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EXHIBIT 10.3
PPM NO. 99-0114
LOAN AGREEMENT
by and between
XXXXXXX NATIONAL LIFE INSURANCE COMPANY, as Lender
and
CHORUS CORPORATION, as Borrower
Date: As of December 15, 1999
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LOAN AGREEMENT
This Loan Agreement is made as of this 15th day of December, 1999, by
and between CHORUS CORPORATION, a Minnesota corporation ("Borrower"), and
XXXXXXX NATIONAL LIFE INSURANCE COMPANY, a Michigan corporation ("Lender").
RECITALS
A. Borrower is a corporation which has its principal place of business
at 0000 Xxxxxxxxxxxxx Xxxxx, Xxxxx Xxxx Xxxxxxxx, Xxxxxxxxx 00000, and is the
owner of certain real estate located in White Bear Township, Minnesota,
consisting of approximately 11.85 acres, and legally described in Exhibit A
hereto (the "Land"), which is improved with a 75,360 square foot
office/warehouse facility, parking for 198 vehicles and other site improvements
(collectively, the "Improvements").
B. Borrower has applied to Lender for a loan (the "Loan") in the
maximum amount of Four Million Five Hundred Thousand and No/100 ($4,500,000.00)
Dollars and Lender has agreed to make the Loan on the terms and conditions
contained herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
1. DEFINED TERMS. The following terms as used herein shall have the following
meanings:
Affiliated Party: (i) if Borrower or any Affiliated Party is a
general or limited partnership, the general partners thereof and any
person or entity directly or indirectly controlling any general partner
thereof; (ii) if Borrower or any Affiliated Party is a joint venture,
its joint venture partners and any person or entity directly or
indirectly controlling any joint venture partner thereof, (iii) if
Borrower is a corporation or limited liability company, any person or
entity directly or indirectly controlling Borrower; and (iv) each
Indemnitor.
Agreement: This Loan Agreement, as originally executed or as
may be hereafter supplemented or amended from time to time in writing.
Application/Commitment: Collectively, the "Application" to PPM
Finance, Inc. for the Loan dated October 19, 1999, and the acceptance
thereof as a commitment dated November 29, 1999.
Appraisal: An appraisal prepared by a member of a national
appraisal organization that has adopted the Uniform Standards of
Professional Appraisal Practice (USPAP) established by the Appraisal
Standards Board of the Appraisal Foundation. The appraiser
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shall use assumptions and limiting conditions established by Lender,
and the appraisal shall be in conformity with Lender's appraisal
guidelines and the requirements of the Application/Commitment.
Building Laws: All federal, state and local laws, statutes,
regulations, codes, ordinances, orders, rules and requirements
applicable to the development, construction, use, operation, management
and maintenance of the Project, including without limitation, all
access, building, zoning, planning, subdivision, fire, traffic, safety,
health, labor, discrimination, environmental, air quality, wetlands,
shoreline, flood plain laws, regulations and ordinances, including,
without limitation, all applicable requirements of the Fair Housing Act
of 1988, as amended, the Americans with Disabilities Act of 1990, as
amended, and all orders or decrees of any court adopted or enacted with
respect thereto applicable to the Project, as any of the same may from
time to time be amended, modified or supplemented.
Default: Any event which, if it were to continue uncured,
would, with notice or lapse of time or both, constitute an Event of
Default (as such term is defined in Section 7.1 of this Agreement).
Default Rate: The default interest rate specified in the Note.
Development Agreement: Development Agreement dated September
1, 1998, by and between the Economic Development Authority of the Town
of White Bear, Minnesota (the "EDA"), Continental Technology Center,
LLP, a Minnesota limited partnership ("Continental"), and Borrower, as
assigned, assumed and amended by that certain Assignment and Assumption
Agreement dated as of December 1, 1999, by and between Continental and
Borrower and consented to by the EDA.
Environmental Indemnity Agreement: The Environmental Indemnity
Agreement described in Section 2.2 of this Agreement, executed by
Borrower and Indemnitor, as originally executed or as may be hereafter
supplemented or amended from time to time in writing.
ERISA: Employee Retirement Income Security Act of 1974, as
amended, and the regulations promulgated thereunder from time to time.
Estoppel and Agreement: The Estoppel and Agreement dated of
even date herewith, executed by and among Borrower, Lender and the EDA
with respect to the Development Agreement, as originally executed or as
may be hereafter supplemented or amended from time to time in writing.
Government Approvals: The meaning set forth in Section 4.11 of
this Agreement.
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Governmental Authority: Any federal, state, county or
municipal government, or political subdivision thereof, any
governmental or quasi-governmental agency, authority, board, bureau,
commission, department, instrumentality, or public body, or any court,
administrative tribunal, or public utility.
Guaranty: The Guaranty described in Section 2.2 of this
Agreement, executed by indemnitor, as originally executed or as may be
hereafter supplemented or amended from time to time in writing.
Improvements: The meaning set forth in Recital A of this
Agreement.
Indemnification Agreement: The indemnification agreement
described in Section 2.2 of this Agreement, executed by Indemnitor, as
originally executed or as may be hereafter supplemented or amended from
time to time in writing.
Include or including: Including but not limited to.
Indemnitor: Chorus International Corporation, a Minnesota
corporation, EPI Europe, Ltd., a Minnesota corporation, Xxxx X.
Xxxxxxx, Xxxxx X. Xxxxxxx and Xxxxx X. Xxxxxx, whether one or more.
Internal Revenue Code: The Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder from time to time.
Knowledge: When used to modify a representation or warranty,
actual knowledge or such knowledge as a reasonable person under the
circumstances should have after diligent inquiry and investigation
Land: The land legally described in Exhibit A hereto.
Laws: Collectively, all federal, state and local laws,
statutes, codes, ordinances, orders, rules and regulations, including
judicial opinions or precedential authority in the applicable
jurisdiction, as any of the same may from time to time be amended,
modified or supplemented.
Loan Documents: This Agreement, the Environmental Indemnity,
the Indemnification Agreement, the Mortgage, the Note, the Guaranty,
the Estoppel and Agreement, the other documents and instruments listed
in Section 2.2 of this Agreement, and all other documents and
instruments given to Lender from time to time in connection with or to
secure the Loan, as originally executed or as any of the same may be
hereafter supplemented or amended from time to time, in writing.
Loan Maturity: Maturity Date (as defined in the Note).
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Loan Opening Date: The date of the disbursement of the Loan.
Mortgage: The mortgage, deed of trust, security deed, deed to
secure debt or similar instrument described in Section 2.2 of this
Agreement, as originally executed or as may be hereafter supplemented
or amended from time to time in writing.
Note: The mortgage note described in Section 2.2 of this
Agreement, as originally executed or as may be hereafter supplemented
or amended from time to time in writing.
Permitted Exceptions: Those matters listed in Exhibit B hereto
to which the interest of Borrower in the Real Property may be subject
and any such other title exceptions, if any, as Lender, or its counsel,
may approve in advance in writing.
Project: The Land together with the Improvements and any and
all other buildings, structures and improvements located or to be
located thereon and all rights, privileges, easements, hereditaments
and appurtenances, thereunto relating or appertaining, including
parking for at least 198 vehicles, but in any event parking in
compliance with any applicable zoning ordinance and tenant leases, and
all personal property, fixtures and equipment required or used (or to
be used) for the operation thereof, but specifically excluding all
personal property, trade fixtures and equipment, not constituting a
part of the structural, utility or mechanical components or systems of
the Improvements, required or used (or to be used) for the operation of
Borrower's business at the Project.
Real Property: That portion of the Project constituting real
property.
Title Insurer: First American Title Insurance Company, or such
other title insurance company licensed in the State of Minnesota, as
may be approved by Lender in connection with the Loan.
Defined terms may be used in the singular or the plural. When used in the
singular preceded by "a", "an", or "any", such term shall be taken to indicate
one or more members of the relevant class. When used in the plural, such term
shall be taken to indicate all members of the relevant class.
2. TERMS OF LOAN AND DOCUMENTS.
2.1 AGREEMENT TO BORROW AND LEND. Subject to all of the terms,
provisions and conditions set forth in this Agreement, Lender agrees to make and
Borrower agrees to accept the Loan described in the Recitals of this Agreement.
Borrower agrees to pay all indebtedness evidenced and secured by the Loan
Documents in accordance with the terms thereof.
2.2 LOAN DOCUMENTS. In consideration of Lender's entry into this
Agreement and Lender's agreement to make the Loan, Borrower agrees that it will,
in sufficient time for review
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by Lender and its counsel prior to the Loan Opening Date, execute and deliver or
cause to be executed and delivered to Lender the following documents and
instruments in form and substance acceptable to Lender:
(a) A mortgage note from Borrower payable to the order of
Lender in the original principal amount of Four Million Five Hundred
Thousand and No/100 ($4,500,000.00) Dollars;
(b) A first mortgage on Borrower's fee simple estate in the
Project securing the Note, subject only to the Permitted Exceptions;
(c) An assignment to Lender of all rents, income, issues and
profits of, and all leases, licenses, concessions and other similar
agreements relating to or connected with the Project which shall be a
present first priority absolute assignment of all present and future
leases of all or any part of the Project, all guarantees thereof and
all rents and other sums payable thereunder;
(d) A security agreement granting Lender a security interest
in all personal property, tangible and intangible, owned or hereafter
acquired by Borrower and relating to the Project, including bank
accounts, accounts receivable, all escrow, impound or reserve accounts
required in the Loan Documents, and other intangible property, which
agreement may be combined with the Mortgage;
(e) Uniform Commercial Code financing statements, in
duplicate, executed by Borrower as debtor with respect to all of the
personal property;
(f) An indemnity agreement with respect to certain matters
including environmental covenants (the "Environmental Indemnity");
(g) An indemnity agreement with respect to certain matters
executed by Indemnitor (the "Indemnity Agreement");
(h) A Guaranty, limited as to amount, of Borrower's
obligations under the Loan Documents, executed by Indemnitor (the
"Guaranty");
(i) A borrower's affidavit containing certain warranties and
representations by Borrower (the "Borrower's Certificate");
(j) The Estoppel and Agreement;
(k) Any other documents required by the Application/Commitment;
and
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(l) Such other papers and documents as may be required by this
Agreement or as Lender may reasonably require.
2.3 TERMS OF THE LOAN. The Loan will bear interest for the period and
at the rate or rates set forth in the Note, and be payable in accordance with
the terms of the Note. The unpaid principal balance, all accrued and unpaid
interest and all other sums due and payable under the Note or other Loan
Documents, if not sooner paid, shall be paid in full at Loan Maturity.
2.4 PREPAYMENTS. Borrower shall have no right to make prepayments of
the Loan in whole or in part except in accordance with the terms of the Note.
2.5 CONDITIONS TO DISBURSEMENT. Borrower agrees to perform and satisfy
all conditions precedent to the disbursement of the Loan set forth in the
Application/Commitment, including those set forth in Sections 2.4 (Third Party
Reports) and 3 (The Closing) thereof.
2.6 SOURCES AND USES. Borrower shall use the proceeds of the Loan
solely for the purposes set forth in Exhibit C hereto. This sources and uses
statement must be in substantial accordance with the sources and uses statement
attached to the Application/Commitment.
3. BORROWER'S COVENANTS. Borrower further covenants and agrees with Lender as
follows:
3.1 ESCROW DEPOSITS. (a) Unless specifically waived by a separate
written agreement, Borrower shall deposit monthly with Lender a sum equal to
one-twelfth (1/12th) of the amount estimated by Lender to be required to pay, at
least thirty (30) days prior to their respective due dates, annual taxes,
assessments, ground rent and insurance premiums for the Project (the "Escrow
Account"). Lender shall not pay interest on or segregate the Escrow Account
unless required to do so under applicable law. If Lender is required to
segregate the Escrow Account, Borrower shall execute such documents as Lender,
in its sole discretion, deems necessary to perfect its security interest in the
Escrow Account. On the Loan Opening Date, Borrower shall make an initial deposit
with Lender of a sum equal to one-twelfth (1/12th) of the estimated annual
property taxes and assessments, a sum equal to one-twelfth (1/12th) of the
annual ground rent, if applicable, and a sum equal to one-twelfth (1/12th) of
the estimated annual insurance premiums, multiplied by the number of months
elapsed in the respective billing periods. For example, if annual taxes and
assessments are paid every six (6) months (in June and December) and the Loan
Opening Date occurs in March, the initial tax impound would be four-twelfths
(4/12ths) of the estimated annual property taxes and assessments; and
(b) The Escrow Account is hereby pledged as additional
security for the Loan and shall be held to be irrevocably applied for the
purposes for which made hereunder and shall not be subject to the direction or
control of Borrower; provided, however, that neither Lender nor any depository
holding such funds shall be liable for any failure to apply to the payment of
taxes, assessments, ground rent or insurance premiums any amount so deposited
unless (i) there shall
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exist no Default or Event of Default hereunder or under any of the Loan
Documents, (ii) there are sufficient funds in the Escrow Account to pay the
particular taxes, assessments, ground rent or insurance premiums and (iii)
following payment of such taxes, assessments, ground rent or insurance premiums,
the Escrow Account will be "in balance" in the reasonable opinion of Lender.
3.2 PAYMENT OF TAXES. Borrower shall pay all real estate taxes,
assessments and charges of every kind upon the Project before the same become
delinquent; provided, however, that Borrower shall have the right to pay any
such tax, assessment or charge under protest or to otherwise contest any such
tax, assessment or charge but only if (i) such contest has the effect of
preventing the collection of such tax, assessment or charge so contested and
also preventing the sale or forfeiture of the Project or any part thereof or any
interest therein, (ii) Borrower has notified Lender in writing in advance of its
intent to contest such tax, assessment or charge, and (iii) Borrower has
deposited security in form and amount satisfactory to Lender, in its reasonable
judgment, and increases the amount of such security so deposited promptly after
Lender's request therefor. If Borrower shall fail to commence such contest or,
having commenced such contest, and having deposited such security required by
Lender for its full amount, shall thereafter fail to prosecute such contest in
good faith or with due diligence, or, upon adverse conclusion of any such
contest, shall fail to pay the tax, assessment or charge so contested, Lender
may at its election (but shall not be required to), pay and discharge any such
tax, assessment or charge, and any interest or penalty thereon, and any amounts
so expended by Lender shall be deemed to constitute disbursements of the Loan
proceeds hereunder (even if the total amount of disbursements would exceed the
face amount of the Note), and shall bear interest from the date expended at the
Default Rate and be payable with such interest upon demand. Lender in making any
payment hereby authorized relating to any tax, assessment or charge, may do so
according to any xxxx, statement or estimate procured from the appropriate
public office without inquiry into the accuracy of such xxxx, statement or
estimate or into the validity of any tax, assessment, charge, sale, forfeiture,
tax lien or title or claim thereof.
3.3 MAINTENANCE OF INSURANCE. (a) Insurance Coverage Requirements:
Borrower shall maintain insurance coverages as contained on Exhibit D hereto and
as follows, all in forms, with companies and in amounts satisfactory to Lender:
(i) All risk/open perils special form property insurance must
be in force with limits of 100% replacement cost. Borrower
agrees to furnish upon Lender's request evidence of
replacement cost, without cost to Lender, such as is regularly
and ordinarily obtained by insurance companies to determine
such replacement cost. If a coinsurance clause is in effect,
an agreed amount endorsement is required. Blanket policies
must include limits by property location. The coverage shall
insure the Real Property and all tangible personal property.
(ii) Broad form boiler and machinery coverage, including a
form of business income, must be in force if any such item is
located on or about the Real Property.
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(iii) If available, flood insurance must be in force if the
Real Property is located in a special flood hazard area
according to the most current flood insurance rate map issued
by the Federal Emergency Management Agency. The coverage shall
include the Real Property and the tangible personal property.
(iv) A form of business income or rent loss coverage must be
in force in the amount of one year's business income or rental
income from the Property. Blanket policies must include limits
by property location.
(v) Comprehensive/general liability coverage must be in force
with a $3,000,000 combined single limit per occurrence with a
minimum aggregate limit of $5,000,000. Umbrella/excess
liability insurance may be used to satisfy this requirement.
Liquor liability coverage must be in force if alcoholic
beverages are or will be sold, served or given on the Real
Property, either in the name of Borrower or in the name of the
tenant which sells, serves or gives such alcoholic beverages.
(vi) Such additional coverages appropriate to the property
type and site location as Lender may reasonably require.
Additional coverages may include earthquake, mine subsidence,
sinkhole, personal property, supplemental liability, or
coverages of other property-specific risks.
(b) Insurance Procedures:
(i) How Lender Should Be Named. On all property policies and
coverages (including coverage against loss of business or rental
income), Lender must be named as "First Mortgagee" and "Lenders Loss
Payee" under a standard mortgage clause. On all liability policies and
coverages, including any liquor liability coverage maintained by any
tenant, Lender must be named as an "Additional Insured." Lender should
be referred to verbatim as follows: Xxxxxxx National Life Insurance
Company and its successors, assigns and affiliates, as their interest
may appear; c/o PPM Finance, Inc., 000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000, or its Mortgage Correspondent.
(ii) Rating. The insurance carrier must be rated A, Class VII
or better by Best's Rating Service, without regard to its parent's or
any reinsurer's rating.
(iii) Deductible. The maximum deductible on all coverages and
policies is $25,000.
(iv) Notices, Changes and Renewals. All policies must require
the insurance carrier to give Lender a minimum of thirty (30) days
notice in the event of modification, cancellation or non-renewal. Any
vacancy, change of title, tenant occupancy or use,
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physical damage, additional improvements or other factors affecting any
insurance contract must be reported to Lender immediately. Borrower
must provide Lender with a paid insurance agent's receipt for all
current coverages unless such bills are paid by Lender from proceeds on
deposit in the Escrow Account established pursuant to Section 3.1. An
original or certified copy of each policy is required on or prior to
the Loan Opening Date and upon renewal. If no such copy is available,
Lender will accept a binder for a period not to exceed 90 days. All
binders, certificates of insurance, and original or certified copies of
policies must name Borrower as a named insured, or as an additional
insured, must include the complete and accurate property address and
must bear the original signature of the issuing insurance agent.
(v) No Other Insurance. Borrower shall not take out separate
insurance concurrent in form or contributing in the event of loss with
that required to be maintained hereunder unless Lender is included
thereon under a standard, non-contributory Lender clause acceptable to
Lender. Borrower shall immediately notify Lender whenever any such
separate insurance is taken out and shall promptly deliver to Lender
the original policy or policies of such insurance.
(c) Lender's Right to Obtain Insurance. Notwithstanding this
Section 3.3, in the event of a Default under this Agreement or any of
the other Loan Documents, Lender shall have the right (but not the
obligation) to place and maintain insurance required to be placed and
maintained by Borrower hereunder, and use funds on deposit in the
Escrow Account for the payment of insurance to pay for same. Any
additional amounts expended therefor shall constitute additional
disbursements of Loan proceeds (even if the total amount of
disbursements would exceed the face amount of the Note), and shall bear
interest from the date expended at the Default Rate and be payable
together with such interest upon demand.
3.4 MECHANICS' LIENS AND CONTEST THEREOF. Borrower will not suffer or
permit any mechanics' lien claims to be filed or otherwise asserted against the
Project and will discharge the same within fifteen (15) days after the filing or
commencement thereof (or sooner if necessary to prevent loss, forfeiture or
impairment of the Project or any part thereof) if any claims for lien or any
proceedings for the enforcement thereof are filed or commenced; provided,
however, that Borrower shall have the right to contest in good faith and with
due diligence the validity of any such lien or claim upon furnishing to the
Title Insurer such security or indemnity as it may require to induce the Title
Insurer to insure against all such claims, liens or proceedings; and provided
further that Lender will not be required to make any further disbursements of
the Loan proceeds unless (a) any mechanics' lien claims shown by any title
insurance commitments or interim binders or certifications have been released or
insured against by the Title Insurer or (b) Borrower shall have provided Lender
with such other security with respect to such claim as may be acceptable to
Lender, in its sole discretion.
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3.5 SETTLEMENT OF MECHANICS' LIEN CLAIMS. If Borrower shall fail to
discharge within fifteen (15) days after the filing or assertion thereof (or
sooner if necessary to prevent loss, forfeiture or impairment of the Project or
any part thereof) any mechanics' lien claim filed or otherwise asserted or to
contest any such claims and give security or indemnity in the manner provided in
Section 3.4 hereof, or, having commenced to contest the same, and having given
such security or indemnity, shall thereafter fail to prosecute such contest in
good faith or with due diligence, or fail to maintain such indemnity or security
so required by the Title Insurer for its full amount, or, upon adverse
conclusion of any such contest, shall fail to cause any judgment or decree to be
satisfied and lien to be promptly released, then, and in any such event, Lender
may, at its election, but shall not be required to, (i) procure the release and
discharge of any such claim and any judgment or decree thereon, without
inquiring into or investigating the amount, validity or enforceability of such
lien or claim and (ii) effect any settlement or compromise of the same, or may
furnish such security or indemnity to the Title Insurer, and any amounts
expended by Lender in doing so, including premiums paid or security furnished in
connection with the issuance of any surety company bonds, shall be deemed to
constitute disbursements of the Loan proceeds hereunder (even if the total
amount of disbursements would exceed the face amount of the Note), and shall
bear interest from the date expended at the Default Rate and be payable together
with such interest upon demand.
3.6 MAINTENANCE, REPAIR AND RESTORATION OF IMPROVEMENTS. Borrower shall
(i) promptly repair, restore or rebuild any Improvements which may become
damaged or be destroyed; and (ii) keep the Improvements in good condition and
repair, without waste.
3.7 LEASES AND LEASE REPORTS. Borrower shall not enter into, modify,
amend, waive any material provision of, terminate or cancel any lease(s) of
space in the Project without the prior written consent of Lender. All lessees
shall be required, at Lender's election, to execute estoppel certificates and
subordination, non-disturbance and attornment agreements in form and substance
satisfactory to Lender. Within fifteen (15) days following the end of each year,
Borrower shall deliver to Lender a report showing the status of the leasing of
space in the Project certified by Borrower. Such report shall include
information on the amount of space covered by any letters of intent, leases out
for execution, and fully executed leases; the rental amount under each lease
agreement or proposed lease agreement; the term of each lease agreement; and a
summary of any terms which vary from the standard form of lease, if applicable,
previously approved by Lender. Any new lease, modification, amendment, waiver of
any material provision, termination or cancellation of any lease of space in the
Project without the prior written consent of Lender may be deemed by Lender, in
its sole discretion, as an Event of Default.
3.8 COMPLIANCE WITH LAWS. Borrower shall promptly comply with all
applicable Laws of any Governmental Authority having jurisdiction over Borrower
or the Project, and shall take all actions necessary to bring the Project into
compliance with all applicable Laws, including without limitation all Building
Laws (whether now existing or hereafter enacted).
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3.9 ALTERATIONS. Without the prior written consent of Lender, Borrower
shall not make any material alterations to the Project (other than completion of
tenant work required in accordance with leases entered into in accordance with
the terms of this Agreement).
3.10 PERSONAL PROPERTY. (i) All of Borrower's personal property,
fixtures, furnishings, furniture, attachments and equipment located on or used
in connection with the Project, and in which Borrower grants Lender a lien and
security interest pursuant to the Mortgage, shall always be located at the
Project and shall also be kept free and clear of all chattel mortgages,
conditional vendor's liens and all other liens, encumbrances and security
interests of any kind whatever, (ii) Borrower will be the absolute owner of said
personal property, fixtures, furnishings, furniture, attachments and equipment,
and (iii) Borrower shall, from time to time, furnish Lender with evidence of
such ownership satisfactory to Lender, including searches of applicable public
records.
3.11 PROHIBITION AGAINST CASH DISTRIBUTIONS AND APPLICATION OF CASH
FLOW. Borrower shall first apply all cash flow from the Project to pay Project
expenses, including amounts due to Lender pursuant to the Loan Documents. No
cash flow from the Project shall be distributed to any partners, principals,
members or shareholders of Borrower or applied to the payment of any
obligations, debts or expenses not related to the Project if an Event of Default
has occurred or if there is a reasonable likelihood in Borrower's reasonable
determination that such money will be necessary for the operation of the Project
or the payment of principal and interest due in connection with the Loan within
90 days following any contemplated cash flow distribution.
3.12 INSPECTION BY LENDER. Borrower will cooperate (and will cause the
managing agent to cooperate) with Lender in arranging for inspections of the
Project from time to time by Lender and its agents and representatives following
reasonable prior notice.
3.13 FURNISHING INFORMATION. Borrower shall deliver or cause to be
delivered to Lender annual financial statements for Borrower and annual
financial statements for Indemnitor as soon as available and in all events no
later than one hundred twenty (120) days after the close of each fiscal year.
Annual statements shall be certified as true and correct by an authorized
financial officer of Borrower or Indemnitor, as the case may be. While only
annual financial statements will be required initially, Lender shall have the
right to require that the Borrower provide quarterly financial statements at any
time during the Loan term. If a Default has occurred or Lender reasonably
believes that previously provided financial statements are materially
inaccurate, then if required by Lender the annual statements shall be audited by
certified public accountants acceptable to Lender and prepared in accordance
with generally accepted accounting principles. Borrower shall also furnish a
current operating statement for the Project (including a rent roll if there are
any leases of the Project or any part thereof), at the time it delivers its
financial statements. Additionally, Borrower and Indemnitor will:
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(i) promptly supply Lender with such information concerning
their respective affairs and property relating to the
development and operation of the Project as Lender may
hereafter request from time to time;
(ii) at any time following reasonable prior notice and during
regular business hours permit Lender or any of its agents or
representatives to have access to and examine all of its books
and records regarding the development and operation of the
Project;
(iii) permit Lender to copy and make abstracts from any and
all of such books and records provided that Lender shall keep
all such books and records confidential, provided further that
Lender may disclose the same to its attorneys, accountants and
auditors and any party acquiring an interest in the Loan and
otherwise as required by law or regulation; and
(iv) immediately notify Lender if Borrower receives any actual
notice, action or lien notice or otherwise becomes aware that
the Project violates or is alleged to violate any Building
Law, or of a condition or situation on the Property which will
constitute violation of a Building Law (whether now existing
or hereafter enacted). The notice to Lender shall describe
with particularity the Building Law violation and the
Borrower's plan to promptly correct the violation.
3.14 DOCUMENTS OF FURTHER ASSURANCE. Borrower shall, from time to time,
upon Lender's request, execute, deliver, record and furnish such documents as
Lender may reasonably deem necessary or desirable to (i) perfect and maintain
perfected as valid liens upon the Project, the liens granted by Borrower to
Lender under the Mortgage and the collateral assignments and other security
interests under the other Loan Documents as contemplated by this Agreement, (ii)
correct any errors of a typographical nature or inconsistencies which may be
contained in any of the Loan Documents, and (iii) consummate fully the
transaction contemplated under this Agreement.
3.15 FURNISHING REPORTS. Borrower shall provide Lender promptly after
receipt with copies of all inspections, reports, test results and other
information received by Borrower from time to time from its employees, agents,
representatives, architects and engineers, which in any way relate to the
Project, or any part thereof.
3.16 OPERATION OF PROJECT AND ZONING. As long as any portion of the
Loan remains outstanding, the Project shall be operated in a first class manner
as an office/warehouse facility. Borrower shall fully and faithfully perform all
of its covenants, agreements and obligations under each of the leases of space
in the Project. Borrower shall not initiate or acquiesce in a zoning variation
or reclassification without Lender's consent.
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3.17 MANAGEMENT AGENTS' AND BROKERS' CONTRACTS. Borrower shall not
enter into, modify, amend, waive any material provision of, terminate or cancel
any management contracts for the Project without the prior written approval of
Lender, which approval shall not be unreasonably withheld. If, in the ordinary
course of business, Borrower shall enter into, modify, amend, waive any
provision of, terminate or cancel any contracts or agreements (other than
management contracts) with agents or brokers, Borrower shall notify Lender
within 10 days after such action.
3.18 FURNISHING NOTICES. Borrower shall deliver to Lender copies of all
material notices received or given by Borrower (or its agents or
representatives) in connection with the Project.
3.19 INDEMNIFICATION. Borrower shall indemnify, defend and hold Lender,
and its officers, directors, employees, shareholders, advisers, and agents
(collectively, "Indemnified Parties") harmless from and against all claims,
injury, damage, loss, costs (including reasonable attorney fees and costs) and
liability of any and every kind incurred by Indemnified Parties by reason of (i)
the operation or maintenance of the Project or any construction at the Project;
(ii) the payment of any brokerage commissions or fees of any kind with respect
to the Application/Commitment or the Loan, and for any reasonable legal fees or
expenses incurred by Lender in connection with any claims for such commissions
or fees; (iii) any other action or inaction by, or matter which is the
responsibility of, Borrower; and (iv) the breach of any representation or
warranty or failure to fulfill any of Borrower's obligations under this
Agreement or any other Loan Document. The foregoing indemnity shall include the
cost of all alterations, repairs and replacements to the Project (including
without limitation architectural, engineering, legal and accounting costs), all
fines, fees and penalties, and all legal and other expenses (including
reasonable attorney fees), incurred in connection with the Project being in
violation of Building Laws and for the cost of collection of the sums due under
this indemnity, whether or not Borrower is in possession of the Project. If
Lender shall become the owner of or acquire an interest in or rights to the
Project by foreclosure or deed in lieu of foreclosure of the Mortgage or by
other means, the foregoing indemnification obligation shall survive such
foreclosure or deed in lieu of foreclosure or other acquisition of the Project,
unless Lender's own negligent acts or omissions cause what would otherwise be
considered an indemnification obligation by Borrower and/or Indemnitor.
3.20 ORGANIZATIONAL DOCUMENTS. Without the prior written consent of
Lender, Borrower shall not permit or suffer any material amendment or
modification of its articles of incorporation or bylaws, and shall not permit or
suffer the admission of any new shareholder, except as permitted pursuant to
Section 6.3.
3.21 PUBLICITY. During the term of the Loan, Lender may issue or
publish releases or announcements stating that the financing for the Project is
being provided by Lender to Borrower, and Borrower hereby consents thereto.
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3.22 INTENTIONALLY OMITTED.
3.23 LENDER'S ATTORNEY FEES AND EXPENSES. If at any time hereafter
prior to repayment of the Loan in full, Lender employs counsel for advice or
other representation (whether or not any suit has been or shall be filed and
whether or not other legal proceedings have been or shall be instituted and, if
such suit is filed or legal proceedings instituted, through all administrative,
trial, and appellate levels) with respect to the Loan, the Project or any part
thereof, this Agreement or any of the Loan Documents, including any proposed or
actual restructuring of the Loan, or to protect, collect, lease, sell, take
possession of, or liquidate any of the Project, or to attempt to enforce any
security interest or lien on any of the Project, or to enforce any rights of
Lender or any of Borrower's obligations hereunder or those of any other person,
firm or corporation which may be obligated to Lender by virtue of this Agreement
or any other agreement, instrument or document heretofore or hereafter delivered
to Lender by or for the benefit of Borrower, or to analyze and respond to any
request for consent or approval made by Borrower, then, in any such event, all
of the reasonable attorney fees and expenses arising from such services, and all
expenses, costs and charges relating thereto, shall bear interest from the date
expended at the Default Rate and shall be paid by Borrower on demand and if
Borrower fails to pay such fees, costs and expenses payment thereof by Lender
shall be deemed to constitute disbursement of the Loan proceeds hereunder (even
if the total amount of disbursements would exceed the face amount of the Note)
and shall constitute additional indebtedness of Borrower to Lender, payable on
demand and secured by the Mortgage and other Loan Documents.
3.24 LOAN EXPENSES. Borrower agrees to pay all reasonable expenses of
the Loan, including all amounts payable pursuant to Section 3.25 of this
Agreement, and also including all recording charges, title insurance charges,
costs of surveys, costs for certified copies of instruments, escrow charges,
fees, expenses and charges of architectural/engineering consultants of Lender,
fees and expenses of Lender's attorneys, and all costs and expenses incurred by
Lender in connection with the determination of whether Borrower has performed
the obligations undertaken by Borrower under this Agreement or has satisfied any
conditions precedent to the obligations of Lender under this Agreement. All such
expenses, charges, costs and fees shall be the Borrower's obligation regardless
of whether the Loan is disbursed in whole or in part unless any failure to
disburse is due to Lender's wrongful failure to disburse hereunder. Any and all
advances or payments made by Lender under this Agreement from time to time, or
for fees of architectural and engineering consultants and attorney fees and
expenses, if any, and all other Loan expenses shall, as and when advanced or
incurred by Lender, constitute additional indebtedness evidenced by the Note and
secured by the Mortgage and the other Loan Documents to the same extent and
effect as if the terms and provisions of this Agreement were set forth therein,
whether or not the aggregate of such indebtedness shall exceed the aggregate
face amount of the Note.
3.25 LOAN FEES. Borrower agrees to pay the loan fees ("Loan Fees") as
are set forth in the Application/Commitment, subject to the terms and conditions
set forth therein. Borrower shall pay all Loan Fees at the times set forth in
the Application/Commitment and shall pay all
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expenses incurred by Lender at the Loan Opening Date and on demand at such
subsequent times as Lender may determine including administrative fees and
expenses in connection with any modification of any of the terms of the Loan.
Lender may require the payment of such fees and expenses as a condition to the
disbursement of the Loan.
3.26 NO ADDITIONAL DEBT. Borrower shall not, without the prior written
consent of Lender, incur any indebtedness (whether personal or nonrecourse,
secured or unsecured) in connection with the Project, as opposed to debt in
connection with Borrower's operation of its business in the Project, other than
customary trade payables paid within sixty (60) days after they are incurred.
3.27 DEVELOPMENT AGREEMENT. Borrower shall keep and perform all of the
covenants, obligations and agreements to be kept and performed by Borrower
pursuant to the Development Agreement and will not modify, amend, cancel or
terminate the Development Agreement without the prior written consent of Lender.
Without limiting the generality of the foregoing, Borrower hereby covenants and
agrees that: (a) on or before April 15, 2000, Borrower (i) will obtain, and
provide Lender with evidence reasonably satisfactory to Lender that Borrower has
obtained, the State Grant (as such term is defined in the Development Agreement)
and the proceeds thereof, and the Authority Loan (as such term is defined in the
Development Agreement) and the proceeds thereof, and (ii) will obtain and
deliver to Lender a certification from the Authority (as such term is defined in
the Development Agreement) in form and substance reasonably acceptable to Lender
that all conditions precedent to the Authority's obligation to make tax
increment assistance payments pursuant to Sections 3.1 and 3.2 of the
Development Agreement have been satisfied and are in existence; and (b) on or
before September 1, 2000, Borrower shall satisfy the minimum wage and employment
goals set forth in Section 3.8 of the Development Agreement and shall obtain and
deliver to Lender a certification from the Authority in form and substance
reasonably acceptable to Lender to the effect that such goals have been
satisfied and that the Development Agreement is in full force and effect without
any default existing thereunder.
4. REPRESENTATIONS AND WARRANTIES. To induce Lender to execute this Agreement
and perform the obligations of Lender hereunder, Borrower hereby represents and
warrants to Lender as follows:
4.1 TITLE. On the Loan Opening Date and thereafter, Borrower will have
good and marketable fee simple title to the Real Property, subject only to the
Permitted Exceptions.
4.2 NO LITIGATION. Except for claims fully covered by insurance, where
the insurance company is defending such claims and such defense is not being
provided under a reservation of rights, and except as disclosed in writing to
Lender prior to the date hereof, there is no pending litigation or unsatisfied
judgment entered of record against Borrower or the Project. No litigation or
proceedings are pending, or to Borrower's knowledge are threatened, against any
Affiliated Party (i) which might affect the validity or priority of the lien of
the Mortgage, (ii) which might affect the ability of Borrower or any Indemnitor
to perform their respective obligations pursuant
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to and as contemplated by the terms and provisions of this Agreement and the
other Loan Documents, or (iii) which could materially affect the operations or
financial condition of the Project, Borrower, or any Affiliated Party.
4.3 DUE AUTHORIZATION. The execution and delivery of the Loan Documents
and all other documents executed or delivered by or on behalf of Borrower and
pertaining to the Loan have been duly authorized or approved by Borrower and,
when executed and delivered by Borrower or when caused to be executed and
delivered on behalf of Borrower, will constitute the legal, valid and binding
obligations of the obligor thereon, enforceable in accordance with their
respective terms except as limited by bankruptcy, insolvency, or other laws of
general application relating to the enforcement of creditor's rights, and the
payment or performance thereof will be subject to no offsets, claims or defenses
of any kind or nature whatsoever.
4.4 BREACH OF LAWS OR AGREEMENTS. The execution, delivery and
performance of this Agreement and the other Loan Documents have not constituted
(and will not, upon the giving of notice or lapse of time or both, constitute) a
breach or default under any other agreement to which Borrower or any Indemnitor
is a party or may be bound or affected, or to Borrower's knowledge a violation
of any Law which may affect the Project, any part thereof, any interest therein,
or the use thereof, or Borrower or any Indemnitor.
4.5 LEASES. Borrower and its agents have not entered into any leases or
other arrangements for occupancy of space within the Project other than leases
shown on the most recent rent roll furnished to Lender (the "Rent Roll") or
entered into in accordance with the requirements of this Agreement. All leases
disclosed on the Rent Roll are in full force and effect and to Borrower's
knowledge, there are no existing defaults thereunder other than as disclosed in
writing to Lender.
4.6 CONDEMNATION. (i) No condemnation of any portion of the Project,
(ii) no condemnation or relocation of any roadways abutting the Project, and
(iii) no denial of access to the Project from any point of access to the
Project, has commenced or, to Borrower's knowledge, is contemplated by any
Governmental Authority.
4.7 CONDITION OF IMPROVEMENTS. To the best of Borrower's knowledge
after due inquiry, the foundations and structure of the Improvements are
structurally sound and the various mechanical systems have adequate capacities
and are in good working condition. To the best of Borrower's knowledge after due
inquiry, the Improvements were built in substantial compliance with applicable
plans and specifications furnished to the Lender's engineering consultant, and
to Borrower's actual knowledge the Improvements are in full compliance with all
applicable Building Laws. Certificates of occupancy with respect to the
Improvements, and any other certificates which may be required to evidence
compliance with building codes and permits and approval for full occupancy of
the Improvements and all installations therein have been issued by all
appropriate authorities. Borrower has no knowledge of required capital
expenditures or deferred
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maintenance other than those that would be normally expected for a building of
similar age and type. Borrower has not received any notice of violation of any
Building Law.
4.8 INFORMATION CORRECT. All financial statements furnished to Lender
by Borrower or any Affiliated Party fairly present the financial condition of
such persons or entities and were prepared in accordance with a method of
preparation approved by Lender, consistently applied, and all other information
previously furnished by Borrower or any Affiliated Party to Lender in connection
with the Loan are true, complete and correct in all respects except as otherwise
disclosed to Lender in writing and do not fail to state any material fact
necessary to make the statements made not misleading. Neither Borrower nor
Indemnitor has misstated or failed to disclose to Lender any material fact
relating to: (i) the condition, use or operation of the Project, (ii) the status
or any material condition if any tenant or lease at the Project known to it,
(iii) Borrower, (iv) any Indemnitor, or (v) the litigation disclosure provided
by Borrower and Indemnitor, except as disclosed in writing to Lender prior to
the date hereof.
4.9 MATERIAL ADVERSE CHANGE. No material adverse change in the
operations or financial condition of Borrower or Indemnitor has occurred since
the respective effective dates of their financial statements previously
submitted to Lender, and no material adverse change in the condition (physical
or otherwise) of the Project has occurred since the date of the
Application/Commitment.
4.10 SOLVENCY. Neither Borrower, nor, if Borrower is a partnership, any
general partner of Borrower nor any Indemnitor is (a) currently insolvent on a
balance sheet basis, or (b) currently unable to pay its debts as they come due;
and no bankruptcy or receivership proceedings are contemplated or pending as to
any of them.
4.11 ZONING. The use of the Project (including contemplated accessory
uses) does not violate (i) any Law (including subdivision, zoning, building,
environmental protection and wetlands protection Laws), or (ii) any restrictions
of record, or any agreement affecting the Project or any part thereof. Without
limiting the generality of the foregoing, all consents, licenses and permits and
all other authorizations or approvals (collectively, "Governmental Approvals")
relating to the use and operation of the Project have been complied with.
4.12 UTILITIES. The Project has adequate water, gas and electrical
supply, storm and sanitary sewerage facilities, and other required public
utilities. The Project has fire and police protection and means of appropriate
access between the Project and public highways.
4.13 BROKERAGE FEES. No brokerage fees or commissions are payable by or
to any person in connection with this Agreement or the Loan to be disbursed
hereunder other than fees payable to Northland/Marquette Capital Group, Inc.,
which fees shall be paid by Borrower.
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4.14 ENCROACHMENTS. No building or other improvement in the Project
encroaches upon any building line, setback line, side yard line, or any recorded
or visible easement (or other easement of which Borrower has knowledge of with
respect to the Project).
4.15 SEPARATE PARCEL. The Project is taxed separately without regard to
any other property and for all purposes the Project may be mortgaged, conveyed,
and otherwise dealt with as an independent parcel.
4.16 ERISA. The assets of Borrower are not "plan assets" of any
employee benefit plan covered by ERISA or Section 4975 of the Internal Revenue
Code. The transactions contemplated by this Agreement by or with Borrower are
not in violation of state statutes regulating investments of and fiduciary
obligations with respect to "governmental plans," as defined in Section 3(32) of
ERISA.
4.17 NO DEFAULT. No Default or Event of Default has occurred and is
continuing.
4.18 PRINCIPAL PLACE OF BUSINESS. The principal place of business of
Borrower is as stated on page 1 hereof.
4.19 FIRPTA. Borrower is not a "foreign person" within the meaning of
Sections 1445 or 7701 of the Internal Revenue Code.
4.20 RICO. Borrower has not been charged with nor, to its knowledge, is
it under investigation for, possible violations of the Racketeer Influenced and
Corrupt Organizations Act, the Continuing Criminal Enterprise Act, the
Controlled Substance Act of 1978, or similar laws providing for the possible
forfeiture of any of its respective assets or properties.
4.21 NO CASUALTY. No part of the Project has been damaged by fire or
other casualty except as disclosed in writing to Lender.
4.22 TRUTH OF RECITALS. All statements set forth in the Recitals are
true and correct.
5. CASUALTY AND CONDEMNATION.
5.1 LENDER'S ELECTION TO APPLY INSURANCE AND CONDEMNATION PROCEEDS TO
INDEBTEDNESS. In the event of any loss or damage to any portion of the Project
due to fire or other casualty, or any taking of any portion of the Project by
condemnation or under power of eminent domain, Lender shall have the right, but
not the obligation, to settle insurance claims and condemnation claims or awards
for more than $100,000.00 and if Lender elects not to settle such claim or award
then Borrower shall settle such claim or award and such settlement or award
shall be subject to Lender's prior written approval. Borrower shall have the
right to settle claims or awards for less than such amount, provided that Lender
shall have the right to settle any claim or award that Borrower has not settled
on or before one hundred twenty (120) days after the date of
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such loss or prior to the date of such taking. If (i) no Default exists under
this Agreement, the Note or the other Loan Documents; (ii) no payment default
has occurred during the preceding twelve months; (iii) no non-monetary default
has occurred that has been noticed and remained uncured beyond the applicable
cure period; (iv) the proceeds received by Lender, together with any additional
funds deposited with Lender by Borrower, are sufficient, in Lender's discretion,
either to restore the Project to its condition before the casualty or to remedy
the condemnation; (v) the Loan-to-value ratio of the Project on completion of
the restoration will be 75% or less, as determined by an Appraisal (unless the
amount of proceeds is less than 3% of the original Loan amount); (vi) a loss of
no more than 10% of the commercial tenant rental income will result through
commercial tenants exercising rights to terminate their leases as a result of
the casualty or condemnation; and (vii) Borrower complies with all conditions
set forth in Section 5.2 of this Agreement, Borrower shall be entitled to use
the insurance or condemnation proceeds to rebuild the Project or to remedy the
effect of the condemnation, as the case may be. The Appraisal required pursuant
to the foregoing provision shall be at Borrower's expense and Borrower is
required to provide proof of such payment to Lender and Lender's Mortgage
Correspondent. In all other cases, Lender shall have the right (but not the
obligation) to collect, retain and apply to the indebtedness of Borrower under
this Agreement and the other Loan Documents all insurance and condemnation
proceeds (after deduction of all expense of collection and settlement, including
attorney and adjusters' fees and expenses), and if such proceeds are
insufficient to pay such amount in full, to declare the balance remaining unpaid
on the Note and Mortgage to be due and payable forthwith and to avail itself of
any of the remedies afforded thereby as in the case of any default beyond
applicable cure periods thereunder. Any proceeds remaining after application to
the indebtedness of Borrower under this Agreement and the other Loan Documents
shall be paid by Lender to Borrower or the party then entitled thereto.
5.2 BORROWER'S OBLIGATION TO REBUILD AND USE OF PROCEEDS THEREFOR. If
Lender does not elect to or is not entitled to apply fire or casualty insurance
proceeds to the indebtedness, as provided under Section 5.1 of this Agreement,
Lender shall have the right (but not the obligation) to settle, collect and
retain such proceeds, and after deduction of all expenses of collection and
settlement, including attorney and adjusters' fees and expenses, to release the
same to Borrower periodically provided that Borrower shall:
(a) Expeditiously repair and restore all damage to the portion
of the Project in question resulting from such fire or other casualty,
including completion of the construction if such fire or other casualty
shall have occurred prior to completion, so that the Project will be
completed in accordance with the plans and specifications therefor; and
(b) If the proceeds of fire or casualty insurance (and the
undisbursed available Loan proceeds for construction) are, in Lender's
sole judgment, insufficient to complete the repair and restoration of
the buildings, structures and other improvements constituting the
Project, then Borrower shall promptly deposit with Lender the amount of
such deficiency.
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Any request by Borrower for a disbursement by Lender of fire or
casualty insurance proceeds and funds deposited by Borrower pursuant to this
Section 5.2 and the disbursement thereof shall be conditioned upon Borrower's
compliance with and satisfaction of the same conditions precedent as would be
applicable in connection with construction loans made by institutional lenders
for projects similar to the Project, including approval of plans and
specifications, submittal of evidence of completion, updated title insurance,
lien waivers, and other customary safeguards.
6. ASSIGNMENTS.
6.1 LENDER'S RIGHT TO ASSIGN. Lender shall have the right to assign,
transfer, sell, negotiate, pledge or otherwise hypothecate this Agreement and
any of its rights and security hereunder, including the Note, Mortgage, and any
other Loan Documents. Borrower hereby agrees that all of the rights and remedies
of Lender in connection with the interest so assigned shall be enforceable
against Borrower by such assignee with the same force and effect and to the same
extent as the same would have been enforceable by Lender but for such
assignment. Borrower agrees that Lender shall have the right to sell
participations in the Loan or to include the Note in a securitized pool of
indebtedness without the consent of Borrower.
6.2 PROHIBITION OF ASSIGNMENTS BY BORROWER. Borrower shall not assign
or attempt to assign its rights under this Agreement. Borrower will not suffer
or permit any of its interest or rights in the Project to be assigned, sold,
pledged, encumbered, transferred, hypothecated or otherwise disposed of until
the provisions of this Agreement have been fully complied with and the Loan and
all other sums evidenced by the Note and/or secured by the Mortgage and other
Loan Documents have been repaid in full.
6.3 TRANSFERS OF INTERESTS IN BORROWER. For estate-planning purposes
only, Borrower, or any partner, member or shareholder of Borrower shall be
permitted to make a sale, conveyance, transfer or other vesting of any direct or
indirect interest in Borrower (other than a general partnership interest in
Borrower if Borrower is a partnership) up to an aggregate, over the term of the
Loan, of twenty-five (25%) percent of the total interests in Borrower, without
the prior consent of Lender, provided that any such sale, conveyance, transfer
or other vesting does not change the direct or indirect control or management of
Borrower and at all times Xxxx . Colombo owns at least 60% of the stock of
Borrower. Copies of any and all documents evidencing any such sale, conveyance,
transfer or other vesting must be provided to Lender within fifteen (15) days
after the occurrence of said action including, without limitation, a statement
detailing the action and a listing of real locations and percentages of
ownership interest in Borrower. Notwithstanding the foregoing, any sale,
conveyance, transfer or other vesting of any direct or indirect interest in
Borrower, other than the above said 25% aggregate amount, or for purposes other
than estate-planning, or any change of direct or indirect control or management
of Borrower or any encumbrance of or granting of any security interest in
Project or Borrower, if such event occurs without Lender's written consent
(which Lender may withhold at its sole discretion), shall constitute an event of
default under the Loan Documents. Borrower shall pay
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Lender's reasonable out-of-pocket expenses incurred in connection with the
review of any sale, conveyance, transfer or other vesting pursuant to this
Section 6.3 and pursuant to Section 6.2 hereof.
6.4 SUCCESSORS AND ASSIGNS. Subject to the foregoing restrictions on
transfer and assignment contained in this Section 6, this Agreement shall inure
to the benefit of and shall be binding on the parties hereto and their
respective successors and assigns.
7. EVENTS OF DEFAULT.
7.1 The occurrence of any one or more of the following shall constitute
an "Event of Default," as such term is used herein:
(a) If Borrower fails in pay principal or interest under the
Note when due;
(b) If Borrower defaults in the performance of any of its
other covenants, agreements and obligations under this Agreement
involving the payment of money;
(c) If Borrower defaults in the performance of any of its
nonmonetary covenants, agreements and obligations under this Agreement
(other than those referred to in clauses (f) and (g) below) and fails
to cure such default within thirty (30) days after written notice
thereof from Lender provided, however, that if such default is
reasonably susceptible of cure, but cannot be cured within such thirty
(30) day period, then so long as Borrower promptly commences cure and
thereafter diligently pursues such cure to completion, the cure period
shall be extended for an additional thirty (30) days, within which
Borrower may complete such cure;
(d) If at any time or times hereafter any representation or
warranty (including the representations and warranties of Borrower set
forth in any Loan Document), statement, report or certificate furnished
to Lender in connection with the Loan is not true and correct in any
material respect;
(e) If any petition is filed by or against Borrower or any
Affiliated Party under the Federal Bankruptcy Code or any similar state
or federal Law, whether now or hereafter existing (and, in the case of
involuntary proceedings, failure to cause the same to be vacated,
stayed or set aside within thirty (30) days after filing);
(f) If any assignment, pledge, encumbrance, transfer,
hypothecation or other disposition is made in violation of Section 6.2
or Section 6.3 of this Agreement;
(g) If Borrower modifies, amends, cancels or terminates the
Development Agreement in violation of Section 3.27 of this Agreement or
fails to keep and perform the
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covenants and agreements set forth in clauses (a) and (b) of Section
3.27 of this Agreement;
(h) If Borrower, any general partner of Borrower or any
Guarantor or Indemnitor shall fail to pay any debt owed by it or is in
default under any agreement with Lender or any other party (other than
a failure or default for which the maximum liability of Borrower or
such general partner, Guarantor or Indemnitor does not exceed 25% of
their respective assets) and such failure or default continues after
any applicable grace period specified in the instrument or agreement
relating thereto; or
(i) If a default occurs under any of the Loan Documents and
continues beyond the applicable grace period, if any, contained
therein.
8. REMEDIES.
8.1 REMEDIES CONFERRED UPON LENDER. Upon the occurrence of any Event of
Default, including without limitation the filing, by Borrower, of a voluntary
petition under Chapter 11 of the Bankruptcy Code, Lender shall have the right
(but not the obligation) to pursue any one or more of the following remedies
concurrently or successively, it being the intent hereof that all such remedies
shall be cumulative and that no such remedy shall be to the exclusion of any
other:
(a) Declare the Note to be immediately due and payable;
(b) Use and apply any monies deposited by Borrower with
Lender, including amounts in the Escrow Account, regardless of the
purpose for which the same was deposited, to cure any such default or
to apply on account of any indebtedness under this Agreement which is
due and owing to Lender; and
(c) Exercise or pursue any other right or remedy permitted
under this Agreement or any of the Loan Documents or conferred upon or
available to Lender at law or in equity or otherwise.
8.2 NONWAIVER OF REMEDIES. No waiver of any breach or default hereunder
shall constitute or be construed as a waiver by Lender of any subsequent breach
or default or of any breach or default of any other provision of this Agreement.
8.3 CASH COLLATERAL ACCOUNT. Upon the occurrence of an Event of
Default, Borrower shall deposit all revenues from the operation of the Project,
as opposed to revenues from the operation of Borrower's business at the Project,
into an account held by and pledged to Lender ("Cash Collateral Account").
Lender shall not pay interest on any amounts held on deposit in the Cash
Collateral Account, unless required to do so under applicable law. Borrower
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shall execute such documents as Lender, in its sole discretion, deems necessary
to perfect its interest in the Cash Collateral Account.
9. GENERAL PROVISIONS.
9.1 CAPTIONS. The captions and headings of various Articles and
Sections of this Agreement and Exhibits pertaining hereto are for convenience
only and are not to be considered as defining or limiting in any way, the scope
or intent of the provisions hereof.
9.2 MERGER. This Agreement, the Application/Commitment and the Loan
Documents and instruments delivered in connection herewith, as may be amended
from time to time in writing, constitute the entire agreement of the parties
with respect to the Project and the Loan, and all prior discussions,
negotiations and document drafts are merged herein and therein. If there are any
inconsistencies between the Application/Commitment and this Agreement or the
Loan Documents, the terms contained in this Agreement and the other Loan
Documents shall prevail. Neither Lender nor any employee of Lender has made or
is authorized to make any representation or agreement upon which Borrower may
rely unless such matter is made for the benefit of Borrower and is in writing
signed by an authorized officer of Lender. Borrower agrees that it has not and
will not rely on any custom or practice of Lender, or on any course of dealing
with Lender, in connection with the Loan unless such matters are set forth in
this Agreement or the Loan Documents or in an instrument made for the benefit of
Borrower and in a writing signed by an authorized officer of Lender.
9.3 NOTICES. Any notice, demand, request or other communication which
any party hereto may be required or may desire to give hereunder shall be in
writing, addressed as follows and shall be deemed to have been properly given if
hand delivered, if sent by reputable overnight courier (effective the business
day following delivery to such courier) or if mailed (effective two business
days after mailing) by United States registered or certified mail, postage
prepaid, return receipt requested:
If to Borrower:
Chorus Corporation
0000 Xxxxxxxxxxxxx Xxxxx
Xxxxx Xxxx Xxxxxxxx, XX 00000
Attn: President
with a copy to:
Xxxxxxxxx & Xxxxxx, P.L.L.P.
0000 XXX Xxxxxx
00 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
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Attn: Xxxxxxx X. Xxxxxxxxx
If to Lender:
Xxxxxxx National Life Insurance Company
c/o PPM Finance, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Manager of Commercial Mortgage Servicing
or at such other address as the party to be served with notice may have
furnished in writing to the party seeking or desiring to serve notice as a place
for the service of notice. Notices given in any other fashion shall be deemed
effective only upon receipt.
9.4 MODIFICATION; WAIVER. No modification, waiver, amendment, discharge
or change of this Agreement shall be valid unless the same is in writing and
signed by the party against which the enforcement of such modification, waiver,
amendment, discharge or change is sought. Lender reserves the right to charge an
administrative fee for any such modification, waiver, amendment, discharge, or
change of this Agreement.
9.5 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
UNDER THE INTERNAL LAWS (AS OPPOSED TO THE LAWS OF CONFLICTS) OF THE STATE OF
MINNESOTA.
9.6 ACQUIESCENCE NOT TO CONSTITUTE WAIVER OF LENDER'S REQUIREMENTS.
Each and every covenant and condition for the benefit of Lender contained in
this Agreement may be waived by Lender.
9.7 DISCLAIMER BY LENDER.
(a) This Agreement is made for the sole benefit of Borrower
and Lender (and Lender's successors and assigns and participants, if
any), and no other person or persons shall have any benefits, rights or
remedies under or by reason of this Agreement, or by reason of any
actions taken by Lender pursuant to this Agreement. Lender shall not be
liable for any debts or claims accruing in favor of any third parties
against Borrower or others or against the Project. Borrower is not and
shall not be an agent of Lender for any purposes. Except as expressly
set forth in the Loan Documents, Lender is not and shall not be an
agent of Borrower for any purposes. Lender, by making the Loan or
taking any action pursuant to any of the Loan Documents, shall not be
deemed a partner or a joint venturer with Borrower or fiduciary of
Borrower.
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(b) Any review, investigation or inspection conducted by
Lender, any architectural or engineering consultants retained by Lender
or any agent or representative of Lender in order to verify
independently Borrower's satisfaction of any conditions precedent to
the disbursement of the Loan, Borrower's performance of any of the
covenants, agreements and obligations of Borrower under this Agreement,
or the truth of any representations and warranties made by Borrower
hereunder (regardless of whether or not the party conducting such
review, investigation or inspection should have discovered that any of
such conditions precedent were not satisfied or that any such
covenants, agreements or obligations were not performed or that any
such representations or warranties were not true), shall not affect, or
constitute a waiver by Lender of, (i) any of Borrower's representations
and warranties under this Agreement or Lender's reliance thereon, or
(ii) Lender's reliance upon any certifications required under this
Agreement or any other facts, information or reports furnished Lender
by Borrower hereunder.
(c) By accepting or approving anything required to be
observed, performed, fulfilled or given to Lender pursuant to the Loan
Documents, including any certificate, statement of profit and loss or
other financial statement, survey, appraisal, lease or insurance
policy, Lender shall not be deemed to have warranted or represented the
sufficiency, legality, effectiveness or legal effect of the same, or of
any term, provision or condition thereof, and such acceptance or
approval thereof shall not constitute a warranty or representation to
anyone with respect thereto by Lender.
9.8 RIGHT OF LENDER TO MAKE ADVANCES TO CURE BORROWER'S DEFAULTS. If
Borrower shall fail to perform in a timely fashion any of Borrower's covenants,
agreements or obligations contained in this Agreement or the Loan Documents,
Lender may (but shall not be required to) perform any of such covenants,
agreements and obligations. Any funds advanced by Lender in the exercise of its
judgment that the same are needed to protect its security for the Loan are
deemed to be obligatory advances hereunder and any amounts expended (whether by
disbursement of undisbursed Loan proceeds or otherwise) by Lender in so doing,
shall constitute additional indebtedness evidenced and secured by the Note, the
Mortgage and the other Loan Documents, shall bear interest from the date
expended at the Default Rate and be payable together with such interest upon
demand.
9.9 DEFINITIONS INCLUDE AMENDMENTS. Definitions contained in this
Agreement which identify documents, including the Loan Documents, shall be
deemed to include all amendments and supplements to such documents from the date
hereof, and all future amendments and supplements thereto entered into from time
to time to satisfy the requirements of this Agreement or otherwise with the
consent of the Lender. Reference to this Agreement contained in any of the
foregoing documents shall be deemed to include all amendments and supplements to
this Agreement.
9.10 TIME IS OF THE ESSENCE. Time is hereby declared to be of the
essence of this Agreement and of every part hereof.
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9.11 EXECUTION IN COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
9.12 WAIVER OF CONSEQUENTIAL DAMAGES. In no event shall Lender be
liable to Borrower for consequential damages, whatever the nature of a breach by
Lender of its obligations under this Agreement, or any of the Loan Documents,
and Borrower for itself and all Affiliated Parties hereby waives all claims for
consequential damages.
9.13 CLAIMS AGAINST LENDER. Lender shall not be in default under this
Agreement, or under any other Loan Documents, unless a written notice
specifically setting forth the claim of Borrower shall have been given to Lender
within 30 days after Borrower first had knowledge of, or reasonably should have
had knowledge of, the occurrence of the event which Borrower alleges gave rise
to such claim and Lender does not remedy or cure the default, if any there be,
promptly thereafter. If it is determined in any proceedings that Lender has
improperly failed to grant its consent or approval, where such consent or
approval is required by this Agreement or any other Loan Documents, Borrower's
sole remedy shall be to obtain declaratory relief determining such withholding
to have been improper, and for itself and all Affiliated Parties, Borrower
hereby waives all claims for damages or setoff against Lender resulting from any
withholding of consent or approval by Lender.
9.14 JURISDICTION AND VENUE. With respect to any suit, action or
proceedings relating to this Agreement, the Project, or any of the other Loan
Documents ("Proceedings") each party irrevocably (i) submits to the nonexclusive
jurisdiction of (A) the state and federal courts located in the State where the
Project is located, (B) the federal court for the Northern District of Illinois
and (C) the Circuit Court of Xxxx County, Illinois, and (ii) waives any
objection which it may have at any time to the laying of venue of any
proceedings brought in any such court, waives any claim that such Proceedings
have been brought in an inconvenient forum and further waives the right to
object, with respect to such Proceedings, that such court does not have
jurisdiction over such party. Nothing in this Agreement shall preclude either
party from bringing Proceedings in any other jurisdiction nor will the bringing
of Proceedings in any one or more jurisdictions preclude the bringing of
Proceedings in any other jurisdiction.
9.15 SEVERABILITY. The parties hereto intend and believe that each
provision in this Agreement comports with all applicable local, state and
federal Laws. However, if any provision or provisions, or if any portion of any
provision or provisions, in this Agreement is found by a court of law to be in
violation of any applicable Law, and if such court declares such portion,
provision, or provisions of this Agreement to be illegal, invalid, unlawful,
void or unenforceable as written, then it is the intent of all parties hereto
that such portion, provision, or provisions shall be given force to the fullest
possible extent that they are legal, valid and enforceable, and that the
remainder of this Agreement shall be construed as if such illegal, invalid,
unlawful, void, or
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unenforceable portion, provision, or provisions were not contained herein, and
that the rights, obligations, and interests of Borrower and Lender under the
remainder of this Agreement shall continue in full force and effect.
9.16 INCORPORATION OF RECITALS. The Recitals set forth herein and the
Exhibits attached hereto are incorporated herein and expressly made a part
hereof.
9.17 WAIVER OF JURY TRIAL. BORROWER AND LENDER EACH HEREBY WAIVE ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS UNDER THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR RELATING THERETO OR
ARISING FROM THE LENDING RELATIONSHIP WHICH IS THE SUBJECT OF THIS AGREEMENT AND
AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY.
IN WITNESS WHEREOF, Borrower and Lender have executed this Agreement as
of the day and year first set forth above.
BORROWER:
CHORUS CORPORATION, a Minnesota
corporation
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Its: CFO
------------------------------------
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SIGNATURE PAGE FOR LOAN AGREEMENT
LENDER:
XXXXXXX NATIONAL LIFE
INSURANCE COMPANY, a Michigan
corporation)
By: PPM Finance, Inc., it authorized agent
By: /s/ Xxxxx X. Xxxxxx
---------------------------------------------
Its: Xxxxx X. Xxxxxx, Executive Vice President
---------------------------------------------
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