EXHIBIT 4.13
Loan No. 950114501
LOAN AND SECURITY AGREEMENT
THIS LOAN AND SECURITY AGREEMENT (this "AGREEMENT"), dated as of July 1,
2003, is made by and between FREMONT INVESTMENT & LOAN, a California industrial
bank ("LENDER"), and AAR WOOD XXXX LLC, an Illinois limited liability company
("BORROWER").
R E C I T A L S
A. Borrower is the owner of that certain real property described on
EXHIBIT A attached hereto (the "PROPERTY"), together with the Improvements (as
hereinafter defined).
B. Borrower desires to borrow from Lender, and Lender is willing to loan
to Borrower, a loan (the "LOAN") in the maximum principal amount of the Loan
Amount (as hereinafter defined), for the purposes and upon the terms set forth
herein.
NOW THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
When used herein, the following initially-capitalized terms shall have the
following meanings:
"AFFILIATE" means, with respect to any Person, any other Person which
controls, is controlled by, or is under common control with the Person in
question. For the purposes of the foregoing definition, "controls" (and the
correlative terms "controlled by" and "under common control with") means
possession by the applicable Person of the power to direct or cause the
direction of the management and policies thereof, whether through the ownership
of voting securities, by contract, or otherwise, including, without limitation,
the power to elect or appoint a majority of the directors of a corporation or
the trustees of a trust. "AFFILIATE" shall also include, without limitation,
relatives of any natural person.
"AGREEMENT" means this Loan and Security Agreement, together with all
supplements, amendments, modifications, extensions, renewals and replacements
hereto.
"AMORTIZATION PERIOD" is defined in the Note.
"APPLICATION INFORMATION" means all financial information and statements
and other information submitted to Lender in connection with the Loan,
including, without limitation, information relating to the tenants, Leases and
rent payment history and the information set forth on the Borrower Questionnaire
delivered to Lender.
"APPROVED LEASE" means that certain Lease Agreement between Borrower and
Guarantor comprising the entire Net Rentable Square Feet for a term of fifteen
(15) years with lease rent of $6.00 per square foot triple net, with annual two
percent (2%) increases and other fair market terms.
"ASSIGNMENT OF RENTS" means that certain Assignment of Rents (and Leases)
of even date herewith executed by Borrower, as assignor, in favor of Lender, as
assignee, to be recorded in the Recording Location, together with all
supplements, amendments, modifications, extensions, renewals and replacements
thereto.
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EXHIBIT 4.13
"ATTORNEYS' FEES," "ATTORNEYS' FEES AND COSTS," "ATTORNEYS' FEES" and
"ATTORNEYS' FEES AND COSTS" mean the reasonable fees and expenses of counsel to
the applicable parties to the Loan Documents, which may include printing,
photostating, duplicating, facsimilating, messengering, filing and other
expenses, air freight charges, and fees billed for law clerks, paralegals,
librarians and others not admitted to the bar but performing services under the
supervision of an attorney. The terms "ATTORNEYS' FEES" or "ATTORNEYS' FEES AND
COSTS" shall also include, without limitation, all such reasonable fees and
expenses incurred with respect to appeals, arbitrations, bankruptcy proceedings
(including, without limitation, any adversary proceeding, contested motion or
motion) and any post-judgment proceedings to collect any judgment, and whether
or not any action or proceeding is brought with respect to the matter for which
such fees and expenses were incurred. The recovery of post-judgment fees, costs
and expenses under this Agreement or any of the other Loan Documents is separate
and several and shall survive the merger of the applicable Loan Documents into
any judgment.
"BANKRUPTCY CODE" means Title 11 of the U.S. Code, as applicable, or any
similar federal or state laws for the relief of debtors, each as hereafter
amended.
"BORROWER GROUP" means Borrower, Borrower's Members, the Limited Recourse
Parties, the Principal Parties and the Exculpated Persons.
"BUSINESS DAY" means any day other than a Saturday, a Sunday, a legal
holiday under the laws of the State in which the Project is located, or a day on
which commercial banks in said State are authorized or required by law or other
governmental action to be closed.
"CLOSING DATE" means July 1, 2003.
"COLLATERAL" means the collateral now or hereafter pledged to Lender under
the Security Instrument or any other Loan Document as security for any of the
Loan Obligations, including, without limitation, the Project and the Personal
Property.
"COMMITMENT LETTER" means the Commitment Letter dated June 10, 2003, issued
by Lender in connection with the Loan.
"CONTRACTUAL OBLIGATION" as applied to any Person means any provision of
any instrument, document or security issued by that Person or of any indenture,
mortgage, deed of trust, contract, undertaking, agreement or other instrument to
which that Person is a party or by which any of its properties is bound or to
which it or any of its properties is subject.
"CONTROL GROUP" means Borrower, Borrower's Control Members and constituent
Control Members, as applicable.
"CONTROL MEMBERS" means for any Managed LLC, the manager of such limited
liability company and the members of such limited liability company, and for any
Member Managed LLC, the managing members of such limited liability company.
"DEFAULT INTEREST RATE" is defined in the Note.
"ENVIRONMENTAL INDEMNITY" means that certain Environmental Indemnity of
even date herewith executed by Borrower and the other parties named therein, if
any, together with all supplements, amendments, modifications, extensions,
renewals and replacements thereto.
"ENVIRONMENTAL LAWS" means any and all present and future federal, state
and local laws, ordinances, regulations, policies and any other requirements of
any Governmental Agency relating to health, safety, the environment or to any
Hazardous Substances, including without limitation, the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), the
Resource Conservation Recovery Act (RCRA), the Hazardous Materials
Transportation Act, the Toxic
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EXHIBIT 4.13
Substance Control Act, the Endangered Species Act, the Clean Water Act, the
Clean Air Act, the Occupational Safety and Health Act (to the extent the same
relates to Hazardous Substances), those substances included within the
definitions of "hazardous substances", "hazardous material", "toxic substances",
"toxic materials", "toxic waste" or "solid waste" in the Illinois Environmental
Protection Act, 415 ILCS Section 5/1 ET SEQ., each as hereafter amended from
time to time, and the present and future rules, regulations and guidance
documents promulgated under any of the foregoing, or under similar laws,
ordinances, regulations, policies or requirements of other states or localities.
"ENVIRONMENTAL OBLIGATIONS" means all terms, conditions, covenants and
obligations under SECTION 7.5 of this Agreement.
"EQUITY DISTRIBUTIONS" means any sums or other consideration directly or
indirectly distributed (or paid as a dividend, return of capital or similar
payment, as payment on account of indebtedness, as return of capital, or as a
redemption of any equity interest in Borrower) by Borrower to (or to any
Affiliate, subsidiary or relative of) any Principal Party or any partner,
member, shareholder, principal or other equity owner of Borrower or any
Principal Party, or paid as above-market management, asset management,
development, leasing or other fees or commissions to any of the foregoing.
"EVENT OF DEFAULT" means any of the events specified in SECTION 8.1.
"EXCULPATED PERSONS" means any (a) Person that owns, directly or
indirectly, any legal or beneficial interest in Borrower or the Project; (b)
other Affiliate, beneficiary, controlling person, director, employee, investor,
manager, member, officer, owner, parent company, partner (general or limited, or
a subpartner at any level), principal, real estate investment advisor or other
similar fiduciary, shareholder, or trustee of any Person described in clause (a)
above; or (c) successor or assign of any Person described in clauses (a) or (b)
and the Limited Recourse Parties.
"FINANCIAL REPORTING METHOD" means generally accepted accounting principles
(GAAP), consistently applied.
"FINANCIAL STATEMENT DELIVERY DATE" means (a) with respect to the annual
financial statements and information required by Section 7.8(A); ninety (90)
days after the end of each fiscal year, and with respect to the quarterly
financial statements, sixty (60) days after the end of each fiscal quarter.
"FLOOD INSURANCE ACTS" means the National Flood Insurance Act of 1968, the
Flood Disaster Protection Act of 1973 and the National Flood Insurance Reform
Act of 1994, and any other flood insurance act, each as may be amended.
"FORMATION DOCUMENTS" means (a) as to any corporation, its articles of
incorporation and bylaws, (b) as to any limited partnership, its Certificate of
Limited Partnership and partnership agreement, (c) as to any general partnership
or joint venture, its Statement of Partnership and partnership agreement, (d) as
to any limited liability company, its articles or certificate of organization
and operating agreement, and (e) as to any trust, its trust agreement and a
certification of the current trustees thereof, each of the foregoing together
with all supplements, amendments and modifications thereto.
"FORMATION DOCUMENTS CERTIFICATES" means such certificates in connection
with the Formation Documents of the Signature Parties as may be required by
Lender from Borrower and the other Signature Parties.
"FURTHER ASSURANCES CLAUSES" means the provisions of the Loan Documents
requiring Borrower or Guarantor to deliver additional documents or instruments
to Lender upon Lender's written request, including, without limitation, SECTION
5.4, SECTION 7.10 and SECTION 9.1 of this Agreement, SECTION 8 of the Assignment
of Rents, and SECTIONS 11 and 12 of the Guaranty.
"GOVERNING STATE" means Illinois.
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EXHIBIT 4.13
"GOVERNMENTAL AGENCY" means any federal, state, municipal or other
governmental or quasi-governmental court, agency, authority or district.
"GUARANTOR" means AAR Corp., a Delaware corporation.
"GUARANTY" means that certain Guaranty of even date herewith executed by
Guarantor in favor of Lender, together with all supplements, amendments,
modifications, extensions, renewals and replacements thereto.
"HAZARDOUS SUBSTANCES" means (a) any chemical, compound, material, mixture
or substance that is now or hereafter defined or listed in, or otherwise
classified pursuant to, any Environmental Laws as a "hazardous substance",
"hazardous material", "hazardous waste", "extremely hazardous waste", "acutely
hazardous waste", "radioactive waste", "infectious waste", "biohazardous waste",
"toxic substance", "pollutant", "toxic pollutant", "contaminant", or any
formulation not mentioned herein intended to define, list, or classify
substances by reason of deleterious properties such as ignitability,
corrosivity, reactivity, carcinogenicity, toxicity, reproductive toxicity, "EP
toxicity", or "TCLP toxicity"; (b) petroleum, natural gas, natural gas liquids,
liquefied natural gas, synthetic gas usable for fuel (or mixtures of natural gas
and such synthetic gas) and ash produced by a resource recovery facility
utilizing a municipal solid waste stream, and drilling fluids, produced waters
and other wastes associated with the exploration, development or production of
crude oil, natural gas, or geothermal resources; those substances included
within the definitions of "hazardous substances", "hazardous material", "toxic
substances", "toxic materials", "toxic waste" or "solid waste" in the Illinois
Environmental Protection Act, 415 ILCS Section 5/1 ET SEQ.; (c) asbestos in any
form; (d) urea formaldehyde foam insulation; (e) polychlorinated biphenyls
(PCBs); (f) radon; and (g) any other chemical, material, or substance exposure
to which is limited or regulated by any Governmental Agency because of its
quantity, concentration, or physical or chemical characteristics, or which poses
a significant present or potential hazard to human health or safety or to the
environment if released into the workplace or the environment. "Hazardous
Substances" shall not include ordinary office supplies and repair, maintenance
and cleaning supplies maintained in de minimis, reasonable and necessary
quantities or substances stored, used or maintained in the ordinary course of
Borrower's, Guarantor's or one of their Affiliate's business in accordance with
all Environmental Laws.
"IMPROVEMENTS" means the improvements and fixtures now or hereafter located
on the Property.
"IMPOUND EXPENSES" means premiums for insurance required by this Agreement,
and all real estate and personal property taxes and other taxes and assessments,
and water, sewer, electrical and other utility charges relating to the Project
or any portion thereof.
"INDEBTEDNESS" means, with respect to any Person, (a) all indebtedness of
such Person for borrowed money; (b) all obligations issued, undertaken or
assumed by such Person as the deferred purchase price of property or services;
(c) all non-contingent reimbursement or payment obligations; (d) all obligations
of such Person evidenced by notes, bonds, debentures or similar instruments; (e)
all indebtedness of such Person created or arising under any conditional sale or
other title retention agreement, or incurred as financing, in either case with
respect to property acquired by such Person (even though the rights and remedies
of the seller or lender under such agreement in the event of default are limited
to repossession or sale of such property); (f) all obligations of such Person
with respect to capital leases; (g) all indebtedness referred to in clauses (a)
through (f), inclusive, above secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien upon or in property owned by such Person, even though such Person has
not assumed or become liable for the payment of such Indebtedness; and (h) all
guaranty obligations of such Person in respect of indebtedness or obligations of
others of the kinds referred to in clauses (a) through (g), inclusive, above.
"INDEMNITEES" means, collectively and individually, Lender, its Affiliates
and its and their respective directors, officers, agents, attorneys, employees,
successors and assigns.
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EXHIBIT 4.13
"INSOLVENCY LAWS" means the Bankruptcy Code and any and all present and
future federal, state and local laws, ordinances, regulations, rules and any
other requirements of any Governmental Agency relating to the bankruptcy,
insolvency, appointment of a receiver, reorganization, arrangement, readjustment
of debt, dissolution or liquidation of, for or relating to, any Person, each as
hereafter amended from time to time and the present and future rules,
regulations and guidance documents promulgated under any of the foregoing.
"INSURANCE/CONDEMNATION PROCEEDS" means insurance proceeds, condemnation
awards (including, without limitation, payments arising from change in grade of
streets and awards for severance damages), and payments in lieu of the
foregoing, arising from the Project or relating to Borrower's ownership of the
Project, or any other sums payable by any Person to or for the benefit of any
member of the Borrower Group on account of any loss, condemnation or taking of,
or damage to, the Project or any portion thereof.
"INFORMATION DELIVERY DATE" is defined in SECTION 7.8.
"LAWS" means all of the following in effect at any time: (a) all orders of
any court, all federal, state, county, municipal and other governmental and
quasi-governmental statutes, laws, rules, orders, regulations, ordinances,
judgments, decrees and injunctions, whether now or hereafter enacted and in
force, including, without limitation, the Americans with Disabilities Act, 42
U.S.C. Sections 12101-12213 (1991), all Terrorism Laws and all Environmental
Laws, any zoning or other land use entitlements and any requirements which may
require repairs, modifications or alterations in or to the Project, (b) all
foreign country (non-United States) statutes, laws, rules, orders, regulations,
ordinances, judgments, decrees and injunctions, whether now or hereafter enacted
and in force, (c) all Permits at any time in force affecting the Project or the
occupancy, operation, ownership, transfer or use thereof, and (d) all covenants,
agreements, restrictions and encumbrances running in favor of any Person,
contained in any instruments, either of record or known to Borrower, at any time
in force affecting the Project or the occupancy, operation, ownership, transfer
or use thereof.
"LEASE DEPOSITS" means all security deposits, letters of credit, escrow
deposits and similar sums at any time received by or delivered to any member of
the Borrower Group under or in connection with any Lease.
"LEASE" or "LEASES" is defined in the Assignment of Rents.
"LEASE TERMINATION PAYMENTS" means all sums, however denominated, paid or
payable to or for the benefit of any member of the Borrower Group in connection
with, as a result of, or as consideration for, the termination or expiration of
any Lease (including, without limitation, holdover rent and damage and other
awards), or any reduction of the space covered by any Lease or any reduction in
the term of any Lease.
"LETTER OF CREDIT" means an irrevocable, unconditional, transferable,
direct draw letter of credit issued by a financial institution acceptable to
Lender, in its sole discretion, in the face amount of $1,500,000 (or less as
provided in SECTION 5.5 hereof) in Lender's favor as "beneficiary" and having an
initial term of not less than twelve (12) months, which shall be renewed
annually, in form and substance satisfactory to Lender in its sole discretion.
"LIEN" means any mortgage, deed of trust, deed to secure debt, pledge,
security interest, encumbrance, lien, charge or claim of any kind (including,
without limitation, any agreement to give any of the foregoing, any conditional
sale or other title retention agreement, any lease in the nature thereof, and/or
the filing of or agreement to give any financing statement under the Uniform
Commercial Code of any jurisdiction) with respect to the Project or the other
Collateral or any portion thereof or interest therein.
"LIEN ENFORCEMENT ACTION" means (a) any action in which Lender exercises
any rights or remedies against Borrower (and/or Guarantor) pursuant to the Loan
Documents or under applicable law
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EXHIBIT 4.13
or at equity against or with respect to the Project or the Collateral,
including, without limitation: appointment and maintenance of a receiver; any
action to prevent waste or otherwise to protect the Project or the Collateral
from material physical damage or material physical deterioration; commencement
and prosecution of a judicial foreclosure sale, or similar proceeding or other
judicial process; prosecution of any and all rights available to Lender relating
to Borrower or the Project and the Collateral in any bankruptcy, insolvency or
similar proceeding (including Lender's rights under the Bankruptcy Code to file
a claim for the full amount of all Loan Obligations, to require that all
collateral held by Lender continue to secure all Loan Obligations, and to elect
treatment under 11 U.S.C. Section 1111(b)(2)); consummation of a U.C.C. sale;
and (b) any other action or proceeding relating to the Project or the Collateral
(including, without limitation, an action for specific performance as to
Borrower's express nonmonetary obligations under the Loan Documents), or
relating to any other collateral held by Lender for the Loan, which action or
proceeding does not seek a personal judgment against the assets of any
Exculpated Person (beyond the direct or indirect interest of such Exculpated
Person in the Project and the Collateral or as contemplated by any guaranty or
indemnity).
"LIMITED RECOURSE PARTIES" means the Guarantor.
"LOAN AMOUNT" means an amount of Eleven Million Dollars ($11,000,000).
"LOAN DOCUMENTS" means the documents described in SECTION 3.1 and all other
documents now or hereafter securing, or executed in connection with, the Loan,
together with all supplements, amendments, modifications, extensions, renewals
and replacements thereto, but excluding the Environmental Indemnity.
"LOAN FEE" means a fee in the amount of one percent (1%) of the Loan
Amount.
"LOAN OBLIGATIONS" means all obligations of Borrower with respect to : (a)
payment of principal, interest, and any other sums payable under the Loan
Documents; (b) performance of all nonmonetary obligations of Borrower under the
Loan Documents; (c) payment of damages for breach of any representation,
warranty, or covenant in any Loan Document; (d) any obligation to indemnify any
party under any Loan Document; and (e) payment of any monetary judgment obtained
by Lender under the Loan Documents or in connection with the Loan.
"LOAN YEAR" means the twelve (12) month period commencing on the Closing
Date, if the Closing Date occurs on the first day of a calendar month, or on the
first day of the calendar month following the Closing Date if the Closing Date
does not occur on the first day of a calendar month, and each twelve (12) months
thereafter. If the Closing Date does not occur on the first day of a calendar
month, the first Loan Year shall in addition include any period from the Closing
Date to the first day of the calendar month following the Closing Date.
"LOSSES" means any and all liabilities, claims and actual, out-pocket
losses, damages, costs, and expenses (including, without limitation, reasonable
attorneys' fees and expenses) incurred, paid or suffered by Lender or any
Affiliate, subsidiary or nominee of Lender: (a) as a direct result of the
specified matter; (b) to cure or remedy such matter; and/or (c) in enforcing
Lender's claims against any Person with respect to such matter.
"MANAGED LLC" means a limited liability company managed by a third party
non-member manager.
"MATERIAL LEASE PROVISIONS" is defined in SECTION 7.4(E).
"MATURITY DATE" is defined in the Note.
"MEMBER" or "MEMBER" means the members of the limited liability company in
question, together with any constituent members of such members.
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EXHIBIT 4.13
"MEMBER MANAGED LLC" means a limited liability company managed by one or
more of its members.
"MONTHLY INSTALLMENT" is defined in the Note.
"NET RENTABLE SQUARE FEET" and "NET RENTABLE SQUARE FEET" means the net
rentable square feet of the Project (245, 650 s.f.), or applicable portion
thereof, calculated in the same manner as in the appraisal of the Project
obtained by Lender in connection with the closing of the Loan.
"NONFOREIGN STATUS STATUTES" means Section 1445 of the Internal Revenue
Code of 1986, as amended, and the regulations promulgated thereunder, and any
successor Laws.
"NOTE" means that certain Secured Promissory Note of even date herewith in
the Loan Amount executed by Borrower as maker, in favor of Lender, as payee,
together with all supplements, amendments, modifications, extensions, renewals
and replacements thereto.
"PERMITS" means all permits, licenses, franchises, approvals, variances and
land use entitlements necessary for the occupancy, operation, lease, ownership
and use of the Project.
"PERMITTED INDEBTEDNESS" means (a) trade payables entered into, and accrued
expenses arising, in the ordinary course of business on reasonable and customary
terms; (b) obligations under Leases entered into in accordance with this
Agreement; (c) non-delinquent Impositions (as defined in the Security
Instrument) relating to the Project; and (d) the Loan.
"PERSON" means and includes natural persons, corporations, limited
liability companies, limited liability partnerships, limited partnerships,
general partnerships, joint stock companies, joint ventures, associations,
companies, trusts, banks, trust companies, land trusts, business trusts, real
estate investment trusts or other organizations, whether or not legal entities,
and governments, agencies and countries and political subdivisions thereof.
"PERSONAL PROPERTY" means all personal property in which Borrower now or
hereafter owns or acquires any interest or right, together with all present and
future attachments, accessions, replacements, substitutions, additions and
renovations thereto or therefor, and together with all products and proceeds
thereof, including, without limitation, all insurance proceeds from any policy
of insurance covering any of the foregoing property now or hereafter acquired by
Borrower. "Personal Property" shall include, without limitation, the personal
property described in EXHIBIT B attached hereto and any leased personal
property.
"POTENTIAL DEFAULT" means a monetary default, or material nonmonetary
default, in either case which, with the giving of notice or the passage of time,
or both, would constitute an Event of Default under any of the Loan Documents.
"PREPAID PROPERTY INCOME" means any Property Income delivered to or
received by any member of the Borrower Group more than thirty (30) days before
the date such amount was first required to be paid under the applicable Lease or
other agreement.
"PRINCIPAL PARTIES" means individually and collectively Borrower,
Guarantor, the Limited Recourse Parties and each member of the Control Group.
"PROJECT" means the Property and the Improvements.
"PROJECT DOCUMENTS" means (a) all agreements now or hereafter in effect
with any contractor, architect or engineer, including, without limitation, any
design architect, landscape architect, civil engineer, electrical engineer,
environmental engineer, soils engineer or mechanical engineer, in connection
with the Project; (b) all other agreements now or hereafter in effect with any
property manager or broker with respect to the management, leasing, or operation
of the Project; (c) all as-built plans and
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EXHIBIT 4.13
specifications and surveys for the Project; (d) all Permits; and (e) all
renewals, substitutions, extensions, modifications or replacements of any of the
foregoing.
"PROPERTY INCOME" means any and all: (a) sums payable to or for the benefit
of Borrower under any Lease, including, without limitation, rent, additional
rent, escalations, termination payments and any and all other payments and
charges of any kind; (b) other issues, profits, royalties, revenues, income, and
other benefits of the Project; (c) all insurance proceeds with respect to any
Lease including, without limitation, rent loss coverage and business
interruption coverage; (d) damages or claims of Borrower against lessees or
others on account of or with respect to the foregoing; and (e) sums paid in
settlement of any of the foregoing.
"RECORDING LOCATION" means the official records of Du Page County,
Illinois.
"REPLACEMENT COST" means the full replacement cost, new without deduction
for depreciation, of the Project, or applicable portion thereof, as determined
by Lender in its good faith sole discretion.
"SECURED OBLIGATIONS" is defined in the Security Instrument.
"SECURITY INSTRUMENT" means that certain Mortgage and Fixture Filing of
even date herewith executed by Borrower, in favor of Lender, to be recorded in
the Recording Location, together with all supplements, amendments,
modifications, extensions, renewals and replacements thereto.
"SIGNATURE PARTIES" means, individually and collectively, Borrower,
Guarantor and each member, manager or trustee executing the Loan Documents on
behalf of Borrower or Guarantor.
"TAX IDENTIFICATION NUMBER" means Borrower's employer identification number
or social security number, which is 00-0000000.
"TERMINATION DATE" means July 22, 2003.
"TERRORISM LAWS" means Executive Order 13224 issued by the President of the
United States of America, the Terrorism Sanctions Regulations (Title 31 Part 595
of the U.S. Code of Federal Regulations), the Terrorism List Governments
Sanctions Regulations (Title 31 Part 596 of the U.S. Code of Federal
Regulations), and the Foreign Terrorist Organizations Sanctions Regulations
(Title 31 Part 597 of the U.S. Code of Federal Regulations), and all other
present and future federal, state and local laws, ordinances, regulations,
policies and any other requirements of any Governmental Agency (including,
without limitation, the United States Department of the Treasury Office of
Foreign Assets Control) addressing, relating to, or attempting to eliminate,
terrorist acts and acts of war, each as hereafter supplemented, amended or
modified from time to time, and the present and future rules, regulations and
guidance documents promulgated under any of the foregoing, or under similar
laws, ordinances, regulations, policies or requirements of other States or
localities.
"TITLE COMPANY" means Chicago Title Insurance Company or another title
insurance company selected by Borrower and approved by Lender in Lender's sole
discretion to provide the Title Policy.
"TITLE POLICY" means an ALTA extended coverage policy of title insurance
(1970 version, amended 10/17/70 only) (or such other form as approved by Lender
in its discretion if the ALTA 1970 form is unavailable in the jurisdiction where
the Property is located), with a liability limit equal to the Loan Amount,
issued by the Title Company, insuring Lender that on the Closing Date Borrower
owns fee simple title to the Project and that the Security Instrument is a valid
first lien on the Project. The Title Policy shall contain such endorsements as
Lender requires in its good faith sole discretion and shall be subject only to
non-delinquent real estate taxes and assessments and such other exceptions to
coverage as approved by Lender in writing, in its good faith sole discretion,
prior to the Closing Date. To the extent permitted in the jurisdiction in which
the Project is located, the Title Policy shall expressly insure against all
mechanics' liens and shall not contain any bankruptcy, fraudulent conveyance or
other creditors' rights
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EXHIBIT 4.13
exclusion from coverage. The Title Policy shall also insure against matters
which would be shown by a current survey of the Property and the rights of any
tenants, occupants, or parties in possession not specifically approved by Lender
in writing in its good faith sole discretion.
"TRANSFER" is defined in the Security Instrument.
ARTICLE 2
LOAN TERMS
2.1 LOAN AND DISBURSEMENTS OF LOAN PROCEEDS.
Subject to the terms and conditions of this Agreement, and in reliance upon
the representations and warranties of Borrower set forth in the Loan Documents,
Lender agrees to make to Borrower, and Borrower agrees to accept from Lender,
the Loan. The Loan proceeds shall be disbursed by Lender as provided in the
Note.
2.2 EVIDENCE OF INDEBTEDNESS AND MATURITY.
Borrower shall execute and deliver to Lender, on or before the Closing
Date, the Note evidencing the Loan. Borrower agrees to repay the indebtedness
evidenced by the Note in accordance with the terms thereof and the terms hereof.
The outstanding principal balance of the Loan, together with accrued and unpaid
interest thereon and all other amounts payable by Borrower under the Loan
Documents shall be due and payable on the Maturity Date provided in the Note, as
the same may be accelerated as provided in the Note or the other Loan Documents.
2.3 INTEREST RATE.
The Loan shall bear interest at the rate per annum specified in the Note.
2.4 LOAN FEE AND PAYMENT OF CLOSING EXPENSES.
Whether or not the Loan closes, Borrower shall promptly pay all expenses in
connection with the making and closing of the Loan, including, without
limitation, all charges for environmental assessments, all report fees
(including property condition, structural, engineering and termite), title
examination, title insurance and survey, appraisal, recording and filing fees,
inspection fees, travel expenses of Lender's personnel related to the making of
the Loan, mortgage and documentary stamp taxes and mortgage recording taxes and
fees, if any, note intangible taxes, if any, costs of tax lien searches,
brokerage fees and commissions, the reasonable fees and costs charged by
Lender's counsel (including Lender's local counsel, if any), all of Lender's
out-of-pocket expenses in connection with the Commitment Letter, the Project and
the Loan, and the nonrefundable Processing Fee (as defined in the Commitment
Letter) payable to Lender. Borrower acknowledges and agrees that the Loan Fee
has been fully earned by Lender, and the unpaid portion of the Loan Fee is due
and payable, upon the Closing of the Loan, and the Loan Fee is nonrefundable
except as expressly provided in the Commitment Letter. Borrower hereby
authorizes Lender to disburse proceeds of the Loan to Lender or to any other
party to pay the Loan Fee, interest for any partial calendar month in which the
Closing Date occurs, and the fees and expenses described in this SECTION 2.4,
notwithstanding that Borrower may not have requested a disbursement of such
amounts. Borrower covenants to pay all amounts required to be paid by Borrower
under this SECTION 2.4 within ten (10) days after written demand by Lender, if
and to the extent not covered by the Expense Deposit (as defined in the
Commitment Letter) or disbursed by Lender from proceeds of the Loan. Borrower's
payment of the Loan Fee is in addition to Borrower's obligation to pay (a) the
expenses, the brokers' commissions and any and all other sums described in this
SECTION 2.4, and (b) all other sums required to be paid by Borrower in the
Commitment Letter or in any of the Loan Documents.
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EXHIBIT 4.13
2.5 PREPAYMENT.
Borrower may not prepay the outstanding principal balance of the Note in
whole or in part at any time except as provided in, and upon the satisfaction of
all of the conditions and requirements set out in, the Note, including, without
limitation, the payment to Lender of any Prepayment Charge set forth therein.
2.6 LIMITATIONS ON RECOURSE.
The provisions of SECTION 4.11 of the Note, regarding certain limitations
on Lender's recourse under the Loan Documents, are incorporated herein by this
reference as if set forth in full herein.
ARTICLE 3
CONDITIONS TO LOAN CLOSING
3.1 CONDITIONS PRECEDENT TO CLOSING OF THE LOAN.
As a condition precedent to Lender's obligation to close the Loan and
disburse any Loan proceeds, on or before the Closing Date Borrower must satisfy
and fulfill each of the following conditions precedent to closing, to the
satisfaction of Lender in its good faith sole discretion:
A. LOAN DOCUMENTS AND ENVIRONMENTAL INDEMNITY. Borrower shall deliver to
Lender the following documents, each duly executed and acknowledged by a notary
public where necessary, and in form and substance satisfactory to Lender in its
good faith sole discretion:
(i) This Agreement;
(ii) The Note;
(iii) The Security Instrument;
(iv) The Assignment of Rents;
(v) UCC-1 Financing Statements relating to the Personal Property
for such States as are required by Lender;
(vi) The Environmental Indemnity;
(vii) The Guaranty;
(viii) The Formation Documents Certificates;
(ix) The Letter of Credit; and
(x) Borrower counsel's authority and enforceability opinion in form
and substance satisfactory to Lender.
B. COMMITMENT LETTER CONDITIONS. Borrower shall have satisfied all of the
closing conditions set forth in the Commitment Letter.
C. TRUTH OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties contained herein and in the other Loan Documents shall be true,
correct and complete in all material respects on the Closing Date.
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EXHIBIT 4.13
D. NO DEFAULT. As of the Closing Date, no event or condition shall have
occurred or shall exist that constitutes, and there shall be no event or
condition that would result from the funding of the Loan that would constitute,
an Event of Default under any of the Loan Documents or a Potential Default under
any of the Loan Documents.
3.2 TERMINATION OF AGREEMENT. Lender's obligation to make the Loan and
perform any of its other obligations under the Loan Documents shall terminate
unless all of the conditions precedent set forth in SECTION 3.1 have been
satisfied, and the Closing Date has occurred, on or before the Termination Date.
ARTICLE 4
ASSIGNMENT OF PROJECT DOCUMENTS
4.1 ASSIGNMENT OF PROJECT DOCUMENTS.
A. As security for the payment and performance of the Secured
Obligations, Borrower hereby grants, conveys, assigns and transfers to Lender
the Project Documents, and all rights of Borrower thereunder, together with the
immediate and continuing right to collect and receive all sums which are now or
hereafter due to Borrower thereunder or in connection therewith, and all of
Borrower's rights to receive the proceeds of any insurance, indemnity, warranty
or guaranty with respect to any of the Project Documents. The parties expressly
acknowledge and agree that Lender does not hereby assume any of Borrower's
obligations with respect to any of the Project Documents, including, without
limitation, any obligation to pay for any work done pursuant thereto, unless
Lender expressly assumes such obligations in accordance with SECTION 4.1(B). At
Lender's request from time to time, Borrower shall deliver copies of any
previously undelivered Project Documents to Lender.
B. Lender shall not exercise its rights under this SECTION 4.1 until the
occurrence of an Event of Default under any of the Loan Documents. From and
after the occurrence of an Event of Default under any of the Loan Documents,
Lender may, at its option in its sole discretion and without any obligation,
exercise any or all of its rights and remedies under SECTION 8.4, at law or in
equity, and/or upon written notice to Borrower and the other parties to any or
all of the Project Documents, exercise or enforce any or all of the rights and
remedies granted to Borrower under any or all of such Project Documents as if
Lender had been a party to or recipient of such Project Documents (and Borrower
hereby irrevocably constitutes and appoints Lender as its attorney-in-fact,
which power is coupled with an interest, and is deemed to be non-cancelable,
with full power of substitution, to do so). Upon giving such notice Lender may
(but shall have no obligation to) elect to assume the obligations of Borrower
thereafter accruing under any or all of the Project Documents; provided that in
no event shall Lender be responsible for any default by Borrower or any other
party occurring prior to any election by Lender to assume such obligations under
such Project Documents.
C. The acceptance by Lender of the assignment contained in this
SECTION 4.1 and the rights granted to Lender hereunder and under SECTION 8.4
shall not, prior to Lender's assumption of the obligations under specific
Project Documents as provided in SECTION 4.1(B), obligate Lender to assume any
obligations or liability under any of the Project Documents, to expend any money
or incur any expense in connection with any of the Project Documents or to
perform any obligation under any of the Project Documents.
4.2 PERFORMANCE UNDER PROJECT DOCUMENTS.
Borrower shall at all times perform and discharge each of its obligations
under the Project Documents, diligently enforce its rights under the Project
Documents unless otherwise agreed by Lender, in Lender's reasonable discretion
and, at Borrower's sole cost and expense, appear in and defend Lender in any
action or proceeding in any way related to any of the Project Documents.
Borrower shall, within
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EXHIBIT 4.13
ten (10) days after written demand by Lender, pay all reasonable out of pocket
costs and expenses incurred by Lender in connection with any such action or
proceeding, including, without limitation, reasonable attorneys' fees and costs.
4.3 INDEMNIFICATION.
Borrower hereby indemnifies and agrees to defend and hold the Indemnitees
harmless for, from and against all expenses, loss, claims, damage or liability
which the Indemnitees incur under any of the Project Documents or under or by
reason of the assignment set forth in SECTION 4.1 or by reason of any actual or
alleged obligation or undertaking on Lender's part to perform or discharge any
covenants or agreements contained in any of the Project Documents; provided that
such indemnity shall not extend to expenses, loss, claims, damage or liability
arising from an Indemnitee's gross negligence or willful misconduct or, with
respect to any Project Documents assumed by Lender as provided in SECTION 4.1(B)
relating to the period after the date, if ever, that Lender assumes the
obligations under such Project Documents as provided in SECTION 4.1(B).
ARTICLE 5
SECURITY AGREEMENT
5.1 GRANT OF SECURITY INTEREST.
As security for the payment and performance of the Secured Obligations,
Borrower hereby assigns, transfers and grants to Lender, and there is hereby
created in favor of Lender, a security interest under the Uniform Commercial
Code in effect in the Governing State in and to the Personal Property, whether
now owned or hereafter acquired, and in all proceeds thereof (and proceeds of
proceeds) in whatever form. This Agreement shall constitute a security agreement
pursuant to the Governing State Uniform Commercial Code with respect to the
Personal Property and proceeds thereof, with Borrower the "Debtor" and Lender
the "Secured Party" as such terms are used therein. Borrower agrees that Lender
may, in such manner, on such terms and at such times as may be elected by
Lender, and without demand or notice to, or the consent or signature of,
Borrower, file and/or record such UCC financing statements, fixture filings,
and/or amendments to or continuations of any financing statements or fixture
filings to evidence, perfect and/or continue the perfection of, any security
interests created or to be created pursuant to this Agreement or any of the
other Loan Documents, in any or all of the Collateral.
5.2 REPRESENTATIONS, AGREEMENTS AND COVENANTS REGARDING PERSONAL PROPERTY.
As an inducement to Lender to execute this Agreement and make the Loan,
Borrower represents and warrants to Lender, and covenants and agrees, as
follows:
A. Except for the security interest in favor of Lender, Borrower is, and
as to any of the Personal Property acquired after the date hereof shall be, the
sole owner of the Personal Property, free from any adverse Lien of any kind
whatsoever. Borrower shall promptly notify Lender of, and will defend the
Personal Property against, all claims and demands of all persons at any time
claiming any interest therein.
B. Borrower shall keep the Personal Property in good condition and
repair, and shall not misuse, abuse, allow to deteriorate, waste or destroy the
Personal Property or any part thereof, except for ordinary wear and tear
resulting from normal and expected use in the ordinary course of Borrower's
business, which shall be promptly replaced by Borrower with property of similar
nature and of equal or greater value, unless such Personal Property is obsolete.
C. Borrower shall not, without the prior written consent of Lender, which
consent shall not be unreasonably withheld, sell, offer to sell or otherwise
transfer, exchange, hypothecate or dispose of the Personal Property or any
interest therein, unless in the normal course of business the Personal Property
12
EXHIBIT 4.13
is being replaced by collateral of similar nature and of equal or greater value,
or such Personal Property is obsolete. If the Personal Property or any part
thereof is sold, transferred, exchanged, or otherwise disposed of (either with
or without the written consent of Lender), the security interest of Lender shall
extend to the proceeds of such sale, transfer, exchange or other disposition
and, if the proceeds thereof are in excess of One Hundred Thousand Dollars
($100,000) individually or in the aggregate, at Lender's written request,
Borrower shall hold such proceeds in a separate account for Lender's benefit and
shall, at Lender's written request, transfer such proceeds into a cash
collateral account with Lender as additional collateral for the Loan.
D. The tangible Personal Property shall be kept on or at the Project and
Borrower shall not, without the prior written consent of Lender, which may be
withheld in Lender's good faith sole discretion, remove the Personal Property
therefrom except such portions or items of Personal Property which are consumed
or worn out in ordinary usage, all of which shall be promptly replaced by
Borrower as provided in SECTION 5.2(B).
E. Borrower shall immediately notify Lender in writing of any change in
its state of incorporation or organization or in its place of business, any
change in Borrower's name or organizational number or the adoption or change of
any trade name or fictitious business name used by Borrower.
F. The Personal Property is not and shall not be used or bought for
personal, family or household purposes.
G. Lender may examine and inspect the Personal Property at any reasonable
time, wherever located upon reasonable prior notice to Borrower (except in the
event of an emergency or from and after the occurrence of any Event of Default
under the Loan Documents, or at any time during which an uncured Potential
Default exists under the Loan Documents, in which event prior notice shall not
be required).
5.3 AFFIXED COLLATERAL.
The inclusion in SECTION 5.1 of any Personal Property which may now be or
hereafter become affixed or in any manner attached to the Project shall be
without prejudice to any claim at any time made by Lender that such Personal
Property is or has become a part of or an accession to the Project.
5.4 FURTHER SECURITY AGREEMENTS.
Borrower agrees to take such actions and, within ten (10) days after
Lender's written request, to execute, deliver and file and/or record such
documents, agreements and financing statements, as may be reasonably necessary
to evidence the security interest set forth in SECTION 5.1, to establish the
priority thereof, to carry out the intent and purpose of this ARTICLE 5 and/or
reflect any change in Borrower's state of incorporation or organization, name,
organizational number or place of business.
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EXHIBIT 4.13
5.5 LETTER OF CREDIT. Borrower shall provide to Lender the Letter of
Credit payable on demand. Borrower shall provide to Lender notice of renewal of
the Letter of Credit no later than sixty (60) days prior to the expiration date
and shall provide Lender evidence of the renewed the Letter of Credit no later
than thirty (30) days prior to the expiration date. If Borrower fails to provide
notice of renewal of the Letter of Credit or evidence of renewal as required by
this SECTION 5.5, Borrower's failure shall constitute an Event of Default under
Section 8.1 (A) hereof. The Letter of Credit may be drawn down by Lender in
multiple drawings at Lender's sole discretion. All proceeds from the Letter of
Credit will be applied to pay down the outstanding Loan indebtedness. At such
time as Standard & Poors and Moodys shall have upgraded their Debt Rating for
the Guarantor to BB or Ba2 or higher, as applicable, the face amount of the
Letter of Credit shall be reduced to $1,000,000. In the event that the Debt
Rating for the Guarantor is increased to investment grade or higher by both
rating agencies, then the Letter of Credit shall no longer be required.
ARTICLE 6
BORROWER'S REPRESENTATIONS AND WARRANTIES
As an inducement to Lender to execute this Agreement and make the Loan,
Borrower represents and warrants to Lender the truth and accuracy of the matters
set forth in this ARTICLE 6.
6.1 ORGANIZATION, POWER, GOOD STANDING, AND BUSINESS.
A. Borrower is a limited liability company duly formed, validly existing
and in good standing under the Laws of the State of Illinois. Borrower has the
full power and authority to own and operate its properties, to carry on its
business as now conducted, to enter into each Loan Document and the
Environmental Indemnity, and to carry out the transactions contemplated hereby
and thereby. Borrower does not do business under any trade name or fictitious
business name. Borrower has duly registered in compliance with all applicable
Laws in all applicable jurisdictions, and has the lawful right to use, the name
set forth in the definition of "Borrower" herein. Borrower has delivered to
Lender true, correct and complete copies of its Formation Documents and such
Formation Documents have not been amended or modified except pursuant to
agreements delivered to Lender prior to the date hereof.
B. Each Signature Party other than Borrower is duly formed, validly
existing and in good standing under the Laws of the State of its formation and,
if formed under the Laws of a jurisdiction other than the Governing State, has
registered to do business and is in good standing under the Laws of the
Governing State. Each such Signature Party has the full power and authority to
own and operate its properties, to carry on its business as now conducted, to
act as a general partner, member, manager or trustee of Borrower or Guarantor,
as applicable, to enter into each Loan Document and the Environmental Indemnity
as a general partner, member, manager or trustee of Borrower or Guarantor, as
applicable, to enter into the Guaranty and/or Environmental Indemnity on its own
behalf, if applicable, and to carry out the transactions contemplated in the
Loan Documents and the Environmental Indemnity. Borrower has delivered to Lender
true, correct and complete copies of the Formation Documents for each such
Signature Party and such Formation Documents have not been amended or modified
except pursuant to agreements delivered to Lender prior to the date hereof.
6.2 AUTHORIZATION OF BORROWING, ETC.
A. AUTHORIZATION OF BORROWING. The execution, delivery and performance of
the Loan Documents and the Environmental Indemnity, and the issuance, delivery
and payment of the Note, have been duly authorized by all necessary action of
each Signature Party.
B. NO CONFLICT. The execution, delivery and performance by each Signature
Party of each applicable Loan Document and the Environmental Indemnity do not
and will not (i) violate any Law applicable to any such Signature Party, the
Formation Documents of any such Signature Party, or any order, judgment or
decree of any court or other Governmental Agency binding on any such Signature
Party; (ii) conflict with, result in a breach of, or constitute (with the giving
of notice or the passage of time
14
EXHIBIT 4.13
or both), a default under any Contractual Obligation of any such Signature
Party; (iii) result in or require the creation or imposition of any Lien of any
nature on Borrower's properties or assets other than the Liens in favor of
Lender under the Loan Documents; or (iv) require any approval or consent of any
Person under any Contractual Obligation of any Signature Party.
C. GOVERNMENTAL CONSENTS. The execution, delivery and performance by each
Signature Party of each applicable Loan Document and the Environmental Indemnity
does not and will not require any registration with, consent or approval of, or
notice to, or other action to, with or by, any Governmental Agency or other
Person.
D. BINDING OBLIGATION. The Note and the other Loan Documents are the
legally valid and binding obligations of Borrower, enforceable against Borrower
in accordance with their respective terms, except as enforcement may be limited
by bankruptcy, insolvency, reorganization, moratorium or similar laws relating
to or limiting creditors' rights generally or by the application of equitable
principles. The Environmental Indemnity is the legally valid and binding
obligation of each of the parties thereto, enforceable against such parties in
accordance with its terms, except as enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or limiting
creditors' rights generally or by the application of equitable principles. The
Guaranty is the legally valid and binding obligation of the Guarantor,
enforceable against the Guarantor in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to or limiting creditors' rights generally or by the
application of equitable principles.
6.3 ACTIONS.
Except for that certain letter, dated June 14, 2002, from the Michigan
Department of Environmental Quality to an Affiliate, relating to environmental
conditions at and in the vicinity of the Affiliate's Cadillac, Michigan plant,
there is no action, suit, proceeding or arbitration, before or by any
Governmental Agency or other Person, pending or, to Borrower's best knowledge,
threatened in writing against or affecting Borrower, any of the Principal
Parties or any properties or rights of Borrower or any of the Principal Parties,
which might materially and adversely affect Lender's rights or remedies under
the Loan Documents or the Environmental Indemnity, the business, assets,
operations or financial condition of any such party or its ability to perform
its obligations under the Loan Documents or the Environmental Indemnity. There
are no outstanding judgments against Borrower, the Project, any other Collateral
or any of Borrower's assets. There are no outstanding judgments against any of
the Principal Parties, any Affiliate of any of the Principal Parties, any
partnership of which any Principal Party is a general partner, or any limited
liability company of which any Principal Party is a manager or managing member,
in each case excluding Borrower, or any of their assets in excess of One Hundred
Thousand Dollars ($100,000) as to any individual judgment or Two Hundred Fifty
Thousand Dollars ($250,000) in the aggregate. Except as set forth in this
SECTION 6.3, as to any of the Principal Parties or any Affiliate of any of the
Principal Parties, the representations and warranties set forth above shall in
each case be except as otherwise disclosed from time to time in AAR Corp.'s
Securities and Exchange Commission filings.
6.4 FINANCIAL POSITION.
A. FINANCIAL INFORMATION. The Application Information and all financial
statements and financial data delivered to Lender in connection with the Loan
and/or relating to Borrower and the Principal Parties are true, correct and
complete in all material respects and accurately present the financial position
of such parties as of the date thereof. No material adverse change has occurred
in the financial position disclosed by the Application Information or in any
other financial statements or financial data delivered to Lender or in
Borrower's or any Principal Party's assets, liabilities, financial position or
business.
B. BANKRUPTCY AND INSOLVENCY. Neither Borrower nor any of the Principal
Parties nor any Affiliate of any of the Principal Parties, any partnership of
which any Principal Party is a general partner, or any limited liability company
of which any Principal Party is a manager or managing member, in each case
excluding Borrower, has filed or been the subject of any bankruptcy, insolvency,
reorganization,
15
EXHIBIT 4.13
dissolution or similar proceeding or any proceeding for the appointment of a
receiver or trustee for all or any substantial part of their respective
property. Neither Borrower nor any of the Principal Parties nor any of the
Related Parties has admitted in writing its inability to pay its debts when due,
made an assignment for the benefit of creditors or taken other similar action.
C. OTHER BORROWING. Except for the Loan, no borrowings have been made by
Borrower which are secured by the Project or any other assets of Borrower, or
which might give rise to any Lien, other than the Liens created by the Loan
Documents.
6.5 LIENS.
Borrower is the sole owner of the Project, the Personal Property and any
other Collateral free from any adverse Liens, except for Liens in favor of
Lender and
(i) Real estate taxes, not yet due and payable.
(ii) Covenants, conditions, restrictions, and easements contained in
declaration recorded July 30, 1984 as Document R84-59903, together with
amendments thereto and plat recorded July 30, 1984 as Document R84-59904,
relating to the Xxxxxxxx Lakes Business Park Property Owners' Association,
relating to architectural control, easements, maintenance of the common area,
and assessments and special assessments (but excluding any assessments or
charges due and payable thereunder for which a Lien is attached to the
Property).
(iii) Building line as shown on the plat of Chancellory Business
Park Resubdivision No. 2, aforesaid, as follows:
35 feet along the west and north lines, 50 feet along the east line,
and the south 20 feet of the east 299.89 feet of lot 1.
(iv) Utility easement as shown and set forth on the plat of Chancellory
Business Park Resubdivision No. 2, aforesaid, as follows:
25 feet along the north line and proposed 25 feet along the west line
of lot 1.
(v) That certain lease dated as of the date hereof by and between Borrower
and Guarantor.
Borrower has paid or will pay in full all contractors, materialmen, laborers,
architects or other such Persons hired by Borrower to perform services or work
with respect to the Project and all statutory lien periods have expired with
respect to any such services or work performed prior to the date hereof. No
previous assignment, sale, pledge, encumbrance or other hypothecation of the
Leases or the Project Documents has been made (except for pledges and
encumbrances which have been released in full prior to the date hereof or will
be released in full concurrently with the funding of the Loan).
6.6 COMPLIANCE WITH LAWS.
The Project and the Personal Property and the use thereof are in material
compliance with all Laws. The Property consists of legal and separate lot(s) for
tax assessment purposes and under and in compliance with all applicable
subdivision Laws. All Permits, easements and rights of way necessary for the
occupancy, operation, lease, ownership and use of the Project have been obtained
by Borrower and are in full force and effect.
16
EXHIBIT 4.13
6.7 DEFECTS.
There are no defects, facts or conditions affecting the Project or the
Personal Property or any portion thereof which would make the Project unsuitable
for the occupancy, operation, lease, use or sale thereof. There are no surface
or subsurface soils conditions adversely affecting the Property, including,
without limitation, unstable soil or landfills.
6.8 UTILITIES.
All utilities necessary for the full enjoyment of the Project, including,
without limitation, trash collection, police and fire protection, sewer and
storm drain, water, telephone, gas and electricity, are available to the Project
and are not subject to any conditions which would limit the use of such
utilities, other than the payment of normal charges to the utility supplier.
6.9 NO CONDEMNATION.
No Condemnation Event (as defined in the Security Instrument) is pending
against the Project or any portion thereof. To Borrower's best knowledge, as of
the date hereof no Condemnation Event has been threatened in writing against the
Project or any portion thereof.
6.10 HAZARDOUS SUBSTANCES.
There are no Hazardous Substances on, in, under or at the Project except as
used in the ordinary course of Borrower's and Guarantor's or one of their
Affiliate's business which Hazardous Substances are stored and used in
compliance with Environmental Laws. The Project and each portion thereof is in
full compliance with all Environmental Laws. There are no above or below ground
storage tanks located at the Project. Borrower has not received written notice
from any Governmental Agency or any tenant, property manager or any other third
party alleging that the Project or any portion thereof does not comply with any
Environmental Laws or that evidence exists of a release, disposal of, or other
contamination from, any Hazardous Substance at, on, in, from, under or about the
Project.
6.11 NO DEFAULTS.
No Event of Default has occurred under this Agreement or any of the other
Loan Documents, and no Potential Default exists under this Agreement or any of
the other Loan Documents. No default by Borrower exists under any Contractual
Obligation which would have a material adverse effect on Borrower's ability to
repay the Loan or to perform its obligations under any of the Loan Documents or
under the Environmental Indemnity.
6.12 DISCLOSURE.
No representation or warranty of Borrower contained in this Agreement, any
Loan Document, or any Application Information contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements contained herein or therein not misleading.
6.13 ENTITY REQUIREMENTS.
Borrower (a) has not engaged, does not engage and is not authorized to
engage in any business unrelated to the Project, (b) has not had and does not
have assets other than those related to its interest in the Project, (c) has not
had and does not have any Indebtedness other than the Permitted Indebtedness,
(d) has its own books and records separate and apart from any other Person, (e)
holds itself out as being, and conducts all business as, a legal entity,
separate and apart from any other Person, with separate stationery, invoices and
checks, (f) has not guarantied the debts or obligations of any other Person, and
(g) has not commingled its assets or funds with those of any other Person.
Borrower's
17
EXHIBIT 4.13
Formation Documents provide that any dissolution and winding up or
insolvency filing for Borrower requires the unanimous consent of all partners,
directors or members, as applicable.
6.14 VIOLATIONS OF GOVERNMENTAL PROHIBITIONS.
Neither the making of the Loan, nor the receipt of Loan proceeds by
Borrower, violates any Law applicable to Borrower, including, without
limitation, any of the Terrorism Laws. Neither the making of the Loan, nor the
receipt of Loan proceeds by Borrower or any Principal Party, violates any of the
Terrorism Laws applicable to any of the Principal Parties. To Borrower's best
knowledge, no holder of any direct or indirect equitable, legal or beneficial
interest in Borrower or any Principal Party is the subject of any of the
Terrorism Laws. No portion of the Loan proceeds will be used, disbursed or
distributed by Borrower for any purpose, or to any Person, directly or
indirectly, in violation of any Law including, without limitation, any of the
Terrorism Laws.
ARTICLE 7
BORROWER'S COVENANTS
Borrower covenants and agrees that, until the Loan and all other amounts
owing to Lender under the Loan Documents have been paid in full and all Secured
Obligations have been satisfied, Borrower shall perform all of the covenants in
this ARTICLE 7.
7.1 NO LIENS.
Except as expressly provided in SECTION 1.12 of the Security Instrument,
Borrower shall not permit any Lien to be created or filed. Borrower shall be the
sole owner of the Project, Personal Property and all other Collateral, free from
any adverse Liens, except for Liens in favor of Lender. Borrower shall not
assign, sell, pledge, encumber or otherwise hypothecate all or any portion of
the Leases or the Project Documents.
7.2 COMPLIANCE WITH LAWS; CORRECTION OF DEFECTS.
Borrower will comply with all Laws applicable to Borrower, its property,
the Project, the Personal Property, the other Collateral and/or the occupancy,
operation, ownership or use thereof, including, without limitation, all
applicable subdivision Laws. The Property shall consist of legal and separate
lot(s) for tax assessment purposes. Borrower shall comply with, and maintain in
full force and effect, all Permits, easements and rights of way necessary for
the occupancy , operation, lease, ownership or use of the Project. If at any
time Borrower becomes aware of (a) any defects, facts or conditions affecting
the Project or any portion thereof or any of the Personal Property or other
Collateral which would make the Project unsuitable for the occupancy, operation,
lease, use or sale thereof, or (b) any surface or subsurface soils conditions
adversely affecting the Property, or (c) any fact, event, occurrence or
condition that would render or cause any of Borrower's representations or
warranties in the Loan Documents to be then incorrect or incomplete if such
representation or warranty were remade as of such date, Borrower will promptly
notify Lender in writing and shall promptly and diligently cause the same to be
fully remedied and cured at Borrower's cost and expense.
7.3 INSPECTION.
Subject to the rights of tenants at the Project, during normal business
hours and upon reasonable advance notice (except in the event of an emergency or
from and after the occurrence of an Event of Default under the Loan Documents,
or at any time during which an uncured Potential Default exists under the Loan
Documents, in which event entry shall not be limited to normal business hours
and no advance notice shall be necessary), Borrower shall permit Lender and any
Person designated by Lender to visit and inspect the Project.
18
EXHIBIT 4.13
7.4 LEASING OF SPACE.
A. Unless otherwise approved by Lender in writing in advance (which
approval may be withheld in Lender's good faith sole discretion), the Approved
Lease shall reflect an arms-length transaction at the then current market rate
for comparable space. The Approved Lease shall comply with all applicable Laws,
including, without limitation, all subdivision requirements, if any. Borrower
shall perform all obligations required to be performed by it as landlord under
the Approved Lease. Borrower shall not accept any Prepaid Property Income
(however denominated).
B. Borrower shall not enter into, or modify, amend, terminate or accept a
surrender or cancellation of the Approved Lease, or consent to any assignment or
subletting under the Approved Lease, or enter into any other Lease, without
Lender's prior written approval of any sublease, assignment, or other Lease, and
the tenant's financial condition (including, without limitation, financial
statements, operating history and business prospects), which shall not be
unreasonably withheld. Lender's prior written consent shall not be required for
any amendment or modification of the Approved Lease or any other Lease if the
amendment or modification does not alter a Material Lease Provision. Lender's
prior written consent, which may be withheld in Lender's good faith sole
discretion, shall be required if (a) any proposed tenant's operations at, on or
about the Project will or are reasonably likely to at any time involve the use,
generation, storage, handling or disposal of Hazardous Substances, or (b) the
tenant's use of the Project or applicable portion thereof is not consistent with
the use of the remainder of the Project.
C. Promptly after the execution of any modification, amendment or
termination of the Approved Lease, or any other Lease previously approved by
Lender, Borrower shall deliver to Lender copies of such modification, amendment
or termination, and all other documents executed in connection therewith,
whether or not Lender's approval is required in connection therewith pursuant to
this SECTION 7.4. In the event that Borrower enters into any other Lease or
executes an assignment or sublease under the terms of the Approved Lease,
Borrower shall promptly prepare and deliver to Lender a rent roll, operating
statements or other leasing information as Lender may from time to time
reasonably request. Borrower shall promptly take such steps as shall be
reasonably necessary to prevent any set-off against rent or other amounts
payable under any Lease including, without limitation, the payment or
reimbursement of any costs incurred or losses suffered which gave rise to the
claim for set-off.
D. If requested by Lender with respect to the Approved Lease, Borrower
shall, within twenty (20) days after Lender's written request, execute and
deliver to Lender, and use commercially reasonable efforts to cause the tenant
under any Lease (and any other party to, or guarantor of, such Lease) to execute
and deliver to Lender, a nondisturbance and attornment agreement in form and
substance reasonably satisfactory to Lender. If requested by Lender with respect
to any Lease, Borrower shall, within twenty (20) days after Lender's written
request, execute and deliver, and use commercially reasonable efforts to cause
the tenant under such Lease to execute and deliver, to Lender, an estoppel
certificate in form and substance reasonably satisfactory to Lender.
E. As used herein, "MATERIAL LEASE PROVISION" means a provision which
materially increases the landlord's obligations under any Lease, including, but
not limited to the Approved Lease, or any other Lease, which provides the tenant
with material rights or recourse against the landlord or with the right to
terminate the Lease, or which adversely affects Lender's security in the Lease.
Without limiting the generality of the foregoing, each of the following shall
constitute a Material Lease Provision: (i) any provision which affects Lender's
rights with respect to the Lease, which affects the relative priority of the
Lease and the Security Instrument without Lender's consent, or which requires
Lender to agree to or provide any nondisturbance agreement to the tenant; (ii)
the grant of an option, right of first offer or refusal or other right to
purchase all or any portion of the Project, (iii) the grant of an option, right
of first offer or refusal or other right to lease any additional space in the
Project at a rent less than market rent, (iv) the grant of any early termination
option (except in the event of a major casualty or substantial condemnation),
(v) any provision which provides for the application of insurance or
condemnation proceeds in a manner contrary to the Loan Documents, (vi) any
reduction in the rent payable under such Lease, (vii) the grant of any offsets,
or the agreement for the payment of any amounts by the landlord, other than
tenant improvement allowances at then current market levels, if such offset or
payment
19
EXHIBIT 4.13
obligation would be applicable to any subsequent owner of the Project,
including, without limitation any owner succeeding to the landlord's interest by
foreclosure or a deed in lieu or in aid thereof, (viii) a limit to the expense
reimbursements due from the tenant for increases in taxes or expenses, (ix) an
environmental, hazardous substance or other indemnification binding on the
landlord that would be applicable to any subsequent owner of the Project,
including, without limitation, any owner succeeding to landlord's interest by
foreclosure or a deed in lieu or in aid thereof, (x) any direct or indirect
restriction or limitation in favor of the tenant on the use or leasing of any
portion of the Project not covered by such Lease, including, without limitation,
any provision entitling the tenant to the exclusive operation of any business in
the Project, or (xi) any direct or indirect restriction or limitation in favor
of the tenant on the use or leasing of any property other than the Project,
including, without limitation, any provision entitling the tenant to the
exclusive operation of any business within a specified radius of the Project.
F. Prior to the commencement of any work at the Project by or on behalf
of any tenant under any Lease (or, if Borrower does not have knowledge of such
work prior to the commencement thereof, as soon as Borrower learns of such
work), Borrower shall post and record, in compliance with applicable law,
notices of non-responsibility, or the local equivalent thereof, with respect to
such tenant work.
G. Without limiting the terms of the Assignment of Rents, within ten (10)
days after Lender's written demand at any time (after and during the continuance
of an Event of Default under any of the Loan Documents), Borrower shall deliver
to Lender any or all security deposits then or thereafter held by Borrower, if
any. If any of such security deposits are in the form of letter(s) of credit,
Borrower shall deliver to Lender the original letter of credit, together with
original transfer documents in the form required by such letter of credit,
transferring such letter of credit to Lender. All such security deposits
delivered to Lender shall be held by Lender in accordance with the terms of the
applicable Lease and any then remaining security deposits held by Lender upon
the payment in full of the Loan and all amounts owing to Lender under the Loan
Documents shall be delivered and re-assigned, if applicable, to Borrower. Within
ten (10) days after Lender's written request, Borrower and Guarantor shall
execute and deliver to Lender such documents as may be reasonably requested by
Lender in connection with the delivery of such security deposits to Lender.
H. Immediately upon the payment of any Lease Termination Payments,
Borrower shall deliver such Lease Termination Payments to Lender. Such Lease
Termination Payments shall be deposited into a cash collateral account and
pledged to Lender as additional collateral for the Loan. Such funds shall be
disbursed by Lender, subject to such terms and conditions as may be reasonably
imposed by Lender, to pay such tenant improvement costs and leasing commissions
for the applicable vacated space in the Project as may be approved by Lender,
which approval shall not be unreasonably withheld. Within ten (10) days after
Lender's written request, Borrower and Guarantor shall execute and deliver to
Lender such documents as may be reasonably requested by Lender in connection
with the delivery of any Lease Termination Payments to Lender, including,
without limitation, a pledge agreement setting forth the terms under which funds
in such cash collateral account shall be disbursed.
7.5 ENVIRONMENTAL MATTERS.
A. Borrower shall, at its own expense, comply and cause all persons
entering the Project to comply with all Environmental Laws applicable thereto
and Borrower shall not use, store, process, manufacture, transport, dispose or
release any Hazardous Substances on, in or adjacent to any part of the Project
or permit any of the foregoing to occur except as used in the ordinary course of
Borrower's or Guarantor's or one of their Affiliate's business which Hazardous
Substance shall be used and stored in compliance with Environmental Laws.
Borrower shall immediately advise Lender in writing of any (i) discovery of
Hazardous Substances on, at, from or under the Project or any portion thereof in
violation of Environmental Laws; or (ii) any claim, action or order threatened
or instituted by any third party (including, without limitation, any
Governmental Agency) against the Project or Borrower relating to damages, cost
recovery, liability, loss or injury resulting from any Hazardous Substances,
including those used or stored in the ordinary course of Borrower's, Guarantor's
or one of their Affiliate's business. Borrower shall provide Lender with copies
of all communications with any third party (including, without
20
EXHIBIT 4.13
limitation, any Governmental Agency) relating to any Environmental Law or any
claim, action, notice of violation, inquiry, investigation or order relating to
Hazardous Substances at, on, under or in the Project or any portion thereof.
Borrower shall promptly and diligently remediate any Hazardous Substances
contamination at, under, from or attributable by joint and several liability to
the Project to a level required by Environmental Laws. Without limiting the
foregoing, if any remedial action is required by any Environmental Laws,
Borrower shall immediately notify Lender of such situation and shall prepare a
written plan setting forth a description of such situation (and all
environmental reports relating thereto) and the remedial action that Borrower
proposes to implement in connection therewith. Borrower shall, at its own
expense, thereafter diligently and continuously pursue the remediation of the
condition necessary to bring the Project into compliance with this SECTION
7.5(A) and shall, at its own expense, promptly cause all liens or encumbrances
against the Project in connection therewith to be removed and satisfied.
B. Lender shall have the right at any time to retain a professional
environmental consultant to conduct tests and investigations of the Project
(including, without limitation, ground water and soils testing) with respect to
Hazardous Substances or the Project's compliance with Environmental Laws.
Borrower hereby grants to Lender, its agents, employees, consultants and
contractors, an irrevocable license and authorization to enter upon and inspect
the Project and to conduct such tests and investigations on the Project or any
portion thereof as Lender, in its sole discretion, determines necessary. Such
tests shall be conducted at reasonable times, upon reasonable prior notice and
so as not to unreasonably interfere with the tenant's business. Such tests and
investigations shall be at Lender's expense unless (i) a breach of the
provisions of SECTION 6.10 or SECTION 7.4(B) has occurred, or a breach of, or
release or contamination governed by, this SECTION 7.5 has in fact occurred, or
(iii) an Event of Default has occurred under any of the Loan Documents or an
uncured Potential Default exists under any of the Loan Documents. Borrower
acknowledges and agrees that, as between it and Lender, only Borrower owns and
operates the Project and only Borrower has the responsibility for compliance
with this SECTION 7.5 and neither Lender's enforcement of, or failure to
enforce, any of the provisions of SECTION 7.5 shall be deemed to affect the
obligations or provisions of this SECTION 7.5.
C. To the fullest extent permitted by law, Borrower hereby indemnifies
and agrees to defend, and hold harmless the Indemnitees for, from and against
any and all loss, claim, damage or liability of any kind or nature and from any
suits, actions, claims or demands, including without limitation, all amounts
described in SECTION 7.5(D), arising directly or indirectly, in whole or in
part, out of (i) the existence or alleged existence of any Hazardous Substances
at, on, under, from or in the Project or any portion thereof, (ii) the removal
of or failure to remove any Hazardous Substances from the Project or any portion
thereof or from neighboring property, including, without limitation, from the
groundwater of the Project or any neighboring property (in the case of
neighboring property, only to the extent caused by Borrower or otherwise
migrating from the Project), (iii) any activity involving Hazardous Substances
with respect to the Project carried on or undertaken on or off the Project, (iv)
any residual contamination on or under the Project or on or under any
neighboring property (in the case of neighboring property, only to the extent
caused by Borrower or otherwise migrating from the Project), or (v) any
contamination of any property or natural resources arising by, through or under
Borrower or any tenant of Borrower in connection with any activity involving
Hazardous Substances, in each case whether prior to or during the term of the
Loan, and whether by Borrower or any other party, provided that such indemnity
shall not extend to damage or liability incurred by an Indemnitee to the extent
such damage or liability is caused directly by such Indemnitee's gross
negligence or willful misconduct. Upon receiving knowledge of any suit, action,
claim or demand asserted by a third party that Lender believes is covered by
this indemnity, Lender shall give Borrower written notice of the matter and an
opportunity to defend it, at Borrower's sole cost and expense, with legal
counsel reasonably satisfactory to Lender. Lender may also require Borrower to
so defend the matter. The obligations of Borrower under this SECTION 7.5(C) are,
without limitation, intended to operate as a binding valid indemnity agreement
under 42 U.S.C. Section 9607(e)(1) and shall survive the closing of the Loan and
the repayment of the Loan and the satisfaction of all other Secured Obligations.
D. The indemnity set forth in SECTION 7.5(C) shall include, without
limitation, (i) loss, claims, damage or liability for, or arising from, personal
injury and property damage, including, without limitation, diminution in
marketability or value of property, (ii) compensation for lost wages, rents,
business income, profits or other economic loss, (iii) all consequential
damages; (iv) all damages to any natural resources
21
EXHIBIT 4.13
and the environment, the costs of any repair, clean up, response cost, or
remediation of the Property, the Project, and, to the extent required or
necessary, the neighboring property (in the case of neighboring property, only
to the extent caused by Borrower or otherwise migrating from the Project), and
the investigation, preparation and implementation of any closure, remedial or
other required plans; and (v) all costs and expenses incurred in connection with
any of the foregoing, including, without limitation, reasonable attorneys' fees
and costs and reasonable consultants' fees and costs.
7.6 INSURANCE REQUIREMENTS.
A. Borrower shall procure and maintain, or cause to be procured and
maintained, at all times until the repayment of the Loan and the satisfaction of
the Secured Obligations, policies of insurance in form and amounts as set forth
in Section 7.6B and issued by companies qualified to do business in the state
where the Project is located and having a Best's rating of at least A:VIII. All
policies shall expressly protect Lender's interest as required by Lender. If
Borrower fails to maintain any insurance coverage required under this SECTION
7.6, Lender may, but shall have no obligation to, obtain such insurance, and
Borrower shall pay all amounts expended by Lender for such insurance, together
with interest thereon at the Default Interest Rate, within ten (10) days after
written demand by Lender. In the event of any foreclosure of the Security
Instrument or a deed in lieu or in aid thereof or other transfer of title to the
Project in extinguishment in whole or in part of the Secured Obligations, all
right, title and interest of Borrower in and to all proceeds payable under the
insurance policies required by this SECTION 7.6 and then in force shall vest in
and pass to the new owner of the Project.
B. Without limiting the generality of SECTION 7.6(A), Borrower shall
maintain or cause to be maintained the following insurance coverages:
(i) PROPERTY INSURANCE. Property insurance for:
(a) The Project; and
(b) Borrower's furniture, furnishings, fixtures, equipment and
the other items of property (whether personalty or fixtures) in, at or
about the Project.
Borrower's property insurance must satisfy the following requirements,
without limitation:
(1) It must be written on the broadest available all-risk
(special causes of loss) policy form or an equivalent form reasonably
acceptable to Lender;
(2) It must include an agreed-amount endorsement for no less
than one hundred percent (100%) of the full Replacement Cost of the
covered property;
(3) Borrower's property insurance coverage shall include,
without limitation, coverage for theft, fire, extended coverage,
debris removal, vandalism and malicious mischief and sprinkler
leakage.
(4) Borrower's property insurance coverage shall include an
Ordinance or Law Coverage endorsement (CP 04 05 06 95 or equivalent
reasonably satisfactory to Lender), providing coverage A (loss to the
undamaged portion of the building), Coverage B (demolition cost) and
Coverage C (increased cost of construction) and an Ordinance or Law -
Increased Period of Restoration endorsement (CP 15 31, 1988 edition,
or equivalent reasonably acceptable to Lender).
(ii) BUSINESS INCOME AND OTHER TIME ELEMENT INSURANCE. Business
income, extra expense insurance coverages, with an extended period of indemnity
as set forth herein (including, without limitation, business interruption and/or
loss of rental income insurance) in an amount sufficient to avoid any
co-insurance penalty and providing proceeds which will cover actual loss
sustained (a) during a
22
EXHIBIT 4.13
period of not less than eighteen (18) months from the date of casualty or loss,
or (b) until that date on which the Project is fully reconstructed or repaired,
put to its intended use, fully occupied, and generating the amount of
income/rents originally contemplated, but for the casualty or loss, whichever is
later. For all perils the coverage required by this SECTION 7.6(B)(ii) shall be
provided by the insurer issuing the property coverage. The coverage required by
this SECTION 7.6(B)(ii) shall include a waiting period of not more than five (5)
days and must be endorsed to provide ordinance or law coverage no less broad
than that required by SECTION 7.6(B)(i)(5).
(iii) BOILER AND MACHINERY INSURANCE. Broad form boiler and machinery
insurance (without exclusion for explosion) covering all boilers or other
pressure vessels, machinery and equipment located in, at or about Project,
including, without limitation, system breakdown coverage and insurance against
loss of occupancy or use arising from any breakdown, in an amount equal to the
Replacement Cost of the improvements housing the boilers, machinery and
equipment or such other amount reasonably acceptable to Lender.
(iv) COMMERCIAL GENERAL LIABILITY INSURANCE. Commercial general
liability insurance, written on an Insurance Services Office occurrence policy
form (1986 or more recent edition), covering bodily injury, property damage,
personal injury and advertising injury arising out of or relating directly or
indirectly to the possession, use, leasing, operation, construction, maintenance
or condition of the Project, including without limitation premises/operations
coverage, products/completed operations coverage and contractual liability
coverage, with limits of liability not less than Two Million Dollars
($2,000,000) bodily injury and property damage per occurrence limit, Two Million
Dollars ($2,000,000) personal injury and advertising injury limit, Four Million
Dollars ($4,000,000) general aggregate limit (provided, by endorsement
reasonably satisfactory to Lender, on a per location basis), and Two Million
Dollars ($2,000,000) products/completed operations aggregate limit. The
liability insurance limits may be provided by a combination of primary, umbrella
and/or excess policies, but any umbrella or excess policy must be at least as
broad in coverage as the primary policy and satisfy all the requirements of this
SECTION 7.6. Lender shall be named as an additional insured on the liability
insurance policy or policies by endorsement CG 20 26 11 85 or equivalent
reasonably acceptable to Lender.
(v) INTENTIONALLY DELETED.
(vi) FLOOD INSURANCE. Flood insurance (including business interruption
and/or loss of rental income coverage meeting the requirements of SECTION
7.6.B(ii), above), with limit sufficient to cover one hundred percent (100%) of
the full Replacement Cost of the Project (excluding the Property), if either (a)
any portion of the improvements located at the Property is located in an area
now or hereafter designated as having special flood hazards under any Flood
Insurance Acts or any other Law, or interpretations or regulations thereunder,
or (b) flood insurance is required by any Law, or interpretations or regulations
thereunder, applicable to Borrower, Lender or the Project or by any federal or
state regulatory agency having jurisdiction over Lender.
C. The original of all certificates and all endorsements required by this
SECTION 7.6, shall be delivered to and retained by Lender unless Lender agrees
otherwise. Borrower shall deliver renewal or replacement policies, certificates
and endorsements to Lender not less than thirty (30) days prior to the
expiration of existing coverages. All certificates and endorsements to be
furnished hereunder shall be in form reasonably satisfactory to Lender. All
policies: (i) shall have a deductible of (a) not more than Fifty Thousand
Dollars ($50,000) per occurrence with respect to the commercial general
liability insurance and (b) not more than One Hundred Thousand Dollars
($100,000) with respect to any other insurance; (ii) with respect to the
property, business income and time element, shall include Lender as an
additional insured and loss payee, including, without limitation, a standard
mortgagee clause/lender's loss payable endorsement and chattel mortgage clause
in favor of, and in form reasonably satisfactory to, Lender (providing, without
limitation, that Lender's right of recovery shall not be prejudiced or impaired
by any act, error or omission (whether negligent, willful or otherwise) of
Borrower, any other insured or any other person or entity); (iii) shall provide
that the coverage afforded thereby shall not be non-renewed, terminated,
cancelled, materially reduced or materially modified without thirty (30) days'
prior written notice to Lender (with the exception of a ten (10) day
cancellation upon written notice for failure to pay
23
EXHIBIT 4.13
premiums); (iv) shall include a waiver of subrogation as to Lender with respect
to the Property Insurance and provide that such waiver shall not invalidate or
prejudice the coverage available to Borrower or Lender; (v) may be in the form
of blanket policies, in amount, form and content reasonably satisfactory to
Lender, provided that any such blanket policy or policies shall specify the
address of the Project and the Property, the portion of the total coverage of
such blanket policies that is allocated to the Property and the Project, and any
sublimits in such blanket policies applicable to the Property and the Project,
and provided further that all other requirements of this SECTION 7.6 are
satisfied; (vi) shall provide that the coverage afforded is primary and that any
other insurance available to Borrower or Lender is secondary, excess and
noncontributing; (vii) shall provide for severability of interests (separation
of insureds) such that Lender's rights under the policies are separate from and
independent of Borrower's; and (viii) shall contain no insured vs. insured
exclusions. Borrower shall not obtain or maintain separate insurance or
additional insurance concurrent in form or contributing in the event of loss
with that required to be maintained hereunder without the prior written consent
of Lender, which consent shall not be unreasonably withheld, provided that such
policies satisfy all of the requirements of this SECTION 7.6.
D. Notwithstanding anything to the contrary contained in the Loan
Documents, Borrower waives any and all right of action or recovery against
Lender, and its Affiliates, predecessors, successors, assigns, directors,
officers, employees, agents and representatives, for any loss, liability, claim,
expense, injury or damage, including without limitation to, or arising out of or
relating directly or indirectly to, the Project, Collateral, Borrower,
Borrower's property, or the property of others under Borrower's control, to the
extent such loss, liability, claim, expense, injury or damage is insured against
or required to be insured against under this SECTION 7.6 or is coverable by
insurance.
E. At Lender's election at any time not more frequently than once per
calendar year, the Replacement Cost amount of Borrower's property insurance
shall be adjusted. In connection therewith, Borrower shall, at its sole expense,
provide at the written request of Lender evidence reasonably satisfactory to
Lender of the Replacement Cost of the Project. Such evidence may be in the form
of an insurance appraisal or valuation report prepared by an insurance company,
appraiser or other consultant reasonably acceptable to Lender.
F. Borrower shall, at Borrower's sole expense, comply with all
requirements, guidelines, rules and orders and similar mandates and directives
relating to the Project and the Property imposed by any insurer and shall not
cause or permit any condition to exist in, at or about Project or the Property
which would invalidate or impair the insurance coverage required by this SECTION
7.6, which would result in a material increase in hazard or which would
constitute grounds for cancellation or non-renewal of any policy referred to in
this SECTION 7.6.
G. Delivery to Lender of the certificates and endorsements referred to in
this SECTION 7.6 shall constitute an assignment of all proceeds payable under
such insurance as relating to the Project or the Property by Borrower to Lender
as further security for the Secured Obligations.
H. Notwithstanding any receipt, review, approval or consent to any
insurance referred in this SECTION 7.6, Lender shall incur no liability as a
result of the insolvency of any insurer, failure of any insurer to perform,
deductibles, inadequacy of limits of any policy, limitations or exclusions from
coverage or failure of any insurer to pay any claim, even where Lender has
caused insurance to be placed with an insurer after failure by Borrower to
comply with the requirements of this SECTION 7.6.
I. The insurance requirements set forth in this SECTION 7.6 are
independent of Borrower's indemnification obligations and other obligations to
Lender hereunder and under the other Loan Documents, and shall not be construed
or interpreted to restrict, limit or modify Borrower's indemnification
obligations or any other obligations to Lender hereunder or under any of the
Loan Documents.
7.7 NOTICE OF PROCEEDING.
Borrower will promptly notify Lender of any notice of violation, action,
suit, proceeding or arbitration (including, without limitation, any judicial or
nonjudicial foreclosure proceeding, any voluntary or
24
EXHIBIT 4.13
involuntary bankruptcy proceeding or any proceeding for the appointment of a
receiver), commenced or threatened in writing against Borrower, any of the
Principal Parties, or the Project or the other Collateral or any portion thereof
or interest therein. Borrower shall deliver to Lender copies of all notices and
other information in connection with any such action, suit, proceeding or
arbitration promptly upon receipt or transmittal thereof.
7.8 FINANCIAL AND OTHER INFORMATION.
Borrower shall maintain full and complete books of account and other
records reflecting the results of operations of the Project in accordance with
the Financial Reporting Method. Borrower shall furnish or cause to be furnished
to Lender such financial information concerning Borrower, the Principal Parties
and the Project and the other Collateral as Lender may reasonably request from
time to time. Lender shall also have access to such books and records and
Borrower's corporate or organizational books, during regular business hours and
upon reasonable advance notice to Borrower, and shall have the right to make
copies thereof or extracts therefrom and to discuss the finances and accounts of
Borrower with Borrower, its partners or members, as applicable, and its
independent public accountants, all as Lender may reasonably request. Without
limiting the generality of the foregoing, Borrower shall furnish to Lender,
without prior request or demand:
A. ENTITY FINANCIAL STATEMENTS. If Borrower and/or any Principal Party
is not a natural person or a trust, on or before each Financial Statement
Delivery Date, Borrower shall provide Lender with financial statements
(including, without limitation, a balance sheet and a profit and loss statement)
for the previous fiscal year and the current fiscal year-to-date, each of which
shall (i) be prepared in accordance with the Financial Reporting Method and
otherwise in form reasonably acceptable to Lender, and (ii) contain comparative
information for the two (2) previous fiscal years, (iii) be certified as true,
correct and complete by Borrower or such Principal Party, and (iv) at Lender's
election after the occurrence of an Event of Default under any of the Loan
Documents or while any uncured Potential Default exists under any of the Loan
Documents, be certified by a certified public accountant acceptable to Lender.
Within fifteen (15) days after the end of each fiscal Year, Borrower shall
provide Lender with a written certification, in form reasonably satisfactory to
Lender, that there has been no material adverse change in the financial
condition of Borrower and each such Principal Party from the financial
statements for such party most recently delivered to Lender (or, if there has
been a material adverse change, explaining such material adverse change in
reasonable detail).
B. INTENTIONALLY DELETED.
C. PROJECT FINANCIAL STATEMENTS. In the event that the Project shall
have two or more tenants or subtenants, Borrower shall provide Lender with
operating statements for the Project on or before each Financial Statement
Delivery Date in reasonably acceptable form to Lender, (2) contain comparative
information for the two (2) previous calendar years, (3) be certified as true,
correct and complete by Borrower, and (4) at Lender's election after the
occurrence of an Event of Default under any of the Loan Documents or while any
uncured Potential Default exists under any of the Loan Documents, be certified
by a certified public accountant acceptable to Lender.
D. FAILURE TO DELIVER FINANCIAL STATEMENTS. Without limiting any of
Lender's rights or remedies in the event of any failure by Borrower to comply
with the provisions of this SECTION 7.8, if Borrower fails to deliver to Lender
any of the financial statements or other information required herein on or
before the applicable date required in this SECTION 7.8 (the "Information
Delivery Date"), and if Borrower continues to fail to deliver any such financial
statements or other information within fifteen (15) days after written notice
from Lender given on or after the Information Delivery Date, then, commencing on
the first day after the Information Delivery Date, the Variable Interest Rate
(as defined in the Note) shall be increased by one-half percent (.50%) until
such time as Borrower has delivered all of the financial statements or other
information required to be delivered by Borrower pursuant to, and in the form
required by, this SECTION 7.8. In addition to such increase in the Variable
Interest Rate during the Amortization Period, the Monthly Installments shall be
adjusted effective with the Monthly Installment due immediately following the
Information Delivery Date to reflect such increase. Once Borrower has delivered
all of the
25
EXHIBIT 4.13
financial statements and other information required to be delivered by Borrower
pursuant to, and in the form required by, this SECTION 7.8, the Variable
Interest Rate and the Monthly Installments shall be readjusted effective with
the Monthly Installment due immediately thereafter.
7.9 OTHER CONTRACTUAL OBLIGATIONS.
Borrower shall perform all of its obligations under (a) any Contractual
Obligation if the failure to perform any such obligation would have a material
adverse effect on Borrower's ability to repay the Loan or to perform any of its
obligations under any of the Loan Documents or under the Environmental
Indemnity, and (b) all Permitted Indebtedness.
7.10 FURTHER ASSURANCES.
Borrower shall execute and deliver, and shall cause Guarantor to execute
and deliver, from time to time, within ten (10) days after written any request
by Lender, any and all instruments, agreements and documents, and shall take
such other action, as may be reasonably necessary or desirable in the opinion of
Lender to maintain, perfect or insure Lender's security provided for herein and
in the other Loan Documents, including, without limitation, the execution of
UCC-1 renewal statements, the execution of such amendments to the Security
Instrument and the other Loan Documents and the delivery of such endorsements to
the Title Policy, all as Lender shall reasonably require, and shall pay all
reasonable fees and expenses (including, without limitation, reasonable
attorney's fees and costs) related thereto.
7.11 EQUITY DISTRIBUTIONS.
Borrower shall not make any direct or indirect Equity Distributions (a)
from and after the occurrence of an Event of Default under any of the Loan
Documents or (b) so long as any uncured Potential Default exists under any of
the Loan Documents, including, without limitation, at any time during which any
Impound Expenses are delinquent.
7.12 ENTITY REQUIREMENTS.
Borrower (a) shall not engage or be authorized to engage in any business
unrelated to the Project, (b) shall not have assets other than those related to
its interest in the Project, (c) shall not have any Indebtedness other than the
Permitted Indebtedness, (d) shall have its own books and records separate and
apart from any other Person, (e) shall hold itself out as being, and shall
conduct all business as, a legal entity, separate and apart from any other
Person, with separate stationary, invoices and checks, (f) shall not guaranty
the debts or obligations of any other Person, and (g) shall not commingle its
assets or funds with those of any other Person. Borrower's Formation Documents
shall at all times provide that any dissolution and winding up or insolvency
filing for Borrower requires the unanimous consent of all partners, directors or
members, as applicable. Borrower and the Principal Parties shall maintain and
preserve their existence and all rights and franchises material to their
respective businesses and shall be, at all times, validly existing and in good
standing in the state of their formation. Borrower shall be, at all times,
validly existing and in good standing in the Governing State. Borrower shall not
at any time be a foreign corporation, foreign partnership, foreign trust or
foreign estate, as those terms are defined in the Nonforeign Status Statutes.
Without limiting the provisions of SECTION 1.10 of the Security Instrument,
neither Borrower nor any of the Principal Parties shall amend or modify any of
their respective Formation Documents without Lender's prior written consent,
which shall not be unreasonably withheld unless such amendment or modification
relates to a Transfer (in which event Lender's consent may be withheld in
Lender's good faith sole discretion). Promptly after Lender's written request
from time to time, but not more frequently than once in any calendar year,
Borrower shall deliver to Lender evidence reasonably satisfactory to Lender that
Borrower and the Principal Parties are in compliance with the provisions of this
SECTION 7.12.
26
EXHIBIT 4.13
7.13 MANAGEMENT OF THE PROJECT.
The Project shall be managed by Borrower or an Affiliate of Borrower
approved by Lender for so long as no Event of Default has occurred under the
Loan Documents and so long as Borrower or such Affiliate is managing the Project
in a first class manner. In the event that Borrower hires a Project property
manager, such property manager shall not be entitled to payment of any fees or
costs for services rendered for the benefit of Borrower until such time as the
property manager executes a written agreement. Such written agreement shall be
approved in advance in writing by Lender if (a) any Event of Default has
occurred under any of the Loan Documents or an uncured Potential Default exists
under any of the Loan Documents or (b) such agreement is not terminable with or
without cause and without penalty, upon not more than thirty (30) days' notice
to the manager thereunder. In no event shall any manager be removed or replaced
or any management agreement modified, amended, or terminated without the prior
written consent of Lender if any Event of Default has occurred under any of the
Loan Documents or an uncured Potential Default exists under any of the Loan
Documents. At Lender's election, within ten (10) days after Lender's written
request, Borrower and any such manager of the Project shall execute and deliver
to Lender an assignment of such management agreement in form reasonably
satisfactory to Lender and, at Lender's election in its sole discretion,
allowing Lender either to terminate such management agreement immediately upon
the transfer of title to the Project as a result of the exercise of its remedies
under the Loan Documents, or to keep such management agreement in effect after
such transfer of title. Lender's consent and approval under this SECTION 7.13
shall not be unreasonably withheld.
7.14 COMPLIANCE WITH GOVERNMENTAL PROHIBITIONS.
No portion of the Loan proceeds will be used, disbursed or distributed by
Borrower or any Principal Party for any purpose, or to any Person, in violation
of any Law including, without limitation, any of the Terrorism Laws. Borrower
shall provide Lender with immediate written notice (a) of any failure of any of
the representations and warranties set forth in SECTION 6.14 of this Agreement
or in SECTION 4(M) of the Guaranty to be true, correct and complete in all
respects at any time, or (b) if Borrower obtains knowledge that Borrower, any of
the Principal Parties, or any holder at any time of any direct or indirect
equitable, legal or beneficial interest in Borrower or any of the Principal
Parties is the subject of any of the Terrorism Laws. Borrower shall immediately
and diligently take, or cause to be immediately and diligently taken, all
necessary action to comply with all Terrorism Laws and to cause the
representations and warranties set forth in SECTION 6.14 of this Agreement and
in SECTION 4(M) of the Guaranty to be true, correct and complete in all
respects.
7.15 BORROWER ESTOPPEL CERTIFICATES.
A. Within ten (10) days after Lender's written request from time to time,
but not more frequently than once in any calendar year, Borrower shall execute
and deliver, and shall cause Guarantor to execute and deliver to Lender, an
estoppel certificate in the form reasonably requested by Lender, stating that
the Loan Documents and the Environmental Indemnity are in full force and effect,
the amount of Loan proceeds advanced by Lender, and such other matters relating
to the Loan and the Loan Documents as may be reasonably requested by Lender.
ARTICLE 8
EVENTS OF DEFAULT; REMEDIES
8.1 EVENTS OF DEFAULT.
A. EVENTS OF DEFAULT ON NOTICE TO BORROWER. The occurrence of any of the
following events shall constitute an Event of Default under this Agreement and
the other Loan Documents upon written notice by Lender to Borrower given at any
time on or after the occurrence of any such event; provided that upon such
notice from Lender, such Event of Default shall be deemed to have occurred as of
the occurrence of such event, irrespective of the date of such notice; and
provided further that Lender's
27
EXHIBIT 4.13
giving of or failure to give such notice shall not affect, in any manner
whatsoever, the imposition of any late charge or interest at the Default
Interest Rate pursuant to the provisions of the Note or the other Loan
Documents:
(i) FAILURE TO MAKE PAYMENTS WHEN DUE. Borrower's or Guarantor's
failure to pay any principal, interest or other monies due under this Agreement
or any of the other Loan Documents within ten (10) days after such amount is
due.
(ii) BREACH OF CERTAIN COVENANTS. Borrower's or Guarantor's failure
to perform or comply with any term, obligation or condition contained in this
Agreement or any of the other Loan Documents, other than those terms,
obligations and conditions otherwise referred to in this SECTION 8.1(A) and
other than Borrower's obligations under SECTION 1.10 of the Security Instrument,
within thirty (30) days after the delivery of written notice from Lender of such
failure; provided that if such default is not reasonably capable of being cured
(without taking into account financial capability) within such thirty (30) day
period, such failure shall not constitute an Event of Default so long as
Borrower or Guarantor, as applicable, commences the cure of such default within
such thirty (30) day period and diligently prosecutes such cure to completion
within one hundred eighty (180) days after such written notice from Lender.
(iii) BREACH OF WARRANTY. Any representation, warranty, certification
or other statement made by Borrower or any of the Principal
Parties herein or in any Application Information, or in any other Loan Document
or in any statement or certificate at any time given by Borrower or any of the
Principal Parties to Lender in writing in connection with the Loan shall be
materially false or misleading.
(iv) LIEN PRIORITY. Lender fails to have a legal, valid, binding and
enforceable first priority Lien on the Project or any portion thereof or on any
material portion of the Personal Property or other Collateral.
(v) UNAPPROVED TRANSFERS. Any Transfer which requires Lender's
consent under SECTION 1.10 of the Security Instrument occurs without Lender's
prior written consent in accordance with SECTION 1.10 of the Security
Instrument.
(vi) FAILURE TO MAINTAIN INSURANCE/FAILURE OF INSURANCE COVERAGE TO
REMAIN IN EFFECT. Borrower fails to maintain or cause to be maintained the
insurance coverage required by SECTION 7.6, or there is any rescission or
cancellation of any insurance required by SECTION 7.6, or any carrier of any
insurance required by SECTION 7.6 denies coverage as a result of any act or
omission of Borrower, any Limited Recourse Party or any Exculpated Person, or
any of their agents.
(vii) OTHER LIENS. Without limiting the provisions of SECTION 7.1
of this Agreement or SECTION 1.10 of the Security Instrument, Borrower defaults
under any Lien (other than the Liens created by the Loan Documents) or
foreclosure or other proceedings are commenced to enforce any Lien (other than
the Liens created by the Loan Documents).
(viii) MATERIAL LITIGATION. The commencement or filing of any action,
suit, proceeding or arbitration against or involving Borrower or any of the
Principal Parties which, if determined adversely to Borrower or such Principal
Party, would not be covered in whole or in part by insurance and for which
Borrower or such Principal Party would have liability in excess of Five Hundred
Thousand Dollars ($500,000).
(ix) GOVERNMENTAL PROHIBITIONS. Borrower's or Guarantor's failure to
perform or comply with any of the terms, obligations or provisions of SECTION
7.14 of this Agreement or SECTION 5(B) of the Guaranty.
28
EXHIBIT 4.13
(x) ACTIONS ADVERSELY AFFECTING LIEN PRIORITY. Borrower, any
Limited Recourse Party or any Exculpated Person, or any of their agents, takes
any action which causes Lender to fail to have a valid first priority lien on
the Project or any portion thereof, or on any material portion of the Personal
Property or other Collateral.
(xi) OTHER LOAN DOCUMENTS. The occurrence of an Event of Default
under any of the other Loan Documents (as "Event of Default" is defined
therein).
(xii) LETTER OF CREDIT. In the event the Letter of Credit is not
renewed in accordance with SECTION 5.5 hereof.
B. AUTOMATIC EVENTS OF DEFAULT. The occurrence of any of the following
events shall constitute an Event of Default under this Agreement and the other
Loan Documents automatically and with no notice from Lender required:
(i) INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(a) A court having proper jurisdiction shall enter a decree or
order for relief with respect to Borrower or any of the Principal
Parties in an involuntary case under any of the Insolvency Laws, which
decree or order is not stayed within seven (7) days after entry and
dismissed within ninety (90) days after the entry of such order; or
any other similar relief shall be granted under any applicable
Insolvency Law; or
(b) An involuntary case is commenced against Borrower or any
of the Principal Parties, under any Insolvency Law; or a decree or
order of a court for the appointment of a receiver, liquidator,
sequestrator, trustee, custodian or other officer having similar
powers over Borrower or any of the Principal Parties or over all or a
substantial part of their respective property, shall be entered; or
the involuntary appointment of an interim receiver, trustee or other
custodian of Borrower or any of the Principal Parties, for all or a
substantial part of their respective property; or the issuance of a
warrant of attachment, execution or similar process against any
substantial part of the respective property of Borrower or any of the
Principal Parties, and the continuance of any such event in this
clause (b) for ninety (90) days unless dismissed or discharged.
(ii) VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(a) Borrower or any of the Principal Parties shall have an
order for relief entered with respect to them or commence a voluntary
case under any of the Insolvency Laws, or shall consent to the entry
of an order for relief in an involuntary case, or to the conversion of
an involuntary case to a voluntary case, under any Insolvency Law, or
shall consent to the appointment of or taking possession by a
receiver, trustee or other custodian for all or a substantial part of
their respective property; the making by Borrower or any of the
Principal Parties of any assignment for the benefit of creditors; or
(b) The inability or failure of Borrower to pay its debts as
such debts become due, the inability or failure of any of the
Principal Parties to pay any of its debts in excess of Two Hundred
Fifty Thousand Dollars ($250,000) as such debts become due, or the
admission by Borrower or any of the Principal Parties in writing of
its inability to pay its respective debts as such debts become due.
8.2 GENERAL REMEDIES.
Notwithstanding anything to the contrary contained herein or in any of the
other Loan Documents, from and after the occurrence of any Event of Default, (a)
the unpaid principal amount of the Loan, all accrued and unpaid interest and all
other Secured Obligations shall become immediately due and
29
EXHIBIT 4.13
payable, without presentment, demand, protest, notice of intent to accelerate,
notice of acceleration, notice or other requirements of any kind, all of which
are hereby expressly waived by Borrower, (b) Lender shall have the rights and
remedies of a secured party under the Governing State Uniform Commercial Code,
and under any other applicable law, (c) Lender may pursue all of its rights and
remedies hereunder, under the other Loan Documents, at law, in equity or
otherwise, including without limitation, obtaining the appointment of a receiver
to perform any act of Lender permitted in this Agreement and to perform such
other duties as permitted by applicable Law, and (d) Lender shall have no
further obligation to disburse Loan proceeds to Borrower. Further, from and
after the occurrence of any Event of Default all outstanding indebtedness and
all other amounts owing to Lender under the Loan Documents shall bear interest
at the Default Interest Rate.
8.3 SPECIFIC PERFORMANCE.
From and after the occurrence of an Event of Default, Lender may commence
and maintain an action in any court of competent jurisdiction for specific
performance of any of the covenants and agreements contained herein or in any of
the other Loan Documents, may obtain the aid and direction of the court in the
performance of any of the covenants and agreements contained herein or therein,
and may obtain orders or decrees directing the same and, in the case of any sale
under the Security Instrument, directing, confirming or approving Lender's
actions or, if applicable, the trustee's actions.
8.4 REMEDIES AS TO PROJECT DOCUMENTS.
From and after the occurrence of an Event of Default, Lender shall have the
right (and Borrower hereby irrevocably constitutes and appoints Lender as its
attorney-in-fact, which power is coupled with an interest and is deemed to be
non-cancelable, with full power of substitution, to do so), but not the
obligation, to (a) demand, receive and enforce Borrower's rights with respect to
any or all the Project Documents, (b) give appropriate receipts, releases and
satisfactions for and on behalf of Borrower with respect to any of the Project
Documents, (c) do any and all acts with respect to any of the Project Documents
in the name of Borrower or in the name of Lender with the same force and effect
as Borrower could do if the assignment in ARTICLE 4 had not been made, (d) take
such action as Lender may from time to time deem necessary in its sole
discretion to cure any default by Borrower under any of the Project Documents or
to protect the rights of Borrower thereunder or the rights of Lender thereunder
as the assignee of Borrower, and (e) perform and discharge any obligation,
covenant, condition and agreement of Borrower under any of the Project
Documents.
ARTICLE 9
MISCELLANEOUS PROVISIONS
9.1 NONFOREIGN STATUS.
The Nonforeign Status Statutes provide that a transferee of a U.S. real
property interest, or Governing State property interest, as the case may be,
must withhold tax under the circumstances described therein. To inform Lender
that the withholding of tax will not be required in the event of the disposition
of the Project pursuant to the terms of the Security Instrument, Borrower hereby
certifies, under penalty of perjury, that: (a) Borrower is not a foreign
corporation, foreign partnership, foreign trust or foreign estate, as those
terms are defined in the Nonforeign Status Statutes; and (b) Borrower's U.S.
employer identification number is the Tax Identification Number; (c) Borrower's
principal place of business is at the address set forth in SECTION 9.10, and (d)
Borrower is qualified to do business in the Governing State. Lender may disclose
the contents of this SECTION 9.1 to the Internal Revenue Service or any other
Governmental Agency and Borrower acknowledges that any false statement contained
herein could be punished by fine, imprisonment or both. Within ten (10) days
after Lender's written request, Borrower shall execute and deliver to Lender
further certificates, which shall be signed under penalty of perjury, as Lender
shall reasonably require in connection with the certifications set forth herein.
The covenant set forth herein shall survive the foreclosure of the lien of the
Security Instrument or acceptance of a deed in lieu or in aid thereof.
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EXHIBIT 4.13
9.2 ASSIGNMENTS AND PARTICIPATIONS IN LOAN AND NOTE.
Lender may assign its rights and delegate its obligations under this
Agreement or any of the other Loan Documents and/or the Environmental Indemnity
and further may assign, or sell participations in, all or any part of the Loan,
the Loan Documents and/or the Environmental Indemnity, or any other interest
herein or in the Note to any Person, all without notice to or the consent of
Borrower. To the extent of any such assignment, Lender shall be relieved of its
obligations with respect to the Loan and the assignee shall have the same
rights, benefits and obligations as it would if it were Lender hereunder and a
holder of the Note. Lender may furnish any information (including, without
limitation, financial information) concerning the Project, the Collateral,
Borrower, the Principal Parties and any of their assets to third parties from
time to time for legitimate business purposes.
9.3 EXPENSES.
Borrower agrees to pay, within ten (10) days after written demand by
Lender, all reasonable costs and expenses (including, without limitation,
reasonable attorneys' fees and costs, fees of any consultants, and fees for any
environmental audits, appraisal, inspections or other review required by Lender)
incurred by Lender in connection with the Loan or the Loan Documents, the
enforcement of any of the Secured Obligations, the enforcement of any of
Lender's rights and remedies under the Loan Documents, the collection of any
payments owing to Lender hereunder or under any of the other Loan Documents,
whether or not such enforcement and collection includes the filing of a lawsuit,
or the retaking, holding, preparing for sale or selling the Project or the
Collateral or any portion thereof or any interest therein. Such costs and
expenses shall include, without limitation, Lender's reasonable attorneys' fees
and costs, including without limitation reasonable attorneys' fees and costs
incurred by Lender in connection with any insolvency, bankruptcy,
reorganization, arrangement or other similar proceedings involving Borrower or
any of the Principal Parties which in any way affect the exercise by Lender of
its rights and remedies hereunder, under any of the other Loan Documents, at law
or in equity.
9.4 INTENTIONALLY DELETED.
9.5 INDEMNITY.
Without limiting any other provision of the Loan Documents, Borrower hereby
indemnifies and agrees to defend and hold harmless the Indemnitees for, from and
against any and all expenses, loss, claims, damage or liability, including,
without limitation, reasonable consultants', architects', engineers' and
attorneys' fees and costs by reason of: (a) the construction of any improvements
on the Project, (b) any capital improvements, other work or things done in, on
or about the Project or any part thereof, (c) any use, nonuse, misuse,
possession, occupation, alteration, operation, maintenance or management of the
Project or any part thereof or any street, drive, sidewalk, curb passageway or
space comprising a part thereof or adjacent thereto, (d) any negligence or
willful act or omission on the part of Borrower or any of the Principal Parties
or their respective agents, contractors, servants, employees, licensees or
invitees, (e) any accident, injury (including death) or damage to any person or
property occurring in, on or about the Project or any part thereof, (f) any Lien
or claim which may be alleged to have arisen on or against the Project or any
part thereof or any liability asserted against Lender with respect thereto, (g)
any tax attributable to the execution, delivery, filing or recording of the
Security Instrument, the Note or the other Loan Documents, (h) any contest due
to Borrower's actions or failure to act, (i) any default under the Note or the
other Loan Documents, or (j) any claim by or liability to any contractor or
subcontractor performing work or any party supplying materials in connection
with the Project.
9.6 WAIVER OF OFFSET.
All sums payable by Borrower pursuant to any of the Loan Documents shall be
paid without notice, demand, counterclaim, setoff, deduction or defense and
without abatement, suspension, deferment, diminution or reduction, and the
obligations and liabilities of Borrower under the Loan Documents shall in no way
be released, discharged or otherwise affected (except as expressly provided in
the Loan Documents) by reason of: (a) any Casualty Event (as defined in the
Security Instrument) or
31
EXHIBIT 4.13
any Condemnation Event (as defined in the Security Instrument) affecting the
Project or any part thereof; (b) any restriction or prevention of or
interference by any third party with any use of the Project or any part thereof;
(c) any title defect or encumbrance or any eviction from the Project or any part
thereof by title paramount or otherwise; (d) any bankruptcy, insolvency,
reorganization, composition, adjustment, dissolution, liquidation or other like
proceeding relating to Lender, or any action taken with respect to any of the
Loan Documents by any trustee or receiver of Lender, or by any court, in any
such proceeding; (e) any claim which Borrower has or might have against Lender;
(f) any default or failure on the part of Lender to perform or comply with any
of the terms hereof or of any other agreement with Borrower or any of the
Principal Parties; or (g) any other occurrence whatsoever, whether similar or
dissimilar to the foregoing; whether or not Borrower shall have notice or
knowledge of any of the foregoing. Except as expressly provided herein, Borrower
waives all rights now or hereafter conferred by statute or otherwise to any
abatement, suspension, deferment, diminution or reduction of any of the Secured
Obligations.
9.7 APPROVALS, AMENDMENTS AND WAIVERS.
All approvals and consents required or allowed to be given by Lender under
this Agreement and the other Loan Documents must be in writing to be effective.
This Agreement and the other Loan Documents may only be modified in writing
signed by all of the parties hereto or thereto or their respective successors
and assigns. No waiver of any provision of this Agreement or of any of the other
Loan Documents, or consent to any departure by Borrower therefrom, shall in any
event be effective without the written agreement of Lender. Any waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which it was given. Except as expressly required by the terms of the
Loan Documents, no notice to or demand on Borrower or any of the Principal
Parties in any case shall entitle Borrower or any of the Principal Parties to
any other or further notice or demand in similar or other circumstances.
9.8 WAIVER OF JURY TRIAL.
BORROWER AND LENDER EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY CONTROVERSY
OR CLAIM, WHETHER ARISING IN TORT OR CONTRACT OR BY STATUTE OR LAW, BASED
HEREON, OR ARISING OUT OF, UNDER OR IN CONJUNCTION WITH THIS AGREEMENT OR ANY OF
THE OTHER LOAN DOCUMENTS (INCLUDING, WITHOUT LIMITATION, THE VALIDITY,
INTERPRETATION, COLLECTION OR ENFORCEMENT HEREOF OR THEREOF), OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF
ANY PARTY IN CONNECTION HEREWITH OR THEREWITH. EACH PARTY ACKNOWLEDGES AND
AGREES THAT NO REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY PERSON
TO INDUCE THIS WAIVER OF TRIAL BY JURY OR TO IN ANY WAY MODIFY OR NULLIFY ITS
EFFECT. THIS PROVISION IS A MATERIAL INDUCEMENT FOR BORROWER'S AND LENDER'S
ENTERING INTO THE LOAN DOCUMENTS AND THE PARTIES WOULD NOT HAVE ENTERED INTO THE
LOAN DOCUMENTS WITHOUT THIS WAIVER. LENDER AND BORROWER ARE EACH HEREBY
AUTHORIZED TO FILE A COPY OF THIS SECTION 9.8 IN ANY PROCEEDING AS CONCLUSIVE
EVIDENCE OF THIS WAIVER OF JURY TRIAL.
9.9 SUBMISSION OF LOAN DOCUMENTS.
The submission of this Agreement, any of the other Loan Documents or the
Environmental Indemnity to Borrower, Guarantor or any of the other Signature
Parties or their agents or attorneys for review or signature does not constitute
a commitment by Lender to make the Loan to Borrower, and the Loan Documents and
the Environmental Indemnity shall have no binding force or effect unless and
until they are executed and delivered by each Signature Party and Lender and all
of the conditions set forth in SECTION 3.1 have been satisfied.
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EXHIBIT 4.13
9.10 NOTICES.
Any notice, or other document or demand, required or permitted under this
Agreement or any of the other Loan Documents shall be in writing addressed to
the appropriate address set forth below and shall be deemed delivered upon the
earliest of (a) actual receipt, (b) the next Business Day after the date when
sent by recognized overnight courier for next Business Day delivery, or (c) the
second Business Day after the date when sent by certified mail, postage prepaid.
Any party may, from time to time, change the address at which such written
notice or other documents or demands are to be sent, by giving the other party
written notice of such change in the manner hereinabove provided.
To Borrower: AAR Wood Xxxx LLC,
0000 Xxxxx Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxxxxxx
To Lender: Fremont Investment & Loan
000 X. Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Commercial Real Estate Asset Management
Loan No. 950114501
9.11 SURVIVAL OF WARRANTIES AND CERTAIN AGREEMENTS.
All agreements, indemnities, representations and warranties made herein and
in the other Loan Documents shall survive the execution and delivery of this
Agreement, the making of the Loan hereunder and the execution and delivery of
the Note. All representations and warranties made in this Agreement or in any of
the other Loan Documents shall further survive any and all investigations and
inquiries made by Lender. Notwithstanding anything in this Agreement or the
other Loan Documents or implied by law to the contrary, any indemnities made by
Borrower in the Loan Documents shall survive the payment of the Loan, the
satisfaction of the Secured Obligations, and/or the termination of this
Agreement or the other Loan Documents.
9.12 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of Lender or any holder of the Note or
portion thereof in the exercise of any power, right or privilege hereunder or
under the Note or any of the other Loan Documents shall impair such power, right
or privilege or be construed to be a waiver of any default or acquiescence
therein, nor shall any single or partial exercise of any such power, right or
privilege preclude other or further exercise thereof or of any other right,
power or privilege. All rights and remedies existing under this Agreement and
the other Loan Documents are separate, distinct and cumulative to, and not
exclusive of, any rights or remedies otherwise available at law or in equity. No
act of Lender under any of the Loan Documents shall be construed as an election
to proceed under any one provision to the exclusion of any other provision,
notwithstanding anything in the Loan Documents to the contrary. Borrower
expressly waives all right to the benefit of any statute of limitations and any
moratorium, reinstatement, marshaling, forbearance, extension, redemption,
valuation, or appraisement now or hereafter provided by federal or state law, as
a defense to any demand against Borrower to the fullest extent permitted by law.
9.13 SURVIVAL OF OBLIGATIONS UPON TERMINATION OF AGREEMENT.
No termination or cancellation (regardless of cause or procedure) of this
Agreement or any of the other Loan Documents shall in any way affect or impair
the powers, obligations, duties, rights, and liabilities of Borrower or Lender
relating to (a) any transaction or event occurring prior to such termination or
cancellation, or (b) any of the undertakings, agreements, covenants,
indemnities, warranties and representations of Borrower or Lender contained in
this Agreement or any of the other Loan Documents.
33
EXHIBIT 4.13
9.14 DISBURSEMENTS IN EXCESS OF LOAN AMOUNT.
In the event the total disbursements by Lender exceed the amount of the
Loan set forth herein, the total of all disbursements shall, to the extent
permitted by the laws of the Governing State, constitute part of the Secured
Obligations and be secured by the Security Instrument and other Loan Documents.
All other sums expended by Lender pursuant to this Agreement or any of the other
Loan Documents shall be deemed to have been disbursed to Borrower and shall be
secured by the Loan Documents.
9.15 SEVERABILITY.
If any term of this Agreement or any of the other Loan Documents or the
application thereof to any Person or circumstances, shall, to any extent, be
invalid or unenforceable, the remainder of this Agreement or other Loan Document
or the application of such term to Persons or circumstances other than those as
to which it is invalid or unenforceable, shall not be affected thereby, and each
term of this Agreement or other Loan Document shall be valid and enforceable to
the fullest extent.
9.16 RULES OF CONSTRUCTION.
Where the identity of the parties to this Agreement or any of the other
Loan Documents or the circumstances make it appropriate, the masculine gender
includes the feminine and/or neuter, and the singular number includes the
plural. Article and Section headings in this Agreement and the other Loan
Documents are included for convenience of reference only and shall not
constitute a part of this Agreement or such other Loan Documents for any other
purpose or be given any substantive effect. The recitals to this Agreement and
to each of the other Loan Documents are incorporated herein and therein and made
a part hereof and thereof. All exhibits to each of the Loan Documents shall
constitute a part of the applicable Loan Documents. Borrower and Lender have
each had an opportunity to review and negotiate the terms of this Agreement and
the other Loan Documents; accordingly, the rule requiring that language be
construed against drafting party shall not be applicable to this Agreement or
the other Loan Documents.
9.17 APPLICABLE LAW.
This Agreement and the other Loan Documents shall be governed by, and
construed and enforced in accordance with, the laws of the Governing State.
9.18 SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and assigns. Borrower's rights
and obligations or any interest hereunder or under any of the other Loan
Documents may not be assigned, including, without limitation, assigned for
security purposes, and any purported assignment shall be null and void AB
INITIO. As used herein, and in the other Loan Documents, "Lender" (or similar
references to the lender) shall include all holders of the Note, including,
without limitation, pledgees of the Note, whether or not named herein or
therein. In exercising any rights hereunder or under any of the other Loan
Documents or taking any actions provided for herein or therein, Lender may act
through its employees, agents or independent contractors authorized by Lender.
9.19 DISCLOSURE OF INFORMATION.
Borrower hereby acknowledges and agrees that upon the request of any
partner, member or shareholder or other owner of Borrower, as applicable, Lender
may disclose to such party any information (including, without limitation,
financial information) relating to the Loan and Borrower's performance of its
obligations under the Loan Documents. Borrower hereby indemnifies and agrees to
defend and hold harmless the Indemnitees for, from and against any and all
expenses, loss, claims, damage or liability,
34
EXHIBIT 4.13
including, without limitation, reasonable attorneys' fees and costs, arising by
reason of any disclosure of information by Lender under this SECTION 9.19.
9.20 DISCLAIMER BY LENDER.
Except for obligations expressly assumed by Lender in writing, in its sole
discretion and without any obligation, after the occurrence of an Event of
Default, Lender shall not be liable to any contractor, subcontractor, supplier,
laborer, architect, engineer or any other party for services performed or
materials supplied in connection with the Project. Lender shall not be liable
for any debts or claims accruing in favor of any such parties against Borrower
or others or against the Property or the Project. No disbursement of Loan
proceeds directly to any contractor, subcontractor, supplier, laborer,
architect, engineer or any other party for services performed or materials
supplied shall create, or shall be deemed or construed to create, any
third-party beneficiary status in favor of such party or recognition of the same
by Lender. Borrower is not and shall not be an agent of Lender for any purpose.
Lender is not a joint venture partner with Borrower, Guarantor or any of the
Principal Parties.
9.21 COUNTERPARTS.
This Agreement and the other Loan Documents may be executed in any number
of counterparts, each of which when so executed and delivered shall be deemed to
be an original and all of which counterparts taken together shall constitute but
one and the same instrument. Signature and, if applicable, acknowledgment pages,
may be detached from the counterparts and attached to a single copy of the
applicable document to physically form one document, which may be recorded if
applicable.
9.22 ENTIRE AGREEMENT.
The Loan Documents and the Environmental Indemnity set forth the entire
understanding between Borrower and Lender relative to the Loan and the same
supersede all prior agreements and understandings relating to the subject matter
hereof or thereof.
9.23 TIME IS OF THE ESSENCE.
Time is strictly of the essence of this Agreement and the other Loan
Documents.
9.24 NO THIRD PARTY BENEFICIARIES.
This Agreement and the other Loan Documents are made and entered into for
the sole protection and benefit of the parties hereto and thereto, and, except
as provided in SECTION 9.18 of this Agreement and in SECTION 5 of the Assignment
of Rents, no other person or entity shall be a direct or indirect beneficiary
of, or shall have any direct or indirect cause of action or claim as a
beneficiary in connection with, this Agreement or any of the other Loan
Documents.
9.25 CONSENT TO JURISDICTION.
Borrower and Lender each hereby consent to the jurisdiction of any state or
federal court located within the Governing State in any suit, action or
proceeding based hereon or arising out of, under or in connection with this
Agreement or any of the other Loan Documents (and further agree not to assert or
claim that such venue is inconvenient or otherwise inappropriate or unsuitable),
and waive personal service of any and all process upon them and consent that all
service of process be made by certified mail to the applicable address set forth
herein.
9.26 BROKERAGE COMMISSION.
Borrower hereby indemnifies and agrees to defend and hold the Indemnitees
harmless for, from and against any and all expenses, loss, claims, damage or
liability for any commissions, fees, charges or
35
EXHIBIT 4.13
other compensation claimed to be due by any mortgage or real estate broker,
Realtor, agent or finder with whom it, or any of its Affiliates, agents,
employees or representatives have had or have allegedly had any dealings in
connection with the Commitment Letter or the making of the Loan.
9.27 CREDIT AGREEMENT.
Borrower expressly agrees that for purposes of this Agreement and each
and every other Loan Document: (a) this Agreement and each and every other Loan
Document shall be a "credit agreement" under the Illinois Credit Agreements Act,
815 ILCS 160/0.01 ET SEQ. (the "Act"); (b) the Act applies to this transaction
including, but not limited to, the execution of this Agreement and each and
every other Loan Document; and (c) any action on or in any way related to this
Agreement and each and every other Loan Document shall be governed by the Act.
9.28 REPRESENTATION BY COUNSEL.
Borrower hereby represents that it has been represented by competent
counsel of its choice in the negotiation and execution of this Agreement and the
other Loan Documents; that it has read and fully understood the terms hereof;
that Borrower and its counsel have been afforded an opportunity to review,
negotiate and modify the terms of this Agreement, and that it intends to be
bound hereby. In accordance with the foregoing, the general rule of construction
to the effect that any ambiguities in a contract are to be resolved against the
party drafting the contract shall not be employed in the construction and
interpretation of this Agreement or any other Loan Document.
[remainder of page intentionally left blank]
36
EXHIBIT 4.13
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
Borrower and Lender.
BORROWER:
AAR WOOD XXXX LLC,
an Illinois limited liability company
By: AAR Corp., a Delaware corporation
its sole member and Manager
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxxxxx
----------------------
Title: Vice President
---------------------
LENDER:
FREMONT INVESTMENT & LOAN,
a California industrial bank
By: /s/ XXXX XXXXXXXXX
-----------------------------
Its: Vice President
----------------------------
EXHIBIT 4.13
EXHIBIT A
DESCRIPTION OF PROPERTY
LOT 1 IN CHANCELLORY BUSINESS PARK RESUBDIVISION NO. 2, BEING A RESUBDIVISION IN
XXXXXXX 0, XXXXXXXX 00 XXXXX, XXXXX 00, XXXX OF THE THIRD PRINCIPAL MERIDIAN,
ACCORDING TO THE PLAT THEREOF RECORDED JANUARY 26, 1989 AS DOCUMENT R89-0010291,
IN DU PAGE COUNTY, ILLINOIS.
A-1
EXHIBIT 4.13
EXHIBIT B
DESCRIPTION OF PERSONAL PROPERTY
All of Borrower's right, title and interest, now or hereafter acquired, in
and to the following:
(a) All personal property, wherever located, including, without
limitation, all goods, supplies, equipment, furniture, furnishings, fixtures,
machinery, inventory, farm products and construction materials which Borrower
now or hereafter owns or in which Borrower now or hereafter acquires an interest
or right, including, without limitation, those which are now or hereafter
located on or affixed to the Project or used or useful in the operation, use or
occupancy thereof or the construction of any improvements thereon, including,
without limitation, any interest of Borrower in and to personal property which
is leased or subject to any superior security interest, or which is being
manufactured or assembled for later installation into the improvements now or
hereafter located at the Project, and all books, records, leases and other
documents, of whatever kind or character, relating to the Project;
(b) All fees, income, rents, issues, profits, earnings, receipts,
royalties and revenues which, after the date hereof and while any portion of the
Secured Obligations remains unpaid, may accrue from such goods, fixtures,
furnishings, equipment and building materials or any part thereof or from the
Project or any part thereof, or which may be received or receivable by Borrower
from any hiring, using, letting, leasing, subhiring, subletting, or subleasing
therefor;
(c) All of Borrower's present and future rights to receive payments of
money, services or property, including, without limitation, rights to all
deposits from tenants of the Project, deposits from prospective purchasers of
the Project, capital contributions from the shareholders or constituent partners
or members of Borrower, as applicable, amounts payable on account of the sale of
partnership or membership interests or stock of Borrower, as applicable,
accounts, accounts receivable, deposit accounts, chattel paper, notes, drafts,
contract rights, instruments, financial assets, investment property, general
intangibles, documents, letter of credit rights, payment intangibles, money, and
principal, interest and payments due on account of goods sold, services
rendered, loans made or credit extended, together with title or interest in all
documents evidencing or securing the same.
(d) All other intangible property and rights relating to the Project or
the operation thereof, or used in connection therewith, including but not
limited to all governmental permits relating to construction or other activities
on the Project, all names under or by which the Project may at any time be
operated or known, all rights to carry on business under any such names, or any
variant thereof, all trade names and trademarks relating in any way to the
Project, goodwill in any way relating to the Project, and all permits, licenses,
franchises, approvals, variances and land use entitlements relating in any way
to, or to the occupancy, operation, ownership and use of, the Project;
(e) All (i) agreements now or hereafter in effect with any contractor,
architect or engineer, including, without limitation, any design architect,
landscape architect, civil engineer, electrical engineer, environmental
engineer, soils engineer or mechanical engineer, in connection with the Project;
(ii) other agreements now or hereafter in effect with any property manager or
broker with respect to the management, leasing, or operation of the Project;
(iii) as-built plans and specifications and surveys for the Project; (iv)
Permits; and (v) renewals, substitutions, extensions, modifications or
replacements of any of the foregoing.
(f) All judgments, commercial tort claims, other claims, settlements of
claims and causes of action under any legal proceeding relating to the Project
or the ownership, use, occupancy or operation thereof;
(g) All proceeds from sale or disposition of the Personal Property;
B-1
EXHIBIT 4.13
(h) Borrower's rights under all insurance policies covering the Project or
any of the Personal Property (whether or not Borrower is required to maintain
such insurance under the terms of the Loan Documents), and all proceeds, loss
payments and premium refunds payable regarding the same;
(i) All reserves, deferred payments, deposits, refunds, cost savings and
payments of any kind relating to the construction of any improvements on the
Project;
(j) All water stock relating to the Project;
(k) All causes of action, commercial tort claims, other claims,
compensation and recoveries for any damage to or condemnation or taking of the
Project or the Personal Property, or for any conveyance in lieu thereof, whether
direct or consequential, or for any damage or injury to the Project or the
Personal Property, or for any loss or diminution in value of the Project or the
Personal Property;
(l) All architectural, structural, mechanical, electrical, civil and other
engineering plans and specifications prepared for construction of improvements
or extraction of minerals or gravel from the Project and all studies, data and
drawings related thereto, and all contracts and agreements of Borrower relating
to such plans and specifications or such studies, data and drawings or to the
construction of improvements on or extraction of minerals or gravel from the
Project;
(m) All of Borrower's present and future rights in and to all refunds,
rebates, reimbursements, reserves, deferred payments, deposits, cost savings,
governmental subsidy payments, governmentally-registered credits (such as
emissions reduction credits), other credits, waivers and payments, whether in
cash or kind, due from or payable by any Governmental Agency or any insurance or
utility company relating to any or all of the Project, any improvements thereon
or any of the collateral described herein or arising out of satisfaction of any
condition imposed upon or the obtaining of any approvals for the development of
the Project or the improvements thereon;
(n) All of Borrower's present and future rights in and to all refunds,
rebates, reimbursements, credits and payments of any kind due from or payable by
any Governmental Agency or other entity for any taxes, special taxes,
assessments, or similar governmental or quasi-governmental charges or levies
imposed upon Borrower with respect to the Project, any improvements thereon or
any of the collateral described herein or arising out of the satisfaction of any
condition imposed upon or the obtaining of any approvals for the development of
the Project or the improvements thereon;
(o) All Borrower's rights in proceeds of the Loan;
(p) All Borrower's rights to receive the proceeds of any "take-out" or
permanent financing or commitment to provide such financing;
(q) All of Borrower's present and future books and records of every kind
or nature, including without limitation, statements, correspondence, memoranda,
files and other data relating to the foregoing, together with the tapes, disks,
diskettes and other data and software, computers, storage media and devices,
file cabinets or containers in or on which the foregoing are stored (including
any rights of Borrower with respect to the foregoing maintained with or by any
other person); and
(r) All proceeds and products of any of the foregoing (and proceeds and
products of proceeds and products).
All terms used herein which are defined in the Governing State Uniform
Commercial Code shall have the same meanings when used herein, unless the
context requires otherwise.
B-2
