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SAFEGUARD CAPITAL FUND, L.P., a Delaware limited partnership
as Borrower
and
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
as Lender
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$90,000,000
REVOLVING CREDIT AGREEMENT
Dated as of March 28, 1998
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TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS; CONSTRUCTION. . . . . . . . . . . . . . . . . . . .1
Section 1.01 Definitions.. . . . . . . . . . . . . . . . . . . . . .1
ARTICLE II. AMOUNT AND TERMS OF THE LOAN. . . . . . . . . . . . . . . . . .3
Section 2.01 The Loan. . . . . . . . . . . . . . . . . . . . . . . .3
Section 3.01 Fees. . . . . . . . . . . . . . . . . . . . . . . . . .4
ARTICLE IV. CONDITIONS PRECEDENT. . . . . . . . . . . . . . . . . . . . . .5
Section 4.01 Conditions Precedent to Closing. . . . . . . . . . . .5
Section 4.02 Conditions Precedent to Advances. . . . . . . . . . . .7
ARTICLE V COLLATERAL VALUE AND RELEASES OF COLLATERAL. . . . . . . . . . . 11
Section 5.01 Determinations of Collateral Value by Lender. . . . . 11
Section 5.02 Recalculations of Collateral Value at Borrower's
Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 5.03 Release of Collateral . . . . . . . . . . . . . . . . 12
Section 5.04 Calculations of Collateral Value and LTV Ratio. . . . 13
ARTICLE VI. REPRESENTATIONS, WARRANTIES AND COVENANTS . . . . . . . . . . 13
Section 6.01 Representations and Warranties. . . . . . . . . . . . 13
Section 6.02 Financial Reports . . . . . . . . . . . . . . . . . . 18
Section 6.03 Litigation. . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE VII. EVENTS OF DEFAULT. . . . . . . . . . . . . . . . . . . . . . 20
Section 7.01 Events of Default . . . . . . . . . . . . . . . . . . 20
ARTICLE VIII. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . 20
Section 8.01 Notices . . . . . . . . . . . . . . . . . . . . . . . 20
Section 8.02 Performance by Lender . . . . . . . . . . . . . . . . 20
Section 8.03 No Oral Change. . . . . . . . . . . . . . . . . . . . 20
Section 8.04 No Waiver: Remedies Cumulative. . . . . . . . . . . . 21
Section 8.05 Fees and Expenses . . . . . . . . . . . . . . . . . . 21
Section 8.06 Indemnification . . . . . . . . . . . . . . . . . . . 22
Section 8.07 Benefits of Agreement . . . . . . . . . . . . . . . . 22
Section 8.08 Participations. . . . . . . . . . . . . . . . . . . . 22
Section 8.09 Assignments . . . . . . . . . . . . . . . . . . . . . 23
Section 8.10 Governing Law . . . . . . . . . . . . . . . . . . . . 23
Section 8.11 Counterparts. . . . . . . . . . . . . . . . . . . . . 24
Section 8.12 Waiver of Counterclaim, Etc . . . . . . . . . . . . . 24
Section 8.13 Severable Provisions. . . . . . . . . . . . . . . . . 24
Section 8.14 Right of Setoff . . . . . . . . . . . . . . . . . . . 24
TABLE OF CONTENTS
(continued)
Page
Section 8.18 Waiver of Notice. . . . . . . . . . . . . . . . . . . 25
Section 8.19 Remedies of Borrower. . . . . . . . . . . . . . . . . 25
Section 8.20 Reserved. . . . . . . . . . . . . . . . . . . . . . . 25
Section 8.21 Application of Default Rate Not a Waiver. . . . . . . 25
Section 8.22 No Joint Venture or Partnership . . . . . . . . . . . 25
Section 8.23 Time of the Essence . . . . . . . . . . . . . . . . . 25
Section 8.24 Publicity . . . . . . . . . . . . . . . . . . . . . . 25
Section 8.25 Securitization. . . . . . . . . . . . . . . . . . . . 26
Section 8.26 Offsets, Counterclaims and Defenses . . . . . . . . . 26
Section 8.27 Headings; Construction of Documents: etc. . . . . . . 26
Section 8.28 Joint and Several . . . . . . . . . . . . . . . . . . 26
REVOLVING CREDIT AGREEMENT (this "Agreement"), dated as of March __,
1998 between SAFEGUARD CAPITAL FUND, L.P., a Delaware limited partnership,
having an address at 000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000, Xxxxxxxx, Xxxxxxxxx
00000 (the "Borrower") and XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, a New
York banking corporation, having an address at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 ("Lender").
W I T N E S S E T H:
WHEREAS, in order to refinance certain self-storage facilities currently
owned by Borrower and to finance future acquisitions by Borrower of
additional self-storage facilities, Borrower desires to borrow from Lender,
on a secured revolving credit basis, loans in an aggregate principal sum
outstanding from time to time not exceeding Ninety Million Dollars
($90,000.000.00); and
WHEREAS, Lender is willing to make advances (individually, an "Advance",
and collectively, the "Loan") to Borrower on such basis for such purposes,
subject to the terms and conditions hereof.
NOW THEREFORE, in consideration of the mutual promises contained herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I. DEFINITIONS; CONSTRUCTION
Section 1.01 Definitions.
(a) Defined terms used herein and not otherwise defined herein
shall have the meanings ascribed thereto in the Mortgages.
(b) As used herein and in the Note, the following terms shall have
the meanings herein specified (to be equally applicable to both the singular
and plural forms of the terms defined).
"Agreement" means this Revolving Credit Agreement, as amended,
supplemented or modified from time to time in accordance with its terms.
"Borrowing" means a borrowing under this Agreement consisting of an
Advance made to Borrower by Lender pursuant to Section 2.01 of this
Agreement.
"Borrowing Date" with respect to a particular Borrowing shall mean
the Business Day, identified by the Borrower in the related Borrowing
Request, as the date on which the Borrower requests that Lender make an
Advance.
"Borrowing Request" means a Borrowing Request in the form of
Exhibit A-1.
"Closing Date" means the date hereof.
"Collateral" shall mean collectively, the real property and
improvements thereon secured by the Mortgages together with any additional
collateral pledged to Lender in accordance with Section 5.01 hereof.
"Collateral Value" means the aggregate value assigned by Lender to
the Collateral as of any date of determination, which value shall be
calculated in accordance with Lender's standard underwriting practices
consistently applied.
"Commitment" means the obligation of Lender to make Advances to
Borrower pursuant to Section 2.01 in an aggregate amount not to exceed
$90,000,000 at any one time outstanding.
"Commitment Period" means the period commencing with the Closing
Date and ending on the Expiration Date, unless otherwise extended by Lender
in writing or unless otherwise terminated pursuant to the terms hereof.
"Expiration Date" means April 1, 2001.
"First Facility Fee" shall have the meaning set forth in Section
3.01(c) hereof.
"Guarantor" means collectively Xxxx Xxxxxx and Xxxxx X. Xxxx, Xx.
"Initial Advance" shall mean the Advance to be made on the Closing
Date in the aggregate original principal amount of $2,075,000.
"Lender" shall have the meaning set forth in the preamble hereof,
which term shall include, as applicable, any other office of Lender
designated by it from time to time for the purpose of making or maintaining
any Advances hereunder.
"Lien" means any interest in property, real or personal, tangible
or intangible, securing an obligation owed to, or a claim by, a Person other
than the owner of such property, whether such interest is based on the common
law, statute or contract, and including, but not limited to, the security
interest, security title or lien arising from a security agreement, mortgage,
deed of trust, deed to secure debt, encumbrance, pledge, conditional sale or
trust receipt or a lease, consignment or bailment for security purposes. The
term "Lien" shall also include reservations, exceptions, encroachments,
easements, rights-of-way, covenants, conditions, restrictions, leases and
other title exceptions and encumbrances affecting such property.
"Loan" is defined in the preamble to this Agreement.
"Loan Fee" shall have the meaning set forth in Section 3.01(b)
hereof.
"LTV Ratio" shall have the meaning set forth in Section 5.01
hereof.
"Maturity Date" means, with respect to each Advance, the Expiration
Date.
"Mortgage(s)" shall mean each mortgage, deed of trust or deed to
secure debt encumbering a Subject Property, each substantially in the form of
Exhibit B and incorporating such modifications as may be necessary,
appropriate or customary in Lender's determination under the law of the State
where the Subject Property is located, and as otherwise originally executed
or as the same may hereafter from time to time be supplemented, amended,
modified or extended by one or more indentures supplemental thereto granted
by Borrower to Lender as security for the Note.
"Note" means the Secured Promissory Note of even date herewith
executed by Borrower and payable to Lender in the maximum principal amount of
$90,000,000, together with any amendments thereto or supplements thereof.
"Participant" shall have the meaning set forth in Section 8.08.
"Preliminary Borrowing Request" means a request by Borrower in the
form of Exhibit A-2.
"Second Facility Fee" shall have the meaning set forth in Section
3.01(d) hereof.
"Subject Property" means the property, real or personal, tangible
or intangible, which is, or which is proposed to be, financed pursuant to the
terms of this Agreement and subject to the Lien of a Mortgage. In all cases
the Subject Property shall be improved with a self storage facility.
ARTICLE II. AMOUNT AND TERMS OF THE LOAN
Section 2.01 The Loan.
(a) Lender agrees, upon the terms and subject to the conditions
and in reliance upon the representations, warranties and covenants
hereinafter set forth, to make the Loan in one or more Advances on a
revolving credit basis, to Borrower, up to the amount of the Commitment,
provided, however, that notwithstanding anything to the contrary contained
herein or in any other Loan Document, in no event will Lender be obligated to
re-advance more than $10,000,000 of Loan proceeds such that the aggregate
principal amount of all Advances made hereunder (including such re-advances)
shall in no event exceed $100,000,000 over the term of this Agreement.
Borrower and Lender acknowledge and agree that on the Closing Date the
Initial Advance in the aggregate principal amount of $2,075,000 will be made
to Borrower subject to the satisfaction of all applicable terms and
conditions hereinafter set forth.
(b) Each Advance shall be in an aggregate amount of not less than
One Million Dollars ($1,000,000.00), and in integral multiples of Fifty
Thousand Dollars ($50,000.00); provided, however, that the aggregate amount
of Advances at any time outstanding (after giving effect to such Advance)
shall not exceed the lesser of (x) the amount of the Commitment or (y) 75% of
the Collateral Value.
(c) In connection with each Advance to be made hereunder:
(i) Borrower shall deliver a Preliminary Borrowing Request to
Lender, accompanied by each of the instruments, documents and agreements set
forth on Schedule I, together with such other information as Lender may
reasonably request, and with respect to items 9 through 13 of said Schedule
I, performed by Persons previously approved by Lender, as set forth on
Schedule II hereof, and engaged by Lender at the sole cost and expense of
Borrower, except to the extent that any such instrument, document or
agreement has been previously delivered to Lender;
(ii) Lender shall approve, which approval may be granted or
denied in Lender's sole and absolute discretion, or disapprove any such
Preliminary Borrowing Request received by Lender from Borrower within ten
(10) Business Days of the receipt thereof; and
(iii) in the event that Lender approves the Advance for
which the Preliminary Borrowing Request relates, such Advance shall be made
subject to the terms and conditions hereof, including, without limitation,
Borrower delivering a Borrowing Request not less than three (3) Business Days
prior to the proposed Borrowing Date, which Borrowing Request shall be
irrevocable and must be received by Lender not later than 1:00 p.m. (New York
City time), unless otherwise agreed to in writing by Lender. Subject to the
terms and conditions hereof, Lender shall make the amount of funds evidencing
the approved Advance available by wire transfer in accordance with the
instructions set forth in the applicable Borrowing Request.
(d) The Loan and each of the Advances shall be evidenced by the
Note, duly executed by Borrower, dated the Closing Date and payable to the
order of Lender. All Advances to Borrower pursuant to this Agreement and all
payments of the principal of such Advances to Lender shall be recorded by
Lender on the schedule attached to the Note and by specific reference made a
part thereof. The amounts of principal indicated by said schedule as
outstanding or accrued and unpaid, as the case may be, shall constitute
rebuttable presumptive evidence of the principal outstanding and the accrued
and unpaid interest on the Loan; provided, that any failure or error on the
part of Lender in recording any Advance on such schedule shall not limit the
obligation of Borrower to pay all principal of and interest accruing on the
Loan.
Section 3.01 Fees.
(a) Borrower has previously paid to Lender a non-refundable
arrangement fee in the amount of $50,000.00, which fee shall be credited
towards the initial payment due under Section 3.01(b). below.
(b) On each Borrowing Date, Borrower shall pay to Lender a loan
fee (the "Loan Fee") equal to (i) the aggregate principal amount of such
Advance to be made on such Borrowing Date, multiplied by (ii) 0.75%.
(c) In the event that on the first anniversary of the date of this
Agreement the aggregate principal amount of Advances hereunder shall be less
than $30,000,000, then, in such event, Borrower shall have the option to
either (i) terminate the Commitment whereupon (x) Lender shall have no
further obligation to make any Advances hereunder and (y) all outstanding
amounts under the Loan shall be due and payable within thirty (30 ) days
following such election or (ii) throughout the balance of the Commitment
Period, pay to Lender an additional fee (the "First Facility Fee") on a
monthly basis, in the same manner and times as interest is payable under the
Note, commencing with the first interest payment following the first
anniversary of this Agreement, in an amount equal to the product of (x) .25%
per annum multiplied by (y) the excess of $90,000,000 over the aggregate
outstanding principal balance of the Loan as of the date of determination,
provided, however, that in the event that the aggregate principal amount of
Advances hereunder exceeds $45,000,000 as of the eighteen month anniversary
of the date of this Agreement, Borrower shall no longer be obligated to pay
the First Facility Fee commencing with the next monthly payment.
(d) In the event that on the first anniversary of the date of this
Agreement the aggregate principal amount of Advances hereunder was equal to
or in excess of $30,000,000 but on the eighteen month anniversary of the date
of this Agreement the aggregate principal amount of Advances hereunder shall
be less than $45,000,000, then, in such event, Borrower shall have the option
to either (i) terminate the Commitment whereupon (x) Lender shall have no
further obligation to make any Advances hereunder and (y) all outstanding
amounts under the Loan shall be due and payable within thirty (30) days of
such election or (ii) throughout the balance of the Commitment Period, pay
to Lender an additional fee (the "Second Facility Fee") on a monthly basis,
in the same manner and times as interest is payable under the Note,
commencing with the first interest payment following the eighteen month
anniversary of this Agreement, in an amount equal to the product of (x) .25%
per annum multiplied by (y) the excess of $90,000,000 over the aggregate
outstanding principal balance of the Loan as of the date of determination.
(e) In the event that Borrower is obligated to elect an option
under either paragraph (c) or (d) above, Borrower shall notify Lender of its
election within ten (10) Business Days following receipt of notice from
Lender that an election is required. In the event that Lender does not
receive Borrower's election in a timely manner, Borrower shall be deemed to
have elected to pay the First Facility Fee or the Second Facility Fee, as the
case may be.
(f) All fees paid under this Section 3.01 shall be non-refundable.
Each payment thereof and any other charges or amounts payable under this
Agreement shall be paid by Borrower in accordance with Section 2.2 of the
Note.
ARTICLE IV. CONDITIONS PRECEDENT
Section 4.01 Conditions Precedent to Closing. On the Closing Date, in
addition to the other documents and instruments required by this Agreement,
Borrower shall deliver the following documents to Lender, all of which shall
be satisfactory in form and substance to Lender in its sole and absolute
discretion:
(a) Corporate Action. Certified copies of (i) the certificate and
agreement of partnership of Borrower and the certificate of formation and
operating agreement of General Partner, and (ii) all partnership, corporate
and company action, as applicable, taken by Borrower and General Partner
approving the Loan and the Loan Documents (including, without limitation, a
certificate setting forth the resolutions of the members of General Partner,
both in its individual capacity and as general partner of Borrower, adopted
in respect of the transactions contemplated thereby).
(b) Incumbency. A certificate of General Partner's officers or
members stating (i) the Persons authorized to sign the Loan Documents on
behalf of Borrower and General Partner, and (ii) who will, until replaced by
another officer or officers or manager duly authorized for that purpose, act
on behalf of Borrower and General Partner for the purposes of signing
documents and giving notices and other communications in connection with the
Loan Documents and the transactions contemplated thereby (and Lender may
conclusively rely on such certificate until it receives notice in writing
from Borrower and General Partner, signed by any of such officers or members,
to the contrary).
(c) Officer's Certificate. The conditions set forth in paragraphs
(a), (d) and (e) of Section 4.02 hereof shall be satisfied on and as of the
Closing Date and Lender shall have received a certificate of Borrower
certifying that such conditions have been satisfied.
(d) Opinion of Counsel. An opinion of counsel to Borrower and
General Partner in form and substance satisfactory to Lender, including,
without limitation a substantive non-consolidation opinion in a form approved
by Lender to be delivered in connection with the initial Borrowing.
(e) Loan Documents. This Agreement, the Note and each of the other
Loan Documents shall have been duly executed and delivered by the parties
thereto.
(f) Perfection of Security Interests. Evidence that all actions
necessary or, in the opinion of Lender, desirable to perfect and protect the
Liens and security interests created by the Loan Documents have been taken.
(g) Fees and Expenses. Evidence (including, without limitation,
payment instructions given by Borrower) that all fees and expenses payable to
Lender, including without limitation, the fees and expenses referred to in
each of Section 3.01 and Section 8.05, to the extent then due and payable,
have been paid in full.
(h) Other Documents. Such other documents relating to the
transactions contemplated hereby as Lender may reasonably request.
Section 4.02 Conditions Precedent to Advances. The obligation of
Lender to make any Advance to Borrower upon the occasion of any proposed
Borrowing hereunder is subject, in addition to the continued satisfaction of
the conditions in Section 4.01 hereof, to the fulfillment of the following
conditions, which, unless otherwise expressly stated below, shall be
satisfied both immediately prior and after giving effect to such Borrowing
and the application of the proceeds therefrom:
(a) Borrowing Request. A Borrowing Request and Preliminary
Borrowing Request, each executed and delivered on behalf of Borrower by a
duly authorized officer thereof, shall have each been delivered to Lender and
Lender shall have, in its sole and absolute discretion, approved the Advance
requested in the Preliminary Borrowing Request and Borrowing Request.
(b) Due Diligence and Loan Documents. Lender shall have completed
its due diligence and underwriting of the proposed Advance and Subject
Property, all of which shall be satisfactory in form and substance to Lender
in its sole and absolute discretion. Lender shall have received, not less
than fifteen (15) Business Days prior to the date of the proposed Borrowing
(or, if a later delivery date is expressly set forth below, on or prior to
such later date), each of the following documents, instruments and
agreements, each of which shall be satisfactory in form and substance to
Lender in its reasonable discretion:
(i) Title Insurance. On the date of the applicable
Borrowing, policies of title insurance on forms of, and issued by, one or
more title insurance companies satisfactory to Lender in its sole and
absolute discretion (the "Title Companies"), showing fee simple title vested
in the Borrower with respect to, or, if applicable, showing the Borrower's
interest as a tenant under a ground lease of, the applicable Subject Property
and insuring the first priority of the Liens created under the Mortgage
thereon in an amount satisfactory to Lender in its sole and absolute
discretion, subject only to such Liens as are acceptable to Lender, together
with, as may be required by Lender, such reinsurance schedules, endorsements
and agreements in respect of all then existing title insurance policies for
such properties and the other Subject Properties in amounts and otherwise in
form and substance satisfactory to Lender and executed by the Title
Companies. Such policies shall also contain such endorsements and affirmative
insurance provisions as Lender may reasonably require, subject to
availability in the particular jurisdiction. In addition, Borrower shall have
paid to the Title Companies (and shall have delivered to Lender evidence of
such payment) all expenses of the Title Companies in connection with the
issuance of such policies, reinsurance schedules, endorsements and agreements
and an amount equal to the recording and stamp taxes (including, without
limitation, mortgage recording taxes) payable in connection with recording
the Mortgages in the appropriate county land offices.
(ii) Searches. Not less than three (3) Business Days
prior to the proposed Borrowing, copies of the UCC filing searches, tax lien
searches, judgment searches and real estate tax searches and, where
available, municipal department searches setting forth any and all building
violations (if available) in each county where the applicable Subject
Property is located (and in the case of UCC filing searches, in the office of
the Secretary of State or other applicable State office of the State where
such Subject Property is located), demonstrating as of a recent date the
existence of no other financing statements (other than those to be released
concurrently with the subject Advance), tax liens, judgments, building
violations or delinquent real estate taxes, together with evidence that all
fees payable in connection with any such searches have been paid.
(iii) Survey. A survey of the applicable Subject
Property, prepared by a land surveyor licensed or registered in the State in
which such Subject Property is located and otherwise satisfactory to Lender,
in compliance with the minimum standard detail requirements for land title
surveys adopted by the American Land Title Association and American Congress
on Surveying and Mapping, and certified to Lender, Borrower, the Title
Companies and any other parties requested by Lender, as of a date not more
than two months prior to the date of the Borrowing.
(iv) Ground Leases. Certified copies of all ground
leases affecting the applicable Subject Property, including all amendments
and modifications thereto, and a ground lessor estoppel and consent
satisfactory, in form and substance, to Lender.
(v) Material Contractual Obligations. Not less than five (5)
Business Days prior to the proposed Borrowing, certified copies of all
documents, instruments or agreements constituting material Contractual
Obligations relating to the applicable Subject Property, together with a
certificate signed by Borrower stating that such documents, instruments and
agreements reflect, to the best of its knowledge, the only material
Contractual Obligations relating to such property.
(vi) Counsel Opinions. Such legal opinions (including an
opinion of local counsel in the State in which such Subject Property is
located) with respect to such matters as Lender shall request and otherwise
in form and substance satisfactory to the Lender.
(vii) Rent Roll. Not less than five (5) Business Days
prior to the proposed Borrowing, a rent roll for the applicable Subject
Property, together with a certificate signed by Borrower stating that to the
best of its knowledge such rent roll is true, complete and correct and
contains the aforesaid information required by such Mortgage.
(viii) Leases. At Lender's option, copies of all leases
for the applicable Subject Property, together with a certificate signed by
Borrower to the effect that to the best of its knowledge each such copy is
true, complete and correct.
(ix) Management Agreement. A management agreement for
the applicable Subject Property in form and substance acceptable to Lender in
its sole and absolute discretion.
(x) Zoning Compliance, Etc. Not less than five (5) Business
Days prior to the proposed Borrowing, evidence satisfactory to Lender of the
type customarily delivered in the jurisdiction in which the Subject Property
is located for commercial loan facilities that all improvements have been
constructed and are being used and operated in compliance with (A) all
applicable zoning, subdivision, environmental and other laws, orders, rules,
regulations and requirements relating to the use and occupancy of the
Subject Properties and (B) all building permits issued in respect of the
Subject Properties and (if available) a copy of all certificates of occupancy
for each such property to the extent available to the Borrower.
(xi) Contract of Sale. Copies of the contracts of sale
executed in connection with the purchase of the applicable Subject Property.
(xii) Title Updates. Borrower shall have provided Lender
with a Revolving Credit Endorsement, if available, with respect to each Title
Policy. In any jurisdiction in which a Revolving Credit Endorsement is
unavailable or the Revolving Credit Endorsement takes exception to mechanics'
liens or other liens or encumbrances not approved by Lender, Borrower will
provide a title update or title report for the applicable Subject Properties
before the date of each Borrowing reflecting that there are no mechanics'
liens or other liens or encumbrances upon the applicable Subject Properties
which have not been approved by Lender. In the event such title update or
title report discloses mechanics' liens or other liens or encumbrances not
approved by Lender, and, without waiving any of Lender's rights hereunder or
under any other Loan Documents on account of the existence of such liens or
other encumbrances, the obligation of Lender to make any Advance to Borrower
is subject to the condition that such mechanics' liens or other liens or
encumbrances be cured, deleted of record or remedied to Lender's reasonable
satisfaction.
(xiii) Perfection of Security Interests. Evidence that all
actions necessary or, in the opinion of Lender, desirable to perfect and
protect the Liens created by the Loan Documents have been taken, including,
without limitation, evidence that the Mortgage on the applicable Subject
Property has been duly filed and recorded in the appropriate governmental
offices and that the related UCC financing statements have been duly filed in
the appropriate governmental offices.
(xiv) Fees and Expenses. Evidence (including, without
limitation, payment instructions given by Borrower) that all fees and
expenses payable to Lender, including, without limitation, the fees and
expenses referred to in Section 3.01 and Section 8.05 hereof, to the extent
then due and payable, have been paid in full.
(xv) Other Documents. Such other documents relating to
the transactions contemplated hereby as Lender may reasonably request,
including, without limitation, an assignment of leases and rents in
substantially the form of Exhibit C attached hereto and a reaffirmation of
guaranty executed by the Guarantor in substantially the form of Exhibit D
attached hereto.
(c) Loan Documents. On or before the date of each Borrowing, the
Mortgages shall constitute valid first mortgage liens on the fee simple title
to, or, if applicable, on the relevant Borrower's interest as a tenant under
a ground lease of, the Subject Properties and which shall secure all of the
Debt, subject only to such defects, Liens, encumbrances, assessments,
security interests, restrictions, easements and other title exceptions as
shall be acceptable to Lender or permitted by the express terms of the
relevant Mortgage; and UCC-1 financing statements covering fixtures owned by
the relevant Borrower and affixed to, or used in connection with each such
property, in each case appropriately completed and duly executed and
delivered to Lender for filing in the appropriate county and State offices
shall have been filed to perfect Lender's Lien in the collateral described
therein. Each of the Mortgages shall be cross-collateralized and cross-
defaulted with the other Mortgages. In the event that the State in which the
Subject Property is located does not impose a mortgage recording tax, then
the Mortgage encumbering such Subject Property will be in the face amount of
$90,000,000. In the event, however, that any such State imposes a mortgage
recording tax, the face amount of the applicable Mortgage shall be limited to
100% of the appraised value of the Subject Property as determined by Lender.
(d) Default. No Event of Default or Default shall have occurred
and be continuing and no Default will occur as the result of the consummation
of any of the transactions contemplated by the Loan Documents.
(e) Representations. The representations and warranties of
Borrower and Guarantor included and incorporated by reference in this
Agreement and each of the other Loan Documents shall be true, correct and
complete on and as of the date of such Borrowing (or, for purposes of Section
4.01(c), on and as of the Closing Date) with the same force and effect as if
made on and as of such date. On the date of funding of each subsequent
Advance, the Borrower shall execute a certification to Lender stating that
all representations and warranties made by the Borrower in this Agreement
remain true and correct as they relate to the Borrower and the Subject
Properties which were the subject of prior Advances and are true and correct
with respect to the applicable new Subject Property.
(f) Material Adverse Effect. Since the date of the most recent
financial statements of Borrower or Guarantor delivered to Lender, nothing
shall have occurred which would or could have a Material Adverse Effect on
Borrower or Guarantor.
(g) Recording Taxes. Borrower shall have paid all mortgage
recording taxes payable (if any) in each jurisdiction in which the applicable
Subject Property is located and shall have delivered to Lender any and all
supplemental or additional mortgages, in form and substance satisfactory to
Lender, as may be required by Lender. Without limiting the generality of the
foregoing, and notwithstanding anything to the contrary contained in any Loan
Document, Borrower acknowledges and agree that to the extent there is a
payment of principal of the Loan which results in the aggregate outstanding
principal amount of the Loan being less than the aggregate maximum principal
amount of the Loan secured by any Jurisdictional Capped Mortgage(s) (whether
or not such aggregate outstanding principal amount of the Loan was originally
less than the aggregate maximum principal amount of the Loan secured by such
Jurisdictional Capped Mortgage(s) prior to such payment), then (A) Borrower
may thereafter be required to pay additional mortgage recording taxes in
connection with any future Borrowing pursuant to this Agreement so that the
Jurisdictional Capped Mortgages in existence at or prior to such Borrowing
will secure, in accordance with applicable law, the amount of such Borrowing
up to the aggregate maximum original principal amount secured by such
Jurisdictional Capped Mortgage(s), and (B) if and to the extent that Lender
determines in good faith that any such additional mortgage recording taxes
are so due and payable in connection with any such future Borrowing and
unless Borrower shall have presented to Lender evidence, satisfactory to
Lender, that any such additional mortgage recording taxes are not so due and
payable, Borrower shall pay such additional mortgage recording taxes to the
appropriate governmental taxing authorities, and shall duly execute and
deliver to Lender any and all supplemental or additional mortgages and
consolidation agreements, as may be required by Lender in connection
therewith. As used herein, "Jurisdictional Capped Mortgages" shall
collectively mean, for each State, all of the Mortgage(s) now or hereafter
covering Subject Properties located in such State which secure a maximum
original principal amount of indebtedness which is less than the Commitment,
whether for the purpose of limiting the debt secured by such Mortgages and
any mortgage recording taxes payable in connection therewith or otherwise
with approval of Lender; and the "aggregate maximum principal amount of the
Loan secured by any such Jurisdictional Capped Mortgage(s)" shall mean, at
any time, the aggregate maximum original principal amount of indebtedness
secured by all of the Mortgages covering Subject Properties in such State at
such time, as specified in such Mortgages.
(h) Loan Amount. The aggregate amount of all Advances then
outstanding, prior to and after giving effect to the making of the Advance on
the Borrowing Date, does not exceed the lesser of (i) the amount of the
Commitment or (ii) 75% of the Collateral Value.
Each Borrowing Request hereunder shall be deemed to constitute a
certification by Borrower to the effect set forth in the above clauses of
this Section 4.02 (as of the date of such notice and, unless Borrower
otherwise notifies Lender prior to the date of such Borrowing, as of the date
of such Borrowing, both immediately prior to and after giving effect to such
Borrowing and the application of proceeds therefrom).
ARTICLE V COLLATERAL VALUE AND RELEASES OF COLLATERAL
Section 5.01 Determinations of Collateral Value by Lender. Lender
shall have the right at any time to recalculate the Collateral Value. In the
event that Lender determines at any time, whether pursuant to this Section
5.01 or 5.02 below, that the ratio of the aggregate outstanding principal
balances of the Loan to the then current Collateral Value (the "LTV Ratio")
exceeds seventy-five percent (75%), Borrower shall, within thirty (30) days
following Lender's demand therefor, either (a) pay down the principal balance
of the Loan in an amount necessary to reduce the LTV Ratio to seventy-five
percent (75%) or (b) deliver to Lender such additional collateral in form,
type and amount satisfactory to Lender in its sole and absolute discretion,
which additional collateral shall be subject to a first lien security
interest in favor of Lender, such that the LTV Ratio, after giving effect to
Lender's determination of the value of such collateral, is reduced to
seventy-five percent (75%). In the event that Borrower elects to deliver
additional collateral, Borrower shall also deliver such additional materials
and assurances with respect thereto as Lender may request based upon the
nature of the collateral. Upon Lender's receipt of a first lien security
interest in such additional approved collateral, such additional collateral
shall, so long as Lender continues to hold a first lien security interest
therein, be included in all future calculations of Collateral Value.
Section 5.02 Recalculations of Collateral Value at Borrower's
Request. (a) Borrower shall have the right to request that Lender
recalculate the Collateral Value once in each calendar quarter during the
term of this Agreement. In the event the recalculated Collateral Value
results in an LTV Ratio in excess of seventy-five percent (75%), Borrower
shall prepay the Loan or deliver additional collateral to Lender in
accordance with the requirements set forth in Section 5.01 above. In the
event that the recalculated Collateral Value results in an LTV Ratio of less
than seventy-five percent (75%), Borrower shall have the right, subject to
the satisfaction of all applicable conditions set forth herein, to receive
additional Advances hereunder until the LTV Ratio reaches seventy-five
percent (75%), but in no event shall the aggregate outstanding balance at any
time exceed $90,000,000.
(b) Notwithstanding anything to the contrary contained in this Article
or Article IV above, subject to the satisfaction of all applicable conditions
thereto set forth in Article IV above as modified below, in the event
Borrower elects and is entitled to receive an Advance following the
recalculation of the Collateral Value without delivering additional
Collateral to Lender:
(i) In lieu of new Loan Documents as contemplated by Section
4.02(c) above, Lender shall have received, with respect to those Subject
Properties for which the Mortgage amount is limited to 100% of the appraised
value thereof, amendments to or supplements of such Mortgages (and the
related Assignments), satisfactory in form and substance to Lender, which the
Lender reasonably determines to be necessary to maintain the same level of
security on a cross- collateralized basis with respect to the applicable
Subject Properties as existed immediately prior to such Advance; and
(ii) In lieu of a new Title Policy, Lender shall have received such
endorsements to the Title Policies for all Subject Properties, satisfactory
in form and substance to Lender, increasing the amount of insurance for each
Subject Property by (x) the applicable amount of the increase to or
supplement of the applicable original Mortgage as contemplated in clause (i)
above with respect to Subject Properties with respect to which the amount of
the Mortgage was originally 100% of the appraised value and (y) with respect
to all other Subject Properties, an amount reasonably allocated thereto by
Lender, and showing said Advance as having the same priority as the original
Advance made with respect to the applicable Subject Properties without
further exception.
Section 5.03 Release of Collateral. Provided there exists no Default
or Event of Default hereunder (other than a Default or Event of Default
which is non-monetary in nature and relates only to the property encumbered
by the Mortgage to be released), Lender shall fully release any Mortgage upon
the request of the Borrower (but Lender shall not partially release any
Mortgage) provided that after giving effect to such reconveyance, (a) the LTV
Ratio does not exceed seventy-five percent (75%) and (b) there shall exist no
Default or Event of Default. As a condition to any such release, Borrower
shall remit to Lender the release price calculated by Lender as necessary to
achieve a seventy-five percent (75%) LTV Ratio after giving effect to the
release of the Mortgage. As additional conditions to any such release,
Borrower shall pay all fees, costs and expenses, including reasonable
attorneys' fees and expenses, incurred by Lender in connection with such
release. In connection with a release of a particular Mortgage, Lender shall
also, at Borrower's expense, release the related Assignment of Rents and UCC
financing statements relating to that particular Mortgage.
Section 5.04 Calculations of Collateral Value and LTV Ratio. All
calculations of Collateral Value and LTV Ratio shall be made by Lender in
accordance with its customary underwriting standards consistently applied and
shall be deemed binding and conclusive upon Borrower.
ARTICLE VI. REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 6.01 Representations and Warranties. In order to induce
Lender to enter into this Agreement and to make the Advances of the Loan
hereunder, Borrower hereby represents and warrants to Lender as of the date
hereof or such other date as is set forth below:
(a) Organization and Authority. Borrower (i) is a limited
liability company, general partnership, limited partnership or corporation,
as the case may be, duly organized, validly existing and in good standing
under the laws of the jurisdiction of its formation, (ii) has all requisite
power and authority and all necessary licenses and permits to carry on its
business as now conducted and as presently proposed to be conducted and (iii)
is duly qualified, authorized to do business and in good standing in each
other jurisdiction where the conduct of its business or the nature of its
activities makes such qualification necessary. If Borrower is a limited
liability company, limited partnership or general partnership, each general
partner or managing member, as applicable, of Borrower which is a corporation
is duly organized, validly existing, and in good standing under the laws of
the jurisdiction of its incorporation.
(b) Power. Borrower and, if applicable, each General Partner has
full power and authority to execute, deliver and perform, as applicable, the
Loan Documents to which it is a party.
(c) Authorization of Borrowing. The execution, delivery and
performance of the Loan Documents to which Borrower is a party, are within
the powers of Borrower and have been duly authorized by Borrower and, if
applicable, the General Partners, by all requisite action (and Borrower
hereby represents that no approval or action of any limited partner or
shareholder, as applicable, of Borrower is required to authorize any of the
Loan Documents to which Borrower is a party) and will constitute the legal,
valid and binding obligations of Borrower, enforceable against Borrower in
accordance with their terms, except as enforcement may be stayed or limited
by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and by general principles of equity (whether
considered in proceedings at law or in equity) and will not (i) violate any
provision of its partnership agreement or partnership certificate or
certificate of incorporation or bylaws, or operating agreement, or articles
of organization, as applicable, or, to its knowledge, any law, judgment,
order, rule or regulation of any court, arbitration panel or other
Governmental Authority, domestic or foreign, or other Person affecting or
binding upon Borrower or the Subject Property, or (ii) violate any provision
of any indenture, agreement. mortgage, contract or other instrument to which
Borrower or, if applicable, any General Partner is a party or by which any of
their respective properties, assets or revenues are bound, or be in conflict
with, result in an acceleration of any obligation or a breach of or
constitute (with notice or lapse of time or both) a default or require any
payment or prepayment under, any such indenture, agreement, mortgage,
contract or other instrument, or (iii) result in the creation or imposition
of any lien, except those in favor of Lender as provided in the Loan
Documents to which it is a party.
(d) Consent Neither Borrower nor, if applicable, any General
Partner, is required to obtain any consent, approval or authorization from,
or to file any declaration or statement with, any Governmental Authority or
other agency in connection with or as a condition to the execution, delivery
or performance of this Agreement, the Note or the other Loan Documents which
has not been so obtained or filed.
(e) Reserved
(f) Other Agreements. Borrower is not a party to nor is otherwise
bound by any agreements or instruments which, individually or in the
aggregate, are reasonably likely to have a Material Adverse Effect. Neither
Borrower nor, if applicable, any General Partner, is in violation of its
organizational documents or other restriction or any agreement or instrument
by which it is bound, or any judgment, decree, writ, injunction, order or
award of any arbitrator, court or Governmental Authority, or any Legal
Requirement, in each case, applicable to Borrower or the Subject Property,
except for such violations that would not, individually or in the aggregate,
have a Material Adverse Effect.
(g) Maintenance of Existence. Borrower and, if applicable, each
General Partner at all times since their formation have been duly formed and
existing and shall preserve and keep in full force and effect their existence
as a Single Purpose Entity in accordance with the requirements of the
Mortgages.
(h) No Defaults. No Default or Event of Default has occurred and
is continuing or would occur as a result of the consummation of the
transactions contemplated by the Loan Documents. Borrower is not in default
in the payment or performance of any of its Contractual Obligations in any
respect.
(i) Governmental Consents and Approvals. Borrower and, if
applicable, each General Partner, have obtained or made all necessary (i)
consents, approvals and authorizations, and registrations and filings of or
with all Governmental Authorities and (ii) consents, approvals, waivers and
notifications of partners, stockholders, creditors, lessors and other
nongovernmental Persons, in each case, which are required to be obtained or
made by Borrower or, if applicable, the General Partner, in connection with
the execution and delivery of, and the performance by Borrower of its
obligations under, the Loan Documents.
(j) Investment Company Act Status. Borrower is not an "investment
company," or a company "controlled" by an "investment company," as such terms
are defined in the Investment Company Act of 1940, as amended.
(k) Compliance with Law. Borrower is and shall remain in
compliance in all material respects with all Legal Requirements to which it
is subject, including, without limitation, all Environmental Statutes, the
Occupational Safety and Health Act of 1970, the Americans with Disabilities
Act and ERISA.
(l) Financial Information. The financial statements of Borrower
and the General Partner that have been delivered by or on behalf of Borrower
or the General Partner to Lender (i) are true, complete and correct in all
material respects, (ii) fairly present the financial condition of the
Borrower or the General Partner, as the case may be, as of the end of the
period indicated and the results of operations for the periods indicated and
(iii) have been prepared on a cash basis in accordance with sound accounting
principles consistently applied (or such other accounting basis as is
acceptable to Lender) throughout the periods covered. As of the date hereof,
neither Borrower nor, if applicable, any General Partner, has any contingent
liability, liability for taxes or other unusual or forward commitment not
reflected in such financial statements delivered to Lender; since the date of
the last financial statements delivered by Borrower to Lender except as
otherwise disclosed in such financial statements or notes thereto, there has
been no change in the assets, liabilities or financial position of Borrower
nor, if applicable, any General Partner, or in the results of operations of
Borrower which would have a Material Adverse Effect. Neither Borrower nor, if
applicable, any General Partner, has incurred any obligation or liability,
contingent or otherwise not reflected in such financial statements which
would have a Material Adverse Effect.
(m) Transaction Brokerage Fees. Borrower has not dealt with any
financial advisors, brokers, underwriters, placement agents, agents or
finders in connection with the transactions contemplated by this Agreement
except for Lender and its Affiliates. All brokerage fees, commissions and
other expenses payable in connection with the transactions contemplated by
the Loan Documents have been paid in full contemporaneously with the
execution of the Loan Documents and the funding of the Initial Advance.
Borrower hereby agrees to indemnify and hold Lender harmless from and against
any and all claims, liabilities, costs and expenses of any kind in any way
relating to or arising from (i) a claim by any Person that such Person acted
on behalf of Borrower in connection with the transactions contemplated herein
or (ii) any breach of the foregoing representation. The provisions of this
subsection shall survive the repayment of the Debt.
(n) Federal Reserve Regulations. No part of the proceeds of any
Advance will be used for the purpose of purchasing or acquiring any "margin
stock" within the meaning of Regulations G, T, U or X of the Board of
Governors of the Federal Reserve System or for any other purpose which would
be inconsistent with such Regulations G, T, U or X or any other Regulations
of such Board of Governors, or for any purposes prohibited by Legal
Requirements or by the terms and conditions of the Loan Documents.
(o) Pending Litigation. There are no actions, suits or proceedings
pending or, to the best knowledge of Borrower, threatened against or
affecting Borrower in any court or before any Governmental Authority which if
adversely determined either individually or collectively has or is reasonably
likely to have a Material Adverse Effect.
(p) Solvency; No Bankruptcy. Each of Borrower and, if applicable,
the General Partner, (i) is and has at all times been Solvent and will remain
Solvent immediately upon the consummation of the transactions contemplated by
the Loan Documents and (ii) is free from bankruptcy, reorganization or
arrangement proceedings or a general assignment for the benefit of creditors
and is not contemplating the filing of a petition under any state or federal
bankruptcy or insolvency laws or the liquidation of all or a major portion of
such Person's assets or property and Borrower has no knowledge of any Person
contemplating the filing of any such petition against it or, if applicable,
the General Partner. None of the transactions contemplated hereby will be or
have been made with an intent to hinder, delay or defraud any present or
future creditors of Borrower and Borrower has received reasonably equivalent
value in exchange for its obligations under the Loan Documents. Borrower's
assets do not, and immediately upon consummation of the transaction
contemplated in the Loan Documents will not, constitute unreasonably small
capital to carry out its business as presently conducted or as proposed to be
conducted. Borrower does not intend to, nor believe that it will, incur debts
and liabilities beyond its ability to pay such debts as they may mature.
(q) Use of Proceeds. The proceeds of the Loan shall be applied by
Borrower to (i) satisfy certain mortgage loans presently encumbering all or a
part of the applicable Subject Property or to be purchased with such
proceeds, (ii) fund any reserve required by Lender in connection with a
particular Advance, (iii) purchase the Subject Property, (iv) pay certain
transaction costs incurred by Borrower in connection with the Loan and (v)
for any other business purposes approved by Lender. No portion of the
proceeds of the Loan will be used for family, personal, agricultural or
household use.
(r) Tax Filings. Borrower and, if applicable, each General
Partner, have filed all federal, state and local tax returns required to be
filed and have paid or made adequate provision for the payment of all
federal, state and local taxes, charges and assessments payable by Borrower
and, if applicable, the General Partners. Borrower and, if applicable, the
General Partners, believe that their respective tax returns properly reflect
the income and taxes of Borrower and said General Partner, if any, for the
periods covered thereby, subject only to reasonable adjustments required by
the Internal Revenue Service or other applicable tax authority upon audit.
(s) Not Foreign Person. Borrower is not a "foreign person" within
the meaning of Section 1445(f)(3) of the Code.
(t) ERISA.
(i) The assets of Borrower and Guarantor are not and will not
become treated as "plan assets", whether by operation of law or under
regulations promulgated under ERISA. Each Plan and Welfare Plan, and, to the
knowledge of Borrower, each Multiemployer Plan, is in compliance in all
material respects with, and has been administered in all material respects in
compliance with, its terms and the applicable provisions of ERISA, the Code
and any other applicable Legal Requirement, and no event or condition has
occurred and is continuing as to which Borrower would be under an obligation
to furnish a report to Lender under clause (ii)(A) of this subsection. Other
than an application for a favorable determination letter with respect to a
Plan, there are no pending issues or claims before the Internal Revenue
Service, the United States Department of Labor or any court of competent
jurisdiction related to any Plan or Welfare Plan under which Borrower,
Guarantor or any ERISA Affiliate, directly or indirectly (through an
indemnification agreement or otherwise), could be subject to any material
risk of liability under Section 409 or 502(i) of ERISA or Section 4975 of the
Code. No Welfare Plan provides or will provide benefits, including, without
limitation, death or medical benefits (whether or not insured) with respect
to any current or former employee of Borrower, Guarantor or any ERISA
Affiliate beyond his or her retirement or other termination of service other
than (A) coverage mandated by applicable law, (B) death or disability
benefits that have been fully provided for by fully paid up insurance or (C)
severance benefits.
(ii) Borrower will furnish to Lender as soon as possible,
and in any event within ten (10) days after Borrower knows or has reason to
believe that any of the events or conditions specified below with respect to
any Plan, Welfare Plan or Multiemployer Plan has occurred or exists, an
Officer's Certificate setting forth details respecting such event or
condition and the action, if any, that Borrower or its ERISA Affiliate
proposes to take with respect thereto (and a copy of any report or notice
required to be filed with or given to PBGC (or any other relevant
Governmental Authority) by Borrower or an ERISA Affiliate with respect to
such event or condition, if such report or notice is required to be filed
with the PBGC or any other relevant Governmental Authority:
(A) any reportable event, as defined in Section 4043(b)
of ERISA and the regulations issued thereunder, with respect
to a Plan, as to which PBGC has not by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified
within thirty (30) days of the occurrence of such event
(provided that a failure to meet the minimum funding standard
of Section 412 of the Code of Section 302 of ERISA, including,
without limitation, the failure to make on or before its due
date a required installment under Section 412(m) of the Code
of Section 302(e) of ERISA, shall be a reportable event
regardless of the issuance of any waivers in accordance with
Section 412(d) of the Code), and any request for a waiver
under Section 412(d) of the Code for any Plan;
(B) the distribution under Section 4041 of ERISA of a
notice of intent to terminate any Plan or any action taken by
Borrower or an ERISA Affiliate to terminate any Plan;
(C) the institution by PBGC of proceedings under Section
4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Plan, or the receipt by Borrower or
any ERISA Affiliate of a notice from a Multiemployer Plan that
such action has been taken by PBGC with respect to such
Multiemployer Plan;
(D) the complete or partial withdrawal from a
Multiemployer Plan by Borrower or any ERISA Affiliate that
results in liability under Section 4201 or 4204 of ERISA
(including the obligation to satisfy secondary liability as a
result of a purchaser default) or the receipt by Borrower or
any ERISA Affiliate of notice from a Multiemployer Plan that
it is in reorganization or insolvency pursuant to Section 4241
or 4245 of ERISA or that it intends to terminate or has
terminated under Section 4041A of ERISA;
(E) the institution of a proceeding by a fiduciary of
any Multiemployer Plan against Borrower or any ERISA Affiliate
to enforce Section 515 of ERISA, which proceeding is not
dismissed within thirty (30) days;
(F) the adoption of an amendment to any Plan that,
pursuant to Section 401(a)(29) of the Code or Section 307 of
ERISA, would result in the loss of tax-exempt status of the
trust of which such Plan is a part if Borrower or an ERISA
Affiliate fails to timely provide security to the Plan in
accordance with the provisions of said Sections; or
(G) the imposition of a lien or a security interest in
connection with a Plan.
(iii) Borrower shall not knowingly engage in or permit any
transaction in connection with which Borrower, Guarantor or any ERISA
Affiliate could be subject to either a civil penalty or tax assessed pursuant
to Section 502(i) or 502(1) of ERISA or Section 4975 of the Code, permit any
Welfare Plan to provide benefits, including without limitation, medical
benefits (whether or not insured), with respect to any current or former
employee of Borrower, Guarantor or any ERISA Affiliate beyond his or her
retirement or other termination of service other than (A) coverage mandated
by applicable law, (B) death or disability benefits that have been fully
provided for by paid up insurance or otherwise or (C) severance benefits,
permit the assets of Borrower or Guarantor to become "plan assets", whether
by operation of law or under regulations promulgated under ERISA or adopt,
amend (except as may be required by applicable law) or increase the amount of
any benefit or amount payable under, or permit any ERISA Affiliate to adopt,
amend (except as may be required by applicable law) or increase the amount of
any benefit or amount payable under, any employee benefit plan (including,
without limitation, any employee welfare benefit plan) or other plan, policy
or arrangement, except for normal increases in the ordinary course of
business consistent with past practice that, in the aggregate, do not result
in a material increase in benefits expense to Borrower, Guarantor or any
ERISA Affiliate.
(u) Labor Matters. Borrower is not a party to any collective
bargaining agreements.
Section 6.02 Financial Reports.
(a) Borrower will keep and maintain or will cause to be kept and
maintained on a Fiscal Year basis, on a cash basis in accordance with sound
accounting principles consistently applied (or such other accounting basis
acceptable to Lender), proper and accurate books, records and accounts
reflecting all of the financial affairs of Borrower. Lender shall have the
right from time to time at all times during normal business hours upon
reasonable notice to examine such books, records and accounts at the office
of Borrower or other Person maintaining such books, records and accounts and
to make such copies or extracts thereof as Lender shall desire. After the
occurrence of an Event of Default, Borrower shall pay any costs and expenses
incurred by Lender to examine Borrower's accounting books and records, as
Lender shall determine to be necessary or appropriate in the protection of
Lender's interest.
(b) Borrower will furnish Lender annually, within one hundred
twenty (120) days following the end of each Fiscal Year of Borrower, with a
complete copy of Borrower's financial statement audited by a certified public
accountant acceptable to Lender and prepared on a cash basis in accordance
with sound accounting principles consistently applied (or such other
accounting basis acceptable to Lender) covering all of the financial affairs
of Borrower and containing a statement of revenues and expenses, a statement
of assets and liabilities and a statement of Borrower's equity. Together with
Borrower's annual financial statements, Borrower shall supplement the
combined financial statement with information on a property by-property basis
that was used in the preparation of the combined statement and shall furnish
to Lender an Officer's Certificate certifying as of the date thereof (i) that
the annual financial statements accurately represent the results of operation
and financial condition of Borrower (or, in the case of a combined financial
statement, the results of operation and financial condition of Borrower) all
in accordance with sound accounting principles consistently applied, and (ii)
whether to the best knowledge of the officer executing such certificate,
there exists an event or circumstance which constitutes, or which upon notice
or lapse of time or both would constitute, a Default under the Note or any
other Loan Document executed and delivered by Borrower, and if such event or
circumstance exists, the nature thereof, the period of time it has existed
and the action then being taken to remedy such event or circumstance.
(c) Borrower shall furnish to Lender, within twenty-five (25) days
following the end of each calendar quarter, income and expense statements and
an updated rent roll with respect to each of the Subject Properties, in each
case certified by Borrower to be true and correct.
(d) Borrower shall furnish Lender, within thirty (30) days after
Lender's request therefor, with such further detailed information with
respect to the financial affairs of Borrower as may be reasonably requested
by Lender.
Section 6.03 Litigation. Borrower will give prompt written notice to
Lender of any litigation or governmental proceedings pending or threatened
(in writing) against Borrower which might have a Material Adverse Effect.
ARTICLE VII. EVENTS OF DEFAULT
Section 7.01 Events of Default. If any Event of Default shall occur
and be continuing then, and in any such event, and in addition to any other
rights or remedies Lender may have hereunder, under any other Loan Documents,
including, without limitation, pursuant to Section 13.02 of the Mortgages, or
at law or equity, (A) if such event is an Event of Default specified in
Section 13.01(i) of any of the Mortgages, the Commitment hereunder shall
immediately terminate and the outstanding principal amount of the Note
together with accrued and unpaid interest thereon and all other amounts owing
under this Agreement and the Note shall immediately become due and payable,
and (B) if such event is any other Event of Default, Lender may, by written
notice of default to Borrower, terminate the Commitment hereunder and/or
declare the outstanding principal amount of the Note, together with accrued
and unpaid interest thereon and all other amounts owing under this Agreement
and the Note to be due and payable forthwith, whereupon the same shall
immediately become due and payable. Except as expressly provided above herein
or in any of the other Loan Documents, presentment, demand, protest and all
other notices of any kind are hereby expressly waived by Borrower.
ARTICLE VIII. MISCELLANEOUS
Section 8.01 Notices. All notices, requests and other communications
to any party hereunder or under the Note shall be given in the manner and to
the address of each party as set forth in Article XI of the Mortgages.
Section 8.02 Performance by Lender. Should Borrower fail to perform
any covenant, duty or agreement in accordance with the terms and conditions
of any of the Loan Documents to which it is party and, except in the case of
an emergency or any other event which could or would materially adversely
affect the collateral for the Loan (in which cases no notice shall be
required), such failure continues uncured for a period ten (10) days
following written notice to Borrower specifying such default, Lender may (but
shall be under no obligation to), at its option, perform, or attempt to
perform, such covenant, duty or agreement on behalf of Borrower. In such
event, the appropriate entity shall, at the request of Lender, promptly pay
any amount expended by Lender in such performance or attempted performance to
Lender at the office of Lender designated for receipt of payments of
principal and interest on the Loan, together with interest thereon at the
Default Rate from the date of such expenditure by Lender until paid.
Notwithstanding the foregoing, it is expressly understood that Lender does
not assume and shall never have, except by express written consent, any
liability or responsibility for the performance of any duties of Borrower
hereunder, or under or in connection with any of the other Loan Documents.
Section 8.03 No Oral Change. The terms of this Agreement, together
with the terms of the Note and the other Loan Documents constitute the entire
understanding and agreement of the parties hereto and supersede all prior
agreements, understandings and negotiations between Borrower and Lender with
respect to the Loan. This Agreement, and any provisions hereof, may not be
modified, amended, waived, extended, changed, discharged or terminated orally
or by any act on the part of Borrower or Lender, but only by an agreement in
writing signed by the party against whom enforcement of any modification,
amendment, waiver, extension, change, discharge or termination is sought.
Section 8.04 No Waiver: Remedies Cumulative. No failure or delay on
the part of Lender in exercising any right, remedy, power or privilege
hereunder or under the other Loan Documents and no course of dealing between
Borrower and Lender shall operate as a waiver thereof, nor shall any single
or partial exercise of any right, remedy, power or privilege hereunder or
under the other Loan Documents preclude any other or further exercise thereof
or the exercise of any other right, remedy, power or privilege hereunder or
thereunder. The rights and remedies provided herein and in the other Loan
Documents are cumulative and not exclusive of any rights or remedies provided
by law. The giving of notice to or demand on Borrower, which notice or demand
is not required hereunder or under the other Loan Documents, shall not
entitle Borrower to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights, remedies, powers or
privileges of Lender in any circumstances not requiring notice or demand.
Section 8.05 Fees and Expenses. In addition to any other amounts
payable by the Borrower under the terms of any of the Loan Documents,
Borrower agrees to promptly pay or reimburse Lender for:
(a) all reasonable expenses (including, without limitation, the
fees, which shall not exceed $50,000, and the reasonable disbursements of
Xxxxxxx & Berlin, Chartered and any local counsel retained by Lender)
incurred in connection with the negotiation, preparation, execution and
delivery of this Agreement:
(b) all reasonable expenses (including, without limitation, the
fees, which shall not exceed $10,000 per Advance per property, and the
reasonable disbursements of Xxxxxxx & Berlin, Chartered and any local counsel
retained by Lender) incurred in connection with the closing of each
subsequent Advance;
(c) all costs and expenses (including, without limitation,
reasonable fees and disbursements of counsel) incurred in connection with any
Default or Event of Default and any enforcement or collection proceedings
resulting therefrom including, without limitation, in connection with any
bankruptcy, insolvency, liquidation, reorganization, moratorium or other
similar proceedings involving Borrower or a "workout" of the Loan, as
applicable, or in connection with any seizure or sale of any Subject Property
or any related or similar proceedings;
(d) all Taxes, and all transfer, stamp, documentary or other
similar taxes, assessments or charges levied by any governmental or revenue
authority in respect of this Agreement, any other Loan Documents or any other
document referred to herein or therein, and all costs, expenses, Taxes and
other charges incurred in connection with any filing, registration, recording
or perfection of any security interest or Lien contemplated by this
Agreement, any other Loan Documents or any document referred to therein; and
(e) all recording fees, registration taxes, title insurance
premiums, appraisal fees, costs of surveys, fees of third-party consultants
and all other fees and expenses reasonably incurred by Lender in connection
with any Subject Property, all of which sums shall be paid on demand, with
interest thereon at the Default Rate if not paid within five (5) days
following demand therefor.
Section 8.06 Indemnification. Borrower agrees to indemnify Lender
(and any Participant of Lender) and their respective directors, officers,
attorneys, employees and agents from, and to hold each of them harmless
against, any and all losses, liabilities, claims, damages or expenses (in
contract, tort or otherwise) incurred by any of them, as incurred, arising
out of or by reason of any claim of any Person relating to or arising out of
this Agreement or any other Loan Document or any transaction contemplated
hereby or thereby or resulting from the ownership or financing of any Subject
Property or any investigation or litigation or other proceedings (including
any threatened investigation or litigation or other proceedings) relating to
this Agreement or any other Loan Document or any actual or proposed use by
Borrower of any of the proceeds of any of the Advances (including, without
limitation, the reasonable fees and disbursements of counsel), but excluding
any such losses, liabilities, claims, damages or expenses incurred by reason
of the gross negligence or willful misconduct of any Person to be indemnified
hereunder. Notwithstanding any other provision of this Agreement, the
obligation of Borrower under this Section 8.06 shall survive the repayment of
the Loan.
Section 8.07 Benefits of Agreement. This Agreement shall be binding
upon and inure to the benefit of Borrower, Lender and their respective
successors and assigns, except that Borrower may not assign or transfer any
of its rights or obligations under this Agreement or the Note without the
prior written consent of Lender.
Section 8.08 Participations. Lender may at any time grant to one or
more banks or other institutions (each a "Participant") participating
interests in its Commitment or any portion or all of the Loan. In the event
of any such grant by Lender of a participating interest to a Participant,
whether or not upon notice to Borrower, Lender shall remain responsible for
the performance of its obligations hereunder, and Borrower shall continue to
deal solely and directly with Lender in connection with Lender's rights and
obligations under this Agreement. Any agreement pursuant to which Lender may
grant such a participating interest shall provide that Lender shall retain
the sole right and responsibility to enforce the obligations of Borrower
hereunder including, without limitation, the right to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
participation agreement may provide that (i) Lender will not agree to any
modification, amendment or waiver of this Agreement (a) which increases or
decreases the Commitment, (b) reduces the principal of or rate of interest on
the Loan or fees hereunder, (c) postpones the date fixed for any payment of
principal of or interest on the Loan or any fees hereunder, (d) modifies the
75% LTV Ratio requirement or (e) otherwise materially affects the rights of
the Participant without the consent of the Participant and (ii) the
Participant may commence servicing the Loan upon the occurrence of an Event
of Default. Lender shall have the right to deliver from time to time to any
Participant or prospective Participant copies of all financial and other
information in the possession of Lender with respect to any Loan, the
Borrower, any guarantor or any other related person or entity, all of which
information may be retained by such Participant and/or prospective
Participant.
Section 8.09 Assignments. Lender may at any time assign to one or
more banks or other institutions (each an "Assignee") all, or a proportionate
part of all, of its rights and obligations under this Agreement and the Note,
and such Assignee shall assume such rights and obligations, pursuant to an
assignment and assumption agreement executed by such Assignee and Lender,
with (and subject to) the subscribed consent of Borrower, which shall not be
unreasonably withheld; provided that if an Assignee is an Affiliate of
Lender, no such consent shall be required. Upon execution and delivery of
such instrument and payment by such Assignee to Lender of an amount equal to
the purchase price agreed between Lender and such Assignee, such Assignee
shall be a party to this Agreement and shall have all the rights and
obligations of a Bank with a Commitment as set forth in such instrument of
assumption, and Lender shall be released from its obligations hereunder to a
corresponding extent, and no further consent or action by any party shall be
required. Upon the consummation of any assignment pursuant to this Section
8.09, Lender and Borrower shall make appropriate arrangements so that, if
required, a new Note is issued to the Assignee. In addition to the foregoing,
Lender may assign or transfer any of its rights or obligations hereunder and
under the Note to an Affiliate or other branch of Lender.
Section 8.10 Governing Law.
(a) This Agreement was negotiated and executed in New York, and
the proceeds of the Note delivered pursuant hereto will be disbursed from New
York, which State the parties agree has a substantial relationship to the
parties and to the underlying transaction embodied hereby, and in all
respects, including, without limiting the generality of the foregoing,
matters of construction, validity and performance. This Agreement and the
obligations arising hereunder shall be governed by, and construed in
accordance with, the laws of the State of New York applicable to contracts
made and performed in such State and any applicable law of the United States
of America, except that at all times the provisions for the creation,
perfection, and enforcement of the liens and security interests created
pursuant to the Mortgages and pursuant to the other Loan Documents shall be
governed by and construed according to the law of the State in which the
Subject Property is located, it being understood that, to the fullest extent
permitted by law of such State, the law of the State of New York shall govern
the validity and the enforceability of all Loan Documents, and the Debt or
obligations arising hereunder or thereunder. To the fullest extent permitted
by law, Borrower hereby unconditionally and irrevocably waives any claim to
assert that the law of any other jurisdiction governs this Agreement and this
Agreement shall be governed by and construed in accordance with the laws of
the State of New York pursuant to Section 5-1401 of the New York General
Obligations Law.
(b) Any legal suit, action or proceeding against Borrower or
Lender arising out of or relating to this Agreement shall be instituted in
any federal or state court in New York, New York, pursuant to Section 5-1402
of the New York General Obligations Law, and Borrower waives any objection
which it may now or hereafter have to the laying of venue of any such suit,
action or proceeding, and Borrower hereby irrevocably submits to the juris-
diction of any such court in any suit, action or proceeding. Borrower does
hereby designate and appoint CT Corporation System, 0000 Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 as its authorized agent to accept and acknowledge on its
behalf service of any and all process which may be served in any such suit,
action or proceeding in any federal or state court in New York, New York, and
agrees that service of process upon said agent at said address and written
notice of said service of Borrower mailed or delivered to Borrower in the
manner provided in Section 8.01 hereof, shall be deemed in every respect
effective service of process upon Borrower, in any such suit, action or
proceeding in the State of New York. Borrower (i) shall give prompt notice to
the Lender of any changed address of its authorized agent hereunder, (ii) may
at any time and from time to time designate a substitute authorized agent
with an office in New York, New York (which office shall be designated as the
address for service of process), and (iii) shall promptly designate such a
substitute if its authorized agent ceases to have an office in New York, New
York or is dissolved without leaving a successor.
Section 8. 11 Counterparts. This Agreement may be executed in any
number of counterparts and by the different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed an
original, and all of which shall together constitute one and the same
agreement.
Section 8.12 Waiver of Counterclaim, Etc. BORROWER HEREBY WAIVES THE
RIGHT TO ASSERT A COUNTERCLAIM, OTHER THAN A COMPULSORY COUNTERCLAIM, IN ANY
ACTION OR PROCEEDING BROUGHT AGAINST IT BY LENDER OR ITS AGENTS, AND WAIVES
TRIAL BY JURY IN ANY ACTION OR PROCEEDING BROUGHT BY EITHER PARTY HERETO
AGAINST THE OTHER OR IN ANY COUNTERCLAIM BORROWER MAY BE PERMITTED TO ASSERT
HEREUNDER OR WHICH MAY BE ASSERTED BY LENDER OR ITS AGENTS, AGAINST BORROWER,
OR IN ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS
AGREEMENT OR THE DEBT.
Section 8.13 Severable Provisions. If any term, covenant or condition
of the Loan Documents including, without limitation, the Note or this
Agreement, is held to be invalid, illegal or unenforceable in any respect,
such Loan Document shall be construed without such provision.
Section 8.14 Right of Setoff. In addition to any other rights now or
hereafter granted under applicable law or otherwise and not by way of
limitation of any such rights, upon the occurrence of an Event of Default,
Borrower hereby authorizes Lender and each Affiliate of Lender at any time or
from time to time, without presentment, demand, protest or other notice of
other kind to Borrower or any other Person, each of which is hereby expressly
waived by Borrower, to the extent permitted by applicable law, to set-off and
appropriate and apply any and all deposits (general or special) in any
currency and any amount owing from Lender to Borrower, to any amount owing by
Borrower hereunder and under the other Loan Documents to which it is a party
to Lender.
Section 8.15 Confidentiality. Except as provided herein to the
contrary, all correspondence from Lender to Borrower and all of the Loan
Documents are confidential and may not be shown by Borrower to or discussed
by Borrower with any third party (other than on a confidential basis with
Borrower's legal counsel and independent public accountants and Borrower's
investors) without Lender's prior written consent.
Section 8.16 Exhibits Incorporated. The information set forth on the
cover hereof, and the Exhibits annexed hereto, are hereby incorporated herein
as a part of this Agreement with the same effect as if set forth in the body
hereof.
Section 8.17 Sole Discretion of Lender. Whenever Lender exercises any
right given to it to approve or disapprove, or any arrangement or term is to
be satisfactory to Lender, the decision of Lender to approve or disapprove or
to decide that arrangements or terms are satisfactory or not satisfactory
shall be in the sole discretion of Lender and shall be final and conclusive,
except as may be otherwise specifically provided herein.
Section 8.18 Waiver of Notice. Borrower shall not be entitled to any
notices of any nature whatsoever from Lender except with respect to matters
for which this Agreement specifically and expressly provides for the giving
of notice by Lender to Borrower and except with respect to matters for which
Borrower is not, pursuant to applicable Legal Requirements, permitted to
waive the giving of notice.
Section 8.19 Remedies of Borrower. In the event that a claim or
adjudication is made that Lender has acted unreasonably or unreasonably
delayed acting in any case where by law or under the Note, this Agreement or
the other Loan Documents, it has an obligation to act reasonably or promptly,
Lender shall not be liable for any monetary damages, and Borrower's remedies
shall be limited to injunctive relief or declaratory judgment.
Section 8.20 Reserved.
Section 8.21 Application of Default Rate Not a Waiver. Application of
the Default Rate shall not be deemed to constitute a waiver of any Default or
Event of Default or any rights or remedies of Lender under this Agreement,
any other Loan Document or applicable Legal Requirements, or a consent to any
extension of time for the payment or performance of any obligation with
respect to which the Default Rate may be invoked.
Section 8.22 No Joint Venture or Partnership. Borrower and Lender
intend that the relationship created hereunder be solely that of a borrower
and a lender. Nothing herein is intended to create a joint venture,
partnership, tenancy-in-common, or joint tenancy relationship between
Borrower and Lender.
Section 8.23 Time of the Essence. Time shall be of the essence in the
performance of all obligations of Borrower hereunder.
Section 8.24 Publicity. All promotional news releases, publicity or
advertising by Borrower or its Affiliates through any media intended to reach
the general public shall not refer to the Loan Documents or the financing
evidenced by the Loan Documents, or to Lender or any of its Affiliates
without the prior written approval of Lender or its Affiliates, as
applicable, in each instance, such approval not to be unreasonably withheld
or delayed. Lender shall be authorized to provide information relating to the
Loan and matters relating thereto to rating agencies, underwriters, potential
securities investors, auditors, regulatory authorities and to any Persons
which may be entitled to such information by operation of law.
Section 8.25 Securitization. In the event the Loan or any portion
thereof are to be included as an asset of a Securitization, Borrower,
without cost to Borrower (except any costs incurred by Borrower in connection
with its representation by legal counsel), shall, at the request of Lender,
promptly, but in any event within ten (10) Business Days of Lender's request
(a) amend the Loan Documents with respect to the Loan (or the portions
thereof) which are to be included in the Securitization to extend the
maturity date thereof for a period to be determined by Lender in its sole
discretion which shall in no event be more than two (2) additional years, (b)
split the Note into two or more notes with principal balances aggregating not
more than $90,000,000, (c) amend any cross-default provisions and/or cross-
collateralization provisions in the Loan Documents so that the portions of
the Loan which are not to be included as an asset in the Securitization
shall not be cross-defaulted or cross-collateralized with the portions
thereof which are to be included within such Securitization and (d) amend the
Loan Documents and enter into additional Loan Documents as may be reasonably
requested by Lender, provided, that no such amendments or additional
documentation shall materially and adversely affect Borrower.
Section 8.26 Offsets, Counterclaims and Defenses. Any assignee of
this Agreement, any Mortgage, the Assignment or the Note shall take the same
free and clear of all offsets, counterclaims or defenses which are unrelated
to this Agreement, the Mortgages, the Assignment or the Note which Borrower
may otherwise have against any assignor of this Agreement, the Mortgages, the
Assignment and the Note and no such unrelated counterclaim or defense shall
be interposed or asserted by Borrower in any action or proceeding brought by
any such assignee upon this Agreement, the Mortgages, the Assignment or the
Note and any such right to interpose or assert any such unrelated offset,
counterclaim or defense in any such action or proceeding is hereby expressly
waived by Borrower.
Section 8.27 Headings; Construction of Documents: etc. The table of
contents, headings and captions of various paragraphs of this Agreement are
for convenience of reference only and are not to be construed as defining or
limiting, in any way, the scope or intent of the provisions hereof. Borrower
acknowledges that it was represented by competent counsel in connection with
the negotiation and drafting of this Agreement and the other Loan Documents
and that neither this Agreement nor the other Loan Documents shall be subject
to the principle of construing the meaning against the Person who drafted
same.
Section 8.28. Joint and Several.
If Borrower consists of more than one Person or party, the obligations
and liabilities of each such Person or party hereunder shall be joint and
several.
IN WITNESS WHEREOF, Borrower and Lender have caused this Agreement to be
duly executed by their respective officers thereunto duly authorized, as of
the date first above written.
SAFEGUARD CAPITAL FUND, L.P., a
Delaware limited partnership
By: Safeguard Equity Group, L.L.C., a
limited liability company,
Its General Partner
By: Safeguard Holdings, L.L.C., a
limited liability company,
Its Manager
By: /s/ Xxxxx X. Xxxx, Xx.
--------------------------
Name: Xxxxx X. Xxxx, Xx.
------------------------
Title: Manager
------------------------
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
By: /s/ X. Xxxx
------------------------------------
Name: X. Xxxx
Title: Vice President
EXHIBIT A
BORROWING REQUEST
From: _____________________________
To: Xxxxxx Guaranty Trust Company of New York
c/o X.X. Xxxxxx Securities Inc.,
its agent
00 Xxxx Xxxxxx, x0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
1. ______________________ ("Borrower") requests a Borrowing from
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK ("Lender") pursuant to the
Revolving Credit Agreement, dated March ___, 1998 between Borrower and Lender
(as the same may be amended from time to time, the "Agreement"). Capitalized
terms used herein and defined in the Agreement shall be used herein as so
defined.
2. Borrowing requested:
(a) Borrower hereby requests a Borrowing in the principal amount
of $_________________________; and
(b) Requested Borrowing Date:_________________ 199____.
3. The undersigned officer of Borrower represents and warrants to
Lender:
(a) no Default or Event of Default has occurred and is continuing;
and
(b) no change or event which has a Material Adverse Effect has
occurred.
4. The representations and warranties of Borrower contained in the
Agreement and those contained in each other Loan Document to which Borrower
is a party remain true and correct in all material respects on and as of the
date hereof with respect to the Borrower and all Subject Properties which
were the subject of prior Advances and are true and correct in all material
respects as of the date hereof with respect to the new Subject Property.
IN WITNESS WHEREOF, Borrower has caused this request to be duly executed
by its officer thereunto duly authorized, as of
.
____________________________________
By: _________________________________
By:
Name:
Title:
EXHIBIT A-2
PRELIMINARY BORROWING REQUEST
From: ________________________
To: Xxxxxx Guaranty Trust Company of New York
c/o X.X. Xxxxxx Securities Inc.,
its agent
00 Xxxx Xxxxxx, x0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
1. , a
("Borrower") hereby submits for your approval a preliminary request for a
Borrowing from XXXXXX GUARANTY TRUST COMPANY OF NEW YORK (the "Lender")
pursuant to the Revolving Credit Agreement, dated as of March ___, 1998
between Borrower and Lender (as the same may be amended from time to time,
the "Agreement"). Capitalized terms used herein and defined in the Agreement
shall be used herein as so defined.
2. Borrowing requested:
(a) Borrower hereby requests a Borrowing in the principal
amount of
$ ; and
(b) Requested Borrowing Date: on or about , 199_.
3. The undersigned officer of Borrower represents and warrants to
Lender:
(a) each of the documents, instruments and agreements
required to be delivered pursuant to Section 2.01(c) of the Agreement has
been previously delivered to you or accompanies this request, and each such
document, instrument and agreement is either the original or a true and
accurate copy thereof and has not been amended, modified or terminated since
the date submitted to you;
(b) no Default or Event of Default has occurred and is
continuing under the Agreement; and
(c) no change or event which constitutes a Material Adverse
Effect has occurred.
4. The representations and warranties of Borrower contained in the
Agreement and those contained in each other Loan Document to which Borrower
is a party remain true and correct in all material respects on and as of the
date hereof with respect to the Borrower and all Subject Properties which
were the subject of prior Advances and are true and correct in all material
respects as of the date hereof with respect to the new Subject Property.
IN WITNESS WHEREOF, Borrower has caused this request to be duly executed
by its officer thereunto duly authorized, as of .
BORROWER
By:________________________________
Name:
Title:
Schedule I
Document No. Item
1. Checklist of Credit File Contents
2. Loan Summary Memorandum
3. Exhibit 1 - Site Plan or Building Layout/Floor Plan
4. Exhibit 2 - Color Photographs
5. Exhibit 3 - Property Operating Statements (2 prior years), current
year-to date and budget or trailing 12 - Months
6. Exhibit 4 - Rent Roll (or other evidence of leasing status) and
Lender rent roll form, if applicable
7. Exhibit 5 - Capital Expenditures Schedule and Budget
8. Signed Tenant Estoppel Certificates for Major Space Leases only
9. Appraisals (2 originals and 1 copy) to be ordered by Lender
10. Environmental Site Assessment (2 originals and 1 copy) to be
ordered by Lender
11. Physical Assessment Report (2 originals and 1 copy) to be ordered
by Lender
12. Seismic (2 originals) to be ordered by Lender
13. Site inspection - to be ordered by Lender
14. Real Estate Tax Bills (2 years)
15. Monthly Occupancy History (2 years)
16. Tenant Delinquency Report (1 year)
17. Standard Lease Form - all properties except Hotel and Nursing Home
18. Executed Ground Lease - if applicable
19. Tenant Leases (if required by Lender) - Retail, Industrial, Office
only
20. Updated Rent Roll - Multifamily and Self-Storage only
21. Termite Inspection Report - Multifamily only
22. Executed Property Management Agreement
23. All known current property code violations for the Mortgaged
Property
24. All known current litigation for the Mortgaged Property
25. Property Insurance Policies and Paid Receipts
26. Certificates of Occupancy
27. Licenses and Permits
28. Evidence of Zoning
29. Major Vendor/Service Contracts and Equipment Leases - Hotel,
Congregate Care and Nursing Home only
30. Letter of Rebuildability, if legal non-conforming use
Schedule II
APPROVED PROFESSIONAL CONSULTANTS
FIRM NAME CONTACT NAME CONTACT NUMBER
--------- ------------ --------------
APPRAISERS
CB Commercial Xxx Xxxxxxx (000) 000-0000
Xxxxxxx & Wakefield Xxxxx Xxxxxxx (000) 000-0000
ENGINEERS AND ENVIRONMENTAL CONSULTANTS
Xxxxx & Xxxxxx Xxxxxxx Xxxxxxx (000) 000-0000
Certified Environments Inc. Xxxxxxx X. Xxxxxx (000) 000-0000
Xxxxxxx Consultants Xxx Xxxxxx (000) 000-0000
EMG Xxxxxx Xxxxx (000) 000-0000
Law Engineering Xxxxx Xxxxxx (000) 000-0000
Property Solutions, Inc. Xxx Xxxxxx (000) 000-0000
SEISMIC CONSULTANTS
Dames & Xxxxx Xxxxx Xxxxxxx (000) 000-0000
Xxxxxxx Consultants Xxxxxxxx Xxxx (000) 000-0000
Project Resources Inc. Xxxxxx X. Xxxxxxxxxxx (000) 000-0000
