Mergers, consolidations, transfers and sales
between and among NMLP Loan Parties (except the Excepted Loan
Parties) of partnership interests, membership interests or
capital stock, so long as after giving effect to any such
merger, consolidation, transfer or sale, the Agent shall have
a security interest, directly or through its security interest
in the partnership interests, membership interests or capital
stock of another NMLP Loan Party (except the Excepted Loan
Parties), in the partnership interests, membership interests
or capital stock of the NMLP Loan Party (except the Excepted
Loan Parties) which is the survivor of such merger or
consolidation or the recipient of such partnership interests,
membership interests or capital stock transferred and/or sold,
provided that in no event may any such merger, consolidation,
transfer or sale cause a Change of Control or otherwise
adversely affect the interests of the Agent and/or the
Lenders, as determined solely by the Agent;
(6) Sales of any Individual Property in connection
with an Economic Discontinuance Sale, subject to the terms and
conditions of Section 7.1.24 and payment of the required NMLP
Mandatory Principal Prepayment related thereto (to the extent
required, the Agent shall release any security interest which
it may have thereon to effectuate such sale);
(7) Sales of any Individual Property (other than in
connection with an Economic Discontinuance Sale) or the 100%
ownership interest of NMLP in any NMLP Partnership or, with
the prior consent of the Agent, any other ownership interest
of NMLP in any NMLP Partnership; provided (a) the Agent
receives the NMLP Mandatory Principal Payment required under
Section 2.3.8(ii) above, (b) the purchaser is an unaffiliated
third party, and (c) NMLP submits to the Agent an Officer's
Certificate reflecting a pro-forma calculation that NMLP will
be in compliance with the Financial Covenants and the Cash
Sweep Account Test considering the consequences of the sale
(to the extent required, the Agent shall release any security
interest which it may have thereon to effectuate such sale);
(8) Sales or dispositions in the ordinary course
of business of worn, obsolete or damaged items of personal
property or fixtures which are suitably replaced (to the
extent required, the Agent shall release any security interest
which it may have thereon to effectuate such sale or
disposition);
(9) Leases to the extent provided for herein; and
(10) Transactions, whether outright or as security,
for which Agent's prior written consent has been obtained.
8.1.4 Restrictions on Debt. (i) Create, incur or assume any
Debt, (ii) enter into, acquiesce, suffer or permit any amendment,
restatement or other modification of the documentation evidencing
and/or securing any Debt under which it is an obligor, or (iii)
increase the amount of any Debt existing as of the Closing Date; except
with respect to the following (singly and collectively, "NMLP Permitted
Debt"):
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(1) The NMLP Obligations;
(2) The following Debt existing as of the Closing
Date in the amount disclosed to the Agent hereunder:
(1) the Mortgage Debt (none of which is
recourse to NMLP, except for the type of recourse
obligation set forth in Section 8.1.4(v), below), and
(2) the Integrated Obligations (none of
which is recourse to (x) NMLP and (y) any NMLP
Subsidiary, other than Xxxxxxx XX LLC, Xxxxxxx
Capital LLC, and Xxxxxxx Xxxxx LLC);
(3) Debt described in Schedule 8.1.4.(iii) annexed
hereto;
(4) Any refinancing of any Mortgage Debt provided
such refinancing is in accordance with the terms and
provisions of the applicable Securitized Mortgages or Other
Second Mortgage Debt, without amendment or waiver of the said
terms and conditions (a "Permitted Refinance"); provided,
however, that no refinancing of any Debt otherwise permitted
hereunder shall be allowed unless and until:
(1) the Agent has received at least thirty
(30) days' prior written notice of any intended
refinancing, which notice shall detail with
specificity the terms and conditions of any such
refinancing and shall include complete copies of any
loan application and loan commitment respecting such
proposed refinancing, together with such other
materials and information as the Agent shall
reasonably request;
(2) no Default or Event of Default shall
have occurred and then be continuing; and
(3) NMLP has provided the Agent with such
instruments, documents, agreements, certifications,
and opinions as the Agent shall reasonably require
with respect thereto.
(5) With respect to any Mortgage Debt, obligations
under (i) limited guaranties by NMLP as to usual and customary
exceptions to non-recourse provisions (e.g., fraud and
misappropriation of funds) provided that such limited
guaranties are evidenced by documentation approved by the
Agent and (ii) indemnifications by NMLP as to usual Hazardous
Materials issues relating to the subject Individual Property
provided that such indemnifications are evidenced by
documentation customary for transactions of that type;
(6) Indebtedness constituting Permitted T/I Debt;
(7) Indebtedness incurred in the ordinary course of
business for the purchase of goods or services which are
payable, without interest, within thirty (30) days of billing;
(8) Indebtedness under the Intercompany Loan
Documents: and
(9) Transactions, whether secured or unsecured, for
which Agent's prior written consent has been obtained.
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8.1.5 Respecting Individual Properties. Permit or otherwise
suffer to occur any event such that the representations and warranties
of NMLP set forth in Section 6.1.18 would be untrue or misleading in
any material respect.
8.1.6 Respecting Ground Lease Extension Options and Remainder
Ground Lease Options. Permit any of the Ground Lease Extension Options
and/or Remainder Ground Lease Options, including, without limitation,
any conditions precedent therein, to lapse, expire, or otherwise remain
unexercised, or otherwise permit the expiration of any Ownership
Interest Agreement, without the express prior written consent of the
Agent.
8.1.7 Other Business. Enter into any line of business or make
any material change in the nature of its business, purposes or
operations, except as otherwise specifically permitted by this
Agreement or the other NMLP Loan Documents.
8.1.8 Change of Control. Permit or otherwise suffer to occur
any Change of Control.
8.1.9 Forgiveness of Debt. Cancel or otherwise forgive or
release any Debt owed to it by any Person, except upon receipt of
adequate consideration or as otherwise approved by the Agent.
8.1.10 Affiliate Transactions. On and after the Closing Date,
enter into, or be a party to, any transaction with any Person who is an
Affiliate of NMLP, or any NMLP Subsidiary, or any NMLP Loan Party,
except for (i) the Amended and Restated Asset Management Agreement and
the Contract to Provide Asset Management Services, (ii) any property
management contract for an Individual Property which is no longer
subject to a triple net lease with a management fee not to exceed three
(3%) percent of gross revenue per year, (iii) any construction
management contract for improvements to be made to any Individual
Property or NMLP Permitted Investment acquisition with a construction
management fee not to exceed five (5%) percent of the gross cost of the
construction of improvements, provided that this Section 8.1.10 shall
not apply to transactions between and among NMLP Loan Parties or to
transactions between NMLP Loan Parties and NMLP Subsidiaries, (iv) the
Intercompany Loan Documents, and (v) as contemplated by the Call Option
Agreement.
8.1.11 Amendments; Terminations of Related Documents. Enter
into, acquiesce in, suffer or permit any amendment, restatement or
other modification or termination of any of the Related Documents,
without the express prior written consent of the Agent (other than the
Formation Documents of any Excepted Loan Party).
8.1.12 ERISA. Except for Code Section 401(k) plans, establish
or be obligated to contribute to any Plan.
8.1.13 Bankruptcy Filings. File a petition under any state or
federal bankruptcy or insolvency laws or the liquidation of all or a
major portion of its assets or property.
8.1.14 Investment Company. Become an "investment company" or a
company "controlled" by an "investment company," within the meaning of
the Investment Company Act of 1940, as amended.
8.1.15 Holding Company. Become a "holding company," or a
"subsidiary company" of a "holding company," or an "affiliate" of a
"holding company" or of a
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"subsidiary company" of a "holding company," within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
8.1.16 Use of Proceeds. Permit the proceeds of the Loan, or
any other accommodation at any time made hereunder, to be used for any
purpose which entails a violation of, or is inconsistent with,
Regulation T, U or X of the Board of Governors of the Federal Reserve,
or for any purpose other than those set forth in Section 1.3.2.
8.1.17 Advances and Loans. Except for loans from NMLP to any
NMLP Subsidiary, Other Partnerships, or as contemplated by the NMLP
Obligations directly or indirectly, lend money or credit or make
advances to any Person.
8.1.18 Distributions. (i) Authorize, declare, or pay any
Distributions on behalf of NMLP, except for Permitted Distributions or
(ii) take any action which would amend, modify, or terminate any
Distribution due, or the terms of any Formation Document relating to
Distributions due, to NMLP or any NMLP Subsidiary. The term "Permitted
Distributions" shall mean, so long as (x) no Default or Event of
Default exists and is continuing, or would be created thereby, (y) NMLP
is in compliance with the Cash Sweep Account Test and will remain in
compliance after the said Distribution, and (z) all payments then due
have been paid into the T/I Fund Account, subject to requirements set
forth in Section 9.2, hereof, any Distributions by NMLP in accordance
with its Formation Documents.
8.1.19 Restrictions on Investments. Make or permit to exist or
to remain outstanding any Investment except which is or results in
("NMLP Permitted Investments"):
(1) marketable direct or guaranteed general
obligations of the United States of America which mature
within one year from the date of purchase;
(2) bank deposits, certificates of deposit and
banker's acceptances, or other obligations in or of the
Lenders or banks located within and chartered by the United
States of America or a state and having assets of over
$500,000,000.00; and
(3) NMLP's Subsidiaries, subject in all instances to
the terms of this Agreement;
(4) the acquisition of any asset related to the
operation, ownership or management of the Individual
Properties or any of the other assets of NMLP or the NMLP
Subsidiaries; and
(5) the acquisition of any asset deemed by NMLP to
provide beneficial tax consequences for the limited partners
of the Borrower, but not to exceed the investment of more than
One-Million Dollars ($1,000,000.00) in any Fiscal Year.
All such Investments shall be made by NMLP in a manner which assures
that Agent shall have and maintain a perfected first lien security
interest therein.
8.1.20 Contracts of a Material or Significant Nature. Except
for contracts otherwise complying with this Agreement, not enter into
any other contracts, agreements or purchase orders which would involve
the expenditure of more than $1,000,000.00 in any instance or
$1,000,000.00 in the aggregate without Agent's prior written consent,
which consent shall not be unreasonably withheld or delayed, but which
consent may be conditioned upon a demonstration by NMLP to Agent's
reasonable satisfaction that the
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contract, agreement or purchase order is reasonable and that the Party
entering into such contract has adequate resources to pay and perform
the same.
8.1.21 Consulting or Management Fees. Permit the payment of
any asset management fees in excess of $1,000,000.00 in any Fiscal Year
to any Person or enter into any agreement providing asset management
services to NMLP or any NMLP Subsidiary which provides for the payment
of asset management fees in excess of $1,000,000.00 in any Fiscal Year,
except pursuant to (i) the Amended and Restated Asset Management
Agreement, (ii) the Contract to Provide Asset Management Services, and
(iii) any property management contract for an Individual Property which
is no longer subject to a triple net lease on terms and conditions
customary in the relevant market area.
8.1.22 Negative Pledges, etc. Enter into any agreement
subsequent to the Closing Date (other than a NMLP Loan Document) which
(a) prohibits the creation or assumption of any Lien upon any of the
NMLP Collateral, including, without limitation, any hereafter acquired
property, (b) specifically prohibits the amendment or other
modification of this Agreement or any other NMLP Loan Document, or (c)
could reasonably be expected to have a Material Adverse Effect.
8.1.23 Xxxxxxx Business Transactions. Conduct any business
activities that relate, directly or indirectly, to the Net Lease
Partnerships, their properties or assets through any Person other than
a NMLP Subsidiary, except pursuant to the structure of ownership
existing as of the Closing Date and disclosed to the Agent.
8.1.24 Limitations On Certain Transactions. Take any action or
otherwise engage in any of the following transactions, without the
express prior written consent of the Agent (except as specifically
provided below):
(1) exercise any right, remedy, power, privilege, or
discretion pursuant to, or amend, modify or waive any
provision of, the Call Option Agreement;
(2) exercise any right, remedy, power, privilege, or
discretion pursuant to, or amend, modify or waive any
provision of, any Discounted Payment Option; or
(3) exercise any right, remedy, power, privilege, or
discretion pursuant to, or amend, modify or waive any
provision of, the Reimbursement Agreement.
8.2 T-Two. T-Two covenants and agrees that from the date hereof and so
long as any T-Two Obligations remain outstanding hereunder, T-Two shall not (and
shall not suffer or permit the other T-Two Loan Parties [other than the Excepted
Loan Parties]):
8.2.1 No Changes to T-Two and other T-Two Loan Parties.
Without the prior written consent of the Agent, which consent will not
be unreasonably withheld, after not less than thirty (30) days' prior
written notice (with reasonable particularity of the facts and
circumstances attendant thereto):(i) change its jurisdiction of
organization, (ii) change its organizational structure or type, (iii)
change its legal name, or (iv) change the organizational number (if
any) assigned by its jurisdiction of formation or its federal employer
identification number (if any).
8.2.2 Restrictions on Liens. Create, incur, assume or suffer
to exist any Lien upon or with respect to any property or assets (real
or personal, tangible or intangible, including, without limitation, the
Individual Properties), whether now owned or hereafter acquired, or
sell any such property or assets subject to an understanding or
agreement, contingent or
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otherwise, to repurchase such property or assets (including sales of
accounts receivable with recourse) or assign any right to receive
income or permit the filing of any financing statement under the UCC or
any other similar notice of Lien under any similar recording or notice
statute, or grant rights with respect to, or otherwise encumber or
create a security interest in, such property or assets (including,
without limitation, any item of T-Two Collateral) or any portion
thereof or any other revenues therefrom or the proceeds payable upon
the sale, transfer or other disposition of such property or asset or
any portion thereof, or permit or suffer any such action to be taken,
except the following (singly and collectively, "T-Two Permitted
Liens"):
(1) Liens created by the T-Two Loan Documents;
(2) Liens for taxes, assessments or other
governmental charges not yet delinquent or which are being
diligently contested in good faith and by appropriate
proceedings, if (x) reasonable reserves in an amount not less
than the tax, assessment or governmental charge being so
contested shall have been established in a manner reasonably
satisfactory to the Agent or deposited in cash (or cash
equivalents) with the Agent to be held during the pendency of
such contest, or such contested amount shall have been duly
bonded in accordance with applicable law, (y) no risk of sale,
forfeiture or loss of any interest in the T-Two Collateral or
any part thereof arises during the pendency of such contest
and (z) such contest does not have and could not reasonably be
expected to have a Material Adverse Effect; and
(3) Liens in respect of property or assets imposed
by law, which were incurred in the ordinary course of business
and do not secure Debt, such as carriers', warehousemen's,
materialmen's and mechanics' liens and other similar Liens
arising in the ordinary course of business, and (x) which do
not in the aggregate materially detract from the value of any
property or assets or have, and could not reasonably be
expected to have, a Material Adverse Effect or (y) which are
being contested in good faith by appropriate proceedings,
which proceedings have the effect of preventing the forfeiture
or sale of the property or assets subject to any such Lien.
8.2.3 Consolidations, Mergers, Sales of Assets, Issuance and
Sale of Equity. (i) Dissolve, terminate, liquidate, consolidate with or
merge with or into any other Person, (ii) take any action which could
have the effect, directly or indirectly, of diluting the economic
interest of any T-Two Loan Party in any other T-Two Loan Party; except
the following:
(1) Transfers pursuant to the T-Two Security
Documents and other agreements in favor of Agent on behalf of
the Lenders;
(2) Transfers or mergers to facilitate a T-Two
Permitted Investment (to the extent required, the Agent shall
release any security interest which it may have thereon to
effectuate such transfer or merger);
(3) Mergers, consolidations, transfers and sales
between and among T- Two Loan Parties of partnership
interests, membership interests or capital stock, so long as
after giving effect to any such merger, consolidation,
transfer or sale, the Agent shall have a security interest,
directly or through its security interest in the partnership
interests, membership interests or capital stock of another
T-Two Loan Party, in the partnership interests, membership
interests or capital stock of the T-Two Loan Party which is
the survivor of such merger or consolidation or the recipient
of such partnership interests, membership interests or capital
stock transferred and/or sold, provided that in no event may
any such merger, consolidation, transfer or sale
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cause a Change of Control or otherwise adversely affect the
interests of the Agent and/or the Lenders, as determined
solely by the Agent;
(4) Sales or dispositions in the ordinary course of
business of worn, obsolete or damaged items of personal
property or fixtures which are suitably replaced (to the
extent required, the Agent shall release any security interest
which it may have thereon to effectuate such sale or
disposition);
(5) Transactions, whether outright or as security,
for which Agent's prior written consent has been obtained.
8.2.4 Restrictions on Debt. (i) Create, incur or assume any
Debt, or make any voluntary prepayments of any Debt in respect of which
it is an obligor, (ii) enter into, acquiesce, suffer or permit any
amendment, restatement or other modification of the documentation
evidencing and/or securing any Debt under which it is an obligor, or
(iii) increase the amount of any Debt existing as of the Closing Date;
except with respect to the following (singly and collectively, "T-Two
Permitted Debt"):
(1) The T-Two Obligations;
(2) Debt described in Schedule 8.2.4.(ii) annexed
hereto;
(3) Indebtedness incurred in the ordinary course of
business for the purchase of goods or services which are
payable, without interest, within thirty (30) days of billing;
and
(4) Transactions, whether secured or unsecured, for
which Agent's prior written consent has been obtained.
8.2.5 Other Business. Enter into any line of business or make
any material change in the nature of its business, purposes or
operations, except as otherwise specifically permitted by this
Agreement or the other T-Two Loan Documents.
8.2.6 Change of Control. Permit or otherwise suffer to occur
any Change of Control.
8.2.7 Forgiveness of Debt. Cancel or otherwise forgive or
release any Debt owed to it by any Person, except upon receipt of
adequate consideration or as otherwise approved by the Agent or, as may
be required by the terms of the Securitization Documents.
8.2.8 Affiliate Transactions. On and after the Closing Date,
enter into, or be a party to, any transaction with any Person who is an
Affiliate of T-Two, or any T-Two Loan Party, except for the
Intercompany Loan or as contemplated by the Call Option Agreement,
provided that this Section 8.2.8 shall not apply to transactions
between and among T-Two Loan Parties.
8.2.9 Amendments; Terminations of Related Documents. Enter
into, acquiesce in, suffer or permit any amendment, restatement or
other modification or termination of any of the Related Documents,
without the express prior written consent of the Agent.
8.2.10 ERISA. Except for Code Section 401(k) plans, establish
or be obligated to contribute to any Plan.
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8.2.11 Bankruptcy Filings. File a petition under any state or
federal bankruptcy or insolvency laws or the liquidation of all or a
major portion of its assets or property.
8.2.12 Investment Company. Become an "investment company" or a
company "controlled" by an "investment company," within the meaning of
the Investment Company Act of 1940, as amended.
8.2.13 Holding Company. Become a "holding company," or a
"subsidiary company" of a "holding company," or an "affiliate" of a
"holding company" or of a "subsidiary company" of a "holding company,"
within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
8.2.14 Use of Proceeds. Permit the proceeds of the Loan, or
any other accommodation at any time made hereunder, to be used for any
purpose which entails a violation of, or is inconsistent with,
Regulation T, U or X of the Board of Governors of the Federal Reserve,
or for any purpose other than those set forth in Section 1.4.
8.2.15 Advances and Loans. Except for the Intercompany Loan,
directly or indirectly, lend money or credit or make advances to any
Person.
8.2.16 Distributions. Authorize, declare, or pay any
Distributions on behalf of T- Two, except for the Closing Distribution.
8.2.17 Restrictions on Investments. Make or permit to exist or
to remain outstanding any Investment except which is or results in
("T-Two Permitted Investments"):
(1) marketable direct or guaranteed general
obligations of the United States of America which mature
within one year from the date of purchase; and
(2) bank deposits, certificates of deposit and
banker's acceptances, or other obligations in or of the
Lenders or banks located within and chartered by the United
States of America or a state and having assets of over
$500,000,000.00.
All such Investments shall be made by T-Two in a manner which assures
that Agent shall have and maintain a perfected first lien security
interest therein.
8.2.18 Contracts of a Material or Significant Nature. Except
for contracts otherwise complying with this Agreement, not enter into
any other contracts, agreements or purchase orders which would involve
the expenditure of more than $1,000,000.00 in any instance or
$1,000,000.00 in the aggregate without Agent's prior written consent,
which consent shall not be unreasonably withheld or delayed, but which
consent may be conditioned upon a demonstration by T-Two to Agent's
reasonable satisfaction that the contract, agreement or purchase order
is reasonable and that the Party entering into such contract has
adequate resources to pay and perform the same.
8.2.19 Negative Pledges, etc. Enter into any agreement
subsequent to the Closing Date (other than a T-Two Loan Document) which
(a) prohibits the creation or assumption of any Lien upon any of the
T-Two Collateral, including, without limitation, any hereafter acquired
property, (b) specifically prohibits the amendment or other
modification of this Agreement or any other T-Two Loan Document, or (c)
could reasonably be expected to have a Material Adverse Effect.
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8.2.20 Limitations On Certain Transactions. Take any action or
otherwise engage in any of the following transactions, without the
express prior written consent of the Agent (except as specifically
provided below):
(1) exercise any right, remedy, power, privilege, or
discretion pursuant to, or amend, modify or waive any
provision of, the Call Option Agreement;
(2) exercise any right, remedy, power, privilege, or
discretion pursuant to, or amend, modify or waive any
provision of, any Discounted Payment Option;
(3) exercise any right, remedy, power, privilege,
or discretion pursuant to, or amend, modify or waive any
provision of, the Intercompany Loan Documents;
(4) exercise any right, remedy, power, privilege, or
discretion pursuant to, or amend, modify or waive any
provision of, any of the Securitized Notes, the Securitized
Mortgages or any of the other Securitization Documents,
including, without limitation, (a) the exercise any rights of
approval with respect to any proposed acceptance or rejection
by a Net Lease Partnership of any Rejectable Offer or any
similar offer by the payor under any Securitized Note, or (b)
the exercise of any rights or remedies as a result of any
default under any Securitized Note or Securitized Mortgage; or
(5) exercise any right, remedy, power, privilege, or
discretion pursuant to, or amend, modify or waive any
provision of, the Reimbursement Agreement.
9. SPECIAL PROVISIONS.
9.1 Legal Requirements. Each Borrower, each Subsidiary of either
Borrower, any Other Partnership, or any Partially Owned Limited Partnership may
contest in good faith any claim, demand, levy or assessment under any Legal
Requirements or taxes owed by any person or entity if: (i) the contest is based
upon a material question of law or fact raised by such Person in good faith;
(ii) such Person properly commences and thereafter diligently pursues the
contest; (iii) the contest will not materially impair the ability to ultimately
comply with the contested Legal Requirement should the contest not be
successful; (iv) reasonable reserves in an amount necessary to undertake and pay
for such contest and any corrective or remedial action then or thereafter
reasonably likely to be necessary shall have been established in a manner
satisfactory to the Agent or deposited in cash (or cash equivalents) with the
Agent to be held during the pendency of such contest, or such contested amount
shall have been duly bonded in accordance with applicable law; (v) if the
contest relates to a Legal Requirement under Environmental Law, the conditions
set forth in the Environmental Indemnity relating to such contests shall be
satisfied; (vi) no risk of sale, forfeiture or loss of any interest in any
Individual Property or the Collateral or any part thereof arises during the
pendency of such contest; and (vii) such contest does not have and could not
reasonably be expected to have a Material Adverse Effect.
9.2 NMLP Distributions.
9.2.1 Notice of Intention to Distribute. At least ten (10)
Business Days prior to making any Distribution to its partners, NMLP
shall submit to Agent a written statement of its intent to make such
Distribution accompanied by an Officer's Certificate reflecting a pro-
forma calculation that NMLP will be in compliance with the Financial
Covenants and the Cash Sweep Account Test after the proposed
Distribution, together with such other documentation and information as
Agent may reasonably require ("Notice of Intention to
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Distribute") in order to verify that NMLP is entitled to make a
Distribution as provided for herein.
9.2.2 Conditions Must Be Satisfied. If the Agent objects to
such proposed Distribution on the basis that the conditions thereto are
not satisfied, or that further information is required, Agent may, by
written notice to NMLP given within ten (10) Business Days following
receipt of NMLP's Notice of Intention to Distribute, prohibit the
proposed Distribution until such time as the Agent is reasonably
satisfied that the conditions have been satisfied.
9.2.3 Current Information. Once Agent has received a Notice of
Intention to Distribute and a Distribution has been made in accordance
with the foregoing, subsequent Notices of Intention to Distribute
submitted within the next 12 months shall not require the submission of
new financial information if NMLP submits a sworn affidavit and
unconditional representation that there have been no material adverse
changes, unless Agent has a good faith basis for requiring the same.
9.3 Limited Recourse Provisions.
9.3.1 Borrower Fully Liable.
(1) NMLP shall be fully liable for the NMLP Loan and
the NMLP Obligations to each of the Lenders.
(2) T-Two shall be fully liable for the T-Two Loan
and the T-Two Obligations to each of the Lenders.
9.3.2 Certain Non-Recourse.
(1) The NMLP Loan shall be on a non-recourse basis to
all limited partners of NMLP, except to the extent provided
for in any NMLP Loan Document executed by any such limited
partner on its own behalf.
(2) The T-Two Loan shall be on a non-recourse basis
to all limited partners of T-Two, except to the extent
provided for in any T-Two Loan Document executed by any such
limited partner on its own behalf.
9.3.3 Additional Matters. Nothing contained in this Section
9.3 or elsewhere shall: (i) limit the right of Agent or any of the
Lenders to obtain injunctive relief or to pursue equitable remedies
under any of the NMLP Loan Documents or any of the T-Two Loan
Documents, excluding only any injunctive relief ordering payment of
obligations by any Person or entity for which personal liability does
not otherwise exist; or (ii) limit the liability of any attorney, law
firm, accountant or other professional who or which renders or provides
any written opinion or certificate to Agent or any of the Lenders in
connection with the Loan even though such person or entity may be a
limited partner of either NMLP or T-Two.
9.4 Payment of Obligations.
9.4.1 Upon the payment in full of the NMLP Obligations, in
immediately available funds, including, without limitation, all
unreimbursed costs and expenses of the Agent and of each Lender for
which NMLP is responsible, the Agent shall release any security and
other collateral interests, including, without limitation, the NMLP
Payment Direction Letters, rights of setoff and right to freeze granted
to the Agent as provided for herein and under the other NMLP Loan
Documents and shall execute and deliver such documents and termination
statements as NMLP or any
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other NMLP Loan Party reasonably requests to evidence such termination
and release. However, such release by the Agent shall not be deemed to
terminate or release any Person from any obligation or liability under
the NMLP Loan Documents which specifically by its terms survives the
payment in full of the NMLP Obligations.
9.4.2 Upon the payment in full of the T-Two Obligations, in
immediately available funds, including, without limitation, all
unreimbursed costs and expenses of the Agent and of each Lender for
which T-Two is responsible, the Agent shall release any security and
other collateral interests, including, without limitation, the T-Two
Payment Direction Letters, rights of setoff and right to freeze granted
to the Agent as provided for herein and under the other T-Two Loan
Documents and shall execute and deliver such documents and termination
statements as T-Two or any other T-Two Loan Party reasonably requests
to evidence such termination and release. However, such release by the
Agent shall not be deemed to terminate or release any Person from any
obligation or liability under the T-Two Loan Documents which
specifically by its terms survives the payment in full of the T-Two
Obligations.
10. EVENTS OF DEFAULT. The following provisions deal with Default,
Events of Default, notice, grace and cure periods, and certain rights of Agent
following an Event of Default.
10.1 Default and Events of Default. The term "Default" as used herein
or in any of the other Loan Documents shall mean an Event of Default, or any
fact or circumstance which constitutes, or upon the lapse of time, or giving of
notice, or both, could constitute, an Event of Default. The occurrence of any of
the following events, respectively, shall, subject to the giving of any notice
or the expiration of any applicable grace period referred to in Section 10.2
without the cure thereof, constitute an "Event of Default" herein. Upon the
occurrence of any Event of Default described in Sections 10.1.1(viii) or
10.1.2(viii), any and all Obligations shall become due and payable without any
further act on the part of the Agent. Upon the occurrence of any other Event of
Default, the Agent may declare any and all Obligations immediately due and
payable. The occurrence and continuance of any Event of Default shall also
constitute, without notice or demand, a default under all other agreements
between the Agent and/or the Lenders and either Borrower and instruments and
papers heretofore, now, or hereafter given the Agent and/or the Lenders by
either Borrower.
10.1.1 NMLP.
(1) Failure to Pay the Loans. The failure by NMLP to
pay when due any principal of, interest on, or fees in respect
of, the NMLP Loan.
(2) Failure to Make Other Payments. The failure by
NMLP to pay when due (or upon demand, if payable on demand)
any payment NMLP Obligation other than any payment NMLP
Obligation on account of the principal of, or interest on, or
fees in respect of, the NMLP Loan.
(3) NMLP Note, NMLP Security Documents, and Other
NMLP Loan Documents. Any other default in the performance of
any term or provision of the NMLP Note, or of the NMLP
Security Documents, or of any of the other NMLP Loan
Documents, or a breach, or other failure to satisfy, any other
term, provision, condition or warranty under the NMLP Note,
the NMLP Security Documents, or any other NMLP Loan Document,
regardless of whether any then undisbursed portion of the NMLP
Loan is sufficient to cover any payment of money required
thereby, and
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the specific grace period, if any, allowed for the default in
question shall have expired without such default having been
cured.
(4) Default under Other Agreements. The occurrence
of any breach of any covenant or NMLP Obligation imposed by,
or of any default under, any agreement (including any NMLP
Loan Document) between the Agent and/or the Lenders and NMLP,
the other NMLP Loan Parties, and/or the Net Lease Partnerships
or instrument given by NMLP and such Persons to the Agent
and/or the Lenders and the expiry, without cure, of any
applicable grace period (notwithstanding that the Agent and/or
the Lenders may not have exercised all or any of its/their
rights on account of such breach or default).
(5) Representations and Warranties. If any
representation or warranty made by NMLP or by any of the other
NMLP Loan Parties or the NMLP Subsidiaries in the NMLP Loan
Documents was untrue or misleading in a manner which could
reasonably be expected to have a Material Adverse Effect.
(6) Affirmative Covenants. The breach of any covenant
contained in Sections 7.1 or 7.3 herein, including, without
limitation, the Financial Covenants.
(7) Negative Covenants. The breach of any covenant
contained in Section 8.1 herein.
(8) Financial Status and Insolvency.
(1) NMLP shall: (i) admit in writing its
inability to pay its debts generally as they become
due; (ii) file a petition in bankruptcy or a petition
to take advantage of any insolvency act; (iii) make
an assignment for the benefit of creditors; (iv)
consent to, or acquiesce in, the appointment of a
receiver, liquidator or trustee of itself or of the
whole or any substantial part of its properties or
assets; (v) file a petition or answer seeking
reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar
relief under the Federal Bankruptcy laws or any other
applicable law; (vi) have a court of competent
jurisdiction enter an order, judgment or decree
appointing a receiver, liquidator or trustee of NMLP,
or of the whole or any substantial part of the
property or assets of NMLP, and such order, judgment
or decree shall remain unvacated or not set aside or
unstayed for sixty (60) days; (vii) have a petition
filed against it seeking reorganization, arrangement,
composition, readjustment, liquidation, dissolution
or similar relief under the Federal Bankruptcy laws
or any other applicable law and such petition shall
remain undismissed for sixty (60) days; (viii) have,
under the provisions of any other law for the relief
or aid of debtors, any court of competent jurisdic
tion assume custody or control of NMLP or of the
whole or any substantial part of its property or
assets and such custody or control shall remain
unterminated or unstayed for sixty (60) days; or (ix)
have an attachment or execution levied against any
substantial portion of the property of NMLP or
against any substantial portion of the NMLP
Collateral which is not discharged or dissolved by a
bond within thirty (30) days; or
(2) any such event set forth in subsection A
above shall occur with respect to (i) a NMLP
Partnership only if the Subsidiary Bankruptcy
Test has been triggered, (ii) any Xxxxxxx Indemnitor,
or (iii) any NMLP Subsidiary other than a Net Lease
Partnership;
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(9) Loan Documents. If any NMLP Loan Document for
any reason other than the satisfaction in full of all NMLP
Obligations shall cease to be in full force and effect (other
than in accordance with its terms), thereby preventing the
Agent and/or the Lenders from obtaining the practical
realization of the benefits thereof, or if any NMLP Loan
Document shall be declared null and void or any NMLP Loan
Party shall claim or declare any such NMLP Loan Document to no
longer be in full force and effect or is null and void, or if
the Liens and security interests purported to be created by
any of the NMLP Loan Documents shall cease to be valid,
perfected, first priority (except as otherwise expressly
provided herein) security interests;
(10) Judgments. One or more judgments or decrees
shall be entered against NMLP or any NMLP Loan Party (except
for the MLP Holders, the Other Partnerships, or the Partially
Owned Limited Partnerships) or NMLP Subsidiary involving a
liability (not paid or fully covered by a reputable and
solvent insurance company) and such judgments and decrees
either shall be final and non-appealable or shall not be
vacated, discharged or stayed or bonded pending appeal for any
period of sixty (60) consecutive days, and the aggregate
amount of all such judgments exceeds $750,000.00;
(11) Default of Other Specified Debt and Related
Documents. If a Default or Event of Default (regardless of how
or if defined) shall occur in any one or more of the
following, as to which Default or Event of Default the holder
has accelerated the obligations due thereunder and commenced
exercising its rights upon such Default or Event of Default:
(1) The Integrated Obligations; and/or
(2) Any Mortgage Debt, but only if the
Mortgage Debt Test has been triggered.
(12) ERISA. (i) If any Plan shall fail to satisfy
the minimum funding standard required for any plan year or
part thereof or a waiver of such standard or extension of any
amortization period is sought or granted under Section 412 of
the Code, any Plan shall have had or is likely to have a
trustee appointed to administer such Plan, any Plan is, shall
have been or is likely to be terminated or to be the subject
of termination proceedings under ERISA, any Plan shall have an
Unfunded Current Liability, a contribution required to be made
to a Plan has not been timely made, NMLP or any NMLP
Subsidiary or any ERISA Affiliate has incurred or is likely to
incur a liability to or on account of a Plan under Section
409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204
or 4212 of ERISA or Section 401(a)(29), 4971, 4975 or 4980 of
the Code, or NMLP or any NMLP Subsidiary has incurred or is
likely to incur liabilities pursuant to one or more employee
welfare benefit plans (as defined in Section 3(l) of ERISA)
that provide benefits to retired employees or other former
employees (other than as required by Section 601 of ERISA) or
employee pension benefit plans (as defined in Section 3(2) of
ERISA) and any of the foregoing could have a Material Adverse
Effect; (ii) if there shall result from any such event or
events the imposition of a lien, the granting of a security
interest, or a liability or a material risk of incurring a
liability which could have, or reasonably be expected to have,
a Material Adverse Effect; or (iii) if which lien, security
interest or liability, individually, and/or in the aggregate,
in the opinion of the Agent could have, or reasonably be
expected to have, a Material Adverse Effect.
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(13) Change of Control. If a Change of Control shall
occur.
(14) Indictment; Forfeiture. The indictment of, or
institution of any legal process or proceeding against, NMLP,
any other NMLP Loan Party (except for an Excepted Loan Party),
and/or any NMLP Subsidiary under any applicable law where the
relief, penalties, or remedies sought or available include the
forfeiture of any property of NMLP and/or any other such
Person and/or the imposition of any stay or other order, the
effect of which could reasonably be expected to have a
Material Adverse Effect.
(15) Default of Other Obligations. Any failure by
NMLP to pay at maturity, or within any applicable grace
period, any obligation for borrowed money, or in respect of
any capitalized lease, or any failure to observe or perform
any material term, covenant or agreement contained in any
agreement by which NMLP is bound, evidencing or securing
borrowed money, or in respect of any capitalized lease, such
that the holder or holders thereof or of any obligations
issued thereunder have accelerated the maturity thereof.
(16) Termination of NMLP Guaranty or NMLP Consent.
The termination or attempted termination of (i) any NMLP
Guaranty by any NMLP Guarantor of the Obligations, or (ii)
Xxxxxxx Indemnification by any Xxxxxxx Indemnitor.
(17) Generally. A default by NMLP in the
performance of any term, provision or condition of this
Agreement to be performed by NMLP, or a breach, or other
failure to satisfy, any other term provision, condition,
covenant or warranty under this Agreement and such default
remains uncured beyond any applicable specific grace period
provided for in this Agreement, or as set forth in Section
10.2. below.
(18) Other. The occurrence of any Event of Default
under Section 10.1.2 below.
10.1.2 T-Two.
(1) Failure to Pay the Loans. The failure by T-Two to
pay when due any principal of, interest on, or fees in respect
of, the T-Two Loan.
(2) Failure to Make Other Payments. The failure by
T-Two to pay when due (or upon demand, if payable on demand)
any payment T-Two Obligation other than any payment T-Two
Obligation on account of the principal of, or interest on, or
fees in respect of, the T-Two Loan.
(3) T-Two Note, T-Two Security Documents, and Other
T-Two Loan Documents. Any other default in the performance of
any term or provision of the T- Two Note, or of the T-Two
Security Documents, or of any of the other T-Two Loan
Documents, or a breach, or other failure to satisfy, any other
term, provision, condition or warranty under the T-Two Note,
the T-Two Security Documents, or any other T-Two Loan
Document, regardless of whether any then undisbursed portion
of the T-Two Loan is sufficient to cover any payment of money
required thereby, and the specific grace period, if any,
allowed for the default in question shall have expired without
such default having been cured.
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(4) Default under Other Agreements. The occurrence
of any breach of any covenant or T-Two Obligation imposed by,
or of any default under, any agreement (including any T-Two
Loan Document) between the Agent and/or the Lenders and T-Two,
the other T-Two Loan Parties, or instrument given by T-Two and
such Persons to the Agent and/or the Lenders and the expiry,
without cure, of any applicable grace period (notwithstanding
that the Agent and/or the Lenders may not have exercised all
or any of its/their rights on account of such breach or
default).
(5) Representations and Warranties. If any
representation or warranty made by T-Two or by any of the
other T-Two Loan Parties in the T-Two Loan Documents was
untrue or misleading in a manner which could reasonably be
expected to have a Material Adverse Effect.
(6) Affirmative Covenants. The breach of any covenant
contained in Sections 7.2 or 7.3 herein, including, without
limitation, the Financial Covenants.
(7) Negative Covenants. The breach of any covenant
contained in Section 8.2 herein.
(8) Financial Status and Insolvency.
(1) T-Two shall: (i) admit in writing its
inability to pay its debts generally as they become
due; (ii) file a petition in bankruptcy or a petition
to take advantage of any insolvency act; (iii) make
an assignment for the benefit of creditors; (iv)
consent to, or acquiesce in, the appointment of a
receiver, liquidator or trustee of itself or of the
whole or any substantial part of its properties or
assets; (v) file a petition or answer seeking
reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar
relief under the Federal Bankruptcy laws or any other
applicable law; (vi) have a court of competent
jurisdiction enter an order, judgment or decree
appointing a receiver, liquidator or trustee of
T-Two, or of the whole or any substantial part of the
property or assets of T-Two, and such order, judgment
or decree shall remain unvacated or not set aside or
unstayed for sixty (60) days; (vii) have a petition
filed against it seeking reorganization, arrangement,
composition, readjustment, liquidation, dissolution
or similar relief under the Federal Bankruptcy laws
or any other applicable law and such petition shall
remain undismissed for sixty (60) days; (viii) have,
under the provisions of any other law for the relief
or aid of debtors, any court of competent jurisdic
tion assume custody or control of T-Two or of the
whole or any substantial part of its property or
assets and such custody or control shall remain
unterminated or unstayed for sixty (60) days; or (ix)
have an attachment or execution levied against any
substantial portion of the property of T-Two or
against any substantial portion of the T-Two
Collateral which is not discharged or dissolved by a
bond within thirty (30) days; or
(2) any such event set forth in subsection A
above shall occur with respect to any T-Two Loan
Party;
(9) Loan Documents. If any T-Two Loan Document for
any reason other than the satisfaction in full of all T-Two
Obligations shall cease to be in full force and effect (other
than in accordance with its terms), thereby preventing the
Agent and/or the Lenders from obtaining the practical
realization of the benefits thereof, or if any T-Two Loan
Document shall be declared null and void or any T-Two Loan
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Party shall claim or declare any such T-Two Loan Document to
no longer be in full force and effect or is null and void, or
if the Liens and security interests purported to be created by
any of the T-Two Loan Documents shall cease to be valid,
perfected, first priority (except as otherwise expressly
provided herein) security interests;
(10) Judgments. One or more judgments or decrees
shall be entered against T-Two or any T-Two Loan Party (except
for any Excepted Loan Party) involving a liability (not paid
or fully covered by a reputable and solvent insurance company)
and such judgments and decrees either shall be final and
non-appealable or shall not be vacated, discharged or stayed
or bonded pending appeal for any period of sixty (60)
consecutive days, and the aggregate amount of all such
judgments exceeds $750,000.00;
(11) ERISA. (i) If any Plan shall fail to satisfy the
minimum funding standard required for any plan year or part
thereof or a waiver of such standard or extension of any
amortization period is sought or granted under Section 412 of
the Code, any Plan shall have had or is likely to have a
trustee appointed to administer such Plan, any Plan is, shall
have been or is likely to be terminated or to be the subject
of termination proceedings under ERISA, any Plan shall have an
Unfunded Current Liability, a contribution required to be made
to a Plan has not been timely made, T-Two or any ERISA
Affiliate has incurred or is likely to incur a liability to or
on account of a Plan under Section 409, 502(i), 502(l), 515,
4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or Section
401(a)(29), 4971, 4975 or 4980 of the Code, or T-Two has
incurred or is likely to incur liabilities pursuant to one or
more employee welfare benefit plans (as defined in Section
3(l) of ERISA) that provide benefits to retired employees or
other former employees (other than as required by Section 601
of ERISA) or employee pension benefit plans (as defined in
Section 3(2) of ERISA) and any of the foregoing could have a
Material Adverse Effect; (ii) if there shall result from any
such event or events the imposition of a lien, the granting of
a security interest, or a liability or a material risk of
incurring a liability which could have, or reasonably be
expected to have, a Material Adverse Effect; or (iii) if which
lien, security interest or liability, individually, and/or in
the aggregate, in the opinion of the Agent could have, or
reasonably be expected to have, a Material Adverse Effect.
(12) Change of Control. If a Change of Control shall
occur.
(13) Indictment; Forfeiture. The indictment of, or
institution of any legal process or proceeding against, T-Two,
any other T-Two Loan Party (except for an Excepted Loan
Party),under any applicable law where the relief, penalties,
or remedies sought or available include the forfeiture of any
property of T-Two and/or any other such Person and/or the
imposition of any stay or other order, the effect of which
could reasonably be expected to have a Material Adverse
Effect.
(14) Default of Other Obligations. Any failure by
T-Two to pay at maturity, or within any applicable grace
period, any obligation for borrowed money, or in respect of
any capitalized lease, or any failure to observe or perform
any material term, covenant or agreement contained in any
agreement by which T-Two is bound, evidencing or securing
borrowed money, or in respect of any capitalized
lease, such that the holder or holders thereof or of any
obligations issued thereunder have accelerated the maturity
thereof.
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(15) Termination of T-Two Guaranty or T-Two Consent.
The termination or attempted termination of any T-Two Guaranty
by any T-Two Guarantor of the Obligations.
(16) Generally. A default by T-Two in the performance
of any term, provision or condition of this Agreement to be
performed by T-Two, or a breach, or other failure to satisfy,
any other term provision, condition, covenant or warranty
under this Agreement and such default remains uncured beyond
any applicable specific grace period provided for in this
Agreement, or as set forth in Section 10.2. below.
(17) Other. The occurrence of any Event of Default
under Section 10.1.1 above.
10.2 Grace Periods and Notice. As to each of the foregoing events
the following provisions relating to grace periods and notice shall apply:
10.2.1 No Notice or Grace Period. Except for any grace or
notice period specifically provided for in any referenced section of
this Agreement, there shall be no grace period and no notice provision
with respect to the payment of principal at maturity and no grace
period and no notice provision with respect to defaults related to the
voluntary filing of bankruptcy or reorganization proceedings or an
assignment for the benefit of creditors, or with respect to a breach of
warranty or representation as set forth in Section 10.1.1(v), 10.1.2(v)
or 10.2.5, or with respect to the breach of any of the affirmative
covenants set forth in Sections 7.1.23(ix), 7.3.2, 7.3.3, and 7.3.4, or
any Event of Default under Section 10.1.1(xviii) and 10.1.2(xvii).
10.2.2 Nonpayment of Interest and Principal. As to the
nonpayment of interest, installments of principal, and in connection
with a Mandatory Principal Prepayment prior to maturity there shall be
a ten (10) Business Day grace period without any requirement of notice
from Agent.
10.2.3 Other Monetary Defaults. All other monetary defaults
shall have a five (5) Business Day grace period following notice from
Agent.
10.2.4 Nonmonetary Defaults.
(1) As to non-monetary default under Section 7.1.2,
7.2.2, 7.1.5(i), 7.2.5(i), 7.1.17, 7.1.22, 7.1.23, or 7.1.24,
or with respect to the breach of any of the negative covenants
set forth in Article 8, there shall be a ten (10) day grace
period following notice from Agent of such default;
(2) As to non-monetary default under Section
7.1.16(i), 7.1.28 or 7.2.22, there shall be a five (5) day
grace period following notice from Agent of such default;
(3) As to any other non-monetary default, unless
there is a specific shorter or longer grace period provided
for in this Loan Agreement or in another Loan Document, there
shall be a thirty (30) day grace period following notice from
Agent or, if such default would reasonably require more than
thirty (30) days to cure or remedy, such longer period of time
not to exceed a total of ninety (90) days from Agent's notice
as may be reasonably required so long as Borrower shall
commence reasonable actions to remedy or cure the default
within thirty (30) days following such notice and shall
diligently prosecute such curative action to completion within
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such ninety (90) day period. However, where there is an
emergency situation in which there is danger to person or
property such curative action shall be commenced as promptly
as possible. As to breaches of warranties and representations
(other than those related to financial information) there
shall be a thirty (30) day grace period following notice from
Agent.
11. REMEDIES.
11.1 Remedies. Upon the occurrence and during the continuance of an
Event of Default, whether or not the indebtedness evidenced by the Notes and
secured by the Security Documents shall be due and payable or Agent shall have
instituted any foreclosure or other action for the enforcement of the Security
Documents or the Notes, Agent may, and shall upon the direction of the Required
Lenders, in addition to any other remedies which Agent may have hereunder or
under the other Loan Documents, or otherwise, and not in limitation thereof, and
in Agent's sole and absolute discretion:
11.1.1 Accelerate Debt. Agent may, and with the direction of
the Required Lenders shall, declare the indebtedness evidenced by the
Notes and secured by the Security Documents immediately due and payable
(provided that in the case of a voluntary petition in bankruptcy filed
by either Borrower or an involuntary petition in bankruptcy filed
against either Borrower (after expiration of the grace period, if any,
set forth in Section 10.1.1(viii), 10.1.2(viii)), such acceleration
shall be automatic).
11.1.2 Pursue Remedies. Agent may, and with the direction of
the Required Lenders shall, pursue any and all remedies provided for
hereunder, under any one or more of the other Loan Documents, and/or
otherwise.
11.2 Written Waivers. Except as otherwise provided in Section 13.4, if
a Default or an Event of Default is waived by the Required Lenders, in its sole
discretion, pursuant to a specific written instrument executed by an authorized
officer of Agent, the Default or Event of Default so waived shall be deemed to
have never occurred.
11.3 Power of Attorney. For the purpose of exercising the rights
granted by this Article 11, as well as any and all other rights and remedies of
Agent under the Loan Documents, each Borrower hereby irrevocably constitutes and
appoints Agent (or any agent designated by Agent) its true and lawful
attorney-in-fact, with full power of substitution, upon the occurrence and
during the continuance of any Event of Default, to execute, acknowledge and
deliver any instruments and to do and perform any acts in the name and on behalf
of each Borrower. In connection with the foregoing power of attorney, each
Borrower hereby grants unto the Agent (acting through any of its officers) full
power to do any and all things after the occurrence and during the continuance
of an Event of Default necessary or appropriate in connection with the exercise
of such powers as fully and effectually as each Borrower might or could do,
hereby ratifying all that said attorney shall do or cause to be done by virtue
of this Agreement. The foregoing power of attorney shall not be affected by any
disability or incapacity suffered by each Borrower and shall survive the same.
All powers conferred upon the Agent by this Agreement, being coupled with an
interest, shall be irrevocable until this Agreement is terminated by a written
instrument executed by a duly authorized officer of the Agent.
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12. SECURITY INTEREST AND SET-OFF.
12.1 Security Interest. Each Borrower hereby grants to the Agent and
each of the Lenders, a continuing lien, security interest and right of setoff as
security for all of the Obligations to Agent and each of the Lenders, whether
now existing or hereafter arising, upon and against all Depository Accounts,
Accounts, deposits, credits, collateral and property, now or hereafter in the
possession, custody, safekeeping or control of Agent or any of the Lenders or
any entity under the control of FleetBoston Financial Corporation and its
successors and assigns, or in transit to any of them.
12.2 Set-Off. After the occurrence and during the continuance of any
Event of Default, any such Depository Accounts, Accounts, deposits, balances or
other sums credited by or due from Agent, any affiliate of Agent or FleetBoston
Financial Corporation or any of the Lenders, or from any such affiliate of any
of the Lenders, to each Borrower may to the fullest extent not prohibited by
applicable law at any time or from time to time, without regard to the
existence, sufficiency or adequacy of any other collateral, and without notice
or compliance with any other condition precedent now or hereafter imposed by
statute, rule of law or otherwise, all of which are hereby waived, be set off,
appropriated and applied by Agent against any or all of such Borrower's
Obligations irrespective of whether demand shall have been made, in such manner
as Agent in its sole and absolute discretion may determine. Within three (3)
Business Days of making any such set off, appropriation or application, Agent
agrees to notify such Borrower thereof, provided the failure to give such notice
shall not affect the validity of such set off or appropriation or application.
ANY AND ALL RIGHTS TO REQUIRE AGENT OR ANY OF THE LENDERS TO EXERCISE ITS RIGHTS
OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES A LOAN, PRIOR TO
EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR OTHER
PROPERTY OF SUCH BORROWER OR ANY GUARANTOR, ARE HEREBY KNOWINGLY, VOLUNTARILY
AND IRREVOCABLY WAIVED.
12.3 Application Each of the Lenders agrees with each other Lender that
with respect to this Agreement or under any other Loan Document (a) if an amount
to be set off is to be applied to indebtedness of a Borrower or any other Loan
Party to such Lender, other than the respective Obligations due to such Lender,
such amount shall be applied ratably to such other indebtedness and to such
Borrower's Obligations due to such Lender, and (b) if such Lender shall receive
from a Borrower or any other Loan Party, whether by voluntary payment, exercise
of the right of setoff, counterclaim, cross action, enforcement of the claim due
to such Lender by proceedings against such Borrower or any other Loan Party at
law or in equity or by proof thereof in bankruptcy, reorganiza tion,
liquidation, receivership or similar proceedings, or otherwise, and shall retain
and apply to the payment of the Obligations due to such Lender any amount in
excess of its ratable portion of the payments received by all of the Lenders
with respect to such Borrower's Obligations due to all of the Lenders, such
Lender will make such disposition and arrangements with the other Lenders with
respect to such excess, either by way of distribution, pro tanto assignment of
claims, subrogation or otherwise as shall result in each Lender receiving in
respect of the subject Obligations its proportionate payment as contemplated by
this Agreement; provided that if all or any part of such excess payment is
thereafter recovered from such Lender, such disposition and arrangements shall
be rescinded and the amount restored to the extent of such recovery, but without
interest.
12.4 Right to Freeze. The Agent and each of the Lenders shall also have
the right, at its option, upon the occurrence and during the continuance of any
event which would entitle the Agent and each of the Lenders to set off or debit
as set forth in Section 12.2, to freeze, block or segregate any such deposits,
balances and other sums so that a Borrower may not access, control or draw upon
the same.
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12.5 Additional Rights. The rights of Agent, the Lenders and each
affiliate of Agent and each of the Lenders under this Article 12 are in addition
to, and not in limitation of, other rights and remedies, including other rights
of set off, which Agent or any of the Lenders may have.
13. THE AGENT AND THE LENDERS
13.1 Rights, Duties and Immunities of the Agent.
13.1.1 Appointment of Agent. Each Lender hereby irrevocably
designates and appoints Fleet National Bank as Agent of such Lender to
act as specified herein and in the other Loan Documents, and each such
Lender hereby irrevocably authorizes the Agent to take such actions,
exercise such powers and perform such duties as are expressly delegated
to or conferred upon the Agent by the terms of this Loan Agreement and
the other Loan Documents, together with such other powers as are
reasonably incidental thereto. The Agent agrees to act as such upon the
express conditions contained in this Article 13. The Agent shall not
have any duties or responsibilities except those expressly set forth
herein or in the other Loan Documents, nor shall it have any fiduciary
relationship with any Lender, and no implied covenants,
responsibilities, duties, obligations or liabilities shall be read into
this Loan Agreement or otherwise exist against the Agent. The
provisions of this Article 13 are solely for the benefit of the Agent
and the Lenders, and the Borrowers shall not have any rights as a third
party beneficiary of any of the provisions hereof.
13.1.2 Administration of Loan by Agent. The Agent shall be
responsible for administering the Loan on a day-to-day basis. In the
exercise of such administrative duties, the Agent shall use the same
diligence and standard of care that is customarily used by the Agent
with respect to similar loans held by the Agent solely for its own
account.
Each Lender delegates to the Agent the full right and authority on its
behalf to take the following specific actions in connection with its
administration of the Loan:
(i) to fund each Loan in accordance with the provisions of the
Loan Documents, but only to the extent of immediately available funds
provided to the Agent by the respective Lenders for such purpose;
(ii) to receive all payments of principal, interest, fees and
other charges paid by, or on behalf of, each Borrower and, except for
fees to which the Agent is entitled pursuant to the Loan Documents or
otherwise, to distribute all such funds to the respective Lenders as
provided for hereunder;
(iii) to keep and maintain complete and accurate files and
records of all material matters pertaining to each Loan, and make such
files and records available for inspection and copying by each Lender
and its respective employees and agents during normal business hours
upon reasonable prior notice to the Agent; and
(iv) to do or omit doing all such other actions as may be
reasonably necessary or incident to the implementation, administration
and servicing of the Loans and the rights and duties delegated
hereinabove.
13.1.3 Delegation of Duties. Without relieving the Agent of
its specific responsibilities under this Article 13, the Agent may
execute any of its duties under this Loan Agreement or any other Loan
Document by or through its agents or attorneys-in-fact, and shall be
entitled to the advice of counsel concerning all matters pertaining to
its rights and duties hereunder or under the Loan Documents. The Agent
shall not be responsible for the
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negligence or misconduct of any agents or attorneys-in-fact selected by
it with reasonable care.
13.1.4 Exculpatory Provisions. Neither the Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be liable for any action lawfully taken or omitted to
be taken by it or them under or in connection with this Loan Agreement
or the other Loan Documents, except for its or their gross negligence
or willful misconduct. Neither the Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates shall be
responsible for or have any duty to ascertain, inquire into, or verify
(i) any recital, statement, representation or warranty made by either
Borrower or any of its officers or agents contained in this Loan
Agreement or the other Loan Documents or in any certificate or other
document delivered in connection therewith; (ii) the performance or
observance of any of the covenants or agreements contained in, or the
conditions of, this Loan Agreement or the other Loan Documents; (iii)
the state or condition of any properties of a Borrower or any other
obligor hereunder constituting Collateral for the Obligations of either
Borrower hereunder, or any information contained in the books or
records of either Borrower; (iv) the validity, enforceability,
collectibility, effectiveness or genuineness of this Loan Agreement or
any other Loan Document or any other certificate, document or
instrument furnished in connection therewith; or (v) the validity,
priority or perfection of any lien securing or purporting to secure any
Obligations or the value or sufficiency of any of the Collateral.
13.1.5 Reliance by Agent. The Agent shall be entitled to rely,
and shall be fully protected in relying, upon any notice, consent,
certificate, affidavit, or other document or writing believed by it to
be genuine and correct and to have been signed, sent or made by the
proper person or persons, and upon the advice and statements of legal
counsel (including, without, limitation, counsel to each Borrower),
independent accountants and other experts selected by the Agent. The
Agent shall be fully justified in failing or refusing to take any
action under this Loan Agreement or any other Loan Document unless it
shall first receive such advice or concurrence of the Required Lenders
as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense
which may be incurred by it by reason of the taking or failing to take
any such action. The Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Loan Agreement and the
other Loan Documents in accordance with any written request of the
Required Lenders, and each such request of the Required Lenders, and
any action taken or failure to act by the Agent pursuant thereto, shall
be binding upon all of the Lenders; provided, however, that the Agent
shall not be required in any event to act, or to refrain from acting,
in any manner which is contrary to the Loan Documents or to applicable
law.
13.1.6 Notice of Default. The Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of
Default unless the Agent has actual knowledge of the same or has
received notice from a Lender or a Borrower referring to this Loan
Agreement, describing such Default or Event of Default and stating that
such notice is a "notice of default". In the event that the Agent
obtains such actual knowledge or receives such a notice, the Agent
shall give prompt notice thereof to each of the Lenders. The Agent
shall take such action with respect to such Default or Event of Default
as shall be reasonably directed by the Required Lenders. Unless and
until the Agent shall have received such direction, the Agent may (but
shall not be obligated to) take such action, or refrain from taking
such action, with respect to any such Default or Event of Default as it
shall deem advisable in the best interest of the Lenders.
13.1.7 Lenders' Credit Decisions. Each Lender acknowledges
that it has, independently and without reliance upon the Agent or any
other Lender, and based on the financial statements prepared by each
Borrower and such other documents and information
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as it has deemed appropriate, made its own credit analysis and
investigation into the business, assets, operations, property, and
financial and other condition of each Borrower and has made its own
decision to enter into this Loan Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently
and without reliance upon the Agent or any other Lender, and based on
such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in determining whether
or not conditions precedent to Closing any Loan hereunder have been
satisfied and in taking or not taking any action under this Loan
Agreement and the other Loan Documents.
13.1.8 Agent's Reimbursement and Indemnification. The Lenders
agree to reimburse and indemnify the Agent, ratably in proportion to
their respective Commitments, for (i) any amounts not reimbursed by a
Borrower for which the Agent is entitled to reimbursement by a Borrower
under this Loan Agreement or the other Loan Documents, (ii) any other
expenses incurred by the Agent on behalf of the Lenders in connection
with the preparation, execution, delivery, administration, amendment,
waiver and/or enforcement of this Loan Agreement and the other Loan
Documents, and (iii) any liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever which may imposed on, incurred by or
asserted against the Agent in any way relating to or arising out of
this Loan Agreement or the other Loan Documents or any other document
delivered in connection therewith or any transaction contemplated
thereby, or the enforcement of any of the terms hereof or thereof,
provided that no Lender shall be liable for any of the foregoing to the
extent that they arise from the gross negligence or willful misconduct
of the Agent. If any indemnity furnished to the Agent for any purpose
shall, in the opinion of the Agent, be insufficient or become impaired,
the Agent may call for additional indemnity and cease, or not commence,
to do the action indemnified against until such additional indemnity is
furnished.
13.1.9 Agent in its Individual Capacity. With respect to its
Commitment as a Lender, and the Loans made by it and any Note issued to
it, the Agent shall have the same rights and powers hereunder and under
any other Loan Document as any Lender and may exercise the same as
though it were not the Agent, and the term "Lender" or "Lenders" shall,
unless the context otherwise indicates, include the Agent in its
individual capacity. The Agent and its subsidiaries and affiliates may
accept deposits from, lend money to, and generally engage in any kind
of commercial or investment banking, trust, advisory or other business
with each Borrower or any subsidiary or affiliate of either Borrower as
if it were not the Agent hereunder.
13.1.10 Successor Agent. The Agent may resign at any time by
giving thirty (30) days' prior written notice to the Lenders and each
Borrower. The Required Lenders, for cause, may remove Agent at any time
by giving thirty (30) days' prior written notice to the Agent, the
Borrower and the other Lenders. Upon any such resignation or removal,
the Required Lenders shall have the right to appoint a successor Agent.
If no successor Agent shall have been so appointed by the Required
Lenders and accepted such appointment within thirty (30) days after the
retiring Agent's giving notice of resignation or the Required Lenders'
giving notice of removal, as the case may be, then the retiring Agent
may appoint, on behalf of each Borrower and the Lenders, a successor
Agent. Each such successor Agent shall be a financial institution which
meets the requirements of an Eligible Assignee. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent, such successor
Agent shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations hereunder and
under the other Loan Documents. After any retiring Agent's resignation
hereunder, the provisions of this Article 13 shall continue in effect
for its benefit
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in respect of any actions taken or omitted to be taken by it while it
was acting as the Agent hereunder.
13.1.11 Duties in the Case of Enforcement. In case one or more
Events of Default have occurred and shall be continuing, and whether or
not acceleration of any Obligations shall have occurred, the Agent
shall, at the request, or may, upon the consent, of the Required
Lenders, and provided that the Lenders have given to the Agent such
additional indemnities and assurances against expenses and liabilities
as the Agent may reasonably request, proceed to enforce the provisions
of this Loan Agreement and the other Loan Documents respecting the
foreclosure, the sale, or other disposition of all or any part of the
Collateral and the exercise of any other legal or equitable rights or
remedies as it may have hereunder or under any other Loan Document or
otherwise by virtue of applicable law, or to refrain from so acting if
similarly requested by the Required Lenders. The Agent shall be fully
protected in so acting or refraining from acting upon the instruction
of the Required Lenders, and such instruction shall be binding upon all
the Lenders. The Required Lenders may direct the Agent in writing as to
the method and the extent of any such foreclosure, sale or other
disposition or the exercise of any other right or remedy, the Lenders
hereby agreeing to indemnify and hold the Agent harmless from all costs
and liabilities incurred in respect of all actions taken or omitted in
accordance with such direction, provided that the Agent need not comply
with any such direction to the extent that the Agent reasonably
believes the Agent's compliance with such direction to be unlawful or
commercially unreasonable in any applicable jurisdiction. The Agent
may, in its discretion but without obligation, in the absence of
direction from the Required Lenders, take such interim actions as it
believes necessary to preserve the rights of the Lenders hereunder and
in and to any Collateral securing any of the Obligations, including but
not limited to petitioning a court for injunctive relief, appointment
of a receiver or preservation of the proceeds of any Collateral. Each
of the Lenders acknowledges and agrees that no individual Lender may
separately enforce or exercise any of the provisions of any of the Loan
Documents, including without limitation the Notes, other than through
the Agent.
13.2 Respecting Loans and Payments.
13.2.1 Procedures for Loans. Agent shall give written notice
to each Lender of each request for a Loan, or conversion of an existing
Loan from a Variable Rate Advance to an Effective LIBO Rate Advance, by
facsimile transmission, hand delivery or overnight courier, not later
than 11:00 a.m. (Boston time) (i) two (2) Business Days prior to any
Effective LIBO Rate Advance or conversion to an Effective LIBO Rate
Advance, or (ii) one (1) Business Day prior to any Variable Rate
Advance. Each such notice shall be accompanied by a written summary of
the request for a Loan and shall specify (a) the date of the requested
Loan, (b) the aggregate amount of the requested Loan, (c) each Lender's
pro rata share of the requested Loan, and (d) the applicable interest
rate selected by the subject Borrower with respect to such Loan, or any
portion thereof, together with the applicable Interest Period, if any,
selected, or deemed selected, by such Borrower. Each Lender shall,
before 11:00 a.m. (Boston time) on the date set forth in any such
request for a Loan, make available to Agent, at an account to be
designated by Agent at Fleet National Bank in Boston, Massachusetts, in
same day funds, each Lender's ratable portion of the requested Loan.
After Agent's receipt of such funds and upon Agent's determination that
the applicable conditions to making the requested Loan have been
fulfilled, Agent shall make such funds available to such Borrower as
provided for in this Loan Agreement. Within a reasonable period of time
following the making of each Loan, but in no event later than ten (10)
Business Days following such Loan, Agent shall deliver to each Lender a
copy of such Borrower's request for Loan. Promptly after receipt by
Agent of written request from any Lender, Agent shall deliver to the
requesting Lender the accompanying certifications and such other
instruments,
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documents, certifications and approvals delivered by or on behalf of
such Borrower to Agent in support of the requested Loan.
13.2.2 Nature of Obligations of Lenders. The obligations of
the Lenders hereunder are several and not joint. Failure of any Lender
to fulfill that its obligations hereunder shall not result in any other
Lender becoming obligated to advance more than its Commitment
Percentage of the Loan, nor shall such failure release or diminish the
obligations of any other Lender to fund its Commitment Percentage
provided herein. The full proceeds of each Loan shall be funded on the
Funding Date.
13.2.3 Payments to Agent. All payments of principal of and
interest on the Loans or the Note shall be made to the Agent by the
subject Borrower or any other obligor or guarantor for the account of
the Lenders in immediately available funds as provided in the Note and
this Loan Agreement. Except as otherwise expressly provided herein,
including, without limitation, as set forth under Section 2.3, the
Agent agrees promptly to distribute to each Lender, on the same
Business Day upon which each such payment is made, such Lender's
proportionate share of each such payment in immediately available funds
excluding Liquidation Proceeds which shall be distributed in accordance
with Section 13.2.4 below. The Agent shall upon each distribution
promptly notify such Borrower of such distribution and each Lender of
the amounts distributed to it applicable to principal of, and interest
on, the proportionate share held by the applicable Lender. Each payment
to the Agent under the first sentence of this Section shall constitute
a payment by the subject Borrower to each Lender in all cases in
accordance with their proportional share based on their respective
Commitment Percentages, and any such payment to the Agent shall not be
considered outstanding for any purpose after the date of such payment
by such Borrower to the Agent without regard to whether or when the
Agent makes distribution thereof as provided above. If any payment
received by the Agent from a Borrower is insufficient to pay both all
accrued interest and all principal then due and owing, the Agent shall
first apply such payment to all outstanding interest until paid in full
and shall then apply the remainder of such payment to all principal
then due and owing, and shall distribute the payment to each Lender
accordingly.
13.2.4 Distribution of Liquidation Proceeds. Subject to the
terms and conditions hereof, the Agent shall distribute all Liquidation
Proceeds in the order and manner set forth below:
First: To the Agent, towards any fees and any expenses for
which the Agent is entitled to reimbursement under
this Agreement or the other Loan Documents not
theretofore paid to the Agent.
Second: To all applicable Lenders in accordance with their
proportional share based upon their respective
Commitment Percentages until all Lenders have been
reimbursed for all expenses which such Lenders have
previously paid to the Agent and not theretofore paid
to such Lenders.
Third: To all Lenders in accordance with their proportional
share based upon their respective Commitment
Percentages until all Lenders have been paid in full
all principal and interest due to such Lenders under
the Loans in order of priority as between the Loans
as determined by the Agent, with each Lender applying
such proceeds for purposes of this Agreement against
the outstanding principal balance and accrued and
unpaid interest due to such Lender under the Loans in
such fashion and priority as the Agent may direct.
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Fourth: To all applicable Lenders in accordance with their
proportional share based upon their respective
Commitment Percentages until all Lenders have been
paid in full all other amounts due to such Lenders
under the Loans including, without limitation, any
costs and expenses incurred directly by such Lenders
to the extent such costs and expenses are
reimbursable to such Lenders by the Borrower under
the Loan Documents.
Fifth: To Fleet National Bank (or any successor thereto)
with respect to the Obligations specifically arising
on account of any Interest Rate Protection Agreement,
if issued by Fleet National Bank.
Sixth: To a Borrower or such third parties as may be
entitled to claim Liquidation Proceeds.
13.2.5 Adjustments. If, after Agent has paid each Lender's
proportionate share of any payment received or applied by Agent in
respect of either Loan and other Obligations, that payment is rescinded
or must otherwise be returned or paid over by Agent, whether pursuant
to any bankruptcy or insolvency law, sharing of payments clause of any
loan agreement or otherwise, such Lender shall, at Agent's request,
promptly return its proportionate share of such payment or application
to Agent, together with the Lender's proportionate share of any
interest or other amount required to be paid by Agent with respect to
such payment or application.
13.2.6 Setoff. If any Lender (including the Agent), acting in
its individual capacity, shall exercise any right of setoff against a
deposit balance or other account of either Borrower held by such Lender
on account of the obligations of such Borrower under this Loan
Agreement, such Lender shall remit to the Agent all such sums received
pursuant to the exercise of such right of setoff, and the Agent shall
apply all such sums for the benefit of all of the Lenders hereunder in
accordance with the terms of this Loan Agreement.
13.2.7 Distribution by Agent. If in the opinion of the Agent
distribution of any amount received by it in such capacity hereunder or
under either Note or under any of the other Loan Documents might
involve any liability, it may refrain from making distribution until
its right to make distribution shall have been adjudicated by a court
of competent jurisdiction or has been resolved by the mutual consent of
all Lenders. In addition, the Agent may request full and complete
indemnity, in form and substance satisfactory to it, prior to making
any such distribution. If a court of competent jurisdiction shall
adjudge that any amount received and distributed by the Agent is to be
repaid, each person to whom any such distribution shall have been made
shall either repay to the Agent its proportionate share of the amount
so adjudged to be repaid or shall pay over to the same in such manner
and to such Persons as shall be determined by such court.
13.2.8 Delinquent Lender. If for any reason any Lender shall
fail or refuse to abide by its obligations under this Loan Agreement,
including without limitation its obligation to make available to Agent
its pro rata share of any Loans, expenses or setoff (a "Delinquent
Lender") and such failure is not cured within ten (10) days of receipt
from the Agent of written notice thereof, then, in addition to the
rights and remedies that may be available to Agent, other Lenders, each
Borrower or any other party at law or in equity, and not at limitation
thereof, (i) such Delinquent Lender's right to participate in the
administration of, or decision-making rights related to, the Loans,
this Loan Agreement or the other Loan Documents shall be suspended
during the pendency of such failure or refusal, and (ii) a Delinquent
Lender shall be deemed to have assigned any and all payments due to it
from each Borrower, whether on account of outstanding Loans, interest,
fees or otherwise, to the
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remaining non-delinquent Lenders for application to, and reduction of,
their proportionate shares of all outstanding Loans until, as a result
of application of such assigned payments the Lenders' respective pro
rata shares of all outstanding Loans shall have returned to those in
effect immediately prior to such delinquency and without giving effect
to the nonpayment causing such delinquency. The Delinquent Lender's
decision-making and participation rights and rights to payments as set
forth in clauses (i) and (ii) hereinabove shall be restored only upon
the payment by the Delinquent Lender of its pro rata share of any Loans
or expenses as to which it is delinquent, together with interest
thereon at the Default Rate from the date when originally due until the
date upon which any such amounts are actually paid.
The non-delinquent Lenders shall also have the right, but not the
obligation, in their respective, sole and absolute discretion, to acquire for no
cash consideration (pro rata, based on the respective Commitments of those
Lenders electing to exercise such right) the Delinquent Lender's Commitment to
fund future Loans (the "Future Commitment"). Upon any such purchase of the pro
rata share of any Delinquent Lender's Future Commitment, the Delinquent Lender's
share in future Loans and its rights under the Loan Documents with respect
thereto shall terminate on the date of purchase, and the Delinquent Lender shall
promptly execute all documents reasonably requested to surrender and transfer
such interest, including, if so requested, an Assignment and Acceptance. Each
Delinquent Lender shall indemnify Agent and each non-delinquent Lender from and
against any and all loss, damage or expenses, including but not limited to
reasonable attorneys' fees and funds advanced by Agent or by any non-delinquent
Lender, on account of a Delinquent Lender's failure to timely fund its pro rata
share of a Loan or to otherwise perform its obligations under the Loan
Documents.
13.2.9 Holders. The Agent may deem and treat the Lender
designated in the Register as the proportionate owner of such interest
in the Note for all purposes hereof unless and until a written notice
of the assignment, transfer or endorsement thereof, as the case may be,
shall have been filed with the Agent. Any request, authority or consent
of any Person who, at the time of making such request or giving such
authority or consent, is the holder of any designated interest in the
Note shall be conclusive and binding on any subsequent holder,
transferee or endorsee, as the case may be, of such interest in the
Notes or of any Note or Notes issued in exchange therefor.
13.3 Assignment and Participation.
13.3.1 Conditions to Assignment by Lenders. Except as provided
herein, each Lender may assign to one or more Eligible Assignees all or
a portion of its interests, rights and obligations under this Loan
Agreement (including all or a portion of its Commitment Percentage and
Commitment and the same portion of each of the Loans at the time owing
to it and the portion of the Notes held by it), upon satisfaction of
the following conditions: (a) each of the Agent and each Borrower shall
have given its prior written consent to such assignment, which consent
shall not be unreasonably withheld, delayed or conditioned by either
the Agent or the Borrowers (provided that, in the case of the
Borrowers, such consent shall not be required if a Default or Event of
Default shall have occurred and be continuing and provided, further,
such consent shall not be required from either the Agent or the
Borrower in connection with any assignment as to which (i) the assignee
is an existing Lender (other than a Delinquent Lender) or (ii) an
Affiliate or a Related Fund of the assigning Lender); (b) each such
assignment shall be of a constant, and not a varying, percentage of all
the assigning Lender's rights and obligations under this Loan
Agreement, (c) each assignment shall be in an amount that is at least
$1,000,000.00 and is a whole multiple of $1,000,000.00 (provided, such
minimum amount shall not apply if the assigning Lender is assigning its
entire remaining interest in the Loans), (d) each Lender which is a
Lender at the time of such assignment shall retain, free of any such
assignment, an amount of its
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Commitment of not less than $1,000,000.00 (provided, such minimum
amount shall not apply if the assigning Lender is assigning its entire
remaining interest in the Loans), (e) each assignment shall consist of
an assignment from the assigning Lender's of a pro rata interest in
each of the NMLP Loan and the T-Two Loan, and (f) the parties to such
assignment shall execute and deliver to the Agent, for recording in the
Register (as hereinafter defined), an Assignment and Acceptance,
substantially in the form of Exhibit H hereto (an "Assignment and
Acceptance"). Upon such execution, delivery, acceptance and recording,
from and after the effective date specified in each Assignment and
Acceptance, which effective date shall be at least five (5) Business
Days after the execution thereof (or such shorter period of time as may
be agreed to by the Agent), (x) the assignee thereunder shall be a
party hereto and, to the extent provided in such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder, and
(y) the assigning Lender shall, to the extent provided in such
assignment and upon payment to the Agent of the registration fee
referred to in Section 13.3.3, be released from its obligations under
this Loan Agreement. No Lender may separately assign an interest in a
Loan; each assignment must be of a pro rata interest in each Loan.
13.3.2 Certain Representations and Warranties. Limitations,
Covenants. By executing and delivering an Assignment and Acceptance,
the parties to the assignment thereunder confirm to and agree with each
other and the other parties hereto as follows:
(a) other than the representation and warranty that it is the
legal and beneficial owner of the interest being assigned thereby free
and clear of any adverse claim, unless specifically agreed in writing
otherwise by the assigning Lender, the assigning Lender makes no
representation or warranty, express or implied, and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with this Loan Agreement or
the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Loan Agreement, the other Loan Documents
or any other instrument or document furnished pursuant hereto or the
attachment, perfection or priority of any security interest or
mortgage;
(b) unless specifically agreed in writing otherwise by the
assigning Lender, the assigning Lender makes no representation or
warranty and assumes no responsibility with respect to the financial
condition of either Borrower and its affiliates, related entities or
subsidiaries or any other person primarily or secondarily liable in
respect of any of the Obligations, or the performance or observance by
either Borrower or any other Person primarily or secondarily liable in
respect of any of the Obligations of any of their obligations under
this Loan Agreement or any of the other Loan Documents or any other
instrument or document furnished pursuant hereto or thereto;
(c) such assignee confirms that it has received a copy of this
Loan Agreement, together with copies of the most recent financial
statements provided by each Borrower as required by the terms of this
Loan Agreement, together with such other documents and information as
it has deemed appropriate to make its own credit analysis and decision
to enter into such Assignment and Acceptance;
(d) unless specifically agreed in writing otherwise by the
assigning Lender, such assignee will, independently and without
reliance upon the assigning Lender, the Agent or any other Lender and
based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not
taking action under this Loan Agreement;
(e) such assignee represents and warrants that it is an
Eligible Assignee;
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(f) such assignee appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers under
this Loan Agreement and the other Loan Documents as are delegated to
the Agent by the terms hereof or thereof, together with such powers as
are reasonably incidental thereto;
(g) such assignee agrees that it will perform in accordance
with their terms all of the obligations that by the terms of this Loan
Agreement are required to be performed by it as a Lender; and
(h) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance.
13.3.3 Register. The Agent shall maintain a copy of each
Assignment and Acceptance delivered to it and a register or similar
list (the "Register") for the recordation of the names and addresses of
the Lenders and the Commitment Percentage of, and principal amount of
the Loans owing to the Lenders from time to time. The entries in the
Register shall be conclusive, in the absence of manifest error, and
each Borrower, the Agent and the Lenders may treat each person whose
name is recorded in the Register as a Lender hereunder for all purposes
of this Loan Agreement. The Register shall be available for inspection
by each Borrower and the Lenders at any reasonable time and from time
to time upon reasonable prior notice. Upon each such recordation, the
assigning Lender agrees to pay to the Agent a registration fee in the
sum of $3,500.00, except there shall be no such registration fee if the
assignment is to an Affiliate or Related Fund of the assigning Lender.
13.3.4 Register Notation. Upon its receipt of an Assignment
and Acceptance executed by the parties to such assignment, the Agent
shall (a) record the information contained therein in the Register, and
(b) give prompt notice thereof to each Borrower and the Lenders (other
than the assigning Lender).
13.3.5 Participations. Each Lender may sell participations to
one or more banks or other financial institutions in all or a portion
of such Lender's rights and obligations under this Loan Agreement and
the other Loan Documents; provided that (a) each such participation
shall be in a minimum amount of $1,000,000.00 (provided, such minimum
amount shall not apply to participations with Affiliates or Related
Funds of the assigning Lender), (b) each participant shall meet the
requirements of an Eligible Assignee, (c) any such sale or
participation shall not affect the rights and duties of the selling
Lender hereunder to each Borrower, (d) each participation shall consist
of a pro rata interest in each of the NMLP Loan and the T-Two Loan, and
(e) the only rights granted to the participant pursuant to such
participation arrangements with respect to waivers, amendments or
modifications of the Loan Documents shall be the rights to approve
waivers, amendments or modifications that would reduce the principal of
or the interest rate on any Loans, extend the term or increase the
amount of the Commitment of such Lender as it relates to such
participant, reduce the amount of any commitment fees to which such
participant is entitled or extend any regularly scheduled payment date
for principal or interest. No Lender may separately participate an
interest in a Loan; each participation must be of a pro rata interest
in each Loan.
13.3.6 Disclosure. Each Borrower agrees that in addition to
disclosures made in accordance with standard and customary banking
practices any Lender may disclose information obtained by such Lender
pursuant to this Loan Agreement to assignees, pledgees, or participants
and potential assignees, pledgees, or participants hereunder (other
than a competitor of a Borrower); provided that such assignees,
pledgees, or participants or potential assignees or participants shall
agree (other than any Lender's affiliate or any
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regulatory body or legal authority having jurisdiction over such
Lender) (a) to treat in confidence such information unless such
information otherwise becomes public knowledge, (b) not to disclose
such information to a third party, except as required by law or legal
process and (c) not to make use of such information for purposes of
transactions unrelated to such contemplated assignment or
participation.
13.3.7 Miscellaneous Assignment Provisions. Any assigning
Lender shall retain its rights to be indemnified pursuant to Sections
7.1.21 and 7.2.17 with respect to any claims or actions arising prior
to the date of such assignment. If any assignee Lender is not
incorporated under the laws of the United States of America or any
state thereof, it shall, prior to the date on which any interest or
fees are payable hereunder or under any of the other Loan Documents for
its account, deliver to each Borrower and the Agent Certificates of
Exemption, as provided in Section 2.7.3. Anything contained in this
Section 13.3.7 to the contrary notwithstanding, any Lender may at any
time pledge all or any portion of its interest and rights under this
Loan Agreement (including all or any portion of its Notes) (i) to any
of the twelve Federal Reserve Banks organized under ss.4 of the Federal
Reserve Act, 12 U.S.C. ss.341, (ii) in case of any Lender that is a
fund, to any holders of obligations owed or securities issued by such
Lender or to any trustee for or other representative of such holders,
or (iii) as approved by the Agent. No such pledge or the enforcement
thereof shall release the pledgor Lender from its obligations hereunder
or under any of the other Loan Documents.
13.4 Administrative Matters.
13.4.1 Amendment, Waiver, Consent, Etc. Except as otherwise
provided herein or as to any term or provision hereof which provides
for the consent or approval of the Agent, no term or provision of this
Loan Agreement or any other Loan Document may be changed, waived,
discharged or terminated, nor may any consent required or permitted by
this Loan Agreement or any other Loan Document be given, unless such
change, waiver, discharge, termination or consent receives the written
approval of the Required Lenders.
Notwithstanding the foregoing, the unanimous written approval of all
the Lenders (other than a Defaulting Lender) shall be required with respect to
any proposed amendment, waiver, discharge, termination, or consent which:
(i) has the effect of (a) extending the final scheduled
maturity or the date of any amortization payment of any Loan or Note,
(b) reducing the rate or extending the time of payment of interest or
fees thereon, (c) increasing or reducing the principal amount thereof,
or (d) otherwise postponing or forgiving any indebtedness thereunder,
(ii) releases or discharges any material portion of any
Collateral, or subordinates the Agent's lien thereon, other than in
accordance with the express provisions of the Loan Documents,
(iii) amends, modifies or waives any provisions of this
Section 13.4,
(iv) amends, modifies or waives any of the Financial
Covenants,
(v) reduces the percentage specified in the definition of
Required Lenders,
(vi) except as otherwise provided in the Loan Agreement,
changes the amount of any Lender's Commitment or Commitment Percentage,
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(vii) releases or waives any guaranty of the Obligations or
indemnifications provided in the Loan Documents, or subordinates the
Agent's interest therein,
(viii) modifies any prepayment events (mandatory or optional)
or the application of proceeds from such events,
(ix) amends, modifies or waives in any material and adverse
manner the intended comprehensive cash management of NMLP and T-Two and
their respective Subsidiaries, or
(ix) modifies the provisions of Section 13.2.4 as to the
disposition of Liquidation Proceeds,
and provided, further, that without the consent of the Agent, no such action
shall amend, modify or waive any provision of this Article or any other
provision of any Loan Document which relates to the rights or obligations of the
Agent.
13.4.2 Deemed Consent or Approval. With respect to any
requested amendment, waiver, consent or other action which requires the
approval of the Required Lenders or all of the Lenders, as the case may
be, in accordance with the terms of this Loan Agreement, or if the
Agent is required hereunder to seek, or desires to seek, the approval
of the Required Lenders or all of the Lenders, as the case may be,
prior to undertaking a particular action or course of conduct, the
Agent in each such case shall provide each Lender with written notice
of any such request for amendment, waiver or consent or any other
requested or proposed action or course of conduct, accompanied by such
detailed background information and explanations as may be reasonably
necessary to determine whether to approve or disapprove such amendment,
waiver, consent or other action or course of conduct. The Agent may
(but shall not be required to) include in any such notice, printed in
capital letters or boldface type, a legend substantially to the
following effect:
"THIS COMMUNICATION REQUIRES IMMEDIATE RESPONSE. FAILURE TO RESPOND
WITHIN TEN (10) CALENDAR DAYS FROM THE RECEIPT OF THIS COMMUNICATION
SHALL CONSTITUTE A DEEMED APPROVAL BY THE ADDRESSEE OF THE ACTION
REQUESTED BY THE SUBJECT BORROWER OR THE COURSE OF CONDUCT PROPOSED BY
THE AGENT AND RECITED ABOVE,"
and if the foregoing legend is included by the Agent in its communication, a
Lender shall be deemed to have approved or consented to such action or course of
conduct for all purposes hereunder if such Lender fails to object to such action
or course of conduct by written notice to the Agent within ten (10) calendar
days of such Lender's receipt of such notice.
13.5 Syndication Agent. Notwithstanding the provisions of this
Agreement or of the other Loan Documents, the Syndication Agent shall have no
powers, rights, duties, responsibilities or liabilities with respect to this
Agreement and the other Loan Documents. To the extent requested by the Agent,
the Syndication Agent has coordinated, or will coordinate, the initial
syndication of the Loan and the assignment of interests in the Loan.
14. GENERAL PROVISIONS.
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14.1 Notices. Any notice or other communication in connection
with this Loan Agreement, the NoteS, the Security Documents, or any of
the other Loan Documents, shall be in writing, and (i) deposited in the
United States Mail, postage prepaid, by registered or certified mail,
or (ii) hand delivered by any commercially recognized courier service
or overnight delivery service such as Federal Express, or (iii) sent by
facsimile transmission if a FAX Number is designated below addressed:
If to NMLP:
Xxxxxxx Master Limited Partnership
000 Xxxxxxx Xxxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxx, Executive Vice President
FAX Number: (000) 000-0000
And
Xxxxxxx Master Limited Partnership
0 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx, Chief Operating Officer
FAX Number: (000) 000-0000
with copies by regular mail or such hand delivery or facsimile transmission to:
Post & Xxxxxxx, LLP
000 Xxxxxxx Xxxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esquire
FAX Number: (000) 000-0000
And
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx, Esquire
FAX Number: (000) 000-0000
If to T-Two:
T-Two Partners, L.P.
000 Xxxxxxx Xxxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxx, Executive Vice President
FAX Number: (000) 000-0000
And
T-Two Partners, L.P.
0 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx, Senior Vice President
FAX Number: (000) 000-0000
with copies by regular mail or such hand delivery or facsimile transmission to:
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Post & Xxxxxxx, LLP
000 Xxxxxxx Xxxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esquire
FAX Number: (000) 000-0000
And
Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx, Esquire
FAX Number: (000) 000-0000
If to the Borrower to each of NMLP and T-Two in the manner provided for above.
If to Agent:
Fleet National Bank
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxx, Managing Director
FAX Number: (000) 000-0000
And
Attention: Commercial Real Estate Loan
Administration Manager,
with copies by regular mail or such hand delivery or facsimile
transmission to:
Xxxxxx & Xxxxxxxxxx LLP
Xxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esquire
FAX Number: (000) 000-0000
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If to Fleet National Bank:
Fleet National Bank
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxx, Managing Director
FAX Number: (000) 000-0000
And
Attention: Commercial Real Estate Loan
Administration Manager,
with copies by regular mail or such hand delivery or facsimile
transmission to:
Xxxxxx & Xxxxxxxxxx LLP
Xxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esquire
FAX Number: (000) 000-0000
If to the Co-Lender, to the addresses set forth on the signature page or to such
addresses as set forth in the Assignment and Acceptance.
Any such addressee may change its address for such notices to such other address
in the United States as such addressee shall have specified by written notice
given as set forth above. All periods of notice shall be measured from the
deemed date of delivery.
A notice shall be deemed to have been given, delivered and received for
the purposes of all Loan Documents upon the earliest of: (i) if sent by such
certified or registered mail, on the third Business Day following the date of
postmark, or (ii) if hand delivered at the specified address by such courier or
overnight delivery service, when so delivered or tendered for delivery during
customary business hours on a Business Day, or (iii) if so mailed, on the date
of actual receipt as evidenced by the return receipt, or (iv) if so delivered,
upon actual receipt, or (v) if facsimile transmission is a permitted means of
giving notice, upon receipt as evidenced by confirmation.
14.2 Limitations on Assignment. Neither Borrower may assign this
Agreement or the monies due thereunder without the prior written consent of all
of the Lenders in each instance, but in such event Lenders may nevertheless at
their option make the Loan under this Agreement to such Borrower or to those who
succeed to the title of such Borrower and all sums so advanced by Lenders shall
be deemed a Loan Advance under this Agreement and not to be modifications
thereof and shall be secured by all of the Collateral for the subject's
Borrower's Obligations given at any time in connection herewith.
14.3 Further Assurances. Each Borrower shall upon request from Agent
from time to time execute, seal, acknowledge and deliver such further
instruments or documents which Agent may reasonably require to better perfect
and confirm its rights and remedies hereunder, under the Notes, under the
Security Documents and under each of the other Loan Documents.
14.4 Payments.
14.4.1 NMLP Payments. All payments under the NMLP Note shall
be applied first to the payment of all fees, expenses and other amounts
due to the Agent (excluding principal and interest) and, to the extent
reimbursement is provided for herein, the Lenders, then to
accrued interest, and the balance on account of outstanding principal
under the NMLP Note; provided, however, that after an Event of Default,
Liquidation Proceeds will be applied to the Obligations of each
Borrower to Agent and the Lenders as otherwise provided for herein.
14.4.2 T-Two Payments. All payments under the T-Two Note shall
be applied first to the payment of all fees, expenses and other amounts
due to the Agent (excluding principal and interest) and, to the extent
reimbursement is provided for herein, the Lenders, then to accrued
interest, and the balance on account of outstanding principal under the
T-Two Note; provided, however, that after an Event of Default,
Liquidation Proceeds will be applied to the Obligations of each
Borrower to Agent and the Lenders as otherwise provided for herein.
14.5 Parties Bound. The provisions of this Agreement and of each of the
other Loan Documents shall be binding upon and inure to the benefit of each
Borrower, the Agent and each of the Lenders and their respective successors and
assigns, except as otherwise prohibited by this Agreement or any of the other
Loan Documents.
This Agreement is a contract by and among each Borrower, the Agent and
each of the Lenders for their mutual benefit, and no third person shall have any
right, claim or interest against either Agent, any of the Lenders or either
Borrower by virtue of any provision hereof.
14.6 Governing Law; Consent to Jurisdiction; Mutual Waiver of Jury
Trial.
14.6.1 Substantial Relationship. It is understood and agreed
that all of the Loan Documents were negotiated, executed and delivered
in The Commonwealth of Massachusetts, which Commonwealth the parties
agree has a substantial relationship to the parties and to the
underlying transactions embodied by the Loan Documents.
14.6.2 Place of Delivery. Each Borrower agrees to furnish to
Agent at the Agent's office in Boston, Massachusetts all further
instruments, certifications and documents to be furnished hereunder.
14.6.3 Governing Law. This Agreement and each of the other
Loan Documents shall in all respects be governed, construed, applied
and enforced in accordance with the internal laws of The Commonwealth
of Massachusetts without regard to principles of conflicts of law.
14.6.4 Consent to Jurisdiction. Each Borrower hereby consents
to personal jurisdiction in any state or Federal court located within
The Commonwealth of Massachusetts.
14.6.5 JURY TRIAL WAIVER. EACH BORROWER, AGENT, AND EACH OF
THE LENDERS MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
ON THIS LOAN AGREEMENT, ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS LOAN AGREEMENT OR ANY OTHER LOAN DOCUMENTS CONTEMPLATED TO BE
EXECUTED IN CONNECTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF
DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY
PARTY, INCLUDING, WITHOUT LIMITATION, ANY COURSE OF CONDUCT, COURSE OF
DEALINGS, STATEMENTS OR ACTIONS OF AGENT OR ANY LENDER RELATING TO THE
ADMINISTRATION OF THE LOAN OR ENFORCEMENT OF THE LOAN DOCUMENTS, AND
AGREE THAT NEITHER PARTY WILL SEEK TO CONSOLIDATE ANY SUCH ACTION WITH
ANY OTHER ACTION IN WHICH A
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JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. EXCEPT AS PROHIBITED BY
LAW, EACH PARTY HEREBY WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER
IN ANY LITIGATION ANY SPECIAL, INDIRECT, SPECULATIVE, EXEMPLARY,
PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES OTHER THAN, OR IN
ADDITION TO, ACTUAL DAMAGES. EACH BORROWER CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF AGENT OR ANY LENDER HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT AGENT OR ANY LENDER WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER.
THIS WAIVER CONSTITUTES A MATERIAL INDUCEMENT FOR EACH OF THE PARTIES
HERETO TO ENTER INTO THE TRANSACTIONS CONTEMPLATED HEREBY.
14.7 Survival. All representations, warranties, covenants and
agreements of a Borrower, or a Loan Party, herein or in any other Loan Document,
or in any notice, certificate, or other paper delivered by or on behalf of a
Borrower or a Loan Party pursuant hereto are significant and shall be deemed to
have been relied upon by Agent and each of the Lenders notwithstanding any
investigation made by Agent or any of the Lenders or on its behalf and shall
survive the delivery of the Loan Documents and the making of the Loans pursuant
thereto. No review or approval by Agent or the Lenders or any of their
representatives, of any opinion letters, certificates by professionals or other
item of any nature shall relieve either Borrower or anyone else of any of the
obligations, warranties or representations made by or on behalf of Borrower or a
Loan Party, or any one or more of them, under any one or more of the Loan
Documents.
14.8 Cumulative Rights. All of the rights of Agent and the Lenders
hereunder and under each of the other Loan Documents and any other agreement now
or hereafter executed in connection herewith or therewith, shall be cumulative
and may be exercised singly, together, or in such combination as Agent may
determine in its sole good faith judgment.
14.9 Claims Against Agent or Lenders.
14.9.1 Borrower Must Notify. The Agent and each of the Lenders
shall not be in default under this Agreement, or under any other Loan
Document, unless a written notice specifically setting forth the claim
of such Borrower shall have been given to Agent and each of the Lenders
within thirty (30) days after the subject Borrower first had actual
Knowledge or actual notice of the occurrence of the event which
Borrower alleges gave rise to such claim and Agent or any of the
Lenders does not remedy or cure the default, if any there be, with
reasonable promptness thereafter. Such actual Knowledge or actual
notice shall refer to what was actually known by, or expressed in a
written notification furnished to, any of the persons or officials
referred to in Exhibit D as Authorized Representatives.
14.9.2 Remedies. If it is determined by the final order of a
court of competent jurisdiction, which is not subject to further
appeal, that Agent or any of the Lenders has breached any of its
obligations under the Loan Documents and has not remedied or cured the
same with reasonable promptness following notice thereof, Agent's and
each of the Lenders' responsibilities shall be limited to: (i) where
the breach consists of the failure to grant consent or give approval in
violation of the terms and requirements of a Loan Document, the
obligation to grant such consent or give such approval and to pay such
Borrower's reasonable costs and expenses including, without limitation,
reasonable attorneys' fees and disbursements in connection with such
court proceedings; and (ii) the case of any such failure to grant such
consent or give such approval, or in the case of any other such default
by Agent or any of the Lenders, where it is also so determined that
Agent or any of the Lenders acted in bad faith, the payment of any
actual, direct, compensatory damages sustained by such Borrower as a
result thereof plus such Borrower's reasonable costs and expenses,
including,
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without limitation, reasonable attorneys' fees and disbursements in
connection with such court proceedings.
14.9.3 Limitations. In no event, however, shall Agent and each
of the Lenders be liable to either Borrower or to any Loan Party or
anyone else for other damages such as, but not limited to, indirect,
speculative, special, exemplary, punitive or consequential damages
whatever the nature of the breach by Agent or any of the Lenders of its
obligations under this Loan Agreement or under any of the other Loan
Documents. In no event shall Agent or any of the Lenders be liable to
either Borrower or to any Loan Party or anyone else unless a written
notice specifically setting forth the claim of such Borrower shall have
been given to Agent and each of the Lenders within the time period
specified above.
14.10 Regarding Consents. Except to the extent expressly provided
herein, any and all consents to be made hereunder by the Agent, Required
Lenders, or Lenders shall be in the discretion of the Party to whom consent
rights are given hereunder.
14.11 Obligations Absolute. Except to the extent prohibited by
applicable law which cannot be waived, the Obligations of each Borrower and the
obligations of each Guarantor and the other Loan Parties under the Loan
Documents shall be joint and several, absolute, unconditional and irrevocable
and shall be paid strictly in accordance with the terms of the Loan Documents to
which such Loan Party is a party under all circumstances whatsoever, including,
without limitation, the existence of any claim, set off, defense or other right
which either Borrower or any Loan Party may have at any time against Agent or
any of the Lenders whether in connection with the Loan or any unrelated
transaction.
14.12 Table of Contents, Title and Headings. Any Table of Contents, the
titles and the headings of sections are not parts of this Loan Agreement or any
other Loan Document and shall not be deemed to affect the meaning or
construction of any of its or their provisions.
14.13 Counterparts. This Loan Agreement and each other Loan Document
may be executed in several counterparts, each of which when executed and
delivered is an original, but all of which together shall constitute one
instrument. In making proof of this agreement, it shall not be necessary to
produce or account for more than one such counterpart which is executed by the
party against whom enforcement of such loan agreement is sought.
14.14 Satisfaction of Commitment. The Loan being made pursuant to the
terms hereof and of the other Loan Documents is being made in satisfaction of
Agent's and each of the Lenders' obligations under the Commitment dated October
16, 2003. The terms, provisions and conditions of this Agreement and the other
Loan Documents supersede the provisions of the Commitment.
14.15 Time Of the Essence. Time is of the essence of each provision of
this Agreement and each other Loan Document.
14.16 No Oral Change. This Loan Agreement and each of the other Loan
Documents may only be amended, terminated, extended or otherwise modified by a
writing signed by the party against which enforcement is sought (except no such
writing shall be required for any party which, pursuant to a specific provision
of any Loan Document, is required to be bound by changes without such party's
assent). In no event shall any oral agreements, promises, actions, inactions,
knowledge, course of conduct, course of dealings or the like be effective to
amend, terminate, extend or otherwise modify this Loan Agreement or any of the
other Loan Documents.
14.17 Monthly Statements. While Agent may issue invoices or other
statements on a monthly or periodic basis (a "Statement"), it is expressly
acknowledged and agreed that: (i) the
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failure of Agent to issue any Statement on one or more occasions shall not
affect either Borrower's obligations to make payments under the Loan Documents
as and when due; (ii) the inaccuracy of any Statement shall not be binding upon
Lenders and so Borrower shall always remain obligated to pay the full amount(s)
required under the Loan Documents as and when due notwithstanding any provision
to the contrary contained in any Statement; (iii) all Statements are issued for
information purposes only and shall never constitute any type of offer,
acceptance, modification, or waiver of the Loan Documents or any of Lenders'
rights or remedies thereunder; and (iv) in no event shall any Statement serve as
the basis for, or a component of, any course of dealing, course of conduct, or
trade practice which would modify, alter, or otherwise affect the express
written terms of the Loan Documents.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF this Agreement has been duly executed and delivered
as a sealed instrument at Boston, Massachusetts, as of the date first written
above.
BORROWERS: THE XXXXXXX MASTER LIMITED
PARTNERSHIP, a Delaware limited partnership
By: MLP GP LLC, its General Partner
By: Xxxxxxx MLP Corp., its Manager
By:_________________________________
Name: Xxxxxxx Xxxxxxx
Title: Chief Operating Officer
T-TWO PARTNERS, L.P., a Delaware limited
partnership
By: HOLDING SUBSIDIARY LLC, its General
Partner
By: Xxxxxxx Manager Corp., its Manager
By:______________________________
Name: Xxxxxxx Xxxxxxx
Title: Chief Operating Officer
S1
AGENT: FLEET NATIONAL BANK
By:____________________________________
Xxxxx X. Xxx
Duly Authorized
LENDER: FLEET NATIONAL BANK
By:____________________________________
Xxxxx X. Xxx
Duly Authorized
S2
LENDER: BANK OF AMERICA, N.A.
000 X. Xxxxx Xxxxxx, 0xx Xxxxx By:_______________________________
Xxxxxxxxx, XX 00000 Name:_____________________________
Title:____________________________
S3
LENDER: THE TRAVELERS INSURANCE COMPANY
X.X. Xxx 000000
Xxxxxxxx, XX 00000-0000 By:________________________________
Name:______________________________
Title:_____________________________
S4
LENDER: PB CAPITAL CORPORATION
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000 By:_____________________________
Name:___________________________
Title:__________________________
By:_____________________________
Name:___________________________
Title:__________________________
S5
LENDER: XXXXXXX XXXXX CAPITAL, a Division of Xxxxxxx
Xxxxx Business Financial Services Inc.,
000 X. Xxxxxxx Xx., 00xx Floor a Delaware Corporation
Xxxxxxx, XX 00000
By:_______________________________
Name:_____________________________
Title:____________________________
S6
LENDER: NIC NK LLC
c/o Fortress Investment Group LLC By:_______________________________
1251 Avenue of the Americas Name:_____________________________
Xxx Xxxx, XX 00000 Title:____________________________
S6
LENDER: TWO BRIDGE NATIONAL
INVESTMENTS, LLC
c/o Fortress Investment Group LLC By:_______________________________
1251 Avenue of the Americas Name:_____________________________
Xxx Xxxx, XX 00000 Title:____________________________
S6
EXHIBITS:
Section
Reference
Number
Exhibit A - Definitions.........................................................................................1.1
Exhibit B - Use of Proceeds ..................................................................................1.4.3
Exhibit C-1 and C-2 - Notes................................................................................3.2, 3.4
Exhibit D - Authorized Representatives............................................................................4
Exhibit E - Required Property, Hazard and Other Insurance ..........................5.1.13, 5.2.11, 6.1.20, 6.2.17,
7.1.5, 7.2.5
Exhibit F - Ownership Interests and Taxpayer Identification Numbers..............................6.1.4(i), 6.2.4(i)
Exhibit G-1 - Compliance Certificate NMLP...............................................................7.1.2(i)(d)
Exhibit G-2 - Compliance Certificate T-Two............................................................. 7.2.2(i)(c)
Exhibit G-3 - Financial Covenant Compliance Certificate ...................................7.1.2(i)(d), 7.2.2(i)(c)
Exhibit H - Form of Assignment and Acceptance...............................................................13.3.1
Exhibit I - Lenders' Commitments..........................................................................Exhibit A
Exhibit J - Individual Properties.........................................................................Exhibit A
Exhibit K - Loan Agenda...................................................................................Exhibit A
Exhibit L - Other Partnerships............................................................................Exhibit A
Exhibit M - NMLP Partnerships.............................................................................Exhibit A
Exhibit N - Securitized Properties .......................................................................Exhibit A
Exhibit P - Cash Flow Projections.........................................................................Exhibit A
Exhibit Q - GMAC Borrowers................................................................................Exhibit A
Exhibit R - Accounts................................................................................7.1.14, 7.2.14
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EXHIBIT A TO MASTER LOAN AGREEMENT
DEFINITIONS
Accounts shall mean, collectively, the NMLP Depository Accounts and the T-Two
Depository Accounts.
Adjusted LIBO Rate. The Term "Adjusted LIBO Rate" means for each Interest Period
the rate per annum obtained by dividing (i) the LIBO Rate for such Interest
Period, by (ii) a percentage equal to one hundred percent (100%) minus the
maximum reserve percentage applicable during such Interest Period under
regulations issued from time to time by the Board of Governors of the Federal
Reserve System for determining the maximum reserve requirements (including,
without limitation, any basic, supplemental, marginal and emergency reserve
requirements) for Agent (or of any subsequent holder of a Note which is subject
to such reserve requirements) in respect of liabilities or assets consisting of
or including Eurocurrency liabilities (as such term is defined in Regulation D
of the Board of Governors of the Federal Reserve System) having a term equal to
the Interest Period.
Administrator LLC shall mean Administrator LLC, a Delaware limited liability
company, the beneficial interest in which is owned by the Integrated Group.
Administrator LLC Note shall mean that certain non-negotiable promissory note
dated November 20, 1997 in the original principal amount of $40,000,000.00 made
by Administrator LLC and held by Xxxxxxx Xxxxx LLC.
Administrator LLC Loan shall mean the certain loan arrangement established by
Xxxxxxx Xxxxx LLC in favor of Administrator LLC as evidenced by Administrator
LLC Note, the Administrator LLC Pledge, together with, and all other
instruments, documents, and agreements relative thereto, as same may be amended,
modified, supplemented, or replaced from time to time.
Administrator LLC Pledge shall mean that certain pledge agreement dated November
20, 1997 given by Administrator LLC to Xxxxxxx Xxxxx LLC, respecting the 49.99%
ownership interest of Administrator LLC to and in Xxxxxxx Capital LLC.
Affiliate shall mean, as to any Person, any other Person that, directly or
indirectly, is in control of, is controlled by or is under common control with
such Person or is a director or officer of such Person. For purposes of this
definition, control of a Person shall mean the power, direct or indirect, (i) to
vote 10% or more of the securities having ordinary voting power for the election
of directors of such Person or (ii) to direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise.
Agent. Fleet National Bank, acting as agent for the Lenders.
Agent Fee as defined in Section 2.4.1.
Aggregate DPO shall mean , from time to time, the sum of each of the Discounted
Payment Options for each of the Securitized Notes.
Aggregate Investment Capitalization shall mean, with respect to NMLP's
Investments, the value of the non real estate assets, as calculated by NMLP and
approved by the Agent in its reasonable discretion, plus the value of the
underlying real estate assets. The underlying real estate assets will be valued
based upon a 10 year discounted Cash Flow. The discount rate will be 9% and the
reversionary capitalization rate will be 11%. The Cash Flow will be based upon
(a) in place rental income through the expiration of the primary term of the
lease, and (b) at primary term maturity of a
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given lease, (i) the lease rate will be the renewal lease rate if the renewal
rent is less than Market Rent, and (ii) if the renewal rate is greater than the
Market Rent, the post primary term income stream will be based on the Market
Rent, with a deduction equal to 35% of nine months Market Rent at the primary
term expiration date.
Agreement as defined in the Preamble.
Allocated Payment Amount shall mean, for each Securitized Note secured by one or
more Securitized Properties which is owned by a NMLP Partnership, the amount set
forth on Exhibit N.
Allowed Prepayment Amount shall mean an amount equal to Fifty Million Dollars
($50,000,000.00) in each calendar year.
Amended and Restated Asset Management Agreement shall mean that certain Amended
and Restated Asset Management Agreement dated January 12, 2000 among and between
Xxxxxxx Asset Management LLC and the Net Lease Partnerships and the Other
Partnerships, as may be amended, modified, supplemented, or replaced from time
to time.
Appraisal as defined in Section 7.1.20.
Assignment and Acceptance as defined in Section 13.3.1.
Authorized Representatives as defined in Section 4 and listed on Exhibit D.
Balancing Amount shall mean, from time to time, any amount (if any) by which (a)
the outstanding principal balance of the T-Two Loan, exceeds (b) the aggregate
of (i) the Aggregate DPO, plus (ii) the outstanding principal balance of the
Intercompany Loan.
Banking Day. The term "Banking Day" means a day on which banks are not required
or authorized by law to close in the city in which Agent's principal office is
situated.
Borrower and Borrowers as defined in the Preamble.
Business Day shall mean any day of the year on which offices of Agent are not
required or authorized by law to be closed for business in Boston,
Massachusetts. If any day on which a payment is due is not a Business Day, then
the payment shall be due on the next day following which is a Business Day, and
such extension of time shall be included in computing interest and fees in
connection with such payment. Further, if there is no corresponding day for a
payment in the given calendar month (i.e., there is no "February 30th"), the
payment shall be due on the last Business Day of the calendar month.
Calculation Date as defined in Section 7.3.1(i)(a).
Calculation Period as defined in Section 7.3.1(i)(b).
Call Option Agreement shall mean that certain Omnibus Agreement; Put-Call Option
Agreement Amendment; Loan Commitment and Agreement to Guaranty dated November
24, 2003, among NMLP, T-Two, NK-CR Holdings LLC, and Holding Subsidiary LLC, as
may be amended, modified, supplemented, or replaced from time to time, pursuant
to which, among other things, NMLP is granted an option to acquire a either (a)
certain assets of T-Two, or (b) a 100% ownership interest in T-Two.
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Cash Flow shall mean, in each calendar year, in each instance determined in a
manner satisfactory to the Agent, the aggregate sum of (i) all revenues and cash
receipts of the NMLP Partnerships less (ii) the sum of the NMLP Partnerships'
(a) property level operating expenses including but not limited to ground rent,
(b) management fees and (c) administrative fees plus (iii) all cash
distributions received from Other Partnerships.
Cash Flow Projections shall mean a detailed schedule of all cash Distributions
projected to be made to NMLP from the NMLP Subsidiaries within the next one
hundred and eight (180) days, as detailed on Exhibit P, being the Cash Flow
Projections as of the Closing Date based upon information then available to
NMLP, and subject to change as shall be detailed in the respective Officer's
Certificate to be provided to the Agent as set forth herein.
Cash Management Agreement one or more cash management agreements to be entered
into pursuant to Sections 7.1.14 and 7.2.14.
Cash Sweep Account Test as defined in Section 7.3.1(iii).
Certificates of Exemption as defined in Section 2.7.3(iii).
Certificates of Partial Exemption as defined in Section 2.7.3(iv).
Change of Control shall mean the occurrence of any of the following, as
determined solely by the Agent (for purposes of this definition, ownership of
interests in a Borrower that are subject to a Lien permitted under the Security
Documents shall be deemed beneficially owned by the pledgor thereof):
1. A change in the identity of any general partner, managing
member, and/or any material change in the effective control of any
general partner or managing member of any NMLP Loan Parties (other than
NMLP, NMLP GP, any MLP Holder or any Xxxxxxx Group Entity) and/or any
NMLP Subsidiary, such that effective control is not in NMLP (except as
to any change in the effective control of any NMLP Loan Party which is
released as provided for herein from its obligations under the Loan
Documents);
2. A change in the identity of any general partner, managing
member, and/or any material change in the effective control of any
general partner or managing member of any T-Two Loan Parties, such that
effective control is not in a Xxxxxxx Group Entity (except as to any
change in the effective control of any T-Two Loan Party which is
released as provided for herein from its obligations under the Loan
Documents);
3. A change in the identity of the general partner of a
Borrower and/or any material change in the effective control of the
general partner of a Borrower, from the identity and control structure
existing as of the respective Borrower's Funding Date;
4. A change in the identity of any general partner, managing
member, and/or effective control of any general partner or managing
member of any Loan Parties which is a Xxxxxxx Group Entity, such that
effective control is not in any other Xxxxxxx Group Entity;
5. The death or disability of both of Xxxxxxx Xxxxxx and Xxxxx
Xxxxxxxxx, or the failure of both of Xxxxxxx Xxxxxx and Xxxxx
Xxxxxxxxx, at any time to exercise that authority and discharge those
management responsibilities with respect to either Borrower as are
exercised and discharged by such Person at the execution of this
Agreement; provided, however, the death or disability of both Xxxxxxx
Xxxxxx and Xxxxx Xxxxxxxxx shall not be a default hereunder if within
thirty (30) days of the death or disability of the second to die
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or become disabled, each Borrower provides the Agent with evidence
satisfactory to the Agent of acceptable replacement or substitute
management of such Borrower and their respective Subsidiaries;
6. Apollo Real Estate Investment Fund III, L.P. shall cease to
own, directly or indirectly, at least a 20% beneficial ownership
interest in NMLP;
7. Vornado Realty Trust shall cease to own, directly or
indirectly, at least a 10% beneficial ownership interest in NMLP; or
8. Vornado Realty Trust and/or Apollo Real Estate Investment
Fund III, L.P. and/or WEM Brynmawr Associates LLC shall cease to own,
directly or indirectly, in the aggregate, at least a 51 % beneficial
ownership interest in NMLP.
Closing Date as defined in Section 5.1.
Closing Distribution as defined in Section 1.4.1.
Code shall mean the Internal Revenue Code of 1986, as amended from time to time,
and the regulations promulgated and rulings issued thereunder. Section
references to the Code are to the Code, as in effect at the date of this
Agreement and any subsequent provisions of the Code, amendatory thereof,
supplemental thereto or substituted therefor.
Collateral shall mean, collectively, the NMLP Collateral and the T-Two
Collateral.
Commitment shall mean, with respect to each Lender, the amount set forth on
Exhibit I hereto as the amount of such Lender's commitment to make advances to
each Borrower, as may be amended from time to time by the Agent as provided in
Article 13.
Commitment Percentage shall mean, with respect to each Lender, the percentage
set forth on Exhibit I hereto as such Lender's percentage of the aggregate
Commitments of all of the Lenders as to each of the NMLP Loan and the T-Two
Loan, as may be amended from time to time by the Agent as provided in Article
13.
Consents shall mean the NMLP Consents and T-Two Consents.
Consolidated Debt Service as defined in Section 7.3.1(i)(h).
Consolidated Debt Service Coverage as defined in Section 7.3.1(i)(f).
Consolidated Leverage Ratio as defined in Section 7.3.2.
Consolidated Net Cash Flow as defined in Section 7.3.1(i)(g).
Contract to Provide Asset Management Services shall mean that certain Asset
Management Agreement dated as of January 1, 2002, by and between Xxxxxxx Asset
Management LLC and Winthrop Financial Associates, as may be amended, modified,
supplemented, or replaced from time to time.
Dautec Note shall mean that certain promissory note in the original principal
amount of $1,175,000.00 dated May 1, 2000 made by Dautec Associates Limited
Partnership, a Connecticut limited partnership, and held by NK-Dautec Loan,
L.P., together with any and all other instruments, documents, and agreements
executed in connection therewith, as same may be amended, modified,
supplemented, or replaced from time to time.
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Debt shall mean, with respect to any Person, without duplication, (i) all
indebtedness of such Person for borrowed money, (ii) all indebtedness of such
Person for the deferred purchase price of property or services (other than
property and services purchased, and expense accruals and deferred compensation
items arising, in the ordinary course of business), (iii) all obligations of
such Person evidenced by notes, bonds, debentures or other similar instruments
(other than performance, surety and appeal bonds arising in the ordinary course
of business), (iv) all indebtedness of such Person created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession
or sale of such property), (v) all obligations of such Person under leases which
have been, or should be, in accordance with generally accepted accounting
principles, recorded as capital leases, to the extent required to be so
recorded, (vi) all reimbursement, payment or similar obligations of such Person,
contingent or otherwise, under acceptance, letter of credit or similar
facilities (other than letters of credit in support of trade obligations or in
connection with workers' compensation, unemployment insurance, old-age pensions
and other social security benefits in the ordinary course of business), (vii)
all Debt in the nature of that referred to in clauses (i) through (vi) above
which is guaranteed directly or indirectly by such Person, or in effect
guaranteed directly or indirectly by such Person through an agreement (A) to pay
or purchase such Debt or to advance or supply funds for the payment or purchase
of such Debt, (B) to purchase, sell or lease (as lessee or lessor) property, or
to purchase or sell services, primarily for the purpose of enabling the debtor
to make payment of such Debt or to assure the holder of such Debt against loss
in respect of such Debt, (C) to supply funds to or in any other manner invest in
the debtor (including any agreement to pay for property or services irrespective
of whether such property is received or such services are rendered) or (D)
otherwise to assure a creditor against loss in respect of such Debt, (viii) any
obligation, contingent or otherwise, of such Person guaranteeing or having the
economic effect of guaranteeing any indebtedness referred to in clause (i)
through (iv) above of any Person, either directly or indirectly, and (ix) all
Debt referred to in clauses (i) through (vi) above secured by (or for which the
holder of such Debt has an existing right, contingent or otherwise, to be
secured by) any Lien, security interest or other charge or encumbrance upon or
in property (including, without limitation, accounts and contract rights) owned
by such Person, even though such Person has not assumed or become liable for the
payment of such Debt.
Debt Service as defined in Section 7.3.1(i)(c).
Debt Service Coverage as defined in Section 7.3.1(i)(d).
Default as defined in Section 10.1.
Default Rate as defined in Section 2.3.13.
Delinquent Lender as defined in Section 13.2.8.
Depository Accounts shall mean, collectively, the NMLP Depository Accounts and
the T-Two Depository Accounts.
Discounted Payment Option shall mean the options provided for in Securitization
Documents for the prepayment at a reduced amount of any of the Securitized
Notes.
Distribution shall mean, with respect to any Person, that such Person has paid a
dividend or returned any equity capital to its stockholders, members or partners
or made any other distribution, payment or delivery of property (other than
common stock or partnership or membership interests of such Person) or cash to
its stockholders, members or partners as such, or redeemed, retired, purchased
or otherwise acquired, directly or indirectly, for a consideration any shares of
any class of its capital
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stock or any membership or partnership interests (or any options or warrants
issued by such Person with respect to its capital stock or membership or
partnership interests), or shall have permitted any of its Subsidiaries to
purchase or otherwise acquire for a consideration any shares of any class of the
capital stock or any membership or partnership interests of such Person (or any
options or warrants issued by such Person with respect to its capital stock or
membership or partnership interests). Without limiting the foregoing,
"Distributions" with respect to any Person shall also include all payments made
by such Person with respect to any stock appreciation rights, plans, equity
incentive or achievement plans or any similar plans, and any proceeds of a
dissolution or liquidation of such Person.
Dollars shall mean lawful money of the United States.
Economic Discontinuance Rights shall mean the right of a tenant under a Lease
relative to any Individual Property to terminate the Lease prior to the
expiration of the primary term of the Lease by making a Rejectable Offer to the
applicable Net Lease Partnership, all of the foregoing as and when provided for
in the Lease relative to such Individual Property. If the Rejectable Offer is
accepted by the Net Lease Partnership, the Individual Property is to be sold to
the said tenant for the amount as set forth in the Lease. If the Rejectable
Offer is rejected by the Net Lease Partnership, the Lease terminates as set
forth in the Lease.
Economic Discontinuance Sale shall mean the sale of an Individual Property to a
tenant upon the acceptance of a Rejectable Offer by the applicable Net Lease
Partnership.
XX Xxxx Flow as defined in Section 7.1.24(vi).
ED Properties shall mean all Individual Properties as to which a NMLP
Partnership has rejected the Rejectable Offer made by a tenant pursuant to the
tenant's exercise of its Economic Discontinuance Rights. An Individual Property
shall no longer be considered an ED Property at such time as such Individual
Property evidences a minimum ratio of cash flow to debt service (as determined
by the Agent based solely on revenues and debt service of such Individual
Property based on leases executed in accordance with the requirements of Section
7.1.22), of no less than 1.30 to 1.0.
Effective LIBO Rate. The term "Effective LIBO Rate" means the per annum rate
equal to the aggregate of (x) the Adjusted LIBO Rate plus (y) 450 basis points.
Effective LIBO Rate Advance. The term "Effective LIBO Rate Advance" means any
principal outstanding under this Agreement which pursuant to this Agreement
bears interest at the Effective LIBO Rate.
Eligible Assignee shall mean any of (a) a commercial bank organized under the
laws of the United States, or any State thereof or the District of Columbia, and
having total assets in excess of $1,000,000,000; (b) a savings and loan
association or savings bank organized under the laws of the United States, or
any State thereof or the District of Columbia, and having a net worth of at
least $100,000,000, calculated in accordance with generally accepted accounting
principles; (c) a commercial bank organized under the laws of any other country
which is a member of the Organization for Economic Cooperation and Development
(the "OECD"), or a political subdivision of any such country, and having total
assets in excess of $1,000,000,000, provided that such bank is acting through a
branch or agency located in the country in which it is organized or another
country which is also a member of the OECD; (d) the central bank of any country
which is a member of the OECD; and (e) any other assignee that, in the
reasonable judgment of the Agent, is a reputable institutional investor with
substantial experience in lending and originating loans similar to the Loan,
or in purchasing, investing in or otherwise holdings such loans, having a
financial net worth of at least $100,000,000 and (f) any Lender Affiliate or a
Related Fund of a Lender. For the purposes
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hereof, "Lender Affiliate" shall mean, (a) with respect to any Person who would
otherwise be an Eligible Assignee under clauses (a) - (e), above (a "Qualified
Assignee"), (i) an Affiliate of such Qualified Assignee or (ii) any entity
(whether a corporation, partnership, trust or otherwise) that is engaged in
making, purchasing, holding or otherwise investing in bank loans and similar
extensions of credit in the ordinary course of its business and is administered
(including as placement agent therefor) or managed by a Qualified Assignee or an
Affiliate of such Qualified Assignee and (b) with respect to any Lender that is
a fund which invests in bank loans and similar extensions of credit, any other
fund that invests in bank loans and similar extensions of credit and is managed
by the same investment advisor as such Lender or by an Affiliate of such
investment advisor (i.e., a Related Fund of such Lender). Neither a Borrower nor
an affiliate of a Borrower shall be Eligible Assignee.
Environmental Indemnity as defined in Section 3.1.24.
Environmental Laws as defined in the Environmental Indemnity.
ERISA shall mean the Employee Retirement Income Security Act of 1974, as amended
from time to time, and the regulations promulgated and rulings issued
thereunder. Section references to ERISA are to ERISA, as in effect at the date
of this Agreement and any subsequent provisions of ERISA, amendatory thereof,
supplemental thereto or substituted therefor.
ERISA Affiliate shall mean each person (as defined in Section 3(9) of ERISA)
which together with either Borrower or a Subsidiary of a Borrower would be
deemed to be a "single employer" within the meaning of Section 414(b), (c), (m)
or (o) of the Code.
Escrow Agreement Respecting Ground Lease Extensions and Lease Options as defined
in Section 3.1.25.
Event of Default as defined in Section 10.1.
Excepted Loan Parties shall mean each Xxxxxxx Indemnitor, any Other Partnership,
any Partially Owned Limited Partnerships, and the MLP Holders.
Excluded Taxes as defined in Section 2.7.3(ii)(e).
Existing Loan as defined in Section 1.3.1.
Extended Maturity Date as defined in Section 2.2.
Extended Term as defined in Section 2.2.
Extension Fee as defined in Section 2.4.
Financial Covenants shall mean those covenants of NMLP set forth in Sections
7.3.1, 7.3.2, 7.3.3 and 7.3.4.
First Extended Maturity Date as defined in Section 2.2.
First Extended Term as defined in Section 2.2.
First Mortgage Debt shall mean, from time to time, any obligations of a Net
Lease Partnership secured by a first mortgage or first deed of trust on one or
more Individual Properties, as of the Closing Date as set forth in Schedule
6.1.18(ii)(ii). The GMAC Mortgage Loan is a First Mortgage Debt.
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Fiscal Year shall mean each twelve month period commencing on January 1 and
ending on December 31.
Foreign Lender as defined in Section 2.7.3(iii).
Form Lease. As defined in Section 7.1.22(iii).
Formation Documents shall mean, singly and collectively, the partnership
agreements, joint venture agreements, limited partnership agreements, limited
liability company or operating agreements and certificates of limited
partnership and certificates of formation, articles (or certificate) of
incorporation and by-laws and any similar agreement, document or instrument of
any Person.
Free Cash Flow shall mean for any four (4) fiscal quarters of NMLP the NMLP Net
Cash Flow for such period less (i) NMLP Debt Service for such period and less
(ii) any deposits made or required to be made into the T/I Fund Account during
such period.
Funding Date as defined in Section 5.1.
Future Commitment as defined in Section 13.2.8.
GAAP shall mean generally accepted accounting principles in the United States of
America as of the date applicable.
GMAC Borrower shall mean any Net Lease Partnership obligated on a GMAC Mortgage
Loan. The GMAC Borrowers as of the Closing Date are listed in Exhibit Q.
GMAC Mortgage Holder shall mean GMAC Commercial Mortgage Corporation and/or, as
assignee, Norwest Bank Minnesota, N.A.
GMAC Mortgage Loan shall mean the pool of first mortgage loans securitized by
the GMAC Mortgage Holder on certain of the Individual Properties listed in
Schedule 6.1.18(ii)(ii).
Governmental Authority shall mean any court, board, agency, commission, office
or authority of any nature whatsoever for any governmental xxxx (xxxxxxx, xxxxx,
xxxxxx, xxxxxxxx, xxxxxxxxx, xxxx or otherwise) whether now or hereafter in
existence.
Grantor Trust shall mean the trust created pursuant to the Grantor Trust
Agreement, together with any replacement thereof or successor thereto.
Grantor Trust Agreement shall mean that certain Second Amended and Restated
Grantor Trust Agreement dated April 1, 1999 among and between NK-CR T1 Seller
LLC, T-Two Partners, L.P., Midland Loan Services, Inc., as Servicer, and LaSalle
National Bank, as Grantor Trust Trustee, all as provided therein, as amended by
that certain Amendment No. 1 To Second Amended and Restated Grantor Trust
Agreement of even date, as same may be amended, modified, supplemented, or
replaced from time to time.
Grantor Trust Trustee, presently LaSalle Bank National Association, shall have
the meaning provided in the Grantor Trust Agreement.
Grantor Trust T-1 Certificate shall have the meaning provided in the Grantor
Trust Agreement.
Grantor Trust T-2 Certificate shall have the meaning provided in the Grantor
Trust Agreement.
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Ground Leases shall mean, from time to time, any Ground Lease relative to an
Individual Property as to which a Net Lease Partnership is the ground lessee,
including, without limitation, any ground lease which shall be entered into in
connection with the exercise by a Net Lease Partnership of a Remainder Ground
Lease Option.
Ground Lease Extension Options as defined in Section 3.1.25(ii).
Ground Lease Extension Option Schedule as defined in Section 6.1.18(vi)
Guaranty shall mean, collectively, the NMLP Guaranty and the T-Two Guaranty.
Guarantor shall mean, collectively, the NMLP Guarantor and the T-Two Guarantor.
Hazardous Materials shall mean and include asbestos, flammable materials,
explosives, radioactive substances, polychlorinated biphenyls, radioactive
substances, other carcinogens, oil and other petroleum products, pollutants or
contaminants that could be a detriment to the environment, and any other
hazardous or toxic materials, wastes, or substances which are defined,
determined or identified as such in any past, present or future federal, state
or local laws, rules, codes or regulations, or any judicial or administrative
interpretation of such laws, rules, codes or regulations.
Indemnified Party as defined in Sections 7.1.21 and 7.2.17.
Independent shall mean, when used with respect to any Person, a Person who (i)
is in fact independent, (ii) does not have any direct financial or indirect
financial interest (other than amounts payable to such Person for serving as a
director) in the Borrower, any Borrower Subsidiary, or any Loan Party or in any
Affiliate of any thereof or in any constituent partner or member of the
Borrower, any Borrower Subsidiary, or any Loan Party or any Affiliate of any
thereof and (iii) is not connected with the Borrower, any Borrower Subsidiary,
or any Loan Party or any Affiliate thereof or any constituent partner of the
Borrower, any Borrower Subsidiary, or any Loan Party or any Affiliate of any
thereof as an officer, employee, promoter, underwriter, trustee, partner,
director, or person performing similar functions. Any such Person shall not be
deemed to fail to comply with the requirements of clause (iii), above, solely
due to such Person serving as an Independent director of Xxxxxxx MLP Corp.
Whenever it is herein provided that any Independent Person's opinion or
certificate shall be provided, such opinion or certificate shall state that the
Person executing the same has read this definition and is Independent within the
meaning hereof.
Individual Property and Individual Properties shall mean, from time to time,
with respect to each NMLP Partnership, Other Partnership, Subsidiary Limited
Partnership, Partially Owned Limited Partnership or other Net Lease Partnership,
each real estate property owned by such entity, together with all improvements,
fixtures, equipment, and personalty relating to such property, with the
Individual Properties as of the date hereof being listed on Exhibit J hereto.
Initial Term as defined in Section 2.2.
Integrated Documents shall mean the Indemnification Agreement dated as of
November 20, 1997 between certain Xxxxxxx Entities and the Integrated Group, the
Amended and Restated Cash Participation Agreement dated as of January 1, 2002
between certain Xxxxxxx Group Entities and the Integrated Group, and any and
other agreements entered into relative thereto to establish, evidence or secure
the Integrated Obligations, as such may be amended, modified, supplemented or
replaced from time to time.
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Integrated Group shall mean Administrator LLC, a Delaware limited liability
company, as agent for the former principals of the general partners of various
of the Borrower Subsidiaries, and any of such principals.
Integrated Obligations shall mean the obligations of certain of the Xxxxxxx
Group Entities to the Integrated Group under the Integrated Documents, such
obligations arising originally out of the acquisition of certain of the assets
of NMLP and the NMLP Subsidiaries from the Integrated Group.
Intercompany Loan as defined in Section 7.2.21.
Intercompany Loan Documents shall mean any and all document evidencing the
Intercompany Loan, including, without limitation, the Intercompany Loan
Agreement and that certain Revolving Promissory Note of even date made by NMLP
payable to T-Two.
Intercompany Loan Agreement shall mean the Revolving Loan Agreement of even date
entered into between T-Two and NMLP with respect to the Intercompany Loan.
Interest Period.
(A) The term "Interest Period" means with respect to each Effective
LIBO Rate Advance: a period of one (1), two (2), three (3), or six (6)
consecutive months, subject to availability, as selected, or deemed selected, by
a Borrower at least two (2) Business Days prior to the Loan, or if an advance is
already outstanding, at least two (2) Business Days prior to the end of the
current Interest Period. Each such Interest Period shall commence on the
Business Day so selected, or deemed selected, by a Borrower and shall end on the
numerically corresponding day in the first, second, third, or sixth month
thereafter, as applicable; provided, however: (i) if there is no such
numerically corresponding day, such Interest Period shall end on the last
Business Day of the applicable month, (ii) if the last day of such an Interest
Period would otherwise occur on a day which is not a Business Day, such Interest
Period shall be extended to the next succeeding Business Day; but (iii) if such
extension would otherwise cause such last day to occur in a new calendar month,
then such last day shall occur on the next preceding Business Day.
(B) The term "Interest Period" shall mean with respect to each Variable
Rate Advance consecutive periods of one (1) day each.
(C) No Interest Period may be selected which would end beyond the then
Maturity Date of the Loan (including as may actually be extended to any Extended
Maturity Date). If the last day of an Interest Period would otherwise occur on a
day which is not a Business Day, such last day shall be extended to the next
succeeding Business Day, except as provided above in clause (A) relative to an
Effective LIBO Rate Advance.
Interest Rate Protection Agreement shall mean (i) any interest rate protection
agreements, now or hereafter executed by and between a Borrower and Fleet
National Bank or another financial institution acceptable to the Agent, and any
and all existing or future extensions, renewals, modifications and amendments
thereto, including, without limitation, the ISDA Master Agreement, the Schedule
to the Master Agreement, and any and all confirmations for individual
transactions executed under the foregoing agreements, or any other interest rate
agreement related in any way to the Loan, but only to the extent assigned to the
Agent, on behalf of the Lenders, to secure the Obligations and (ii) that certain
Interest Rate Protection Cash Collateral Pledge Agreement dated as of the date
hereof, by and between such Borrower and the Agent.
Investment shall mean the acquisition of any real or tangible personal property
or of any stock or other security, any loan, advance, bank deposit, money market
fund, contribution to capital,
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extension of credit (except for accounts receivable arising in the ordinary
course of business and payable in accordance with customary terms), or purchase
or commitment or option to purchase or otherwise acquire real estate or tangible
personal property or stock or other securities of any party or any part of the
business or assets comprising such business, or any part thereof.
Knowledge shall mean with respect to either Borrower and any of their respective
Subsidiaries, the knowledge of any of Xxxxxxx Xxxxxx, Xxxxx Xxxxxxxxx, Xxxxxx
Xxxxxxx, Xxxxxxx Xxxxxxx, or Xxx Xxxxxx, or any Person who shall at any time
replace any of the foregoing.
Late Charge as defined in Section 2.3.14.
Lease shall mean any lease relative to all or any portion of an Individual
Property or a Securitized Property, whether a direct lease or a lease resulting
from a merger by operation of law of a Master Lease and a Sublease.
Lease Schedule as defined in Section 6.1.18(v).
Legal Requirements shall mean all applicable federal, state, county and local
laws, by-laws, rules, regulations, codes and ordinances, and the requirements of
any governmental agency or authority having or claiming jurisdiction with
respect thereto, including, but not limited to, all Environmental Laws, and
those applicable to zoning, subdivision, building, health, fire, safety,
sanitation, the protection of the handicapped, and environmental matters and
shall also include all orders and directives of any court, governmental agency
or authority having or claiming jurisdiction with respect thereto.
Lenders as defined in the Preamble.
Leyden Note shall mean that certain promissory note in the original principal
amount of $1,905,000.00 dated March 31, 1999 made by Leyden Associates Limited
Partnership, a Connecticut limited partnership, and held by NK-Leyden Loan,
L.P., together with any and all other instruments, documents, and agreements
executed in connection therewith, as same may be amended, modified,
supplemented, or replaced from time to time.
LIBO Rate. The term "LIBO Rate" means, as applicable to any Effective LIBO Rate
Advance, the rate per annum as determined on the basis of the offered rates for
deposits in Dollars, for a period of time comparable to the period of time that
such Effective LIBO Rate Advance is expected to be outstanding which appears on
the "Telerate Page 3750" as of 11:00 a.m. London time on the day that is two (2)
London Banking Days preceding the first day of such Effective LIBO Rate Advance;
provided, however, if the rate described above does not appear on the Telerate
System on any applicable interest determination date, the LIBO Rate shall be the
rate (rounded upward, if necessary, to the nearest one hundred-thousandth of a
percentage point), determined on the basis of the offered rates for deposits in
Dollars for a period of time comparable to the period of time that such
Effective LIBO Rate Advance is expected to be outstanding which are offered by
four major banks in the London interbank market at approximately 11:00 a.m.
London time, on the day that is two (2) London Banking Days preceding the first
day of such Effective LIBO Rate Advance as selected by Agent. The principal
London office of each of the four major London banks will be requested to
provide a quotation of its Dollar deposit offered rate as described in the
preceding sentence. If at least two (2) such quotations are provided, the rate
for that date will be the arithmetic mean of the quotations. If fewer than two
(2) quotations are provided as requested, the rate for that date will be
determined on the basis of the rates quoted for loans in Dollars to leading
European banks for a period of time comparable to such Effective LIBO Rate
Advance offered by major banks in New York City at approximately 11:00 a.m. New
York City time, on the day that is two (2) London
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Banking Days preceding the first day of the period of time that such Effective
LIBO Rate Advance is expected to be outstanding.
LIBO Breakage Amount shall mean, for each prepayment of an Effective LIBO Rate
Advance, an amount equal to the product of (a) the amount of such Effective LIBO
Rate Advance prepaid, multiplied by (b) the difference between (i) the LIBO Rate
applicable to such Effective LIBO Rate Advance, and (ii) the LIBO Rate in effect
as of the date of such prepayment, multiplied by (c) the number of days left in
the Interest Period applicable to such Effective LIBO Rate Advance, divided by
(d) 360. If the amount set forth in Subsection (b) above is zero or a negative
number, no such LIBO Breakage Amount shall be due.
Lien shall mean any mortgage, deed of trust, lien, pledge, hypothecation,
assignment, security interest, or any other encumbrance, charge or transfer,
including, without limitation, any conditional sale or other title retention
agreement, any financing lease having substantially the same economic effect as
any of the foregoing, and mechanic's, materialmen's and other similar liens and
encumbrances.
Licenses and Permits shall mean all licenses, permits, authorizations and
agreements issued by or agreed to by any governmental authority, including, but
not limited to, building permits, occupancy permits and such special permits,
variances and other relief as may be required pursuant to Legal Requirements
which may be applicable to the Individual Property.
Liquid Assets shall mean the sum of the following unencumbered (other than by
Liens held by the Agent on behalf of the Lenders) assets: (i) all cash
(denominated in United States dollars), (ii) any demand deposits, (iii)
marketable securities consisting of short-term (maturity of one year or less)
obligations issued or guaranteed as to principal and interest by the United
States of America, (iv) short-term certificates of deposit, with a maturity of
one year or less, issued by any bank organized under the laws of the United
States of America having total assets in excess of $1,000,000,000.00, and (v)
any other securities acceptable to the Agent as evidenced by the Agent's written
approval.
Liquidation Proceeds. Amounts received by the Agent and/or the Lenders in the
exercise of the rights and remedies under the Loan Documents (including, but not
limited to, all rents, profits and other proceeds received by the Agent and/or
the Lenders from the liquidation of, or exercising rights upon the occurrence of
an Event of Default relative to, any Collateral, but not including any amount
bid at a foreclosure sale or on behalf of the Agent or otherwise credited to a
Borrower in, any deed-in- lieu of foreclosure or similar transaction).
Loan and Loans as defined in Section 1.6.3.
Loan Advance shall mean, collectively, the NMLP Loan Advance and the T-Two Loan
Advance.
Loan Agenda shall mean that Document Agenda respecting the establishment of the
Loans annexed hereto as Exhibit K.
Loan Agreement as defined in the Preamble.
Loan Documents shall mean, collectively, the NMLP Loan Documents and the T-Two
Loan Documents.
Loan Party and Loan Parties shall mean, singly and collectively, the NMLP Loan
Parties and the T- Two Loan Parties.
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London Banking Day. The term "London Banking Day" means any day on which
dealings in deposits in Dollars are transacted in the London interbank market.
MLP Holders shall mean Xxxxxxx MLP Corp. and Vornado MLP GP L.L.C., being the
holders of 100% of the membership interest in MLP GP LLC.
Mandatory Principal Prepayments shall mean collectively, any NMLP Mandatory
Principal Prepayments and/or T-Two Mandatory Principal Prepayments.
Market Rent shall mean, at any point of determination, the then current rentals
being charged to new tenants for comparable quality space located on comparable
quality property within the subject geographic area of the subject Individual
Property, taking into account and giving effect to, without limitation, such
considerations as size, location of the Individual Property, lease term and
level and quality of building construction and space improvements, tenant
allowances, and rent concessions, all as reasonably determined by the Agent.
Master Lease shall mean any master lease entered into, or assumed by, a Net
Lease Partnership relative to an Individual Property, pursuant to which the
lessee thereunder entered into a Sublease with a Tenant, each of which Master
Leases has by operation of law merged into the applicable Sublease.
Material Adverse Effect shall mean a material adverse effect on, determined
separately with respect to each Borrower, (i) the business, assets, prospects,
operations or financial or other condition of any of the Borrowers or, taken as
a whole, the Borrower Subsidiaries and the Loan Parties, including, without
limitation, all Distributions to be made pursuant to Cash Flow Projections (ii)
the ability of any of the Borrowers, the Loan Parties, or the Borrower
Subsidiaries to perform any material Obligations or to pay any Obligations which
it is obligated to pay in accordance with the terms hereof or of any other Loan
Document, (iii) the rights of, or benefits available to, the Agent and/or any of
the Lenders under any Loan Document or (iv) any Lien given to Agent and/or any
of the Lenders on any material portion of the Collateral or the priority of any
such Lien.
Maturity shall mean the Maturity Date, or, if the Maturity Date has been
extended pursuant to the provisions of the Loan Agreement, the applicable
Extended Maturity Date, or in any instance, upon acceleration of the Loan, if
the Loan has been accelerated by Lenders upon an Event of Default.
Maturity Date as defined in Section 2.2.
Minimum Consolidated Net Worth as defined in Section 7.3.4.
Mortgage Debt shall mean, singly and collectively, the First Mortgage Debt, the
Other Second Mortgage Debt, and the Securitized Notes.
Mortgage Debt Schedule as defined in Section 6.1.18(viii).
Mortgage Debt Test shall mean shall be deemed to be triggered if either (i) NMLP
is not in compliance with the Cash Sweep Account Test or (ii) the aggregate
equity (as determined by the Agent based upon then current valuations) in excess
of all liens on the Individual Properties of all Net Lease Partnerships as to
which a Default or Event of Default (regardless of how or if defined) has
occurred and the holder has accelerated the obligations due thereunder and
commenced exercising its rights upon such Default or Event of Default, is
greater than $10,000,000.00, assuming for purposes hereof that such an event has
occurred for the subject Mortgage Debt.
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Net Lease Partnerships shall mean, singly and collectively, the NMLP
Partnerships, the Other Partnerships, the Subsidiary Limited Partnerships, and
the Partially Owned Limited Partnerships being the owners, land estate holders,
or ground lessors of the Individual Properties.
Net Proceeds shall mean the gross proceeds received from any insurance recovery
or condemnation award relating to any casualty or taking of any asset less the
aggregate of (i) obligations due to the holders of Mortgage Debt thereon,
including, without limitation, any prepayment penalties or fees, and (ii) all
reasonable costs and expenses incurred in the collection of such amounts,
including, but not limited to, reasonable attorney's fees, payable to
third-parties who are not a NMLP Subsidiary, a Xxxxxxx Group Entity or an
Affiliate thereof.
Net Refinancing Proceeds shall mean the gross proceeds received from the closing
of the financing or refinancing of a specified asset (with the exception of any
proceeds of Permitted T/I Debt) less the aggregate of (i) obligations due to the
holders of Mortgage Debt thereon, including, without limitation, any prepayment
penalties or fees, and (ii) reasonable closing costs payable to third-parties
who are not a NMLP Subsidiary, a Xxxxxxx Group Entity or an Affiliate thereof.
Net Sales Proceeds shall mean the gross sale proceeds received from the closing
of the sale of a specified asset less the aggregate of (i) obligations due to
the holders of Mortgage Debt thereon, including, without limitation, any
prepayment penalties or fees, and (ii) usual closing adjustments, and (iii)
reasonable closing costs payable to third-parties who are not a NMLP Subsidiary,
a Xxxxxxx Group Entity or an Affiliate thereof.
Xxxxxxx Group Entity (Entities) shall mean Apollo Real Estate Investment Fund
III, L.P., a Delaware limited partnership, Vornado Realty Trust, a Maryland real
estate investment trust, and Xxxxxxx Xxxxxx and Xxxxx Xxxxxxxxx, being senior
executives of Winthrop Financial Associates, A Limited Partnership, together
with any Affiliates of each of such Persons (other than NMLP or any NMLP
Subsidiary).
Xxxxxxx Indemnification as defined in Section 3.1.22.
Xxxxxxx Indemnitor as defined in Section 1.5.2.
Xxxxxxx Loans shall mean, jointly and severally, the Administrator LLC Loan, the
NK Leasehold Second Mortgage Loan, the Leyden Note and the Dautec Note.
NK Leasehold Second Mortgage Loan shall mean that certain mortgage loan
arrangement held by NK-Leasehold II LLC, evidenced by among other things, a
certain promissory note dated December 21, 1984 made by Crostex Associates
Limited Partnership in the original principal amount of $2,214,788 (balance of
$14,461,858.00 as of December 31, 2003) and a certain subordinated, second
priority mortgage dated December 21, 1984 respecting the premises located at
0000 X. Xxxxxxx Xxxxxxxxxx, Xxxxxx, Xxxxx owned by Crostex Associates Limited
Partnership.
NMLP as defined in the Preamble hereto.
NMLP Accounts as defined in Section 7.1.14.
NMLP Collateral as defined in Section 3.1.
NMLP Commitment shall mean, with respect to each Lender, the amount set forth on
Exhibit I hereto as the amount of such Lender's commitment to make advances to
NMLP, as may be amended from time to time by the Agent as provided in Article
13.
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NMLP Consents as defined in Section 5.1.4.
NMLP Depository Account Pledge and Security Agreement as defined in Section
3.1.3.
NMLP Depository Accounts as defined in Section 7.1.14.
NMLP GP as defined in Section 1.2.1.
NMLP Guarantor as defined in Section 1.5.1.
NMLP Guaranty as defined in Section 3.1.23.
NMLP's Investments shall mean the aggregate of all of NMLP's and NMLP
Subsidiaries' investments and other assets, on a consolidated basis (including
but not limited to those investments known as the controlled LP's and the equity
share of the non-controlled LP's), all as disclosed byNMLP to the Agent.
NMLP Loan as defined in Section 1.3.
NMLP Loan Advance as defined in Section 5.1.
NMLP Loan Documents as defined in Section 3.2.
NMLP Loan Party and NMLP Loan Parties shall mean, singly and collectively, NMLP,
the NMLP GP, any NMLP Subsidiary which is a party to any NMLP Loan Document, the
NMLP Guarantor, any Xxxxxxx Group Entity which is a party to any NMLP Loan
Document, and any Subsidiary and Affiliate of any of the foregoing which is also
a party to any NMLP Loan Document.
NMLP Mandatory Prepayment Event as defined in Section 2.3.8(ii).
NMLP Mandatory Principal Prepayments as defined in Section 2.3.8(ii).
NMLP Note shall mean the Note payable to Agent on behalf of the Lenders in the
original principal amount of Two Hundred Nine Million Dollars ($209,000,000.00).
NMLP Obligations shall mean all indebtedness, obligations and liabilities of
NMLP to the Agent and/or any Lender existing on the date of this Agreement or
arising thereafter, direct or indirect, joint or several, absolute or
contingent, matured or unmatured, liquidated or unliquidated, secured or
unsecured, arising by contract, assignment, operation of law or otherwise,
arising or incurred under this Agreement, the NMLP Note, the NMLP T-Two Guaranty
or any of the other NMLP Loan Documents, including, without limitation, under
any Interest Rate Protection Agreement with the Agent with respect to the NMLP
Loan.
NMLP Partnerships shall mean, singly and collectively, from time to time, those
limited partnerships which are wholly-owned and controlled by NMLP, including,
without limitation, those listed on Exhibit M.
NMLP Partnership GPs shall mean, singly and collectively, from time to time,
those limited liability companies or corporations which are wholly-owned and
controlled by NMLP and which are the general partners for each of the NMLP
Partnerships, respectively.
NMLP Payment Direction Letters as defined in Section 7.1.15(vi), including,
without limitation, the Paying Agent Agreements.
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NMLP Permitted Debt as defined in Section 8.1.4.
NMLP Permitted Investments as defined in Section 8.1.19.
NMLP Permitted Liens as defined in Section 8.1.2.
NMLP Security Documents as defined in Section 3.2.
NMLP Securitized Mortgages shall mean such of the Securitized Mortgages which
secure a NMLP Securitized Note.
NMLP Securitized Notes shall mean such of the Securitized Notes as to which the
current payor is a NMLP Partnership, Other Partnership, Subsidiary Limited
Partnership, or Partially Owned Limited Partnership.
NMLP Subsidiaries shall mean all of the Subsidiaries of NMLP, and all
Subsidiaries of Subsidiaries of NMLP, including, without limitation, the
following (but specifically not including any Other Partnerships, and any
Partially Owned Limited Partnership):
1. NMLP Partnerships;
2. NMLP Partnership GPs;
3. Xxxxxxx XX Holding LLC, a Delaware limited liability
company (being the parent of the NMLP Partnership GP's);
4. Xxxxxxx XX LLC, a Delaware limited liability company,
together with all Subsidiaries of Xxxxxxx XX LLC;
5. Xxxxxxx Xxxxx LLC, a Delaware limited liability
company;
6. Xxxxxxx Capital LLC, a Delaware limited liability
company;
7. Xxxxxxx Asset Management LLC, a Delaware limited
liability company (being a Subsidiary of Xxxxxxx Capital LLC);
8. NK-Leasehold II LLC, a Delaware limited liability
company;
9. NK-Remainder Interest LLC, a Delaware limited
liability company;
10. NK-Leyden GP LLC, a Delaware limited liability
company;
11. NK-Leyden Loan, L.P., a Delaware limited partnership,
12. NK-Dautec Loan, L.P., a Delaware limited partnership;
13. NK-Dautec GP LLC, a Delaware limited liability
company;
14. BMD Realty LLC, a Delaware limited liability company;
15. NK First Loan E Certificate LLC, a Delaware limited
liability company;
16. NK First Loan F Certificate LLC, a Delaware limited
liability company;
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17. NK First Loan G Certificate LLC, a Delaware limited
liability company;
18. Xxxxxxx MLP Unit LLC;
19. MLP Manager Corp., a Delaware corporation;
20. Alsey Associates L.P., a Delaware limited
partnership;
21. Xxxxx Associates L.P., a Delaware limited
partnership; and
22. Jermor Associates L.P., a Delaware limited
partnership.
NMLP T-Two Guaranty shall mean the unlimited guaranty dated as of the Closing
Date executed by NMLP guarantying all obligations and liabilities of T-Two to
the Agent and the Lenders under the T-Two Loan Documents.
Net Cash Flow as defined in Section 7.3.1(i)(e).
Non-Wholly Owned Securitized Note shall mean such of the Securitized Notes as to
which the current payor is not a NMLP Partnership.
Notes shall mean, collectively, the NMLP Note and the T-Two Note.
Notice of Intention to Distribute an defined in Section 9.2.1.
Notice of Rate Selection as defined in Section 2.3.3.
Obligations shall mean, collectively, the NMLP Obligations and the T-Two
Obligations.
Officer's Certificate shall mean a certificate delivered to the Agent by a
Borrower, a Subsidiary of a Borrower, or a Guarantor, as the case may be,
respectively, which is signed by an authorized officer thereof (or an authorized
officer of the direct or indirect managing general partner or managing member,
as applicable, of such Borrower, such Borrower Subsidiary, or such Guarantor, if
and as applicable).
Other Partnerships shall mean, from time to time, partnerships or other entities
in which NMLP has a direct or indirect ownership interest, but which entities do
not constitute NMLP Subsidiaries, including, without limitation, the
partnerships detailed in Exhibit L.
Other Second Mortgage Debt shall mean, from time to time, any obligations of a
Net Lease Partnership secured by a junior mortgage or deed of trust on one or
more Individual Properties, as of the Closing Date as set forth in Schedule
6.1.18(ii)(ii); provided, however, the Securitized Notes shall not be included
within the definition of Other Second Mortgage Debt.
Ownership Interest Agreements shall mean all of the agreements establishing any
Remainder Ground Lease Option or Ground Lease Extension Option in favor of a Net
Lease Partnership in an Individual Property, including the Ground Leases.
Partially Owned Limited Partnerships shall mean and refer to Xxxxxxx Avenue
Limited Partnership (as to which a 55% limited partnership interest and 100%
general partnership interest is owned by Xxxxxxx Calcraf L.P.) and LCB Limited
Partnership (as to which a 53% limited partnership interest and 100% general
partnership interest is owned by Xxxxxxx Segair L.P.)
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Paying Agent shall mean Midland Loan Services, Inc., together with any other
agent or replacement agent under a Paying Agent Agreement.
Paying Agent Agreements shall mean those agreements entered into with the Paying
Agent for each Net Lease Partnership obligated on a Securitized Note pursuant to
which the Paying Agent agreed to collect payments due on the Securitized Notes
and make disbursements on behalf of the Grantor Trust.
Payment Direction Letters shall mean, collectively, the NMLP Payment Direction
Letters and the T-Two Payment Direction Letters.
PBGC shall mean the Pension Benefit Guaranty Corporation established pursuant to
Section 4002 of ERISA, or any successor thereto.
Permitted Distributions as defined in Sections 8.1.18 and 8.2.16.
Permitted Leasing Costs as defined in Section 7.1.28(i).
Permitted Liens shall mean, collectively, NMLP Permitted Liens and T-Two
Permitted Liens.
Permitted Refinance as defined in Section 8.1.4(iv).
Permitted T/I Debt shall mean additional non-recourse first mortgage
indebtedness incurred by NMLP Subsidiaries solely to fund Permitted Leasing
Costs under executed Leases, the amount of which Permitted T/I Debt shall not
exceed (a) $50,000,000.00 incurred in the aggregate during the term of the Loan,
or (b) $25,000,000.00 incurred in the aggregate in each calendar year.
Person shall mean any individual, corporation, partnership, joint venture,
estate, trust, unincorporated association or limited liability company, any
federal, state, county or municipal government or any bureau, department or
agency thereof and any fiduciary acting in such capacity on behalf of any of the
foregoing.
Plan shall mean any multiemployer or single-employer plan as defined in Section
4001 of ERISA, which is maintained or contributed to by (or to which there is an
obligation to contribute of) a Borrower or any Subsidiary of a Borrower or an
ERISA Affiliate, and each such plan for the five year period immediately
following the latest date on which such Person or an ERISA Affiliate maintained,
contributed to or had an obligation to contribute to such plan.
Prepayment Fee as defined in Section 2.3.9.
Prime Rate. The term "Prime Rate" means the variable per annum rate of interest
so designated and publicly announced from time to time by Fleet National Bank
(or any successor thereto) as its prime rate. The Prime Rate is a reference rate
and does not necessarily represent the lowest or best rate being charged to any
customer.
Ratings as defined in Section 5.1.17.
Refinance as defined in Section 1.4.
Register as defined in Section 13.3.3.
Reimbursement Agreement shall mean that certain Reimbursement Agreement of even
date entered into between NMLP and T-Two with respect to the NMLP T-Two
Guaranty.
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Rejectable Offer shall mean the rejectable offer of any tenant pursuant to a
Lease respecting any Individual Property to purchase the respective Individual
Property at a predetermined price, as and when may be specifically provided in
any such Lease respecting any Individual Property.
Rejection Test as defined in Section 7.1.24(vi).
Related Documents shall mean, singly and collectively, the Formation Documents,
the Call Option Agreement, each Ownership Interest Agreement, the Amended and
Restated Asset Management Agreement, the Contract to Provide Asset Management
Services, the Securitization Documents, the Integrated Documents, the Payment
Direction Letters, the documents establishing and evidencing any Mortgage Debt,
the Reimbursement Agreement, and the documents establishing and evidencing each
Xxxxxxx Loan.
Related Fund shall mean, with respect to a Lender which is a fund that invests
in loans, any other such fund managed by the same investment advisor as such
Lender or by an Affiliate of such Lender or such advisor.
Remainder Ground Lease Options as defined in Section 3.1.25(i).
Remainder Ground Lease Option Schedule as defined in Section 6.1.18(vii).
REMIC shall mean the real state mortgage investment conduit established pursuant
to the Pooling Agreement.
Reportable Event shall mean an event described in Section 4043(b) of ERISA with
respect to a Plan other than those events as to which the 30-day notice period
is waived under subsection .13, .14, .16, .18, .19 or .20 of PBGC Regulation
Section 2615, or as otherwise now or hereafter defined in ERISA.
Required Lenders. As of any date, the Lenders holding greater than fifty percent
(50%) of the outstanding principal amount due under the Notes on such date; and
if no such principal is outstanding, the Lenders whose aggregate Commitments
constitute greater than fifty percent (50%) of the Total Commitment.
Required T/I Amount as defined in Section 7.1.28(v).
Second Extended Maturity Date as defined in Section 2.2.
Second Extended Term as defined in Section 2.2.
Securitization Documents shall mean any and all documentation executed and
delivered relative to the securitization of the so called contract rights
relative to the Securitized Properties, including, without limitation, the
Grantor Trust Agreement, the Paying Agent Agreement, the Securitized Notes, the
Securitized Mortgages, and the Grantor Trust T-1 Certificate, the Grantor Trust
T-2 Certificate, as such have been amended as of the Closing Date.
Securitized Mortgages shall mean the Liens on the Securitized Properties which
secure the Securitized Notes.
Securitized Notes shall mean any and all the individual notes which from time to
time are held by the Grantor Trust.
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Securitized Property and Securitized Properties shall mean from time to time
each real estate property, together with all improvements, fixtures, equipment,
and personalty relating to such property which secures any Securitized Note,
with the Securitized Properties as of the date hereof being listed on Exhibit N
hereto.
Security Documents shall mean, collectively, the NMLP Security Documents and the
T-Two Security Documents.
Servicer presently Midland Loan Services, Inc., shall have the meaning provided
in the Grantor Trust Agreement.
Shortfall Amount shall mean, with respect to any sale, transfer, refinance or
other disposition of a Securitized Property which is owned by a NMLP Partnership
which results in a discharge or release of the applicable Securitized Mortgage
on such Securitized Property, the excess (if any) of (a) the Allocated Payment
Amount for the Securitized Note secured by such Securitized Property, over (b)
the aggregate of (i) all applicable T-Two Mandatory Principal Prepayments
received by the Agent under Section 2.3.8(iii)(a) with respect to such
Securitized Note (including the payment made or to be made as a result of the
subject transaction), plus (ii) all NMLP Mandatory Principal Prepayments
received by the Agent with respect to any Securitized Property which secures
such Securitized Note (excluding the payment made or to be made as a result of
the subject transaction).
Single-Purpose Entity shall mean, with respect to a Person, that such Person has
Formation Documents which contain generally the following provisions (with such
variations as required by the provisions of the First Mortgage Debt) , and has
agreed to abide by such terms and conditions:
(a) Such Person shall not engage in any business or activity other than
acquiring by merger the assets and liabilities of the applicable Net Lease
Partnership.
(b) Such Person shall not acquire or own any material assets other than
(i) the real property owned by the NMLP Partnership on the Closing Date, and
(ii) such incidental personal property as may be necessary for the operation of
such real property.
(c) Such Person shall not fail to preserve its existence as an entity
duly organized, validly existing and in good standing (if applicable) under the
laws of the jurisdiction of its organization or formation and under the
applicable laws of any state or states in which the ownership of its assets or
the conduct of its business requires such qualification.
(d) Such Person shall not incur any Debt, except as provided herein.
(e) Such Person shall not merge into or consolidate with any person or
entity or dissolve, terminate or liquidate in whole or in part, transfer or
otherwise dispose of all or substantially all of its assets or change its legal
structure.
(f) Such Person shall not own any subsidiary or make any investment in
any person or entity.
(g) Such Person shall not file or consent to the filing of any
petition, either voluntary or involuntary, to take advantage of any applicable
insolvency, bankruptcy, liquidation or reorganization statute, or make an
assignment for the benefit of creditors.
(h) Such Person shall agree to abide by the following covenants in its
management and operation:
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(i) To maintain its records, books of account and bank
accounts separate and apart from those of the NMLP Partnership GPs, any
affiliates of the NMLP Partnership GPs and any other Person;
(ii) Not to commingle assets with those of the NMLP
Partnership GPs or any other Person;
(iii) Not to maintain its assets in such a manner that it will
be costly or difficult to segregate, ascertain or identify its
individual assets from those of any other Person;
(iv) To maintain separate financial statements and to file its
own tax returns;
(v) To pay its own liabilities out of its own funds;
(vi) To observe all corporate, partnership or limited
liability company formalities;
(vii) To maintain an arm's-length relationship with its
Affiliates;
(viii) To pay the salaries of its own employees and maintain a
sufficient number of employees in light of its contemplated business
operations;
(ix) Not to guarantee or become obligated for the debts of any
other entity or hold out its credit as being available to satisfy the
obligations of others, except as provided for herein;
(x) Not to acquire obligations or securities of its partners,
members or shareholders;
(xi) To allocate and charge fairly and reasonably any overhead
for shared office space or any common employee or overhead shared with
affiliates;
(xii) To use separate stationery, invoices and checks;
(xiii) Not to pledge its assets for the benefit of any other
entity or make any loans or advances to any entity, including any NMLP
Partnership GP or any affiliate thereof, except as provided for herein;
(xiv) To hold itself out to the public as a legal entity
separate and distinct from any other Person and to conduct its business
solely in its own name in order not (A) to mislead others as to the
identity with which such other Person is transacting business, or (B)
to suggest that such Person is responsible for the debts of any third
party (including the NMLP Partnership GPs or any affiliate thereof or
any other Person);
(xv) To correct any known misunderstanding regarding its
separate identity; and
(xvi) To maintain adequate capital and cash on hand for the
normal obligations reasonably foreseeable in a business of its size and
character and in light of its contemplated business operations.
State shall mean the State or Commonwealth in which the subject of such
reference or any part thereof is located.
Statement as defined in Section 14.17.
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Sublease shall mean any sublease entered into, or assumed by, a lessee under a
Master Lease relative to an Individual Property, each of which Subleases has by
operation of law merged into the applicable Master Lease.
Subsidiary shall mean, with respect to any Person, any corporation, association,
limited liability company, partnership or other business entity of which
securities or other ownership interests representing more than 50% of either (x)
the beneficial ownership interest or (y) ordinary voting power are, at the time
as of which any determination is being made, owned or controlled, directly or
indirectly, by such Person.
Subsidiary Bankruptcy Test shall be deemed to be triggered if either (i) NMLP is
not in compliance with the Cash Flow Sweep Test or (ii) the aggregate equity (as
determined by the Agent based upon then current valuations) in excess of all
liens on the Individual Properties of all NMLP Partnerships as to which any
event set forth in Subsections 10.1.1(viii) or 10.1.2(viii) has occurred and
continues to occur, is greater than $10,000,000.00, in each case assuming for
purposes hereof, that such an event has occurred for the subject NMLP
Partnership.
Subsidiary Limited Partnership shall mean and refer to Xxxxx Associates Limited
Partnership, Jermor Associates Limited Partnership, and Alsey Associates Limited
Partnership (as to each of which a 99% limited partnership interest is owned by
Xxxxxxx Martall L.P.).
Syndication Agent shall mean Fleet Securities, Inc.
Tustin shall mean Tustin Associates Limited Partnership, a Delaware limited
partnership, being one of the Other Partnerships.
Tustin Loan shall mean the loan arrangement between Tustin and NMLP in the
original principal amount of $345,619.00, as evidenced by the Tustin Loan
Documents.
Tustin Loan Documents shall mean and refer to a certain promissory note in the
original principal amount of $345,619.00 dated January 1, 2003 made by Tustin in
favor of NMLP and a certain leasehold mortgage dated January 1, 2003 given by
Tustin to NMLP, and any and all other documents executed in connection
therewith, as same may be amended, modified, supplemented, or replaced from time
to time.
T-Two as defined in the Preamble hereto.
T-Two Accounts as defined in Section 7.2.14.
T-Two Collateral as defined in Section 3.3.
T-Two Commitment shall mean, with respect to each Lender, the amount set forth
on Exhibit I hereto as the amount of such Lender's commitment to make advances
to T-Two, as may be amended from time to time by the Agent as provided in
Article 13.
T-Two Consents as defined in Section 5.2.4(i).
T-Two Depository Accounts as defined in Section 7.2.14.
T-Two Depository Account Pledge and Security Agreement as defined in Section
3.3.4.
T-Two GP as defined in Section 1.2.2.
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T-Two Guarantor as defined in Section 1.5.3.
T-Two Guaranty as defined in Section 3.3.5.
T-Two Loan as defined in Section 1.4.
T-Two Loan Advance as defined in Section 5.2.
T-Two Loan Documents as defined in Section 3.4.
T-Two Loan Party and T-TwoLoan Parties shall mean, singly and collectively,
T-Two, the T-Two GP, the T-Two Guarantor, any Xxxxxxx Group Entity which is a
party to any T-Two Loan Document, and any Subsidiary and Affiliate of any of the
foregoing which is also a party to any T- Two Loan Document.
T-Two Mandatory Prepayment Event as defined in Section 2.3.8(iii).
T-Two Mandatory Principal Prepayments as defined in Section 2.3.8(iii).
T-Two NMLP Guaranty shall mean the unlimited guaranty dated as of the Closing
Date executed by T-Two guarantying all obligations and liabilities of NMLP to
the Agent and the Lenders under the NMLP Loan Documents.
T-Two Note as defined in Section 3.4.
T-Two Obligations shall mean all indebtedness, obligations and liabilities of
T-Two to the Agent and/or any Lender existing on the date of this Agreement or
arising thereafter, direct or indirect, joint or several, absolute or
contingent, matured or unmatured, liquidated or unliquidated, secured or
unsecured, arising by contract, assignment, operation of law or otherwise,
arising or incurred under this Agreement, the T-Two Note, the T-Two NMLP
Guaranty or any of the other T-Two Loan Documents, including, without
limitation, under any Interest Rate Protection Agreement with the Agent with
respect to the T-Two Loan.
T-Two Payment Direction Letters as defined in Section 7.2.15(iv), including,
without limitation, the Payment Agent Agreements.
T-Two Permitted Debt as defined in Section 8.2.4.
T-Two Permitted Investments as defined in Section 8.2.17.
T-Two Permitted Liens as defined in Section 8.2.2.
T-Two Security Documents as defined in Section 3.4.
T/I Fund Account as defined in Section 7.1.28(i).
Title Reports as defined in Section 5.1.11(i).
Total Commitment. The sum of the Commitments of the Lenders, as in effect from
time to time.
Total NMLP Commitment. The sum of the NMLP Commitments of the Lenders, as in
effect from time to time.
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Total T-Two Commitment. The sum of the T-Two Commitments of the Lenders, as in
effect from time to time.
UCC or the Uniform Commercial Code means the Uniform Commercial Code in effect
in a State.
Unfunded Current Liability of any Plan means the amount, if any, by which the
actuarial present value of the accumulated plan benefits under the Plan as of
the close of its most recent plan year exceeds the fair market value of the
assets allocable thereto, each determined in accordance with Statement of
Financial Accounting Standards No. 35, based upon the actuarial assumptions used
by the Plan's actuary in the most recent annual valuation of the Plan.
United States and U.S. shall each mean the United States of America.
Units shall mean units of limited partnership interest in the Borrower.
Variable Rate. The term "Variable Rate" means a per annum rate equal at all
times to the Prime Rate plus 250 basis points, with changes therein to be
effective simultaneously without notice or demand of any kind with any change in
the Prime Rate.
Variable Rate Advance. The term "Variable Rate Advance" means any principal
amount outstanding under this Agreement which pursuant to this Agreement bears
interest at the Variable Rate.
Withholding Taxes as defined in Section 2.7.3(ii).
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