Exhibit 10.33
LOAN AND SECURITY AGREEMENT
THIS LOAN AND SECURITY AGREEMENT (this "AGREEMENT") is made as of August
24, 2001 by and between FREMONT INVESTMENT & LOAN, a California industrial
loan association ("LENDER"), and XM 1500 ECKINGTON LLC, a Delaware limited
liability company ("BORROWER"), with respect to the following Recitals:
RECITALS
A. Borrower is the owner of that certain real property described on
EXHIBIT A attached hereto (the "PROPERTY"), together with the improvements now
or hereafter located thereon (the "IMPROVEMENTS"). The Property and the
Improvements are collectively referred to herein as the "PROJECT".
B. Borrower desires to borrow from Lender, and Lender is willing to loan to
Borrower, the maximum principal amount of Twenty-Nine Million Dollars
($29,000,000) for the purposes and upon the terms set forth herein.
NOW THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 1
GENERAL DEFINITIONS
When used herein, the following initially-capitalized terms shall have the
following meanings:
"AFFILIATE" means, with respect to any Person, any other Person which
controls, is controlled by, or is under common control with the Person in
question. For the purposes of the foregoing definition, "controls" (and its
correlative terms "controlled by" and "under common control with") means
possession by the applicable Person of the power to direct or cause the
direction of the management and policies thereof, whether through the ownership
of voting securities, by contract, or otherwise.
"AGREEMENT" means this Loan and Security Agreement, together with all
supplements, amendments and modifications hereto and all extensions and renewals
hereof.
"APPLICATION INFORMATION" means all financial information and statements
and other information submitted to Lender in connection with the application for
the Loan, including, without limitation, information relating to the tenants,
leases and rent payment history and the information set forth on the Borrower
Questionnaire delivered to Lender.
"ASSIGNMENT OF RENTS" means that certain Assignment of Rents and Leases of
even date herewith executed by Borrower, as assignor, in favor of Lender, as
assignee, to be recorded on the Closing Date in the Land Records of the District
of Columbia.
"ATTORNEYS' FEES," "ATTORNEYS' FEES AND COSTS," "ATTORNEYS' FEES" and
"ATTORNEYS' FEES AND COSTS" mean the fees and expenses of counsel to the
applicable parties to the Loan Documents, which may include printing,
photostating, duplicating, facsimilating, messengering, filing and other
expenses,air freight charges, and fees billed for law clerks, paralegals,
librarians and others not admitted to the bar but performing services under the
supervision of an attorney. The terms "ATTORNEYS' FEES" or "ATTORNEYS' FEES AND
COSTS" shall also include, without limitation, all such fees and expenses
incurred with respect to
appeals, arbitrations, bankruptcy proceedings and any post-judgment proceedings
to collect any judgment, and whether or not any action or proceeding is brought
with respect to the matter for which such fees and expenses were incurred. The
recovery of post-judgment fees, costs and expenses is separate and several and
shall survive the merger of the applicable Loan Documents into any judgment.
"BANKRUPTCY CODE" means Title 11 of the U.S. Code, as applicable, or any
similar federal or state laws for the relief of debtors, each as hereafter
amended.
"BUSINESS DAY" means any day other than a Saturday, a Sunday, a legal
holiday under the laws of the District of Columbia or a day on which commercial
banks in such state are authorized or required by law or other governmental
action to be closed.
"CASH COLLATERAL ACCOUNT" is defined in SECTION 7.13.
"CASH COLLATERAL ACCOUNT AGREEMENT" is defined in SECTION 3.1.
"CLOSING DATE" means the date of the closing of the Loan and the
recordation of the Deed of Trust in the Land Records of the District of
Columbia, but in no event later than the Termination Date.
"CONTRACTUAL OBLIGATION" as applied to any Person means any provision of
any instrument, document or security issued by that Person or of any indenture,
mortgage, deed of trust, contract, undertaking, agreement or other instrument to
which that Person is a party or by which any of its properties is bound or to
which it or any of its properties is subject; in each case involving a monetary
obligation of such Person, the term "Contractual Obligation" shall be limited to
monetary obligations of $100,000 or more.
"DEED OF TRUST" means that certain Deed of Trust and Fixture Filing of even
date herewith executed by Borrower, as trustor, to Xxxxxxxxx Xxxxx, an
individual, as trustee, and naming Lender, as beneficiary, to be recorded on the
Closing Date in the Land Records of the District of Columbia.
"DEFAULT INTEREST RATE" is defined in the Note.
"ENVIRONMENTAL INDEMNITY" means that certain Environmental Indemnity of
even date herewith executed by Borrower and the other parties named therein, if
any.
"ENVIRONMENTAL LAWS" means any and all present and future federal, state
and local laws, ordinances, regulations, policies and any other requirements of
any Governmental Agency relating to health, safety, the environment or to any
Hazardous Substances, including without limitation, the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), the
Resource Conservation Recovery Act (RCRA), the Hazardous Materials
Transportation Act, the Toxic Substance Control Act, the Endangered Species Act,
the Clean Water Act, the Occupational Safety and Health Act, D.C. Code
Section 6-701, Water Pollution Control Act of 1984 (D.C. Code Section 6-921),
Wastewater System Regulation Amendment Act of 1985 (D.C. Code Section 6-951),
District of Columbia Hazardous Materials Transportation and Motor Carrier Safety
Act of 1988 (D.C. Code Section 6-3301), District of Columbia Solid Waste
Management and Multi-Material Recycling Act of 1988 (D.C. Code Section 6-3401),
D.C. Code Section 6-731, District of Columbia Environmental Policy Act of 1989
(D.C. Code Section 6-981),Asbestos Licensing and Control Act of 1990 (D.C. Code
Section 6-991.1) and District of Columbia Underground Storage Tank Management
Act of 1990 (D.C. Code Section 6-995.1), each as hereafter amended from time to
time, and the present and future rules, regulations and guidance documents
promulgated under any of the foregoing.
"ENVIRONMENTAL REPORT" is defined in SECTION 6.11.
"EVENT OF DEFAULT" means any of the events specified in SECTION 8.1.
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"FIRST ADDITIONAL DEPOSIT" is defined in SECTION 7.13.
"FORMATION DOCUMENTS" means (a) as to any corporation, its articles of
incorporation and bylaws, (b) as to any limited partnership, its Certificate of
Limited Partnership and partnership agreement, (c) as to any general partnership
or joint venture, its Statement of Partnership and partnership agreement, (d) as
to any limited liability company, its articles or certificate of organization
and operating agreement, and (e) as to any trust, its trust agreement and a
certification of the current trustees thereof, each of the foregoing together
with all supplements, amendments and modifications.
"GENERAL PARTNER" or "GENERAL PARTNER" means the general partners of the
partnership in question, together with any constituent general partners of such
general partners.
"GOVERNMENTAL AGENCY" means any federal, state, municipal or other
governmental or quasi-governmental court, agency, authority or district.
"HAZARDOUS SUBSTANCES" means (a) any chemical, compound, material, mixture
or substance that is now or hereafter defined or listed in, or otherwise
classified pursuant to, any Environmental Laws as a "hazardous substance",
"hazardous material", "hazardous waste", "extremely hazardous waste", "acutely
hazardous waste ", "radioactive waste", " infectious waste", "biohazardous
waste", " toxic substance", "pollutant", "toxic pollutant", "contaminant " as
well as any formulation not mentioned herein intended to define, list, or
classify substances by reason of deleterious properties such as ignitability,
corrosivity, reactivity, carcinogenicity, toxicity, reproductive toxicity, "EP
toxicity", or "TCLP toxicity"; (b) petroleum, natural gas, natural gas liquids,
liquefied natural gas, synthetic gas usable for fuel (or mixtures of natural gas
and such synthetic gas) and ash produced by a resource recovery facility
utilizing a municipal solid waste stream, and drilling fluids, produced waters
and other wastes associated with the exploration, development or production of
crude oil, natural gas, or geothermal resources; (c ) asbestos in any form; (d)
urea formaldehyde foam insulation; (e) polychlorinated biphenyls (PCBs); (f)
radon; and (g) any other chemical, material, or substance exposure to which is
limited or regulated by any Governmental Agency because of its quantity,
concentration, or physical or chemical characteristics, or which poses a
significant present or potential hazard to human health or safety or to the
environment if released into the workplace or the environment. "Hazardous
Substances" shall not include ordinary office supplies and repair, maintenance
and cleaning supplies maintained in reasonable and necessary quantities and used
in accordance with all Environmental Laws.
"INDEMNITEES" means, collectively and individually, Lender, its Affiliates,
the trustee under the Deed of Trust and its and their directors, officers,
agents, employees, successors and assigns.
"INITIAL DEPOSIT" is defined in SECTION 7.13.
"ISSUER" means a bank (other than an affiliate of a Related Party)
organized under the laws of the United States, any state of the United States,
or of the District of Columbia and with both (a) a Long-Term Bank Deposit Rating
of A2 or better from Xxxxx'x Investors Service, and (b) a Long Term Counterparty
Credit Rating of A or better from Standard & Poor's, and otherwise, approved by
Lender in its sole discretion .
"LAWS" means all federal, state, county, municipal and other governmental
and quasi-governmental statutes, laws, rules, orders, regulations, ordinances,
judgments, decrees and injunctions affecting either the Project or the
occupancy, operation, ownership or use thereof, whether now or hereafter enacted
and in force including, without limitation, the Americans With Disabilities Act,
42 U.S.C. Sections 12101-12213 (1991) and all Environmental Laws, any zoning or
other land use entitlements and any requirements which may require repairs,
modifications or alterations in or to the Project, all Permits and all
covenants, agreements, restrictions and encumbrances running in favor of any
Person, contained in any
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instruments, either of record or known to Borrower, at any time in force
affecting the Project or the occupancy, operation, ownership or use thereof.
"LEASES" is defined in the Assignment of Rents.
"LENDER'S GUARANTOR NOTICE" is defined in SECTION 6.1.
"LETTER OF CREDIT" means an irrevocable and unconditional letter of credit
issued by an Issuer, payable to Lender as beneficiary upon the occurrence of a
material non-monetary Potential Default, monetary Potential Default or Event of
Default, with an expiration date no earlier than the first anniversary after the
Maturity Date (as defined in the Note) and otherwise acceptable to Lender in its
sole discretion.
"LIEN" means any mortgage, deed of trust, pledge, security interest,
encumbrance, lien, charge or claim of any kind constituting an encumbrance on
the Property or Personal Property (including any agreement to give any of the
foregoing, any conditional sale or other title retention agreement, any lease in
the nature thereof, and/or the filing of or agreement to give any financing
statement under the Uniform Commercial Code of any jurisdiction) with respect to
the Project or the Personal Property or any portion thereof or interest therein.
"LIMITED RECOURSE OBLIGATIONS GUARANTOR" means XM Radio Holdings.
"LIMITED RECOURSE OBLIGATIONS GUARANTY" is defined in SECTION 3.1(A).
"LOAN" means the loan to Borrower as more particularly described in
SECTION 2.1.
"LOAN AMOUNT" means Twenty-Nine Million Dollars ($29,000,000).
"LOAN DOCUMENTS" means the documents described in SECTION 3.1, and all
other documents securing, or executed in connection with, the Loan, together
with all renewals, substitutions, extensions, modifications or replacements
thereof, but excluding the Environmental Indemnity.
"LOAN FEE" means a fee in the amount of one percent (1%) of the Loan
Amount.
"LOAN YEAR" shall mean the twelve (12) month period commencing on the first
day of the month following the Closing Date and each twelve (12) months
thereafter.
"MAJOR LEASE" means a Lease of ten percent (10%) or more of the net
rentable square feet of space in the Project.
"MATERIAL LEASE PROVISIONS" is defined in SECTION 7.4(E).
"MATURITY DATE" means the date set forth in the Note upon which the entire
principal amount of the Loan, together with all other amounts owing to Lender
under the Loan Documents, shall be due and payable.
"MINIMUM RENT LOSS COVERAGE" means Four Million Six Hundred Ninety-Six
Thousand Dollars ($4,696,000).
"NET RENTABLE SQUARE FEET" and "NET RENTABLE SQUARE FEET" shall be
calculated in accordance with the method of measuring net rentable area as
described in the Standard Method for Measuring Floor Area in Office Buildings,
ANSI Z65.1-1996, as promulgated by the Building Owners and Managers Association
(BOMA) International.
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"NOTE" means that certain Secured Promissory Note of even date herewith in
the principal amount of Twenty-Nine Million Dollars ($29,000,000) executed by
Borrower, as maker, in favor of Lender, as holder, and any and all
modifications, extensions, renewals and replacements thereof.
"PERMITS" means all permits, licenses, franchises, approvals, variances and
land use entitlements necessary for the occupancy, operation, ownership and use
of the Project.
"PERSON" means and includes natural persons, corporations, limited
liability companies, limited liability partnerships, limited partnerships,
general partnerships, joint stock companies, joint ventures, associations,
companies, trusts, banks, trust companies, land trusts, business trusts, real
estate investment trusts or other organizations, whether or not legal entities,
and governments and agencies and political subdivisions thereof.
"PERSONAL PROPERTY" means all personal property in which Borrower now or
hereafter owns or acquires any interest or right and which is now or hereafter
located on and used or useful in the development, operation, ownership,
occupancy, use, maintenance, repair or restoration of the Project or any portion
thereof, together with all present and future attachments, accessions,
replacements, substitutions and additions thereto or therefor, and together with
all insurance proceeds from any policy of insurance covering any of the
foregoing property now or hereafter acquired by Borrower. "Personal Property"
shall include, without limitation, the personal property described in EXHIBIT B
attached hereto and any leased personal property.
"POTENTIAL DEFAULT" means a condition or event which, with the giving of
notice or passage of time, or both, would constitute an Event of Default under
any of the Loan Documents.
"PRINCIPALS" means individually and collectively Borrower and the Limited
Recourse Obligations Guarantor.
"PROJECT DOCUMENTS" means (a) all agreements now or hereafter in effect
with any contractor, architect or engineer, including, without limitation, any
design architect, landscape architect, civil engineer, electrical engineer,
environmental engineer, soils engineer or mechanical engineer, in connection
with the Project; (b) all other agreements now or hereafter in effect with any
property manager or broker with respect to the management, leasing, or operation
of the Project; (c) all as-built plans and specifications and surveys for the
Project; (d) all Permits; and (e) all renewals, substitutions, extensions,
modifications or replacements of any of the foregoing.
"RELATED PARTIES" means Borrower, Principals, and XM Radio.
"REPLACEMENT GUARANTOR" is defined in SECTION 6.1.
"SECOND ADDITIONAL DEPOSIT" is defined in SECTION 7.13.
"SECURED OBLIGATIONS" is defined in the Deed of Trust.
"TAX IDENTIFICATION NUMBER" means Borrower's employer identification number
or social security number, which is 00-0000000.
"TERMINATION DATE" means August 31, 2001.
"TITLE COMPANY" means the title insurance company selected by Borrower and
approved by Lender in Lender's sole discretion to provide the Title Policy.
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"TITLE POLICY" means an American Land Title Association Extended Coverage
Policy of Title Insurance (1970 version, amended 10/17/70 only), if available,
insuring Lender that on the Closing Date Borrower owns fee simple title to the
Project and that the Deed of Trust is a valid first lien on the Project in the
Loan Amount. The Title Policy shall contain such endorsements as Lender
reasonably requires and shall be subject only to such exceptions to coverage as
approved by Lender in writing prior to the Closing Date.
"XM RADIO HOLDINGS" means XM Satellite Radio Holdings Inc., a Delaware
corporation.
"XM RADIO LEASE" means that certain Lease dated September 29, 1999, as
amended by that First Amendment dated August 1, 2000 and that certain Second
Amendment of even date herewith, by and between Borrower
(as successor-in-interest to Consortium One Eckington, L.L.C.) and XM Radio.
"XM RADIO" means XM Satellite Radio Inc., a Delaware corporation.
ARTICLE 2
LOAN TERMS
2.1 LOAN AND DISBURSEMENTS OF LOAN PROCEEDS.
Subject to the terms and conditions of this Agreement, and in reliance upon
the representations and warranties of Borrower setforth in the Loan Documents,
Lender agrees to make to Borrower, and Borrower agrees to accept from Lender, a
loan (the "LOAN") in the maximum principal amount of Twenty-Nine Million Dollars
($29,000,000).
2.2 EVIDENCE OF INDEBTEDNESS AND MATURITY.
Borrower shall execute and deliver to Lender, on or before the Closing
Date, the Note evidencing the Loan. Borrower agrees to repay the indebtedness
evidenced by the Note in accordance with the terms thereof and the terms hereof.
The outstanding principal balance of the Loan, together with accrued and unpaid
interest thereon and all other amounts payable by Borrower under the Loan
Documents shall be due and payable on the Maturity Date.
2.3 INTEREST RATE.
The Loan shall bear interest at the rate per annum specified in the Note.
2.4 LOAN FEE AND PAYMENT OF EXPENSES.
Borrower acknowledges and agrees that any unpaid portion of the Loan Fee
has been fully earned by Lender and is due and payable upon the Closing of the
Loan. The Loan Fee shall be nonrefundable. Borrower hereby authorizes Lender to
disburse proceeds of the Loan to Lender or to any other party to pay the Loan
Fee, interest for any partial calendar month in which the Closing Date occurs,
and the reasonable fees and expenses of Lender's appraisers, engineers,
consultants, legal counsel and other third parties retained by Lender in
connection with the Loan, notwithstanding that Borrower may not have requested a
disbursement of such amounts. Borrower covenants to pay all such amounts within
ten (10) days after demand by Lender, if and to the extent not disbursed by
Lender from proceeds of the Loan. Borrower's payment of the Loan Fee is in
addition to Borrower's obligation to pay closing costs, brokers' commissions and
any and all other sums due hereunder or under any of the Loan Documents.
2.5 FULL RECOURSE.
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The obligations of Borrower under this Agreement, the Note and the other
Loan Documents shall be fully recourse to Borrower, the Project, the Personal
Property and any and all other collateral pledged by Borrower or any other party
to secure such obligations, without limitation or exculpation.
ARTICLE 3
CONDITIONS TO LOAN
3.1 CONDITION PRECEDENT TO CLOSING OF LOAN.
As a condition precedent to Lender's obligation to close the Loan and
disburse any Loan proceeds, on or before the Closing Date Borrower must satisfy
and fulfill each of the following conditions precedent to closing, to the
satisfaction of Lender:
A. LOAN DOCUMENTS AND ENVIRONMENTAL INDEMNITY. Borrower shall deliver
to Lender the following documents, each duly executed and acknowledged by a
notary public where necessary, and in form and substance satisfactory to Lender:
(i) This Agreement;
(ii) The Note;
(iii) The Deed of Trust;
(iv) The Assignment of Rents;
(v) A UCC-1 Financing Statement relating to the
Personal Property, to be filed with the Delaware Secretary of State and the
District of Columbia Recorder of Deeds, together with UCC-1 Financing Statements
for such other States as are required by Lender;
(vi) The Environmental Indemnity;
(vii) A Pledge and Assignment of Cash Collateral Account,
on Lender's form, executed by the Borrower in favor of Lender (the "CASH
COLLATERAL ACCOUNT AGREEMENT"); and
(viii) A guaranty, on Lender's form, executed by the
Limited Recourse Obligations Guarantor, of the payment and performance of all of
the obligations for which Borrower is personally liable pursuant to the terms
thereof (the "LIMITED RECOURSE OBLIGATIONS GUARANTY").
B. CLOSING CONDITIONS. Borrower shall have satisfied all of the
conditions imposed by Lender in connection with its final approval of the Loan.
C. TRUTH OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties contained herein and in the other Loan Documents shall be true,
correct and complete in all material respects on the Closing Date.
D. NO DEFAULT. As of the Closing Date, no event shall have occurred
or would result from the funding of the Loan that would constitute an Event of
Default or a Potential Default.
3.2 TERMINATION OF AGREEMENT.
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Lender's obligation to make the Loan and perform any of its other
obligations under the Loan Documents shall terminate unless all of the
conditions precedent set forth in SECTION 3.1 have been satisfied, and the
Closing Date has occurred, on or before the Termination Date.
ARTICLE 4
ASSIGNMENT OF PROJECT DOCUMENTS
4.1 ASSIGNMENT OF DOCUMENTS.
A. As security for the payment and performance of the Secured
Obligations, Borrower hereby grants, conveys, assigns and transfers to Lender
the Project Documents, and all rights of Borrower thereunder, together with the
immediate and continuing right to collect and receive all sums which are now or
hereafter due to Borrower the reunder or in connection therewith, and all of
Borrower's rights to receive the proceeds of any insurance, indemnity, warranty
or guaranty with respect to any of the Project Documents. The parties expressly
acknowledge and agree that Lender does not hereby assume any of Borrower's
obligations with respect to any of the Project Documents, including, without
limitation, any obligation to pay for any work done pursuant thereto, unless
Lender expressly assumes such obligations in accordance with SECTION 4.1(B). At
Lender's request from time to time, Borrower shall deliver copies of the Project
Documents to Lender.
B. Lender shall not exercise its rights under this SECTION 4.1 until
the occurrence of an Event of Default. Upon the occurrence of an Event of
Default under any of the Loan Documents, Lender may, at its option in its sole
discretion and without any obligation, exercise any or all of its rights and
remedies under SECTION 8.4 and/ or upon written notice to Borrower and the other
parties to any or all of the Project Documents, exercise or enforce any or all
of the rights and remedies granted to Borrower under such Project Documents as
if Lender had been a party to or recipient of such Project Documents (and
Borrower hereby irrevocably constitutes and appoints Lender as its attorney-
in-fact, which power is coupled with an interest, to do so). Upon giving such
notice Lender may elect to assume all of the obligations of Borrower thereafter
accruing under any or all of the Project Documents; provided that in no event
shall Lender be responsible for any default by Borrower or any other party
occurring prior to any election by Lender to assume such obligations.
C. The acceptance by Lender of the assignment contained in this
SECTION 4.1 and the rights granted to Lender hereunder and under SECTION 8.4
shall not, prior to Lender's assumption of the obligations under the Project
Documents as provided in SECTION 4.1(B), obligate Lender to assume any
obligations or liability under the Project Documents, to expend any money or
incur any expense in connection with the Project Documents or to perform any
obligation under any of the Project Documents.
4.2 PERFORMANCE UNDER PROJECT DOCUMENTS.
Borrower shall at all times perform and discharge each of its obligations
under the Project Documents (except if the failure to perform or discharge
obligations would not materially and adversely impact the use, ownership or
operation of the Project of the business of the Borrower), diligently enforce
its rights under the Project Documents unless otherwise agreed by Lender, and,
at Borrower's sole cost and expense, appear in and defend Lender in any action
or proceeding in any way related to any of the Project Documents. Borrower
shall, within ten (10) days after demand by Lender, pay all reasonable costs and
expenses incurred by Lender in connection with any such action or proceeding,
including, without limitation, reasonable attorneys' fees and costs.
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4.3 INDEMNIFICATION.
Borrower hereby indemnifies and agrees to defend and hold the Indemnitees
harmless from all expenses, loss, claims, damage or liability which the
Indemnitees may or might incur under any of the Project Documents or under or by
reason of the assignment set forth in SECTION 4.1 or by reason of any alleged
obligation or undertaking on Lender's part to perform or discharge any covenants
or agreements contained in any of the Project Documents; provided that such
indemnity shall not extend to expenses, loss, claims, damage or liability
arising from an Indemnitee's gross negligence or wilful misconduct or arising
after the date, if ever, that Lender assumes the obligations under the Project
Documents as provided in SECTION 4.1(B).
ARTICLE 5
SECURITY AGREEMENT
5.1 GRANT OF SECURITY INTEREST.
As security for the payment and performance of the Secured Obligations,
Borrower hereby assigns, transfers and grants to Lender, and there is hereby
created in favor of Lender, a security interest under the District of Columbia
Uniform Commercial Code in and to the Personal Property, whether now owned or
hereafter acquired, and in all proceeds thereof (and proceeds of proceeds) in
whatever form. This Agreement shall constitute a security agreement pursuant to
the District of Columbia Uniform Commercial Code with respect to the Personal
Property and proceeds thereof, with Borrower the "Debtor" and Lender the
"Secured Party" as such terms are used therein.
5.2 REPRESENTATIONS, AGREEMENTS AND COVENANTS REGARDING PERSONAL PROPERTY.
In order to induce Lender to enter into this Agreement and make the Loan,
Borrower represents, warrants and covenants as follows:
A. Except for the security interest in favor of Lender, Borrower is,
and as to any of the Personal Property acquired after the date hereof will be,
the sole owner of the Personal Property, free from any adverse lien, security
interest, or adverse claim of any kind whatsoever. Borrower will notify Lender
of and will defend the Personal Property against all claims and demands of all
persons at any time claiming any interest therein.
B. Borrower will keep the Personal Property in good condition and
repair, and will not misuse, abuse, allow to deteriorate, waste or destroy the
Personal Property or any part thereof, except for ordinary wear and tear
resulting from normal and expected use in the ordinary course of Borrower's
business, which shall be promptly replaced by Borrower with property of similar
nature and of equal or greater value unless obsolete.
C. Borrower will not, without the prior written consent of Lender,
sell, offer to sell or otherwise transfer, exchange or dispose of the Personal
Property or any interest therein, unless in the normal course of business the
Personal Property is being replaced by collateral of similar nature and of equal
or greater value. If the Personal Property or any part thereof is sold,
transferred, exchanged, or otherwise disposed of (either with or without the
written consent of Lender) in violation of the foregoing, the security interest
of Lender shall extend to the proceeds of such sale, transfer, exchange or other
disposition and Borrower will hold such proceeds in a separate account for
Lender's benefit and will, at Lender's request, transfer such proceeds to
Lender.
D. The tangible Personal Property will be kept on or at the Project
and Borrower will not, without the prior written consent of Lender, remove the
Personal Property therefrom except such
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portions or items of Personal Property which are consumed or worn out in
ordinary usage, all of which shall be promptly replaced by Borrower as provided
in SECTION 5.2(B).
E. Borrower will immediately notify Lender in writing of any change
in its place of business or the adoption or change of any trade name or
fictitious business name, and will, within ten (10) days after Lender's request,
execute any additional financing statements or other certificates reasonably
requested by Lender to reflect such change.
F. The Personal Property is not and will not be used or bought for
personal, family or household purposes.
G. Borrower shall immediately notify Lender of any claim against the
Personal Property adverse to the interest of Borrower or Lender therein.
H. Lender may examine and inspect the Personal Property at any
reasonable time, wherever located upon reasonable prior notice to Borrower
(except in the event of an emergency, in which event prior notice shall not be
required).
5.3 AFFIXED COLLATERAL.
The inclusion in SECTION 5.1 of any Personal Property which may now be or
hereafter become affixed or in any manner attached to the Project shall be
without prejudice to any claim at any time made by Lender that such Personal
Property is or has become a part of or an accession to the Project.
5.4 FURTHER SECURITY AGREEMENTS.
Borrower agrees to take such actions and, within ten (10) days after
Lender's request, to execute, deliver and file and/or record such documents,
agreements and financing statements as may be reasonably necessary to evidence
the security interest set forth in SECTION 5.1, to establish the priority
thereof and to carry out the intent and purpose of this ARTICLE 5.
ARTICLE 6
BORROWER'S REPRESENTATIONS AND WARRANTIES
As an inducement to Lender to execute this Agreement and make the Loan,
Borrower represents and warrants to Lender the truth and accuracy of the matters
setforth in this ARTICLE 6.
6.1 ORGANIZATION, POWER, GOOD STANDING, AND BUSINESS.
A. Borrower is a limited liability company duly formed, validly
existing and in good standing under the Laws of the State of Delaware and, if
formed under the Laws of a jurisdiction other than the District of Columbia, has
registered to do business and is in good standing under the Laws of the District
of Columbia. Borrower has the full power and authority to own and operate its
properties, to carry on its business as now conducted ,to enter into each Loan
Document and the Environmental Indemnity, and to carry out the transactions
contemplated hereby and thereby. Borrower does not do business under any trade
name or fictitious business name. Borrower has delivered to Lender true, correct
and complete copies of its Formation Documents and such Formation Documents have
not been amended or modified except pursuant to agreements delivered to Lender
prior to the date hereof or otherwise approved by Lender in writing in advance.
B. XM Radio Holdings, Borrower's sole member and manager, is a duly
formed, validly existing and in good standing under the Laws of the Delaware
and, if formed under the Laws of a
10
jurisdiction other than the District of Columbia, has, to the extent required to
conduct its business as presently conducted, registered to do business and is in
good standing under the Laws of the District of Columbia. Such sole member and
manager has the full power and authority to own and operate its properties, to
carry on its business as now conducted, to act as the sole member and manager of
Borrower, to enter into each Loan Document and the Environmental Indemnity as
the manager of Borrower, to enter into the Limited Recourse Obligations Guaranty
and the Environmental Indemnity on its own behalf, and to carry out the
transactions contemplated in the Loan Documents and the Environmental Indemnity.
Borrower has delivered to Lender true, correct and complete copies of the
Formation Documents for such member and manager and such Formation Documents
have not been amended or modified except pursuant to agreements delivered to
Lender. If the Formation Documents of Limited Recourse Obligations Guarantor are
amended after the Closing Date, on or before the tenth (10th) Business Day after
the effectiveness of such amendment, Borrower shall deliver to Lender a copy of
such amendment. If Lender, acting reasonably and in good faith, determines that
the change in the Formation Documents of Limited Recourse Obligations Guarantor
might materially and adversely affect Lender's rights or remedies under the Loan
Documents or the Environmental Indemnity, the business, assets, operations or
financial condition of Limited Recourse Obligations Guarantor or its ability to
perform its obligations under the Loan Documents or the Environmental Indemnity,
then Lender shall so notify Borrower in writing ("LENDER'S GUARANTOR NOTICE").
On or before the date which is one hundred twenty (120) days after the date of
Lender's Guarantor Notice (a) Borrower shall locate a Person, with a financial
net worth at least comparable to that of Limited Recourse Obligations Guarantor
as of the Closing Date and otherwise reasonably acceptable to Lender (the
"REPLACEMENT GUARANTOR"), to assume all of the obligations of Limited Recourse
Obligations Guarantor under the Loan Documents and the Environmental Indemnity,
and (b) Borrower and the Replacement Guarantor shall execute any and all
documents requested by Lender in good faith in connection with the replacement
of the Limited Recourse Obligations Guarantor with the Replacement Guarantor.
6.2 SINGLE PURPOSE ENTITY.
Borrower (a) has not engaged and does not engage in any business unrelated
to the Project, (b) has not had and does not have assets other than those
related to its interest in the Project, (c) has not had and does not have any
indebtedness other than as permitted by this Agreement, (d) has its own books
and records separate and apart from any other person, (e) holds itself out as
being and conducts all business as a legal entity, separate and apart from any
other person, partnership, corporation, limited liability company, trust or
other entity, with separate stationary, invoices and checks, (f) has not
guarantied the debts or obligations of any other person, partnership,
corporation, limited liability company, trust or other entity, and (g) has not
commingled its assets or funds with those of any other person, partnership,
corporation, limited liability company, trust or other legal entity. Borrower's
Formation Documents provide that any dissolution and winding up or insolvency
filing for Borrower requires the unanimous consent of all partners, directors or
members, as applicable.
6.3 AUTHORIZATION OF BORROWING, ETC.
A. AUTHORIZATION OF BORROWING. The execution, delivery and
performance of the Loan Documents and the Environmental Indemnity and the
issuance, delivery and payment of the Note have been duly authorized by all
necessary action of Borrower, its sole member, manager and Limited Recourse
Obligations Guarantor.
B. NO CONFLICT. The execution, delivery and performance by Borrower,
its sole member, manager and Limited Recourse Obligations Guarantor of each
applicable Loan Document and the Environmental Indemnity do not and will not (i)
violate any Law applicable to any such Person, the Formation Documents of any
such Person, or any order, judgment or decree of any court or other Governmental
Agency binding on any such Person; (ii) conflict with, result in a breach of or
constitute (with the giving of notice or the passage of time or both) a default
under any Contractual Obligation of any such
11
Person; (iii) result in or require the creation or imposition of any Lien of any
nature on Borrower's properties or assets other than the Liens in favor of
Lender under the Loan Documents; or (iv) require any approval or consent of any
Person under any Contractual Obligation of Borrower, its sole member, manager,
or Limited Recourse Obligations Guarantor.
C. GOVERNMENTAL CONSENTS. The execution, delivery and performance by
Borrower, its sole member, manager and Limited Recourse Obligations Guarantor of
each applicable Loan Document and the Environmental Indemnity does not and will
not require any registration with, consent or approval of, or notice to, or
other action to, with or by, any Governmental Agency or other Person.
D. BINDING OBLIGATION. The Note and the other Loan Documents are the
legally valid and binding obligations of Borrower, enforceable against Borrower
in accordance with their respective terms, except as enforcement may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws relating
to or limiting creditors' rights generally. The Environmental Indemnity is the
legally valid and binding obligation of each of the parties thereto, enforceable
against such parties in accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or limiting creditors' rights generally. The Limited Recourse
Obligations Guaranty is the legally valid and binding obligation of the Limited
Recourse Obligations Guarantor, enforceable against the Limited Recourse
Obligations Guarantor in accordance with its terms, except as enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or limiting creditors' rights generally.
6.4 ACTIONS.
Except as disclosed to Lender in writing prior to the Closing Date, there
is no action, suit, proceeding or arbitration, before or by any Governmental
Agency or other Person, pending or, to Borrower's knowledge, threatened in
writing against or affecting Borrower or affecting any properties of Borrower,
which might materially and adversely affect Lender's rights or remedies under
the Loan Documents or the Environmental Indemnity, the business, assets,
operations or financial condition of any such party or its ability to perform
its obligations under the Loan Documents or the Environmental Indemnity. As of
the Closing Date, there are no outstanding judgments against the Related Parties
or their property in excess of Twenty-Five Thousand Dollars ($25,000) as to any
individual judgment or Fifty Thousand Dollars ($50,000) in the aggregate.
Except as disclosed to Lender in writing prior to the Closing Date, as of
the Closing Date, there is no action, suit, proceeding or arbitration, before or
by any Governmental Agency or other Person, pending or, to Principal Parties'
knowledge, threatened in writing against or affecting Principal Parties or
affecting any properties of Principal Parties, which might materially and
adversely affect Lender's rights or remedies under the Loan Documents or the
Environmental Indemnity, the business, assets, operations or financial condition
of any such party or its ability to perform its obligations under the Loan
Documents or the Environmental Indemnity.
6.5 FINANCIAL POSITION.
A. FINANCIAL INFORMATION. The Application Information and all
financial statements and financial data delivered to Lender in connection with
the Loan and/or relating to Borrower are true, correct and complete in all
material respects, accurately present the financial position of such parties as
of the date thereof, and do not contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the statements
contained therein not misleading; provided, however, that the foregoing shall be
limited to Borrower's good faith knowledge and belief as to information,
statements and data concerning parties other than the Related Parties or
concerning the Project. No material adverse change has occurred in the financial
position of Borrower disclosed by the Application Information or in any other
financial statements or financial data delivered to Lender. As of the Closing
Date, the
12
Application Information and all financial statements and financial data
delivered to Lender in connection with the Loan and/or relating to the Principal
Parties (other than Borrower) are true, correct and complete in all material
respects, accurately present the financial position of such parties as of the
date thereof, and do not contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements contained
therein not misleading; provided, however, that the foregoing shall be limited
to Borrower's good faith knowledge and belief as to information, statements and
data concerning parties other than the Related Parties or concerning the
Project.
B. BANKRUPTCY AND INSOLVENCY. Neither Borrower nor any of the Related
Parties has filed or been the subject of any bankruptcy, insolvency,
reorganization, dissolution or similar proceeding or any proceeding for the
appointment of a receiver or trustee for all or any substantial part of their
respective property. Neither Borrower nor any of the Related Parties has
admitted in writing its inability to pay its debts when due, made an assignment
for the benefit of creditors or taken other similar action.
C. OTHER BORROWING. Except for the Loan, no borrowings have been made
by Borrower which are secured by the Project or any other assets of Borrower or
which might give rise to any Lien other than the Liens created by the Loan
Documents.
6.6 LIENS.
Borrower is the sole owner of the Project and the Personal Property free
from any adverse Liens, except for Liens in favor of Lender and title exceptions
approved by Lender in writing and set forth in the Title Policy or otherwise
approved by Lender in advance in writing. As of the Closing Date, Borrower has
paid in full all contractors, materialmen, laborers, architects or other such
Persons hired by Borrower to perform services or work with respect to the
Project and all statutory lien periods have expired with respect to any such
services or work, and from and after the Closing Date, Borrower has paid in full
all contractors, materialmen, laborers, architects or other such Persons hired
by Borrower to perform services or work with respect to the Project on or before
the date such claims become a Lien upon the Project or Personal Property except
as expressly permitted by the Loan Documents. No previous assignment, sale,
pledge, encumbrance or other hypothecation of the Leases or the Project
Documents has been made (except for pledges and encumbrances which have been
released in full prior to the date hereof or will be released in full
concurrently with the funding of the Loan).
6.7 COMPLIANCE WITH LAWS.
To Borrower's knowledge after due inquiry, the Project and the use thereof
are in material compliance with all Laws. Taken together, the Property consists
of legal and separate lot(s) for tax assessment purposes and under all
applicable subdivision Laws. All Permits, easements and rights of way necessary
for the occupancy, operation, ownership and use of the Project have been
obtained by Borrower and are in full force and effect.
6.8 DEFECTS.
To Borrower's knowledge after due inquiry, there are no defects, facts or
conditions affecting the Project or any portion thereof which would make the
Project unsuitable for the occupancy, operation, use or sale thereof. There are
no surface or subsurface soils conditions adversely affecting the Property,
including, without limitation, unstable soil or landfills.
6.9 UTILITIES.
All utilities necessary for the full enjoyment of the Project, including,
without limitation, trash collection, police and fire protection, sewer and
storm drain, water, telephone, gas and electricity, are
13
available to the Project and are not subject to any conditions which would limit
the use of such utilities, other than the payment of normal charges to the
utility supplier, other than customary and ordinary use conditions.
6.10 NO CONDEMNATION.
As of the Closing Date, to Borrower's knowledge after due inquiry, no
Condemnation Event (as defined in the Deed of Trust) is pending or threatened in
writing against the Project or any portion thereof.
6.11 HAZARDOUS SUBSTANCES.
To Borrower's knowledge after due inquiry, there are no Hazardous
Substances on, in, under or at the Project, except as specifically set forth and
identified in the Phase I Environmental Report dated August 14, 2001 and
prepared by URS Corporation with respect to the Project (the "ENVIRONMENTAL
REPORT") or otherwise disclosed to Lender in writing prior to the Closing Date
and delivered to Lender prior to the Closing Date, and other than fuel for
back-up generators, batteries and other substances disclosed to Lender in
writing prior to the Closing Date and used in accordance with all Environmental
Laws. The Project and each portion thereof is in full compliance with all
Environmental Laws. There are no above or below ground storage tanks located at
the Project, except as specifically set forth in the Environmental Report or
otherwise disclosed to Lender in writing prior to the Closing Date. Borrower has
not received written notice from any Governmental Agency or other third party
alleging that the Project or any portion thereof does not comply with any
Environmental Laws.
6.12 NO DEFAULTS.
No Event of Default exists under this Agreement or any of the other Loan
Documents. No default by Borrower exists under any Contractual Obligation which
would have a material adverse effect on Borrower's ability to repay the Loan or
to perform its obligations under any of the Loan Documents or under the
Environmental Indemnity.
6.13 DISCLOSURE.
No representation or warranty of Borrower contained in this Agreement or
any Loan Document contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements contained herein
or therein not misleading.
ARTICLE 7
BORROWER'S COVENANTS
Borrower covenants and agrees that, until the Loan and all other amounts
owing to Lender under the Loan Documents have been paid in full and all Secured
Obligations have been satisfied, Borrower shall perform all of the covenants in
this Article 7.
7.1 NO LIENS.
Except as expressly provided in SECTION 1.12 of the Deed of Trust, Borrower
shall not permit any Lien to be made or filed. Borrower shall be the sole owner
of the Project and Borrower's interest in the Personal Property, free from any
adverse Liens, except for Liens in favor of Lender. Borrower shall not assign,
sell, pledge, encumber or otherwise hypothecate all or any portion of the Leases
or the Project Documents.
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7.2 COMPLIANCE WITH LAWS.
Borrower will comply with all Laws applicable to Borrower, its property,
the Project, the Personal Property and/or the occupancy, operation, ownership or
use thereof.
7.3 INSPECTION.
Subject to the rights of tenants at the Project, during normal business
hours and upon reasonable advance notice (except in the event of an emergency,
in which event entry shall not be limited to normal business hours and no
advance notice shall be necessary) Borrower shall permit Lender and any Person
designated by Lender to visit and inspect the Project.
7.4 LEASING OF SPACE.
A. Unless otherwise approved by Lender in writing in advance, all
Leases shall be entered into with bona fide third party tenants financially
capable of performing their obligations thereunder and shall reflect arms-length
transactions at the then current market rate for comparable space. Lender
acknowledges its approval of the XM Radio Lease. Borrower shall perform all
obligations required to be performed by it as landlord under any Lease. Borrower
shall not accept any rent (however denominated) or other charges under any of
the Leases more than one (1) month in advance.
B. Borrower shall not enter into, or modify, amend, terminate or
accept a surrender or cancellation of, any Lease, or consent to any assignment
or subletting under any Lease, without Lender's prior written consent except as
follows:
(i) Borrower may terminate Leases other than Major Leases
without Lender's prior written consent if Borrower would in good faith terminate
such Lease in the ordinary course of its business.
(ii) Lender's prior written consent shall not be required for any
new Lease (a) which is not a Major Lease, (b) which does not include any
Material Lease Provisions, (c) where the term of the Lease (including any
options to extend the initial term of the Lease) does not exceed ten (10) years,
and (d) where the proposed use of the portion of the Project leased does not
involve the use, storage, processing, manufacture, transportation, disposal or
release of Hazardous Substances.
(iii) Lender's prior written consent shall not be required for any
amendment or modification of a Lease if the amendment or modification contains
no Material Lease Provision.
(iv) Lender's prior written consent shall not be required in
connection with any sublease or assignment of any Lease if either (a)(1) the
assignee or subtenant meets the requirements of SECTION 7.4(A), and (2) the
proposed use of the Project by such assignee or subtenant does not involve the
use, storage, processing, manufacture, transportation, disposal or release of
Hazardous Substances in excess of, or to a greater extent than, the use
permitted under such Lease (provided that the Lease is entered into in
accordance with the terms of the Loan Documents), or (b) such sublease or
assignment does not require Borrower's consent under the terms of the Lease
executed by Borrower in accordance with the terms of this Agreement.
C. Borrower shall promptly deliver to Lender such Leases, rent rolls,
leasing reports, operating statements or other leasing information as Lender may
from time to time reasonably request. Borrower shall promptly notify Lender of
(i) any material tenant dispute under a Major Lease, (ii) any material default
by Borrower or the tenants under any of the Major Leases, (iii) with respect to
nonpublic companies, any material adverse change in the financial condition or
ownership structure of a tenant
15
under a Major Lease of which the Borrower has knowledge, and (iv) any notice
received by Borrower relating to any material default by Borrower under any
Major Lease.
D. With respect to any Major Lease or Lease with an affiliate of
Borrower, Borrower shall, within twenty (20) days after Lender's request,
execute and deliver to Lender, and (i) cause the tenants (and any other party
to, or guarantor of such Leases), to execute and deliver to Lender,
nondisturbance and attornment agreements, in form and substance reasonably
satisfactory to Lender, and (ii) use its reasonable good faith efforts to cause
the tenants under Major Leases, to execute and deliver estoppel certificates, in
form and substance reasonably satisfactory to Lender. With respect to any Lease
other than a Major Lease or Lease with an affiliate of Borrower, if requested by
Lender, Borrower shall, within twenty (20) days after Lender's request, execute
and deliver and use its reasonable good faith efforts to cause the tenants
thereunder (and any other party to, or guarantor of, the Leases) to execute and
deliver to Lender, nondisturbance and attornment agreements and estoppel
certificates, in form and substance reasonably satisfactory to Lender.
E. As used herein, "MATERIAL LEASE PROVISION" means a provision which
materially increases the landlord's obligations under a Lease, which provides
the tenant with material rights or recourse against the landlord beyond the
interest of the landlord in the Project, or with the right to terminate the
Lease (other than reasonable and customary termination rights in comparable
leases for comparable properties), or which materially and adversely affects
Lender's security in the Lease. Without limiting the generality of the
foregoing, each of the following shall constitute a Material Lease Provision:
(i) any provision which affects the relative priority of the Lease and the Deed
of Trust without Lender's consent, or which requires Lender to agree to or
provide any nondisturbance agreement to the tenant; (ii) the grant of an
option, right of first offer or refusal or other right to purchase all or any
portion of the Project, (iii) the grant of an option, right of first offer or
refusal or other right to lease any additional space in the Project at a rent
less than market rent, (iv) the grant of any early termination option, (v) any
provision which provides for the application of insurance or condemnation
proceeds in a manner contrary to the Loan Documents, (vi) the grant of any
offsets, or the agreement for the payment of any amounts by the landlord, if
such offset or payment obligation would be applicable to any subsequent owner of
the Project, including, without limitation any owner succeeding to the
landlord's interest by foreclosure or a deed in lieu or in aid thereof, (vii) a
limit to the expense reimbursements due from the tenant for increases in taxes
or expenses, or (viii) an environmental, hazardous substance or other
indemnification binding on the landlord that would be applicable to any
subsequent owner of the Project, including, without limitation, any owner
succeeding to landlord's interest by foreclosure or a deed in lieu or in aid
thereof.
7.5 ENVIRONMENTAL MATTERS.
A. Borrower shall, at its own expense, comply and cause all persons
entering the Project to comply with all Environmental Laws applicable thereto
and Borrower shall not use, store, process, manufacture, transport, dispose or
release any Hazardous Substances on or adjacent to any part of the Project or
permit any of the foregoing to occur except to the extent disclosed in SECTION
6.11 above. Borrower shall immediately advise Lender in writing of any (i)
discovery (other than as disclosed in SECTION 6.11 above) of Hazardous
Substances on the Project or any portion thereof; or (ii) any claim, action or
order threatened or instituted by any third party (including any Governmental
Agency) against the Project or Borrower relating to damages, cost recovery, loss
or injury resulting from any Hazardous Substances. Borrower shall provide
Lender with copies of all communications with any third party (including any
Governmental Agency) relating to any Environmental Law or any claim, action or
order relating to Hazardous Substances at, on, under or in the Project or any
portion thereof. If any remedial action is required to bring the Project into
compliance with Environmental Laws, Borrower shall immediately notify Lender of
such situation and shall prepare a written plan setting forth a description of
such situation (and all environmental reports relating thereto) and the remedial
action that Borrower proposes to implement to bring the Project into compliance
with all Environmental Laws. Borrower shall, at its own expense, thereafter
diligently and continuously pursue the remediation of the condition necessary to
bring the
16
Project into compliance with all Environmental Laws and cause all liens or
encumbrances against the Project in connection therewith to be removed and
satisfied.
B. Lender shall have the right to retain a professional environmental
consultant to conduct tests and investigations of the Project (including,
without limitation, ground water and soils testing) with respect to Hazardous
Substances or the Project's compliance with Environmental Laws. Borrower hereby
grants to Lender, its agents, employees, consultants and contractors, an
irrevocable license and authorization, subject to the rights of tenants of the
Project, to enter upon and inspect the Project and to conduct such tests and
investigations on the Project or any portion thereof as Lender, in its sole
discretion, determines necessary. Such tests and investigations shall be at
Lender's expense unless (i) Lender reasonably believes that a breach of the
provisions of SECTION 6.11 or this SECTION 7.5 has occurred, (ii) a breach of
the provisions of SECTION 6.11 or this SECTION 7.5 has in fact occurred, or
(iii) an Event of Default, monetary Potential Default or material nonmonetary
Potential Default exists. Borrower acknowledges and agrees that, as between it
and Lender, only Borrower owns and operates the Project and only Borrower has
the responsibility for compliance with this SECTION 7.5 and neither Lender's
enforcement of, or failure to enforce, SECTION 7.5 shall be deemed to affect the
obligations or provisions of this SECTION 7.5.
C. To the fullest extent permitted by law, Borrower hereby
indemnifies and agrees to defend, and hold harmless the Indemnitees from and
against any and all loss, claim, damage or liability of any kind or nature and
from any suits, actions, claims or demands, including without limitation, all
amounts described in SECTION 7.5(D), arising directly or indirectly, in whole or
in part, out of (i) the existence (subject to SECTION 7.5(B) above) of any
Hazardous Substances at, on under or in the Project or any portion thereof, (ii)
the removal of or failure to remove any Hazardous Substances from the Project or
any portion thereof, (iii) any activity involving Hazardous Substances with
respect to the Project carried on or undertaken on or off the Project, (iv) any
residual contamination on or under the Project, or (v) any contamination of any
property or natural resources arising in connection with any activity involving
Hazardous Substances on the Project, in each case whether prior to or during the
term of the Loan, and whether by Borrower or any predecessor-in-title or any
employees, agents, contractors or subcontractors of Borrower or any
predecessor-in-title, or any third parties occupying or present on the Project.
Upon receiving knowledge of any suit, action, claim or demand asserted by a
third party that Lender believes is covered by this indemnity, Lender shall give
Borrower written notice of the matter and an opportunity to defend it, at
Borrower's sole cost and expense, with legal counsel reasonably satisfactory to
Lender. Lender may also require Borrower to so defend the matter. The
obligations of Borrower under this SECTION 7.5(C) are, without limitation,
intended to operate as a binding valid indemnity agreement under 42 U.S.C.
Sections. 9607(e)(1) and shall survive the closing of the Loan and the repayment
of the Loan and the satisfaction of all other Secured Obligations.
D. The indemnity set forth in SECTION 7.5(C) shall include, without
limitation, (i) loss, claims, damage or liability for, or arising from, personal
injury and property damage, (ii) compensation for lost wages, business income,
profits or other economic loss, (iii) all consequential damages; (iv) all
damages to any natural resources and the environment, the costs of any required
or necessary repair, clean up, response cost, or remediation of the Property and
the Project, and the preparation and implementation of any closure, remedial or
other required plans ; and (v) all costs and expenses incurred in connection
with any of the foregoing, including reasonable attorneys fees and costs.
7.6 INSURANCE REQUIREMENTS.
A. Borrower shall procure and maintain, or cause to be procured and
maintained, at all times until the repayment of the Loan and the satisfaction of
the Secured Obligations, policies of insurance in form and amounts reasonably
satisfactory to Lender, and issued by companies having a Best's rating of at
least B+, Class VI and otherwise reasonably satisfactory to Lender, covering (i)
such casualties, risks, perils, liabilities and other hazards as may be
reasonably required by Lender and (ii) such casualties, risks, perils,
liabilities and other hazards which are at the time commonly insured
17
against or required by institutional lenders to be insured against with respect
to properties similar to the Project. All policies shall expressly protect
Lender's interest as required by Lender. Without limiting the generality of the
foregoing, Borrower shall maintain or cause to be maintained the insurance
coverage described in SECTION 7.6(B). If Borrower fails to maintain the
insurance coverage required hereunder, Lender may, but shall have no obligation
to, obtain such insurance, and Borrower will pay all amounts expended by Lender,
together with interest thereon at the Default Interest Rate, within ten (10)
days after demand by Lender. In the event of any foreclosure of the Deed of
Trust or a deed in lieu or in aid thereof, all interest under the insurance
policies required by this SECTION 7.6 and then in force shall pass to the new
owner of the Project.
B. Without limiting the generality of SECTION 7.6(A), Borrower shall
maintain or cause to be maintained the following insurance coverages:
(i) property insurance for the full replacement cost of the
Project (excluding the Land), on an "all risks" basis (including fire, extended
coverage, vandalism and malicious mischief), together with a 4% inflationary
guard endorsement;
(ii) commercial general liability insurance on an "occurrence"
basis in the minimum amount of Two Million Dollars ($2,000,000) for personal
injury to any one person, Four Million Dollars ($4,000,000) for any one accident
and Two Hundred Fifty Thousand Dollars ($250,000) for property damage;
(iii) twelve (12) months of business interruption or loss of rents
coverage in an amount not less than the Minimum Rent Loss Coverage;
(iv) flood insurance in an amount equal to the greater of the
full replacement cost of the Project (excluding the Property), or the maximum
flood insurance available, if either (a) the Property is located in an area now
or hereafter designated as having special flood hazards under the Flood Disaster
Protection Act of 1973, as amended from time to time, or any other Law, or (b)
flood insurance is required by any Law applicable to Borrower, Lender or the
Project or by any federal or state regulatory agency having jurisdiction over
Lender; and
(v) earthquake insurance if required by any Law applicable to
Borrower, Lender or the Project or by any federal or state regulatory agency
having jurisdiction over Lender or if otherwise required by this SECTION 7.6.
C. All original policies, or certificates thereof, and endorsements
and renewals thereof, shall be delivered to and retained by Lender unless Lender
agrees otherwise. In case of insurance about to expire, Borrower shall deliver
renewal policies to Lender not less than thirty (30) days prior to the
expiration thereof. All policies of insurance to be furnished hereunder (i)
shall be in form reasonably satisfactory to Lender; (ii) shall have a deductible
of not more than Ten Thousand Dollars ($10,000) with respect to any insurance
other than earthquake insurance and, with respect to earthquake insurance, shall
have a deductible acceptable to Lender, (iii) shall include a Standard Mortgage
Clause/Lender's Loss Payable Endorsement and Chattel Mortgage Clause in favor
of, and in form reasonably satisfactory to, Lender, including a provision
requiring that the coverage evidenced thereby shall not be terminated or
materially modified without thirty (30) days' prior written notice to Lender,
and (iv) may be in the form of blanket policies in amount, form and substance
satisfactory to Lender. Borrower shall not take out separate insurance
concurrent in form or contributing in the event of loss with that required to be
maintained hereunder.
D. Notwithstanding anything to the contrary contained in the Loan
Documents, Borrower waives any and all right to claim or recover against Lender,
or its directors, officers, employees, agents and representatives, for loss of
or damage or injury to the Project, Borrower, Borrower's property,
18
or the property of others under Borrower's control, from any cause insured
against or required to be insured against under this SECTION 7.6 or coverable by
insurance.
E. Borrower shall, at its expense, provide from time to time at the
written request of Lender, not more frequently than once per year, satisfactory
evidence of the insurable value of the Project. Such evidence may be in the form
of an insurance appraisal or valuation report prepared by an insurance company,
appraiser or other consultant approved by Lender.
7.7 NOTICE OF PROCEEDING.
Borrower will promptly notify Lender of any action, suit, proceeding or
arbitration (including, without limitation, any judicial or nonjudicial
foreclosure proceeding, any voluntary or involuntary bankruptcy proceeding or
any proceeding for the appointment of a receiver), commenced or threatened
against Borrower, any of the Principals, or the Project or any portion thereof
or interest therein. Borrower shall deliver to Lender copies of all notices and
other information in connection with any action, suit, proceeding or arbitration
promptly upon receipt or transmittal thereof.
7.8 FINANCIAL AND OTHER INFORMATION.
Borrower shall maintain full and complete books of account and other
records reflecting the results of operations of the Project in accordance with
generally accepted accounting principles consistently applied (or such other
accounting method approved in writing by Lender). Borrower shall furnish or
cause to be furnished to Lender such financial information concerning Borrower,
the Principals and the Project as Lender may reasonably request from time to
time. Notwithstanding anything to the contrary contained in this Agreement, in
the event that Lender requests nonpublic in formation for a Person that is
publicly traded, then, prior to providing Lender with such nonpublic
information, Lender agrees to execute a confidentiality agreement with respect
to such information, in form and substance reasonably satisfactory to Borrower
and Lender. Lender shall also have access to such books and records and
Borrower's corporate books, during regular business hours and upon reasonable
advance notice to Borrower and shall have the right to make copies thereof or
extracts therefrom and to discuss the affairs, finances and accounts of Borrower
with Borrower and its independent public accountants, all as Lender may
reasonably request. Without limiting the generality of the foregoing, each year
Borrower shall furnish to Lender, without prior request or demand:
A. If Borrower and/or any Principal is not a natural person or a
trust, within one hundred twenty (120) days after the end of each Loan Year and
at such other times within sixty (60) days after request by Lender, Borrower
shall provide Lender with annual financial statements (including, without
limitation, a balance sheet and a profit and loss statement) for such party's
previous fiscal year and the current fiscal year-to-date, each of which shall
(i) as to non-public companies, (a) be in prepared in accordance with generally
accepted accounting principles, (b) for the period from and after the second
anniversary of the Closing Date, contain comparative information for the two (2)
previous fiscal years, (c) be certified as true, correct and complete by
Borrower or such Principal, and (d) at Lender's election during the existence of
an Event of Default or Potential Default, be certified by a certified public
accountant acceptable to Lender, and (ii) as to public companies, be in the form
required to be filed with the Securities and Exchange Commission.
B. Within fifteen (15) Business Days after the end of each calendar
month, within one hundred twenty (120) days after the end of each calendar year
and at such other times within sixty (60) days after request by Lender, Borrower
shall provide Lender with operating statements for the Project for the previous
calendar month or previous fiscal year (as applicable) and the current fiscal
year-to-date, which shall (i) as to non-public companies, be prepared in
accordance with generally accepted accounting principles, (ii) contain
comparative information (a) from and after the first day of the second month
after the Closing Date for the two (2) previous calendar months, or (b) from and
after the Second Anniversary of the
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Closing Date for the two (2) previous fiscal years (as applicable), (iii) be
certified as true, correct and complete by Borrower, and (iv) at Lender's
election during the existence of an Event of Default or Potential Default, be
certified by a certified public accountant acceptable to Lender.
C. Within fifteen (15) Business Days after the end of each calendar
month during the Term, within one hundred twenty (120) days after the end of
each calendar year and at such other times within sixty (60) days after request
by Lender, Borrower shall provide Lender with (a) an updated rent roll and
leasing status report for the Project, in form reasonably satisfactory to Lender
and containing such information as is reasonably required by Lender, including,
without limitation, the names and a description of all tenant leads, inquiries
and offers, a description of leases under negotiation, and a summary of the
currently marketing strategy for the leasing of the Project, and (b) an updated
lease receivables aging report, in form reasonably satisfactory to Lender and
containing such information as is reasonably required by Lender, including,
without limitation, an itemized schedule, by tenant, of past due rentals and
common area maintenance charges indicating the length of the delinquency.
D. Without limiting any of Lender's rights or remedies in the event
of any failure by Borrower to comply with the provisions of this SECTION 7.8, if
Borrower fails to deliver to Lender any of the financial statements or other
information required herein on or before the date required in this SECTION 7.8
(the "INFORMATION DELIVERY DATE") and such failure shall continue for thirty
(30) days after Lender has provided Borrower with written notice of such
failure, then commencing on the Information Delivery Date the Variable Rate
Margin (as defined in the Note) shall be increased by one-half percent (.50%)
until such time as Borrower has delivered, and Lender has approved, all of the
financial statements or other information required to be delivered by Borrower
pursuant to this SECTION 7.8. In addition to such increase in the Variable Rate
Margin, the Monthly Installments (as defined in the Note) shall be adjusted
effective with the Monthly Installment due immediately following the Information
Delivery Date to reflect such increase. Once Borrower has delivered, and Lender
has approved, all of the financial statements and other information required to
be delivered by Borrower pursuant to this SECTION 7.8, the Monthly Installments
shall be readjusted effective with the Monthly Installment due immediately
thereafter.
7.9 REPRESENTATIONS AND WARRANTIES.
Until repayment of the Loan and all other amounts owing to Lender under the
Loan Documents and the satisfaction of all other Secured Obligations, the
representations and warranties set forth in ARTICLE 6 shall remain true and
complete as and when made. In the event any such representation or warranty is
no longer true as of a later date, Borrower covenants to take such corrective
action as may be necessary in order to cure such defect in the representation or
warranty.
7.10 FURTHER ASSURANCES.
Borrower shall execute and deliver from time to time, within ten (10) days
after any request by Lender, any and all instruments, agreements and documents
and shall take such other action as may be reasonably required to maintain,
perfect or insure Lender's security provided for herein and in the other Loan
Documents, including, without limitation, the execution of UCC-1 renewal
statements, the execution of such amendments to the Deed of Trust and the other
Loan Documents and the delivery of such endorsements to the Title Policy
relating to such amendments, all as Lender shall reasonably require, and shall
pay all fees and expenses (including reasonable attorney's fees) related
thereto.
7.11 DISTRIBUTION OF ASSETS.
During the continuance of an Event of Default, Borrower shall not make any
distribution of its assets, directly or indirectly, to its partners,
shareholders, members or other owners. As used herein, the distribution of
assets shall include, without limitation, the repayment of any loans made to
Borrower or any interest or other charges payable in connection therewith, the
return of capital contributions and
20
distributions upon the termination, liquidation or dissolution of Borrower and
the payment of fees, including management, leasing, brokerage and other fees to
the extent such fees exceed the amounts payable in arms' length transactions
with third parties. Borrower shall maintain and preserve its existence and all
rights and franchises material to its business.
7.12 SINGLE PURPOSE ENTITY.
Borrower shall not do any of the activities or take any of the actions
proscribed in SECTION 6.2 above until the full and final repayment of the Loan
and other obligations under the Loan Documents.
7.13 CASH COLLATERAL ACCOUNT.
A. On the Closing Date, Borrower shall (a) establish a cash collateral
account with Lender (the "CASH COLLATERAL ACCOUNT"), and (b) deposit the sum of
Two Million Dollars ($2,000,000) (the "INITIAL DEPOSIT") into the Cash
Collateral Account. On or before (y) the first anniversary of the Closing Date,
Borrower shall (i) deposit the sum of One Million Dollars ($1,000,000) (the
"FIRST ADDITIONAL DEPOSIT") into the Cash Collateral Account, or (ii) deliver to
Lender a Letter of Credit in the face amount of One Million Dollars ($
1,000,000) and otherwise in form and substance acceptable to Lender in its sole
discretion, and (z) the second anniversary of the Closing Date, Borrower shall
(i) deposit the sum of Five Hundred Thousand Dollars ($500,000) (the "SECOND
ADDITIONAL DEPOSIT") into the Cash Collateral Account, or (ii) deliver to Lender
a Letter of Credit in the face amount of Five Hundred Thousand Dollars
($500,000), and otherwise in form and substance acceptable to Lender in its sole
discretion. Borrower may request disbursements from the Cash Collateral Account
so long as no Event of Default or Potential Default exists, upon satisfaction
and compliance with the conditions set forth in the Cash Collateral Pledge
Agreement. Within ten (10) days after Lender's request, Borrower shall execute
any and all documents reasonably requested by Lender in connection with the Cash
Collateral Account, Initial Deposit, First Additional Deposit, Second Additional
Deposit and the Letters of Credit.
B. If at any time prior to the Termination Date (as defined in the
Cash Collateral Pledge Agreement), Borrower desires to withdraw money from the
Cash Collateral Account, then as long as no Event of Default or Potential
Default exists, Borrower shall deliver to Lender one (1) Letter of Credit in
form and substance acceptable to Lender in its sole discretion, and upon
Lender's receipt of such Letter of Credit, Lender shall permit a disbursement
from the Cash Collateral Account in an amount equal to the face amount of such
Letter of Credit.
7.14 CLOSURE OF PIT.
Lender shall have received evidence satisfactory to Lender in its sole
discretion that on or before the date which is ninety (90) days after the
Closing Date, Borrower, at Borrower's sole cost and expense, shall have closed
and abandoned the pit located in the basement of the Improvements at the Project
in accordance with all Laws, the recommendations set forth in the Environmental
Report and otherwise in a manner satisfactory to Lender.
ARTICLE 8
EVENTS OF DEFAULT; REMEDIES
8.1 EVENTS OF DEFAULT.
The occurrence of any of the following events shall constitute an Event of
Default under this Agreement and the other Loan Documents:
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A. FAILURE TO MAKE PAYMENTS WHEN DUE. Borrower's or Limited Recourse
Obligations Guarantor's failure to pay any principal, interest or other monies
due under this Agreement or any of the other Loan Documents within ten (10) days
after such amount is due, provided that not more than once in any calendar year
Borrower shall be entitled to written notice of such failure before the
calculation of such ten (10) day period.
B. BREACH OF CERTAIN COVENANTS. Borrower's or Limited Recourse
Obligations Guarantor's failure to perform or comply with any term, obligation
or condition contained in this Agreement or any of the other Loan Documents
required to be performed by it, other than those terms, obligations and
conditions otherwise referred to in this SECTION 8.1 and other than Borrower's
obligations under SECTION 1.10(A) of the Deed of Trust, within thirty (30) days
after the delivery of written notice from Lender of such failure; provided that
if such default is not reasonably capable of being cured within such thirty (30)
day period, such failure shall not constitute an Event of Default so long as
Borrower or Limited Recourse Obligations Guarantor, as applicable, commences the
cure of such default within such thirty (30) day period and diligently
prosecutes such cure to completion within one hundred eighty (180) days after
such written notice from Lender, subject to Force Majeure. "FORCE MAJEURE" means
any event, act or condition which causes a delay in the completion of the cure
of such default and is outside the Borrower's control but only to the extent
that (a) such event does not arise out of (x) the negligence, willful misconduct
or inefficiencies of the Borrower, or (y) the insolvency, bankruptcy or any lack
of funds by the Borrower; and (b) such event consists of an act of God (such as
tornado, flood, hurricane, etc.), fires and other casualties; strikes, lockouts
or other labor disturbances (except to the extent taking place at the Project
only); riots, insurrections or civil commotions; embargos, shortages or
unavailability of materials, supplies, labor, equipment and systems that first
arise after the Closing Date, but only to the extent caused by another act,
event or condition covered by this clause (b); sabotage; vandalism; legal
requirements enacted after the Closing Date (unless the Borrower should, in the
exercise of due diligence and prudent judgment, have anticipated such
enactment); orders or judgments; or any similar types of events. Borrower must
seek to mitigate the impact of any delay caused by Force Majeure and any delay
resulting from the foregoing shall not exceed 180 days. The period during which
Force Majeure exists shall commence on the date that Borrower has given Lender
written notice describing in reasonable detail the event which constitutes the
Force Majeure and Lender has confirmed the existence of such Force Majeure and
shall end on the date that such Force Majeure no longer exists, whether or not
notice is given to Lender, as determined by Lender in its discretion.
C. BREACH OF WARRANTY. Any representation, warranty, certification or
other statement made by Borrower or any of the Principals herein or in any other
Loan Document or in any statement or certificate at any time given by Borrower
or any of the Principals to Lender in writing in connection with the Loan shall
be materially false or misleading.
D. INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) A court having proper jurisdiction shall enter a decree or
order for relief with respect to Borrower or any of the Principals in an
involuntary case under the Bankruptcy Code or any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, which decree or
order is not stayed within fifteen (15) days after entry and dismissed within
ninety (90) days after the entry of such order; or
(ii) An involuntary case is commenced against Borrower or any of
the Principals, under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect; or a decree or order of a court for the appointment
of a receiver, liquidator, sequestrator, trustee, custodian or other officer
having similar powers over Borrower or any of the Principals or over all or a
substantial part of their respective property, shall be entered; or the
involuntary appointment of an interim receiver, trustee or other custodian of
Borrower or any of the Principals, for all or a substantial part of their
respective property; or the issuance of a warrant of attachment, execution or
similar process against any substantial
22
part of the respective property of Borrower or any of the Principals, and the
continuance of any such event in this clause (ii) for ninety (90) days unless
dismissed or discharged.
E. VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) Borrower or any of the Principals shall initiate or commence
a voluntary case under the Bankruptcy Code or any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or shall consent to
the entry of an order for relief in an involuntary case, or to the conversion of
an involuntary case to a voluntary case, under any such law, or shall consent to
the appointment of or taking possession by a receiver, trustee or other
custodian for all or a substantial part of their respective property; the making
by Borrower or any of the Principals of any assignment for the benefit of
creditors; or
(ii) The admission by Borrower or any of the Principals in
writing of its inability, to pay their respective debts as such debts become
due.
X. XXXX PRIORITY. Lender fails to have a legal, valid binding and
enforceable first priority Lien on the Project and the Personal Property.
G. UNAPPROVED TRANSFERS. Any transfer (as defined in SECTION 1.10 of
the Deed of Trust) of the Project or any interest in Borrower occurs without
Lender's prior written consent in accordance with SECTION 1.10 of the Deed of
Trust, except as otherwise permitted in SECTION 1.10 of the Deed of Trust.
H. FAILURE TO MAINTAIN INSURANCE. Borrower fails to maintain or cause
to be maintained the insurance coverage required by SECTION 7.6 for three (3)
Business Days after Lender delivers written notice to Borrower of such failure.
I. OTHER LOAN DOCUMENTS. The occurrence of an Event of Default under
any of the other Loan Documents (as "Event of Default" is defined therein).
8.2 GENERAL REMEDIES.
Notwithstanding anything to the contrary contained herein or in any of the
other Loan Documents, upon the occurrence of any Event of Default (i)
automatically without notice to Borrower as to SECTIONS 8.1(D), (E) and (J), and
otherwise at the option of Lender upon written notice to Borrower as to any
other Event of Default, the unpaid principal amount of the Loan, all accrued and
unpaid interest and all other Secured Obligations shall become immediately due
and payable, without presentment, demand, protest, further notice or other
requirements of any kind, all of which are hereby expressly waived by Borrower,
(ii) Lender shall have the rights and remedies of a secured party under the
District of Columbia Uniform Commercial Code, and under any other applicable
law, (iii) Lender may pursue all of its rights and remedies hereunder, under the
other Loan Documents, at law, in equity or otherwise, including without
limitation, obtaining the appointment of a receiver to perform any act of Lender
permitted in this Agreement and to perform such other duties as permitted by
applicable Laws, (iv) all outstanding indebtedness and all other amounts owing
to Lender under the Loan Documents shall bear interest at the Default Interest
Rate, and (v) Lender shall have no further obligation to disburse Loan proceeds
to Borrower.
8.3 SPECIFIC PERFORMANCE.
Upon the occurrence of an Event of Default, Lender may commence and
maintain an action in any court of competent jurisdiction for specific
performance of any of the covenants and agreements contained herein or in any of
the other Loan Documents, may obtain the aid and direction of the court in the
23
performance of any of the covenants and agreements contained herein or therein,
and may obtain orders or decrees directing the same and, in the case of any sale
under the Deed of Trust, directing, confirming or approving Lender's or the
trustee's actions.
8.4 REMEDIES AS TO PROJECT DOCUMENTS.
Upon the occurrence of an Event of Default, Lender shall have the right
(and Borrower hereby irrevocably constitutes and appoints Lender as its
attorney-in-fact, which power is coupled with an interest, to do so) to (a)
demand, receive and enforce Borrower's rights with respect to the Project
Documents, (b) give appropriate receipts, releases and satisfactions for and on
behalf of Borrower with respect to any of the Project Documents, (c) do any and
all acts in the name of Borrower or in the name of Lender with the same force
and effect as Borrower could do if the assignment in ARTICLE 4 had not been
made, and (d) perform and discharge each and every obligation, covenant,
condition and agreement of Borrower under the Project Documents.
ARTICLE 9
MISCELLANEOUS PROVISIONS
9.1 NONFOREIGN STATUS.
Section 1445 of the Internal Revenue Code of 1985, as amended (the
"INTERNAL REVENUE CODE") provides that a transferee of a U.S. real property
interest must withhold tax under the circumstances described therein. To inform
Lender that the withholding of tax will not be required in the event of the
disposition of the Project pursuant to the terms of the Deed of Trust, Borrower
hereby certifies, under penalty of perjury, that: (a) Borrower is not a foreign
corporation, foreign partnership, foreign trust or foreign estate, as those
terms are defined in the Internal Revenue Code and the regulations promulgated
thereunder; and (b) Borrower's U.S. employer identification number is the Tax
Identification Number; and (c) Borrower's principal place of business is at the
address set forth in SECTION 9.10. Lender may disclose the contents of this
SECTION 9.1 to the Internal Revenue Service or any other Governmental Agency and
Borrower acknowledges that any false statement contained herein could be
punished by fine, imprisonment or both. Borrower covenants and agrees to execute
further certificates, which shall be signed under penalty of perjury, as Lender
shall reasonably require in connection with the certifications set forth herein.
The covenant set forth herein shall survive the foreclosure of the lien of the
Deed of Trust or acceptance of a deed in lieu or in aid thereof.
9.2 ASSIGNMENTS AND PARTICIPATIONS IN LOAN AND NOTE.
Lender may assign its rights and delegate its obligations under this
Agreement or any of the other Loan Documents and further may assign, or sell
participations in, all or any part of the Loan, the Loan Documents, or any other
interest herein or in the Note to any Person, all without notice to or the
consent of Borrower. To the extent of any such assignment, Lender shall be
relieved of its obligations with respect to the Loan and the assignee shall have
the same rights, benefits and obligations as it would if it were Lender
hereunder and a holder of the Note. Lender may furnish any information
(including, without limitation, financial information) concerning the Project,
Borrower, Principals and any of their assets to third parties from time to time
for legitimate business purposes.
9.3 EXPENSES.
Borrower agrees to pay, within ten (10) days after demand by Lender, all
reasonable costs and expenses (including, without limitation, reasonable
attorneys' fees and costs, fees of any consultants, and fees for any
environmental audits, appraisal, inspections or other review required by Lender)
incurred by Lender in connection with the Loan, the enforcement of any of the
Secured Obligations, the enforcement
24
of any of Lender's rights and remedies under the Loan Documents, the collection
of any payments owing to Lender hereunder or under any of the other Loan
Documents, whether or not such enforcement and collection includes the filing of
a lawsuit, or the retaking, holding, preparing for sale or selling the Project
or any portion thereof or any interest therein. Such costs and expenses shall
include, without limitation, Lender's reasonable attorneys' fees and costs,
including without limitation attorneys' fees and costs incurred by Lender in
connection with any insolvency, bankruptcy, reorganization, arrangement or other
similar proceedings involving Borrower or any of the Principals which in any way
affect the exercise by Lender of its rights and remedies hereunder, under any of
the other Loan Documents, at law or in equity.
9.4 JOINT AND SEVERAL OBLIGATIONS.
The liability of Borrower under this Agreement and under each of the other
Loan Documents shall be joint and several. Any married person signing the Loan
Documents as Borrower or its manager agrees that recourse may be had against
community assets and against his or her separate property for the satisfaction
of all obligations under the Loan Documents.
9.5 INDEMNITY.
Borrower hereby indemnifies and agrees to defend and hold harmless the
Indemnitees from and against any and all expenses, loss, claims, damage or
liability, including, with out limitation, architects', engineers' and
attorneys' fees and costs by reason of: (a) the construction of any improvements
on the Project, (b) any capital improvements, other work or things done in, on
or about the Project or any part thereof, (c) any use, nonuse, misuse,
possession, occupation, alteration, operation, maintenance or management of the
Project or any part thereof or any street, drive, sidewalk, curb passageway or
space comprising a part thereof or adjacent thereto, (d) any negligence or
willful act or omission on the part of Borrower or its agents, contractors,
servants, employees, licensees or invitees, (e) any accident, injury (including
death) or damage to any person or property occurring in, on or about the Project
or any part thereof, (f) any Lien or claim which may be alleged to have arisen
on or against the Project or any part thereof or any liability asserted against
Lender with respect thereto, (g) any tax attributable to the execution,
delivery, filing or recording of the Deed of Trust, the Note or the other Loan
Documents, (h) any contest due to Borrower's actions or failure to act, (i) any
default under the Note or the other Loan Documents, (j) any claim by or
liability to any contractor or subcontractor performing work or any party
supplying materials in connection with the Project, or (k) the performance by
the trustee under the Deed of Trust of any act required of it therewith.
9.6 WAIVER OF OFFSET.
All sums payable by Borrower pursuant to any of the Loan Documents shall be
paid without notice, demand, counterclaim, setoff, deduction or defense and
without abatement, suspension, deferment, diminution or reduction, and the
obligations and liabilities of Borrower under the Loan Documents shall in no way
be released, discharged or otherwise affected (except as expressly provided in
the Loan Documents) by reason of: (a) any damage to or destruction of the
Project or any Condemnation Event (as defined in the Deed of Trust) affecting
the Project or any part thereof; (b) any restriction or prevention of or
interference by any third party with any use of the Project or any part thereof;
(c) any title defect or encumbrance or any eviction from the Project or any part
thereof by title paramount or otherwise; (d) any bankruptcy, insolvency,
reorganization, composition, adjustment, dissolution, liquidation or other like
proceeding relating to Lender, or any action taken with respect to any of the
Loan Documents by any trustee or receiver of Lender, or by any court, in any
such proceeding; (e) any claim which Borrower has or might have against Lender;
(f) any default or failure on the part of Lender to perform or comply with any
of the terms hereof or of any other agreement with Borrower; or (g) any other
occurrence whatsoever, whether similar or dissimilar to the foregoing; whether
or not Borrower shall have notice or knowledge of any of the foregoing. Except
as expressly provided herein, Borrower waives all rights now or hereafter
25
conferred by statute or otherwise to any abatement, suspension, deferment,
diminution or reduction of any of the Secured Obligations.
9.7 AMENDMENTS AND WAIVERS.
This Agreement and the other Loan Documents may only be modified in writing
signed by all of the parties hereto or thereto or their respective successors
and assigns. No waiver of any provision of this Agreement or of any of the other
Loan Documents, or consent to any departure by Borrower therefrom, shall in any
event be effective without the written agreement of Lender. Any waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which it was given. Except as expressly required by the terms of the
Loan Documents, no notice to or demand on Borrower in any case shall entitle
Borrower to any other or further notice or demand in similar or other
circumstances.
9.8 WAIVER OF JURY TRIAL.
BORROWER AND LENDER EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY TORT OR
CONTRACT LITIGATION BASED HEREON OR ON ANY OF THE OTHER LOAN DOCUMENTS, OR
ARISING OUT OF, UNDER OR IN CONJUNCTION WITH THE NOTE, ANY OTHER LOAN DOCUMENT,
OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR
WRITTEN) OR ACTIONS OF EITHER PARTY IN CONNECTION THEREWITH.
9.9 SUBMISSION OF LOAN DOCUMENTS.
The submission of this Agreement, any of the other Loan Documents or the
Environmental Indemnity to Borrower or its agents or attorneys for review or
signature does not constitute a commitment by Lender to make the Loan to
Borrower, and the Loan Documents and the Environmental Indemnity shall have no
binding force or effect unless and until they are executed and delivered by
Borrower and Lender and all of the conditions set forth in SECTION 3.1 have been
satisfied.
9.10 NOTICES.
Any notice, or other document or demand required or permitted under this
Agreement or any of the other Loan Documents shall be in writing addressed to
the appropriate address set forth below and shall be deemed delivered upon the
earliest of (a) actual receipt, (b) the next Business Day after the date when
sent by recognized overnight courier, or (c) the second Business Day after the
date when sent by registered or certified mail, postage prepaid. Any party may,
from time to time, change the address at which such written notice or other
documents or demands are to be sent, by giving the other party written notice of
such change in the manner hereinabove provided.
To Borrower: XM 1500 Eckington LLC
0000 Xxxxxxxxx Xxxxx, XX
Xxxxxxxxxx, XX 00000
To Lender: Fremont Investment & Loan
000 X. Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Commercial Real Estate
Loan No. 950114179
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9.11 SURVIVAL OF WARRANTIES AND CERTAIN AGREEMENTS.
All agreements, indemnities, representations and warranties made herein and
in the other Loan Documents shall survive the execution and delivery of this
Agreement, the making of the Loan hereunder and the execution and delivery of
the Note. All representations and warranties made in this Agreement or in any of
the other Loan Documents shall further survive any and all investigations and
inquiries made by Lender. Notwithstanding anything in this Agreement or the
other Loan Documents or implied by law to the contrary, any indemnities made by
Borrower in the Loan Documents shall survive the payment of the Loan, the
satisfaction of the Secured Obligations, and/or the termination of this
Agreement or the other Loan Documents.
9.12 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of Lender or any holder of the Note or
portion thereof in the exercise of any power, right or privilege hereunder or
under the Note shall impair such power, right or privilege or be construed to be
a waiver of any default or acquiescence therein, nor shall any single or partial
exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other right, power or privilege. All rights and
remedies existing under this Agreement and the other Loan Documents are
separate, distinct and cumulative to, and not exclusive of, any rights or
remedies otherwise available at law or in equity. No act of Lender under any of
the Loan Documents shall be construed as an election to proceed under any one
provision to the exclusion of any other provision, notwithstanding anything in
the Loan Documents to the contrary. Borrower expressly waives all right to the
benefit of any statute of limitations and any moratorium, reinstatement,
marshaling, forbearance, extension, redemption, or appraisement now or hereafter
provided by federal or state law, as a defense to any demand against Borrower to
the fullest extent permitted by law.
9.13 SURVIVAL OF OBLIGATIONS UPON TERMINATION OF AGREEMENT.
No termination or cancellation (regardless of cause or procedure) of this
Agreement or any of the other Loan Documents shall in any way affect or impair
the powers, obligations, duties, rights, and liabilities of Borrower or Lender
relating to (a) any transaction or event occurring prior to such termination or
cancellation, or (b) any of the undertakings, agreements, covenants,
indemnities, warranties and representations of Borrower or Lender contained in
this Agreement or any of the other Loan Documents.
9.14 DISBURSEMENTS IN EXCESS OF LOAN AMOUNT.
In the event the total disbursements by Lender exceed the amount of the
Loan set forth herein, the total of all disbursements shall, to the extent
permitted by the Laws of the District of Columbia, constitute part of the
Secured Obligations and be secured by the Deed of Trust and other Loan
Documents. All other sums expended by Lender pursuant to this Agreement or any
of the other Loan Documents shall be deemed to have been paid to Borrower and
shall be secured by the Loan Documents.
9.15 SEVERABILITY.
If any term of this Agreement or any of the other Loan Documents or the
application thereof to any person or circumstances, shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement or other Loan Document
or the application of such term to persons or circumstances other than those as
to which it is in valid or unenforceable, shall not be affected thereby, and
each term of this Agreement or other Loan Document shall be valid and
enforceable to the fullest extent.
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9.16 RULES OF CONSTRUCTION.
Where the identity of the parties to this Agreement or any of the other
Loan Documents or the circumstances make it appropriate, the masculine gender
includes the feminine and/or neuter, and the singular number includes the
plural. Article and Section headings in this Agreement and the other Loan
Documents are included for convenience of reference only and shall not
constitute a part of this Agreement or such other Loan Documents for any other
purpose or be given any substantive effect. The recitals to this Agreement and
to each of the other Loan Documents are incorporated herein and therein and made
a part hereof and thereof.
9.17 APPLICABLE LAW.
This Agreement and the other Loan Documents shall be governed by, and
construed and enforced in accordance with, the Laws of the District of Columbia.
9.18 SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns. Except as expressly
provided in the Deed of Trust, Borrower's rights and obligations or any interest
hereunder or under any of the other Loan Documents may not be assigned,
including, without limitation, assigned for security purposes, without the prior
written consent of Lender, which may be withheld in Lender's sole discretion,
and any purported assignment shall be null and void AB INITIO. As used herein,
and in the other Loan Documents, "Lender" (or similar references to the lender)
shall include all holders of the Note, including, without limitation, pledgees
of the Note, whether or not named herein or therein provided that each such
Pledgee is a regulatory agency; provided, however, that whenever this Agreement
or the other Loan Documents requires the consent or approval of the Lender, the
consent or approval of such pledgee shall not be required without the prior
written consent of Borrower, which consent shall not unreasonably be withheld.
In exercising any rights hereunder or under any of the other Loan Documents or
taking any actions provided for herein or therein, Lender may act through its
employees, agents or independent contractors authorized by Lender.
9.19 DISCLOSURE OF INFORMATION.
Borrower hereby acknowledges and agrees that upon the request of any
partner, member or shareholder of Borrower, as applicable, Lender may disclose
to such party any information (including, without limitation, financial
information) relating to the Loan and Borrower's performance of its obligations
under the Loan Documents. Borrower hereby indemnifies and agrees to defend and
hold harmless the Indemnitees from and against any and all expenses, loss,
claims, damage or liability, including, without limitation, attorneys' fees and
costs, arising by reason of any disclosure of information by Lender under this
SECTION 9.19.
9.20 COUNTERPARTS.
This Agreement and the other Loan Documents may be executed in any number
of counterparts, each of which when so executed and delivered shall be deemed to
be an original and all of which counterparts taken together shall constitute but
one and the same instrument. Signature and, if applicable, acknowledgment pages
may be detached from the counterparts and attached to a single copy of the
applicable document to physically form one document, which may be recorded if
applicable.
9.21 ENTIRE AGREEMENT.
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The Loan Documents set forth the entire understanding between Borrower and
Lender relative to the Loan and the same supersede all prior agreements and
understandings relating to the subject matter hereof or thereof.
9.22 INCONSISTENCIES.
In the event it is impossible to simultaneously comply with the terms of
this Agreement and any of the terms of any other Loan Document, the terms of
this Agreement shall control over any inconsistent term of any other Loan
Document.
9.23 TIME IS OF THE ESSENCE.
Time is strictly of the essence of this Agreement and the other Loan
Documents.
9.24 NO THIRD PARTY BENEFICIARIES.
This Agreement and the other Loan Documents are made and entered into for
the sole protection and benefit of the parties hereto, and, except as provided
in SECTION 9.18, no other person or entity shall be a direct or indirect
beneficiary of, or shall have any direct or indirect cause of action or claim in
connection with, this Agreement or any of the other Loan Documents.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
Borrower and Lender as of the date first above written.
BORROWER:
XM 1500 ECKINGTON LLC,
a Delaware limited liability company
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
LENDER:
FREMONT INVESTMENT & LOAN,
a California industrial loan association
By:
----------------------------------------
Its:
------------------------------------
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EXHIBIT A
DESCRIPTION OF PROPERTY
That certain real property located in the District of Columbia, having a street
address of 0000 Xxxxxxxxx Xxxxx, NE, more particularly described as follows:
LOTS NUMBERED TWENTY-NINE-(29) AND THIRTY (30) IN SQUARE NUMBERED THIRTY-FIVE
HUNDRED EIGHTEEN (3518) IN THE SUBDIVISION MADE BY XXXX AND XXXXXXXXX,
INCORPORATED, AS PER PLAT RECORDED IN THE OFFICE OF THE SURVEYOR FOR THE
DISTRICT OF COLUMBIA IN LIBER 159 AT FOLIO 159.
A-1
EXHIBIT B
DESCRIPTION OF PERSONAL PROPERTY
All of Borrower's right, title and interest, now or hereafter acquired, in
and to the following:
(a) All personal property (including, without limitation, all goods,
supplies, equipment, furniture, furnishings, fixtures, machinery, inventory and
construction materials which Borrower now or hereafter owns or in which Borrower
now or hereafter acquires an interest or right, including, without limitation,
those which are now or hereafter located on or affixed to the Project or used or
useful in the operation, use or occupancy thereof or the construction of any
improvements thereon, including, without limitation, any interest of Borrower in
and to personal property which is leased or subject to any superior security
interest, or which is being manufactured or assembled for later installation
into the improvements now or hereafter located at the Project, wherever located,
and all books, records, leases and other documents, of whatever kind or
character) relating to the Project;
(b) All fees, income, rents, issues, profits, earnings, receipts,
royalties and revenues which, after the date hereof and while any portion of the
Secured Obligations remains unpaid, may accrue from such goods, fixtures,
furnishings, equipment and building materials or any part thereof or from the
Project or any part thereof, or which may be received or receivable by Borrower
from any hiring, using, letting, leasing, subhiring, subletting, or subleasing
therefor;
(c) All of Borrower's present and future rights to receive payments of
money, services or property for the Project (including, without limitation,
rights to all deposits from tenants of the Project, deposits from prospective
purchasers of the Project, accounts (including, without limitation, the Cash
Collateral Account), accounts receivable, deposit accounts, chattel paper,
notes, drafts, contract rights, instruments, general intangibles and principal,
interest and payments due on account of goods sold, services rendered, loans
made or credit extended, together with title or interest in all documents
evidencing or securing the same).
(d) other intangible property and rights relating to the Project or the
operation thereof, or used in connection therewith, including but not limited to
all governmental permits relating to construction or other activities on the
Project, all names under or by which the Project may at any time be operated or
known, all rights to carry on business under any such names, or any variant
thereof, all trade names and trademarks relating in any way to the Project,
goodwill in any way relating to the Project, and all permits, licenses,
franchises, approvals, variances and land use entitlements relating in any way
to, or to the occupancy, operation, ownership and use of, the Project;
(e) All judgments, claims, settlements of claims and causes of action
under any legal proceeding relating to the Project or the ownership, use,
occupancy or operation thereof;
(f) All proceeds from sale or disposition of the Personal Property;
(g) Borrower's rights under all insurance policies covering the Project or
any of the Personal Property (whether or not Borrower is required to maintain
such insurance under the terms of the Loan Documents), and all proceeds, loss
payments and premium refunds payable regarding the same;
(h) All reserves, deferred payments, deposits, refunds, cost savings and
payments of any kind relating to the construction of any improvements on the
Project;
(i) All water stock relating to the Project;
B-1
(j) All causes of action, claims, compensation and recoveries for any
damage to or condemnation or taking of the Project or the Personal Property, or
for any conveyance in lieu thereof, whether direct or consequential, or for any
damage or injury to the Project or the Personal Property, or for any loss or
diminution in value of the Project or the Personal Property;
(k) All architectural, structural, mechanical and engineering plans and
specifications prepared for construction of improvements or extraction of
minerals or gravel from the Project and all studies, data and drawings related
thereto, and all contracts and agreements of Borrower relating to such plans and
specifications or such studies, data and drawings or to the construction of
improvements on or extraction of minerals or gravel from the Project;
(l) All of Borrower's present and future rights in and to all refunds,
rebates, reimbursements, reserves, deferred payments, deposits, cost savings,
governmental subsidy payments, governmentally-registered credits (such as
emissions reduction credits), other credits, waivers and payments, whether in
cash or kind, due from or payable by any Governmental Agency or any insurance or
utility company relating to any or all of the Project, any improvements thereon
or any of the collateral described herein or arising out of satisfaction of any
condition imposed upon or the obtaining of any approvals for the development of
the Project or the improvements thereon;
(m) All of Borrower's present and future rights in and to all refunds,
rebates, reimbursements, credits and payments of any kind due from or payable by
any Governmental Agency or other entity for any taxes, special taxes,
assessments, or similar governmental or quasi-governmental charges or levies
imposed upon Borrower with respect to the Project, any improvements thereon or
any of the collateral described herein or arising out of the satisfaction of any
condition imposed upon or the obtaining of any approvals for the development of
the Project or the improvements thereon;
(n) All Borrower's rights in proceeds of the Loan; and
(o) All proceeds and products of any of the foregoing (and proceeds and
products of proceeds and products).
All terms used herein which are defined in the District of Columbia Uniform
Commercial Code shall have the same meanings when used herein, unless the
context requires otherwise.
B-2
