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EXHIBIT 10.12
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AMENDED AND RESTATED
SECURED LOAN AGREEMENT
dated as of May 10, 2000
among
CRESCENT REAL ESTATE FUNDING VIII, L.P.,
as Borrower,
UBS AG, STAMFORD BRANCH,
as Lender,
FLEET NATIONAL BANK,
as Lender,
FLEETBOSTON XXXXXXXXX XXXXXXXX INC.,
as Syndication Agent,
CITICORP REAL ESTATE, INC.,
as Documentation Agent
and
UBS AG, STAMFORD BRANCH,
as Administrative Agent
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AMENDED AND RESTATED SECURED LOAN AGREEMENT dated as of May 10, 2000
among CRESCENT REAL ESTATE FUNDING VIII, L.P., a limited partnership organized
and existing under the laws of the State of Delaware ("Borrower"), UBS AG,
STAMFORD BRANCH (in its individual capacity and not as Administrative Agent,
"UBS"), FLEET NATIONAL BANK, as successor to BankBoston, N.A. ("Fleet"), the
other lenders (if any) signatory hereto, FLEETBOSTON XXXXXXXXX XXXXXXXX INC., as
Syndication Agent, CITICORP REAL ESTATE, INC., as Documentation Agent, and UBS
AG, STAMFORD BRANCH, as administrative agent for Lenders (in such capacity,
together with its successors in such capacity, "Administrative Agent"; UBS,
Fleet, the other lenders (if any) signatory hereto and such other lenders who
from time to time become Lenders pursuant to Section 3.07, 10.22 or 12.05, each
a "Lender" and collectively, "Lenders").
Borrower, as Borrower, UBS and Fleet , as Lenders, and Administrative
Agent are parties to a Secured Loan Agreement, dated as of January 31, 2000 (as
amended by letter agreement, dated as of March 31, 2000, the "Prior Loan
Agreement"), providing for the making of the Loan. The Initial Advance was made
on February 4, 2000. As part of the Initial Advance, Tranches B and C of the
Loan were fully disbursed. All the conditions precedent to the making of the
Initial Advance set forth in Section 4.01 heretofore have been satisfied or
waived. Subsequent to the making of the Initial Advance, certain Properties were
released and, in connection therewith, Tranche C was partially repaid, so that,
as of the date hereof, the outstanding principal amounts under Tranche B and
Tranche C (as reallocated pursuant to this Amended and Restated Secured Loan
Agreement) are $150,000,000 and $333,854,054, respectively. The Properties that
were released, and which therefore no longer constitute Properties hereunder,
are the Properties identified on SCHEDULE A as Central Park Plaza, Walnut Green,
1615 Poydras, Amberton Tower, Concourse Office Park and One Preston Park.
(Central Park Plaza, Walnut Green and 1615 Poydras also no longer constitute
Disposition Properties.) The properties that constitute Properties as of the
date hereof are listed on SCHEDULE A-1.
Borrower, Lenders and Administrative Agent desire to make certain
modifications to the Prior Loan Agreement pursuant to this Amended and Restated
Secured Loan Agreement, which amends and restates the Prior Loan Agreement in
its entirety. Borrower represents and warrants that all of the representations
and warranties contained herein and in the other Loan Documents are true and
correct as of the date hereof as though remade as of the date hereof.
NOW THEREFORE, in consideration of the foregoing and the mutual
promises and agreements herein contained, Borrower, Administrative Agent and
each Lender agree as follows:
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ARTICLE I
DEFINITIONS AND CONSTRUCTION OF TERMS
Section 1.01 Definitions. As used in this Agreement the following terms
have the following meanings:
"Additional Costs" has the meaning specified in Section 3.01.
"Administrative Agent" has the meaning specified in the preamble.
"Administrative Agent's Office" means Administrative Agent's office
located as set forth on its signature page hereof, or such other address in the
United States as Administrative Agent may designate by notice to Borrower and
Lenders.
"Affected Lender" has the meaning specified in Section 3.07.
"Affected Loan" has the meaning specified in Section 3.04.
"Affiliate" means, with respect to any Person (the "first Person"), any
other Person (1) which directly or indirectly controls, or is controlled by, or
is under common control with the first Person or (2) 10% or more of the
beneficial interest in which is directly or indirectly owned or held by the
first Person. The term "control" means the possession, directly or indirectly,
of the power, alone, to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract, or otherwise.
"Agreement Regarding Encumbrances" means that certain agreement dated
the Closing Date wherein CEI LP makes certain covenants and agreements as owner
and contract seller of those Properties identified on SCHEDULE A as Walnut
Green, AT&T Building, 1615 Poydras and Central Park Plaza.
"Applicable Lending Office" means, for each Lender and for its LIBOR
Loan or Base Rate Loan, as applicable, the lending office of such Lender (or of
an Affiliate of such Lender) designated as such on its signature page hereof or
in the applicable Assignment and Assumption Agreement, or such other office of
such Lender (or of an Affiliate of such Lender) as such Lender may from time to
time specify to Administrative Agent and Borrower as the office by which its
LIBOR Loan or Base Rate Loan, as applicable, is to be made and maintained.
"Applicable Margin" means (1) with respect to Base Rate Loans under
Tranches A, B and C, .50% per annum, (2) with respect to LIBOR Loans under
Tranches A and B, 2.50% per annum and (3) with respect to the LIBOR Loans under
Tranche C, 2.75% per annum.
"Assignee" has the meaning specified in Section 12.05.
"Assignment and Assumption Agreement" means an Assignment and
Assumption Agreement, substantially in the form of EXHIBIT E, pursuant to which
a
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Lender assigns and an Assignee assumes rights and obligations in accordance with
Section 12.05.
"Assignments of Loan Rights" means those certain Collateral Assignments
of Notes, Liens and Other Loan Rights dated the Closing Date from, respectively,
Borrower and SMA to Administrative Agent, as agent for Lenders, assigning the
applicable Collateral Notes and Mortgages and various rights and documents
incidental thereto, as security for the payment and performance of the
Obligations.
"Assignment of Sales Proceeds" means that certain assignment dated the
Closing Date from CEI LP to Administrative Agent, as agent for Lenders,
assigning its rights to the sales proceeds under the Sales Contracts (other than
the Sales Contract regarding Woodlands), as security for the payment and
performance of the Obligations.
"Assignment Regarding Hedging" means the Assignment and Agreement (Re:
Hedging Product) from Borrower to Administrative Agent dated as of the date
hereof.
"Authorization Letter" means a letter agreement executed by Borrower in
the form of EXHIBIT A.
"Base Rate" means, for any day, the higher of (1) the Federal Funds
Rate for such day plus .50% or (2) the Prime Rate for such day.
"Base Rate Loan" means all or any portion (as the context requires) of
a Lender's Loan which shall accrue interest at a rate determined in relation to
the Base Rate.
"Borrower" has the meaning specified in the preamble.
"Borrower's Consolidating Financial Statements" means the consolidating
balance sheet and related statement of operations, accumulated deficiency in
assets and cash flows (which shall specify the respective contributions of each
of the individual Properties), and footnotes thereto, of Borrower, prepared in
accordance with GAAP.
"Borrower's Principals" means those individuals who are the officers
and directors of Borrower or Guarantor at any applicable time.
"Business Day" means (1) any day on which commercial banks are not
authorized or required to close in New York City and (2) whenever such day
relates to a LIBOR Loan, an Interest Period with respect to a LIBOR Loan, or
notice with respect to a LIBOR Loan, a day on which dealings in Dollar deposits
are also carried out in the London interbank market and banks are open for
business in London.
"Capital Lease" means any lease which has been or should be capitalized
on the books of the lessee in accordance with GAAP.
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"CCRH" means Crescent Commercial Realty Holdings, L.P., a single
purpose Delaware limited partnership, an Affiliate of Borrower and wholly owned
by CEI LP, which is the owner of Xxxxxxxx Xxxx Center.
"CEI" means Crescent Real Estate Equities Company, a Texas real estate
investment trust which directly and indirectly, owns approximately 90% of the
beneficial interest in, and controls, CEI LP.
"CEI LP" means Crescent Real Estate Equities Limited Partnership, a
Delaware limited partnership which owns and controls 100% of Borrower.
"CEI LP's Collateral Assignment" means the Collateral Assignment by CEI
LP to Administrative Agent for the benefit of Lenders with respect to CEI LP's
Interest in The Woodlands.
"CEI LP's Interest in The Woodlands" mean, those partnership
interest(s) held by CEI LP in Woodlands Office Equities, which partnership
interest(s) are more particularly identified in the Partnership Assignment
regarding Woodlands.
"CEI Ltd." means Crescent Real Estate Equities, Ltd., a Delaware
corporation, the sole general partner of CEI LP.
"Change in Control" means the occurrence of any of the following: (i)
any Person (including a Person's Affiliates and associates) or group (as that
term is understood under Section 13(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act") and the rules and regulations thereunder) shall
have acquired beneficial ownership (within the meaning of Rule 13d-3 under the
Exchange Act) of a percentage (based on voting power, in the event different
classes of stock shall have different voting powers) of the voting stock of CEI
equal to at least thirty percent (30%); or (ii) as of any date a majority of the
Board of Directors of CEI consists of individuals who were not either (A)
directors of CEI as of the corresponding date of the previous year, (B) selected
or nominated to become directors by the Board of Directors of CEI of which a
majority consisted of individuals described in clause (ii)(A) above, or (C)
selected or nominated to become directors by the Board of Directors of CEI of
which a majority consisted of individuals described in clause (ii)(A), above and
individuals described in clause (ii)(B), above.
"Closing Date" means January 31, 2000.
"Code" means the Internal Revenue Code of 1986.
"Collateral" means, collectively, the Mortgaged Property under each
Mortgage, the collateral encumbered by the Collateral Assignments and any other
collateral now or hereafter given for the Loans.
"Collateral Assignments" means, collectively, the Partnership
Assignments, the Assignments of Loan Rights and the Assignment of Sale Proceeds
and Assignment Regarding Hedging.
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"Collateral Notes and Mortgages" means, collectively, those certain
notes (secured and unsecured) and mortgages or deeds of trust owned and held by
(1) Borrower with respect to Xxxxxxxx Xxxx Center and the Property identified on
SCHEDULE A as Three Westlake and (2) SMA with respect to Spectrum Centre, which
notes and mortgages or deeds of trust are more particularly identified in the
Assignments of Loan Rights.
"Commitment Fee Rate" means the rate per annum determined, at any time,
based on the then ratio (expressed as a percentage) of the outstanding principal
balance of Tranche A to the uncancelled Tranche A Loan Commitment in accordance
with the following table. Any change in said ratio which causes it to move into
a different range on the table shall effect an immediate change in the
Commitment Fee Rate.
Ratio of outstanding Tranche A balance to Commitment Fee
Uncancelled Tranche A Loan Commitment Rate (% per annum)
------------------------------------- ------------------
Less than 25% .50%
Greater than or equal to 25%, but less than 50% .375%
Greater than or equal to 50%, but less than 75% .25%
75% or greater .15%
"Continue", "Continuation" and "Continued" refer to the continuation
pursuant to Section 2.12 of a LIBOR Loan as a LIBOR Loan from one Interest
Period to the next Interest Period.
"Convert", "Conversion" and "Converted" refer to a conversion pursuant
to Section 2.12 of a Base Rate Loan into a LIBOR Loan or a LIBOR Loan into a
Base Rate Loan, each of which may be accompanied by the transfer by a Lender (at
its sole discretion) of all or a portion of its Loan from one Applicable Lending
Office to another.
"CWH" means Crescent Washington Harbour, LLC, a single purpose Delaware
limited liability company, an Affiliate of Borrower and wholly owned by CEI LP,
which is the owner of both the fee and ground leasehold interests in Washington
Harbour.
"Debt" means all (1) indebtedness or liability for borrowed money, or
evidenced by debt securities, debentures, acceptances, notes or other similar
instruments, and any accrued interest and fees relating thereto, (2) liabilities
under profit payment agreements or in respect of obligations to redeem,
repurchase or exchange any securities or to pay dividends in respect of any
preferred stock (but only to the extent that the Person whose Debt is being
measured shall be contractually obligated to pay the same), or for the deferred
purchase price of property or services (including trade obligations), (3)
obligations as lessee under Capital Leases, (4) current liabilities in respect
of unfunded vested benefits under any Plan, (5) obligations under letters of
credit issued for the account of any Person, (6) obligations arising under
bankers' or trade acceptance facilities, (7) guarantees, endorsements (other
than for collection or deposit in the
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ordinary course of business), and other contingent obligations to purchase any
of the items included in this definition, to provide funds for payment, to
supply funds to invest in any Person, or otherwise to assure a creditor against
loss, (8) obligations under indemnities but only at such time as a claim shall
have been made thereunder, (9) obligations secured by any Lien on property owned
by the Person whose Debt is being measured, whether or not the obligations have
been assumed, (10) indebtedness, obligations or other liabilities of such Person
in respect of interest rate contracts and foreign exchange contracts, net of
liabilities owed by the counterparties thereon; (11) preferred stock subject
(upon the occurrence of any contingency or otherwise) to mandatory redemption
and (12) obligations under any agreement providing for contingent participation
or other hedging mechanisms with respect to interest payable on any of the items
described above in this definition.
"Default" means any event which with the giving of notice or lapse of
time, or both, would become an Event of Default.
"Default Rate" means a rate per annum equal to (1) with respect to Base
Rate Loans, a variable rate 4% above the rate of interest then in effect thereon
(including the Applicable Margin) and (2) with respect to LIBOR Loans, a fixed
rate 4% above the rate(s) of interest in effect thereon (including the
Applicable Margin) at the time of Default until the end of the then current
Interest Period therefor and, thereafter, a variable rate 4% above the rate of
interest for a Base Rate Loan.
"Delinquency Amount", "Delinquency Notice" and "Delinquent Lender" have
the respective meanings specified in Section 10.18.
"Disposition" means a sale (whether by assignment, transfer or Capital
Lease) of an asset.
"Disposition Properties" means those Properties (other than Woodlands)
which as of the Closing Date were the subject of a bona fide contract of sale to
a third party, as indicated on SCHEDULE A.
"Dollars" and the sign "$" mean lawful money of the United States.
"Elect", "Election" and "Elected" refer to election, if any, by
Borrower pursuant to Section 2.12 to have all or a portion of an advance of the
Loans be outstanding as LIBOR Loans.
"Electing Lender", "Election Notice" and "Election Period" have the
respective meanings specified in Section 10.18.
"Engineering Consultant" means Xxxxxx and Rich Associates, Inc. or
other firm designated by Administrative Agent from time to time for any
Property.
"Environmental Discharge" means any discharge or release of any
Hazardous Materials in violation of any applicable Environmental Law.
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"Environmental Law" means any applicable Law pertaining to
environmental matters, including, without limitation, those arising under the
Resource Conservation and Recovery Act, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, the Superfund Amendments and
Reauthorization Act of 1986, the Federal Clean Water Act, the Federal Clean Air
Act or the Toxic Substances Control Act.
"Environmental Notice" means any written complaint, order, citation or
notice from any Person (1) affecting or relating to Borrower's, Guarantor's or
the Other Mortgagor's compliance with any Environmental Law in connection with
any activity or operations at any time conducted by any of them, (2) relating to
(a) the existence of any Hazardous Materials contamination or Environmental
Discharges or threatened Hazardous Materials contamination or Environmental
Discharges at any of Borrower's or Guarantor's locations or facilities or (b)
remediation of any Environmental Discharge or Hazardous Materials at any such
location or facility or any part thereof or (3) relating to any violation or
alleged violation by Borrower, Guarantor or the Other Mortgagor of any relevant
Environmental Law.
"Equity Share Lease" means any occupancy lease for any portion of any
of the Properties, which provides for a reduced fixed rent in exchange for an
equity interest in the tenant thereunder, which equity interest must consist
solely of Permitted Stock.
"ERISA" means the Employee Retirement Income Security Act of 1974,
including the rules and regulations promulgated thereunder.
"ERISA Affiliate" means any corporation which is a member of the same
controlled group of corporations (within the meaning of Section 414(b) of the
Code) as Borrower, Guarantor or the Other Mortgagor, or any trade or business
which is under common control (within the meaning of Section 414(c) of the Code)
with Borrower, Guarantor or the Other Mortgagor, or any organization which is
required to be treated as a single employer with Borrower, Guarantor or the
Other Mortgagor under Section 414(m) or 414(o) of the Code.
"Event of Default" has the meaning specified in Section 9.01.
"Existing Credit Facilities" means, collectively, (1) the unsecured
revolving credit facility in the amount of $650,000,000 from BankBoston, N.A.
and other lenders to CEI LP made pursuant to a Fifth Amended and Restated
Revolving Credit Agreement dated as of June 30, 1998, as amended and (2) the
term loan in the amount of $320,000,000 from BankBoston, N.A. to CEI LP made
pursuant to a Term Loan Agreement dated as of October 30, 1998, as amended.
"Federal Funds Rate" means, for any day, the rate per annum (expressed
on a 360-day basis of calculation) equal to the weighted average of the rates on
overnight federal funds transactions as published by the Federal Reserve Bank of
New York for such day, provided that (1) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
immediately preceding Business Day as so published on the next succeeding
Business Day and (2) if no such rate is so
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published for any day, the Federal Funds Rate for such day shall be the average
of the rates quoted by three (3) Federal Funds brokers to Administrative Agent
on such day on such transactions.
"Fiscal Year" means each period from January 1 to December 31.
"Fleet" has the meaning specified in the preamble.
"GAAP" means generally accepted accounting principles in the United
States as in effect from time to time, consistently applied.
"Good Faith Contest" means the contest of an item if (1) the item is
diligently contested in good faith, and, if appropriate, by proceedings timely
instituted, (2) adequate reserves are established with respect to the contested
item, (3) during the period of such contest, the enforcement of any contested
item is effectively stayed and (4) the failure to pay or comply with the
contested item during the period of the contest is not likely to (x) result in a
Material Adverse Change or (y) have a materially adverse effect on the Mortgaged
Property under any Mortgage or any part thereof, or on any material portion of
the other Collateral, or on Lenders' interests therein.
"Governmental Approvals" means any authorization, consent, approval,
license, permit, certification, or exemption of, registration or filing with or
report or notice to, any Governmental Authority.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Guarantor" means, individually and collectively, CEI, CEI Ltd. and CEI
LP.
"Guarantor's Accountants" means Xxxxxx Xxxxxxxx, or such other
accounting firm(s) selected by Borrower and Guarantor and reasonably acceptable
to Administrative Agent.
"Guarantor's Consolidated Financial Statements" means the consolidated
balance sheet and related consolidated statement of operations, accumulated
deficiency in assets and cash flows, and footnotes thereto, of CEI, prepared in
accordance with GAAP.
"Guaranty" means the Guaranty of Payment, dated the Closing Date, from
Guarantor to Lenders.
"Hazardous Materials" means any pollutant, effluents, emissions,
contaminants, toxic or hazardous wastes or substances, as any of those terms are
defined from time to time in or for the purposes of any relevant Environmental
Law, including asbestos fibers and friable asbestos, polychlorinated biphenyls,
and any petroleum or hydrocarbon-based products or derivatives.
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"Hotel Properties" means those Properties improved primarily with hotel
or resort Improvements, which Hotel Properties as of the Closing Date are
identified as such on SCHEDULE A and as of the date hereof are identified as
such on SCHEDULE A-1.
"Hotel Value" means, at any time, (x) the aggregate Property Allocated
Values of all Hotel Properties less (y) 10% of the aggregate Property Allocated
Values of all Hotel Properties (at the time of their respective releases) then
or theretofore released pursuant to Section 12.17; provided, however, that in no
event shall Hotel Value exceed 25% of Total Value. As of the date hereof, the
amount computed under clause (y) above is $0.
"Improvements" means, for each Property, all improvements now or
hereafter located thereon, including, without limitation, those improvements
identified on SCHEDULE A for such Property.
"Indemnity" means, for each Property (other than Woodlands), an
agreement from Borrower and Guarantor (and, in the case of Spectrum Centre,
Washington Harbour and Xxxxxxxx Xxxx Center, from SMA, CWH and CCRH,
respectively) whereby, among other things, Lenders and Administrative Agent are
indemnified regarding Hazardous Materials.
"Independent Manager" has the meaning specified in Section 7.01(c).
"Initial Advance" means the first advance of proceeds of the Loans.
"Interest Period" means, with respect to any LIBOR Loan, the period
commencing on the date the same is advanced, converted from a Base Rate Loan or
Continued, as the case may be, and ending, as Borrower may select pursuant to
Section 2.05, on the numerically corresponding day in the first, second or third
(or, if available to all Lenders, the sixth or ninth) calendar month thereafter,
provided that each such Interest Period which commences on the last Business Day
of a calendar month (or on any day for which there is no numerically
corresponding day in the appropriate subsequent calendar month) shall end on the
last Business Day of the appropriate calendar month.
"Law" means any applicable federal, state or local statute, law, rule,
regulation, ordinance, order, code, or rule of common law, now or hereafter in
effect, and any judicial or administrative interpretation thereof, including any
judicial or administrative order, consent decree or judgment.
"Lender" and "Lenders" have the respective meanings specified in the
preamble.
"Lender Reply Period" has the meaning specified in Section 12.02.
"Lenders' L/C Fee Rate" has the meaning specified in Section 2.16(f).
"Letter of Credit" has the meaning specified in Section 2.16(a).
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"LIBOR Base Rate" means, with respect to any Interest Period therefor,
the rate per annum quoted at approximately 11:00 a.m., London time, by the
Stamford, Connecticut branch of UBS two (2) Business Days prior to the first day
of such Interest Period for the offering to leading banks in the London
interbank market of Dollar deposits in immediately available funds, for a
period, and in an amount, comparable to such Interest Period and principal
amount of the LIBOR Loan in question outstanding during such Interest Period.
"LIBOR Interest Rate" means, for any LIBOR Loan, a rate per annum
determined by Administrative Agent to be equal to the quotient of (1) the LIBOR
Base Rate for such LIBOR Loan for the Interest Period therefor divided by (2)
one minus the LIBOR Reserve Requirement for such LIBOR Loan for such Interest
Period.
"LIBOR Loan" means all or any portion (as the context requires) of any
Lender's Loan which shall accrue interest at rate(s) determined in relation to
LIBOR Interest Rate(s).
"LIBOR Reserve Requirement" means, for any LIBOR Loan, the rate at
which reserves (including any marginal, supplemental or emergency reserves) are
actually required to be maintained during the Interest Period for such LIBOR
Loan under Regulation D by any Lender or any Lender's respective Participants,
if any, against "Eurocurrency liabilities" (as such term is used in Regulation
D). Without limiting the effect of the foregoing, the LIBOR Reserve Requirement
shall also reflect any other reserves required to be maintained by any Lender or
any Lender's respective Participants, if any, by reason of any Regulatory Change
against (1) any category of liabilities which includes deposits by reference to
which the LIBOR Base Rate is to be determined as provided in the definition of
"LIBOR Base Rate" in this Section 1.01 or (2) any category of extensions of
credit or other assets which include loans the interest rate on which is
determined on the basis of rates referred to in said definition of "LIBOR Base
Rate".
"Lien" means any mortgage, deed of trust, pledge, security interest,
hypothecation, assignment for collateral purposes, deposit arrangement, lien
(statutory or other), or other security agreement or charge of any kind or
nature whatsoever of any third party (excluding any right of setoff but
including, without limitation, any conditional sale or other title retention
agreement, any financing lease having substantially the same economic effect as
any of the foregoing, and the filing of any financing statement under the
Uniform Commercial Code or comparable Law of any jurisdiction to evidence any of
the foregoing).
"Loan" and "Loans" have the respective meanings specified in Section
2.01.
"Loan Commitment" means, with respect to each Lender, the obligation to
make a Loan in the principal amount set forth below (which shall comprise a
Tranche A Loan Commitment, a Tranche B Loan Commitment and/or a Tranche C Loan
Commitment in the respective amounts set forth below) or in the applicable
Assignment and Assumption Agreement, as such amounts may be modified from time
to time in accordance with the terms of this Agreement:
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Loan Tranche A Loan Tranche B Loan Tranche C Loan
Lender Commitment Commitment Commitment Commitment
------ ------------ -------------- -------------- --------------
UBS $391,927,027 $150,000,000 $75,000,000 $166,927,027
Fleet $391,927,027 $150,000,000 $75,000,000 $166,927,027
TOTAL $783,854,054 $300,000,000 $150,000,000 $333,854,054
"Loan Documents" means this Agreement, the Notes, the Guaranty, the
Mortgage and related Uniform Commercial Code financing statements for each
Property (other than for Woodlands), the Indemnity for each Property (other than
for Woodlands), the Collateral Assignments (and related Uniform Commercial Code
financing statements), the Agreement Regarding Encumbrances, the Authorization
Letter and the Solvency Certificate.
"Major Lease" means any lease demising 10,000 square feet or more (or
any group of leases to the same tenant in the same Property demising, in the
aggregate, 10,000 square feet or more) of the Improvements on any Property,
including, without limitation, the leases of the Hotel Properties.
"Majority Lenders by Tranche" means, at any time, collectively, (i) the
Majority Tranche A Lenders, (ii) those Tranche B Non-Delinquent Lenders having
Tranche B Loan Commitments, the outstanding principal amounts of which aggregate
at least a majority of the aggregate outstanding principal amount of the Tranche
B Loan Commitments of all Tranche B Non-Delinquent Lenders and (iii) those
Tranche C Non-Delinquent Lenders having Tranche C Loan Commitments, the
outstanding principal amounts of which aggregate at least a majority of the
aggregate outstanding principal amount of the Tranche C Loan Commitments of all
Tranche C Non-Delinquent Lenders.
"Majority Tranche A Lenders" means, at any time, those Tranche A
Non-Delinquent Lenders having Tranche A Loan Commitments, the outstanding plus
undisbursed principal amounts of which aggregate at least a majority of the
aggregate outstanding plus undisbursed principal amount of the Tranche A Loan
Commitments of all Tranche A Non-Delinquent Lenders; provided, however, that
during the existence of an Event of Default, the "Majority Tranche A Lenders"
shall be those Tranche A Non-Delinquent Lenders having Tranche A Loan
Commitments, the outstanding principal amounts of which aggregate at least a
majority of the aggregate outstanding principal amount of the Tranche A Loan
Commitments of all Tranche A Non-Delinquent Lenders.
"Material Adverse Change" means either (1) a material adverse change in
the status of the business, results of operations, financial condition, property
or prospects of Borrower or Guarantor or (2) any event or occurrence of whatever
nature which is likely to (x) have a material adverse effect on the ability of
Borrower or Guarantor to perform their respective Obligations or (y) create, in
the sole and absolute judgment (reasonably exercised) of Administrative Agent, a
material risk of sale or forfeiture of any of the Mortgaged Property (other than
an immaterial portion thereof) under any
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Mortgage or any material portion of the other Collateral, or otherwise impair
any material portion of the Collateral, or Lenders' rights therein.
"Material Affiliates" means the Affiliates of Borrower and/or Guarantor
described on EXHIBIT C, together with (or excluding) any Affiliates of Borrower
and/or Guarantor or which are hereafter from time to time reasonably determined
by Administrative Agent to be material (or no longer material), upon written
notice to Borrower, based on the most recent Borrower's Financial Statements or
Guarantor's Consolidated Financial Statements, as the case may be.
"Maturity Date" means (1) with respect to Tranche A and Tranche B and
the Tranche A Notes and Tranche B Notes, February 1, 2003 and (2) with respect
to Tranche C and the Tranche C Notes, February 1, 2004.
"Mortgage" means, for each Property, the Deed of Trust (or Mortgage),
Assignment of Leases and Rents and Security Agreement in respect thereof, in the
amount of $850,000,000 (or, in the case of Washington Harbour, $150,000,000),
from Borrower (or, in the case of Spectrum Centre, Washington Harbour and
Xxxxxxxx Xxxx Center, from SMA, CWH and CCRH, respectively) for the benefit of
Administrative Agent, as agent for Lenders, encumbering Borrower's, or the Other
Mortgagor's as the case may be, fee and/or leasehold interests therein to secure
the payment and performance of the Obligations.
"Mortgaged Property" means, for each Property (other than Woodlands),
the Property, the Improvements thereon and all other property constituting the
"Mortgaged Property", as said quoted term is defined in the applicable Mortgage.
"Multiemployer Plan" means a Plan defined as such in Section 3(37) of
ERISA to which contributions have been made by Borrower or any ERISA Affiliate
and which is covered by Title IV of ERISA.
"Non-Delinquent Lender" means each Lender other than a Delinquent
Lender.
"Non-Excluded Taxes" has the meaning specified in Section 12.16.
"Note" and "Notes" have the respective meanings specified in Section
2.08.
"Obligations" means each and every obligation, covenant and agreement
of Borrower, Guarantor or any other obligor in respect of the Loans now or
hereafter existing, contained in this Agreement, and any of the other Loan
Documents, whether for principal, reimbursement obligations, interest, fees,
expenses, indemnities or otherwise, and any amendments or supplements thereto,
extensions or renewals thereof or replacements therefor, including, but not
limited to, all indebtedness, obligations and liabilities of Borrower, Guarantor
or any other obligor in respect of the Loans to Administrative Agent and any
Lender now existing or hereafter incurred under or arising out of or in
connection with the Notes, this Agreement, the other Loan Documents, and
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any documents or instruments executed in connection therewith; in each case
whether direct or indirect, joint or several, absolute or contingent, liquidated
or unliquidated, now or hereafter existing, renewed or restructured, whether or
not from time to time decreased or extinguished and later increased, created or
incurred, and including all indebtedness of Borrower, Guarantor or any other
obligor in respect of the Loans, under any instrument now or hereafter
evidencing or securing any of the foregoing; but excluding any obligations of
Borrower, Guarantor or any other obligor in respect of any interest rate hedging
agreement with any Lender.
"Office Properties" means the Properties improved primarily with office
Improvements, which Office Properties as of the Closing Date are identified as
such on SCHEDULE A and as of the date hereof are identified as such on SCHEDULE
A-1.
"Office Value" means, at any time, (x) the aggregate of the Property
Allocated Values of all Office Properties less (y) 10% of the aggregate Property
Allocated Values (at the time of their respective releases) of all Office
Properties then or theretofore released pursuant to Section 12.17 (other than
those Office Properties listed on SCHEDULE A under "Office - Part II" that are
released prior to June 30, 2000). As of the date hereof, the amount computed
under clause (y) above is $0.
"Other Mortgagor" means, individually and collectively, CWH, SMA and
CCRH.
"Parent" means, with respect to any Lender, any Person controlling such
Lender.
"Participant" and "Participation" have the respective meanings
specified in Section 12.05.
"Partnership Assignments" means those certain Assignments Regarding
Partnership Interests dated the Closing Date (1) from CEI LP assigning CEI LP's
Interest in The Woodlands and (2) from Borrower assigning its rights in respect
of its partnership interests in SMA, each to Administrative Agent, as agent for
Lenders, as security for the payment and performance of the Obligations.
"Payor" and "Required Payment" have the respective meanings specified
in Section 10.12.
"PBGC" means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
"Permitted Stock" means shares of common or preferred stock that (1) is
non-assessable and fully paid up and (2) is, in the aggregate with all other
stock held by Borrower or any Affiliate in the company issuing such stock, less
than 25% of the shares of such issuing company which entitles the holder to vote
for the board of directors or other managers of such company.
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"Person" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of whatever
nature.
"Plan" means any employee benefit or other plan established or
maintained, or to which contributions have been made, by Borrower, Guarantor or
any ERISA Affiliate and which is covered by Title IV of ERISA or to which
Section 412 of the Code applies.
"Premises Documents", for each Property (other than Woodlands), has the
meaning specified in the Mortgage for such Property.
"presence", when used in connection with any Environmental Discharge or
Hazardous Materials, means and includes presence, generation, manufacture,
installation, treatment, use, storage, handling, repair, encapsulation,
disposal, transportation, spill, discharge and release.
"Prime Rate" means that rate of interest from time to time announced by
UBS at its principal office in Stamford, Connecticut as its prime commercial
lending rate.
"Property" means each of the parcels of real property owned by Borrower
in fee (or, in the case of (1) that parcel identified on SCHEDULE A as Stemmons
Place, in which Borrower is the owner of a valid and subsisting leasehold
interest, (2) that parcel identified on SCHEDULE A as Frost Bank, in which
Borrower is the owner of a valid and substituting leasehold interest with
respect to a portion thereof and a fee interest with respect to the balance
thereof, (3) Washington Harbour, in which CWH owns both fee and leasehold
interests, (4) Woodlands, in which CEI LP owns CEI LP's Interest in The
Woodlands and (5) Spectrum Centre and Xxxxxxxx Xxxx Center, which are owned,
respectively, by SMA and CCRH), in each case, located and improved with the
Improvements as set forth on SCHEDULE A as of the Closing Date and SCHEDULE A-1
as of the date hereof and more particularly described on Schedule A to the
Mortgage encumbering each such parcel (or, in the case of Woodlands, described
in the Partnership Assignment regarding Woodlands), and each other property as
may be added as a Property pursuant to Section 12.17; excluding, however, any
Property released pursuant to said Section. For purposes of this Agreement, the
term "Property" shall include, in the case of Spectrum Centre, Xxxxxxxx Xxxx
Center and the Property identified on SCHEDULE A as Three Westlake, the
Collateral Notes and Mortgages.
"Property Allocated Value" means, at any time, (1) for any Hotel
Property, the amount set forth in the last column of SCHEDULE A (or, in the case
of any Hotel Property reappraised pursuant to Section 12.18, the value pursuant
to the appraisal pursuant to said Section); or (2) for any Office Property, the
lesser of (x) the amount set forth in the last column of SCHEDULE A (or, in the
case of any Office Property added pursuant to Section 12.17 and Disposition
Properties for which an appraisal is required by Section 12.19, the value
pursuant to the appraisal required by Section 12.17 or 12.19) or (y) the then
Property Capitalization Value thereof; provided, however, that if the
circumstances exist that would permit Administrative Agent to apply casualty
insurance proceeds or condemnation awards with respect to a particular Office
Property or Hotel
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Property to the repayment of the Loans pursuant to Section 1.09 or Section 1.13
of the Mortgage of such Office Property or Hotel Property (other than in the
case of a partial condemnation that does not materially affect the income from
such Property), then, immediately upon the occurrence of such circumstances,
such Office Property or Hotel Property shall be deemed to have a Property
Allocated Value of zero. For purposes of this definition, in the case of Office
Properties that are partially, but not 100%, owned by Borrower, the appraised
value shall reflect Borrower's fractional beneficial ownership of the Property.
"Property Capitalization Value" means, for any Office Property, as of
the end of any calendar quarter, Property Net Operating Income for such Office
Property for such quarter and the three (3) immediately preceding calendar
quarters, divided by 9.25%.
"Property Net Operating Income" means, for each Property, for any
period of time, the portion of the net income of Borrower (or, in the case of
(w) Woodlands, CEI LP, (x) Washington Harbour, CWH, (y) Spectrum Centre, SMA or
(z) Xxxxxxxx Xxxx Center, CCRH) attributable to such Property, determined in
accordance with GAAP, before adjustment for gains or losses from extraordinary
items, plus (1) interest expense and (2) depreciation and amortization, and
adjusted for non-cash revenue attributable to the straight-line treatment of
rent or other GAAP adjustments for free rent and by the deduction of (a) any
accrued rent with respect to tenants that are more than sixty (60) days in
arrears in the payment of rent, (b) interest income, (c) a management fee equal
to the greater of actual management fees or 3.0% of gross revenues and (d)
capital expenditures in a deemed amount equal to $.75 per square foot of space
in the Improvements in the case of Office Properties and 3.5% of gross revenues
in the case of Hotel Properties. For purposes of the foregoing, income
attributable to third-party leasing commissions or management fees shall be
excluded.
"Prohibited Transaction" means any transaction proscribed by Section
406 of ERISA or Section 4975 of the Code and to which no statutory or
administrative exemption applies.
"Regulation D" and "Regulation U" mean, respectively, Regulation D and
Regulation U of the Board of Governors of the Federal Reserve System.
"Regulatory Change" means, with respect to any Lender, any change after
the date of this Agreement in federal, state, municipal or foreign laws or
regulations (including Regulation D) or the adoption or making after such date
of any interpretations, directives, guidelines or requests applying to a class
of lenders including such Lender of or under any federal, state, municipal or
foreign laws or regulations (whether or not having the force of law) by any
court or governmental or monetary authority charged with the interpretation or
administration thereof.
"Relevant Documents" has the meanings specified in Section 11.02.
"Replacement Lender" has the meaning specified in Section 10.22.
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"Reportable Event" means any of the events set forth in Section 4043(c)
of ERISA, other than those events as to which the thirty (30) day notice period
is waived under subsections .13, .14, .16, .18, .19 or .20 of PBGC Reg. Section
2615.
"Required Lenders" means, at any time, those Non-Delinquent Lenders
having Loan Commitments, the outstanding plus undisbursed principal amounts of
which aggregate at least 66-2/3% of the aggregate outstanding plus undisbursed
principal amount of all Loan Commitments of Non-Delinquent Lenders; provided,
however, that during the existence of an Event of Default, the "Required
Lenders" shall be those Non-Delinquent Lenders holding at least 66-2/3% of the
then aggregate outstanding principal amount of the Loans held by Non-Delinquent
Lenders.
"Sales Contracts" means those certain Purchase and Sale Contracts which
CEI LP (or, in the case of Woodlands, Woodlands Office Equities) has entered
into for the sale to third parties of, respectively, those Properties identified
on SCHEDULE A as being under contract.
"SMA" means Spectrum Mortgage Associates, L.P., a Delaware limited
partnership in which Borrower is the sole general partner and which is the owner
of the fee and various other rights in respect of Spectrum Centre, including,
without limitation, the Collateral Notes and Mortgages relating to Spectrum
Centre.
"Solvency Certificate" means a certificate in the form of EXHIBIT D.
"Solvent" means, when used with respect to any Person, that the fair
value of the property of such Person, on a going concern basis, is greater than
the total amount of liabilities (including, without limitation, contingent
liabilities) of such Person.
"Spectrum Centre" means the Office Property, owned by SMA, located in
Dallas, Texas identified as such on SCHEDULE A.
"Substitute Lender" and "Substitution Notice" have the respective
meanings specified in Section 3.07.
"this Agreement" means this Amended and Restated Secured Loan
Agreement.
"Title Insurer" means, for each Property (other than Woodlands), the
issuer(s) of the title insurance policy(ies) insuring the Mortgage thereon.
"Total Loan Commitment" means an amount equal to the aggregate amount
of all Loan Commitments.
"Total Value" means, at any time, the sum of Office Value plus Hotel
Value.
"Xxxxxxxx Xxxx Center" means the Office Property, owned by CCRH,
located in Dallas, Texas identified as such on SCHEDULE A.
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"Tranche", "Tranche A", "Tranche B" and "Tranche C" have the respective
meanings specified in Section 2.01.
"Tranche A Lender", "Tranche B Lender" and "Tranche C Lender" mean,
respectively, each Lender who has a Tranche A Loan Commitment, a Tranche B Loan
Commitment and a Tranche C Loan Commitment, respectively.
"Tranche A Loan Commitment", "Tranche B Loan Commitment" and "Tranche C
Loan Commitment" have the respective meanings specified in Section 2.01.
"Tranche A Non-Delinquent Lender", "Tranche B Non-Delinquent Lender"
and "Tranche C Non-Delinquent Lender" mean, respectively, each Tranche A Lender,
Tranche B Lender and Tranche C Lender, respectively, that is not a Delinquent
Lender.
"Tranche A Note", "Tranche B Note" and "Tranche C Note" have the
respective meanings specified in Section 2.08.
"Tranche A Pro Rata Share" means, with respect to each Tranche A
Lender, a fraction, the numerator of which is such Tranche A Lender's Tranche A
Loan Commitment and the denominator of which is the total amount of Tranche A.
"UBS" has the meaning specified in the preamble.
"United States" and "U.S." mean the United States of America.
"Washington Harbour" means the Office Property, owned by CWH, located
in Washington, D.C. identified as such on SCHEDULE A.
"Woodlands" means the Office Property, owned by Woodlands Office
Equities, located in Woodlands, Texas identified as such on SCHEDULE A.
"Woodlands Office Equities" means Woodlands Office Equities-'95
Limited, the Texas limited partnership which is the owner of Woodlands and in
which CEI LP is a limited partner and owns, directly or indirectly, an
approximately 75% beneficial interest.
Section 1.02 Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP, and all financial
data required to be delivered hereunder shall be prepared in accordance with
GAAP.
Section 1.03 Computation of Time Periods. Except as otherwise provided
herein, in this Agreement, in the computation of periods of time from a
specified date to a later specified date, the word "from" means "from and
including" and words "to" and "until" each means "to but excluding".
Section 1.04 Rules of Construction. Except as provided otherwise, when
used in this Agreement, (i) "or" is not exclusive, (ii) a reference to a Law
includes any amendment, modification or supplement to, or replacement of, such
Law, (iii) a
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reference to a Person includes its permitted successors and permitted assigns,
(iv) all terms defined in the singular shall have a correlative meaning when
used in the plural and vice versa, (v) a reference to an agreement, instrument
or document shall include such agreement, instrument or document as the same may
be amended, modified or supplemented from time to time in accordance with its
terms and as permitted by the Loan Documents, (vi) all references to Articles,
Sections or Exhibits shall be to Articles, Sections and Exhibits of this
Agreement unless otherwise indicated, (vii) "hereunder", "herein", "hereof" and
the like refer to this Agreement as a whole and (viii) all Exhibits and
Schedules to this Agreement shall be incorporated herein. Any table of contents
and the headings and captions hereunder are for convenience only and shall not
affect the interpretation or construction hereof.
ARTICLE II
THE LOANS
Section 2.01 The Loans. Subject to the terms and conditions of this
Agreement, each of Lenders severally agrees to make a loan to Borrower (each
such loan by a Lender, a "Loan"; such loans, collectively, the "Loans") in an
amount up to such Lender's Loan Commitment. The Loans and the Total Loan
Commitment shall be divided into three (3) tranches: a tranche in the amount of
$300,000,000 ("Tranche A"), a tranche in the amount of $150,000,000 ("Tranche
B") and a tranche in the amount of $333,854,054 ("Tranche C"; each of Tranche A,
Tranche B and Tranche C, a "Tranche"). Each Lender's Loan and Loan Commitment
shall consist of a Tranche A portion, a Tranche B portion and/or a Tranche C
portion (such portions of a Lender's Loan Commitment, a "Tranche A Loan
Commitment", "Tranche B Loan Commitment" and "Tranche C Loan Commitment",
respectively).
The three (3) Tranches shall be advanced as follows:
(1) Tranche A will constitute a revolving credit facility, pursuant to
which each Tranche A Lender shall from time to time advance and re-advance
to Borrower an amount equal to the excess of the amount of such Lender's
Tranche A Loan Commitment over the sum of (x) all previous advances made by
such Tranche A Lender under its Tranche A Loan Commitment which remain
unpaid and (y) its Tranche A Pro Rata Share of the outstanding amount of
all Letters of Credit. Within the limits set forth herein, Borrower may
borrow from time to time under this clause (1) of this Section 2.01 and
prepay from time to time pursuant to Section 2.09 (subject, however, to the
restrictions on prepayment set forth in such Section) and thereafter
re-borrow pursuant to this clause (1); and
(2) Tranches B and C shall be advanced in their entirety in a single
disbursement as part of the Initial Advance. Portions of Tranches B and C
that are repaid may not be reborrowed.
The Loans may be outstanding as (A) Base Rate Loans, (B) LIBOR Loans or
(C) a combination of the foregoing, as Borrower shall elect and notify
Administrative
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Agent in accordance with Section 2.14. The LIBOR Loan and Base Rate Loan of each
Lender shall be maintained at such Lender's Applicable Lending Office.
The obligations of Lenders under this Agreement are several, and no
Lender shall be responsible for the failure of any other Lender to make any
advance of a Loan to be made by such other Lender. However, the failure of any
Lender to make any advance of the Loan to be made by it hereunder on the date
specified therefor shall not relieve any other Lender of its obligation to make
any advance of its Loan specified hereby to be made on such date.
Section 2.02 Purpose. Borrower shall use the proceeds of the Loans for
the following purposes:
(1) Advances under Tranches B and C and the portion of Tranche A to be
disbursed as part of the Initial Advance shall be used to (A) repay the
Existing Credit Facilities and (B) pay transaction costs relating to the
Loans; and
(2) Advances under Tranche A subsequent to the Initial Advance shall be
used for general partnership purposes of Borrower, Guarantor and their
respective Material Affiliates.
In no event shall proceeds of the Loans be used in a manner that would
violate Regulation U or in connection with a hostile acquisition or for any
illegal purpose.
Section 2.03 Advances, Generally. The Initial Advance shall be made
upon satisfaction of the conditions set forth in Section 4.01. Subsequent
advances shall be made no more frequently than weekly thereafter, upon
satisfaction of the conditions set forth in Section 4.02. The amount of each
advance subsequent to the Initial Advance shall be in the minimum amount of
$1,000,000 (unless less than $1,000,000 is available for disbursement pursuant
to the terms hereof at the time of any subsequent advance, in which case the
amount of such subsequent advance shall be equal to such remaining availability)
and in integral multiples of $100,000 above such amount.
Section 2.04 Procedures for Advances after Initial Advance. Borrower
shall submit to Administrative Agent a request for each advance hereunder
subsequent to the Initial Advance, stating the amount requested, no later than
11:00 a.m. (New York time) on the date, in the case of advances of Base Rate
Loans, which is one (1) Business Day, and, in the case of advances of LIBOR
Loans, which is three (3) Business Days, prior to the date the advance is to be
made. Administrative Agent, upon its receipt and approval of the request for
advance, will so notify all Lenders either by telephone or by facsimile. Not
later than 12:00 noon (New York time) on the date of each advance subsequent to
the Initial Advance, each Tranche A Lender shall, through its Applicable Lending
Office and subject to the conditions of this Agreement, make the amount to be
advanced by it on such day available to Administrative Agent, at Administrative
Agent's Office and in immediately available funds for the account of Borrower.
The amount so received by Administrative Agent shall, subject to the conditions
of this Agreement, be made available to Borrower, in immediately available
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funds, by Administrative Agent's crediting an account of Borrower designated by
Borrower in its request for advance.
Section 2.05 Interest Periods; Renewals. In the case of the LIBOR
Loans, Borrower shall select an Interest Period of any duration in accordance
with the definition of Interest Period in Section 1.01, subject to the following
limitations: (i) no Interest Period may extend beyond the Maturity Date, (ii) if
an Interest Period would end on a day which is not a Business Day, such Interest
Period shall be extended to the next Business Day, unless such Business Day
would fall in the next calendar month, in which event such Interest Period shall
end on the immediately preceding Business Day and (iii) only twelve (12)
discrete segments of a Lender's portion of a particular Tranche bearing interest
at a LIBOR Interest Rate, for a designated Interest Period, pursuant to a
particular Election, Conversion or Continuation, may be outstanding at any one
time (each such segment of each Lender's portion of such Tranche corresponding
to a proportionate segment of each of the other Tranche A, B or C, as
applicable, Lenders' portions of such Tranche).
Upon notice to Administrative Agent as provided in Section 2.14,
Borrower may Continue any LIBOR Loan on the last day of the Interest Period of
the same or different duration in accordance with the limitations provided
above.
Section 2.06 Interest. Borrower shall pay interest to Administrative
Agent for the account of the applicable Lender on the outstanding and unpaid
principal amount of the Loans, at a rate per annum as follows: (i) for Base Rate
Loans at a rate equal to the Base Rate plus the Applicable Margin and (ii) for
LIBOR Loans at a rate equal to the applicable LIBOR Interest Rate plus the
Applicable Margin. Any principal amount not paid when due (when scheduled, at
acceleration or otherwise) shall bear interest thereafter, payable on demand, at
the Default Rate.
The interest rate on Base Rate Loans shall change when the Base Rate
changes. Interest shall be calculated for the actual number of days elapsed on
the basis of, in the case of Base Rate Loans and LIBOR Loans, three hundred
sixty (360) days.
Accrued interest shall be due and payable in arrears upon and with
respect to any payment or prepayment of principal and, in the case of both Base
Rate Loans and LIBOR Loans, on the first Business Day of each calendar month;
provided, however, that interest accruing at the Default Rate shall be due and
payable on demand.
Section 2.07 Fees.
(a) Borrower shall, during the term of the Tranche A portion of the
Loans, pay to Administrative Agent for the account of each Tranche A Lender a
commitment fee, computed on the daily unused Tranche A Loan Commitment of such
Tranche A Lender, at a rate per annum equal to the daily Commitment Fee Rate,
calculated on the basis of a year of three hundred sixty (360) days for the
actual number of days elapsed. The accrued commitment fee shall be due and
payable quarterly in arrears on the first Business Day of each calendar quarter,
commencing on the first such
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date after the Closing Date, and upon the Maturity Date (as stated, by
acceleration or otherwise) or earlier termination of the Tranche A Loan
Commitments.
(b) Borrower agrees to pay to Administrative Agent any administration
fees separately agreed to in writing by Borrower and Administrative Agent.
Section 2.08 Notes. The Loan made by each Lender under this Agreement
shall be evidenced by, and repaid with interest in accordance with, promissory
notes of Borrower in the form of EXHIBITS X-0, X-0 xxx/xx X-0, as applicable,
duly completed and executed by Borrower, in an aggregate principal amount equal
to such Lender's Loan Commitment (with each Tranche A Loan Commitment, Tranche B
Loan Commitment and Tranche C Loan Commitment to be evidenced by separate
promissory notes of Borrower in the respective amounts thereof), payable to such
Lender for the account of its Applicable Lending Office (each such note, as the
same may hereafter be amended, modified, extended, severed, assigned, renewed or
restated from time to time, including any substitute notes pursuant to Section
3.07, 10.18, 10.22 or 12.05, a " Note"; all such Notes, collectively, the
"Notes"). The Notes evidencing Tranche A are referred to herein collectively as
the "Tranche A Notes"; the Notes evidencing Tranche B are referred to herein
collectively as the "Tranche B Notes"; and the Notes evidencing Tranche C are
referred to herein collectively as the "Tranche C Notes." The Notes shall
mature, and all outstanding principal and accrued interest and other sums
thereunder shall be paid in full, on the applicable Maturity Date thereof, as
the same may be accelerated or extended pursuant to the terms of the Loan
Documents.
Each Lender is hereby authorized by Borrower to endorse on the schedule
attached to the Notes held by it, the amount of each advance and each payment of
principal received by such Lender for the account of its Applicable Lending
Office(s) on account of its Loan, which endorsement shall, in the absence of
manifest error, be conclusive as to the outstanding balance of the Loan made by
such Lender. The failure by any Lender to make such notations with respect to
the Loans or each advance or payment shall not limit or otherwise affect the
Obligations.
In case of any loss, theft, destruction or mutilation of any Lender's
Note, Borrower shall, upon its receipt of an affidavit of an officer of such
Lender as to such loss, theft, destruction or mutilation, execute and deliver a
replacement Note to such Lender in the same principal amount and otherwise of
like tenor as the lost, stolen, destroyed or mutilated Note.
Section 2.09 Prepayments. Borrower may, upon at least fifteen (15)
days' notice to Administrative Agent (which shall promptly send a copy of such
notice to each Lender), prepay the Loans; provided, however, that (i) any
partial prepayment under this Section shall be in integral multiples of
$1,000,000, (ii) a LIBOR Loan may be prepaid only on the last day of the
applicable Interest Period for such LIBOR Loan and (iii) each prepayment under
this Section shall include any amounts payable under Article III in connection
with such prepayment. Prepayments of the Principal Amount (including prepayments
from the proceeds of the Disposition of a Property being released pursuant to
Section 12.17) shall be applied as follows:
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(a) If the aggregate outstanding principal amount under the Tranche A,
B and C Notes exceeds $700,000,000, prepayments shall be applied, first, to the
Tranche B and C Notes in proportion to the outstanding principal amount under
the Tranche B and C Notes until such time as the aggregate outstanding principal
amount under the Tranche A, B and C Notes has been reduced to $700,000,000 and,
second, in accordance with paragraph (b) below; or
(b) (i) If the aggregate outstanding principal amount under the Tranche
A, B, and C Notes is $700,000,000 or less, and the Tranche B Notes have not been
repaid in full, each of the Tranche C Lenders shall have the option to refuse
partial prepayments (including prepayments required pursuant to Section
12.17(c)) of their Tranche C Notes and prepayments shall be applied, (x) in the
case of prepayments required by Section 12.17(c), first, to the Tranche C Notes
of the Tranche C Lenders not refusing prepayment, second, to the Tranche B Notes
until repaid in full, third, to the remaining Tranche C Notes (i.e., of the
Tranche C Lenders who refused prepayment) and, fourth, to the Tranche A Notes
and (y) in the case of any other prepayment, at Borrower's option, to either the
Tranche C Notes of Tranche C Lenders not refusing prepayment, the Tranche A
Notes or the Tranche B Notes.
(ii) If the aggregate outstanding principal amount under the
Tranche A, B and C Notes is $700,000,000 or less, and the Tranche B Notes have
been repaid in full, the Tranche C Lenders shall not have the option to refuse
prepayments, and (x) prepayments required by Section 12.17(c) shall be applied,
first, to the Tranche C Notes and, second, to the Tranche A Notes and (y) any
other prepayment shall be applied, at Borrower's option, to either the Tranche A
Notes or the Tranche C Notes.
Section 2.10 Cancellation of Commitments.
(a) At any time, Borrower shall have the right, without premium or
penalty, to cancel any unused Tranche A Loan Commitments, in whole or in part,
from time to time, provided that (x) Borrower shall give notice of each such
cancellation to Administrative Agent no later then 10:00 a.m. (New York time) on
the date which is ten (10) Business Days prior to the effectiveness of such
cancellation, (y) the Tranche A Loan Commitments of each of the Tranche A
Lenders must be cancelled ratably and simultaneously with those of the other
Tranche A Lenders and (z) each partial cancellation of the Tranche A Loan
Commitments as a whole (and corresponding reduction of the Total Loan
Commitment) shall be in an integral multiple of $1,000,000.
(b) The Tranche A Loan Commitments, to the extent cancelled, may not be
reinstated.
Section 2.11 Method of Payment. Borrower shall make each payment under
this Agreement and under the Notes not later than 11:00 a.m. (New York time) on
the date when due in Dollars to Administrative Agent at Administrative Agent's
Office in immediately available funds. Administrative Agent will thereafter, on
the day of its receipt of each such payment, cause to be distributed to each
Lender (i) such Lender's appropriate share (based upon the respective
outstanding principal amounts and rate(s) of interest under the Notes of all
Lenders) of the payments of principal and interest
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in like funds for the account of such Lender's Applicable Lending Office and
(ii) fees payable to such Lender in accordance with the terms hereof.
Except to the extent otherwise provided herein, whenever any payment to
be made hereunder or under the Notes is due on any day other than a Business
Day, such payment shall be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the computation of the
payment of interest and other fees, as the case may be.
Subject to the immediately following paragraph, but notwithstanding
anything else to the contrary contained herein or in the other Loan Documents,
amounts realized through the exercise of remedies under the Loan Documents shall
be applied, first, to all costs and expenses incurred by Administrative Agent on
behalf of Lenders in enforcement of the Loan Documents, including attorneys'
fees and expenses, and, second, to outstanding principal, accrued and unpaid
interest and other amounts owing under the Loan Documents, in such order as the
Required Lenders determine but to be distributed to Lenders in proportion to the
respective outstanding principal amounts under their Notes.
Notwithstanding the foregoing provisions of this Section, (x)
Administrative Agent shall make no payment to a Delinquent Lender until the
Non-Delinquent Lenders have been paid in full all outstanding principal, accrued
and unpaid interest and any other sums owing to them under the Loan Documents,
it being understood that payments of interest on account of the outstanding
principal amount of the Notes held by the Delinquent Lender shall be held by
Administrative Agent in a non-interest bearing account and not distributed to
the Delinquent Lender until such time as all principal, interest and other sums
due to the Non-Delinquent Lenders have been paid in full, (y) any payments
(other than interest, as provided in clause (x) above) which would otherwise be
due a Delinquent Lender shall be distributed to the Non-Delinquent Lenders until
such time as all principal, interest and other sums due to the Non-Delinquent
Lenders have been paid in full (except that any such amounts otherwise due a
Delinquent Lender received by Administrative Agent during an Election Period
shall be retained by Administrative Agent until the expiration of the Election
Period and either paid to the Delinquent Lender, if the delinquency is cured, or
paid to the Non-Delinquent Lenders, if the delinquency is not cured) and (z)
Administrative Agent shall deduct, from amounts due (or, in the case of a
Delinquent Lender, amounts that would otherwise be payable to such Delinquent
Lender being held by Administrative Agent pursuant to clause (x) above) a Lender
in default under its obligations under Section 10.05, the amount owing by such
Lender pursuant to said Section 10.05 and pay the amount so deducted to itself,
the other Lenders, or such other party as is entitled to such amount, as
applicable.
Section 2.12 Elections, Conversions or Continuation of Loans. Subject
to the provisions of Article III and Sections 2.05 and 2.13, Borrower shall have
the right to Elect to have all or a portion of any advance of the Loans be LIBOR
Loans, to Convert Base Rate Loans into LIBOR Loans, to Convert LIBOR Loans into
Base Rate Loans, or to Continue LIBOR Loans as LIBOR Loans, at any time or from
time to time, provided that (i) Borrower shall give Administrative Agent notice
of each such Election,
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Conversion or Continuation as provided in Section 2.14 and (ii) a LIBOR Loan may
be Converted or Continued only on the last day of the applicable Interest Period
for such LIBOR Loan. Except as otherwise provided herein, each individual
Election, Continuation and Conversion shall be applicable only to one (1)
particular Tranche and to the Notes of the Lenders of such Tranche ratably in
accordance with their respective shares of such Tranche.
Section 2.13 Minimum Amounts. With respect to the Loans as a whole,
each Election and each Conversion shall be in an amount at least equal to
$1,000,000 and in integral multiples of $100,000.
Section 2.14 Certain Notices Regarding Elections, Conversions and
Continuations of Loans. Notices by Borrower to Administrative Agent of
Elections, Conversions and Continuations of LIBOR Loans shall be irrevocable and
shall be effective only if received by Administrative Agent not later than 10:00
a.m. (New York time) on the number of Business Days prior to the date of the
relevant Election, Conversion or Continuation specified below:
Number of Business
Notice Days Prior
------ ------------------
Conversions into Base Rate Loans two (2)
Elections of, Conversions into or Continuations as, three (3)
LIBOR Loans
Promptly following its receipt of any such notice, Administrative Agent shall so
advise the affected Lenders either by telephone or by facsimile. Each such
notice of Election shall specify the portion of the amount of the advance that
is to be LIBOR Loans (subject to Section 2.13) and the duration of the Interest
Period applicable thereto (subject to Section 2.05); each such notice of
Conversion shall specify the LIBOR Loans or Base Rate Loans to be Converted; and
each such notice of Conversion or Continuation shall specify the date of
Conversion or Continuation (which shall be a Business Day), the amount thereof
(subject to Section 2.13) and the duration of the Interest Period applicable
thereto (subject to Section 2.05). In the event that Borrower fails to Elect to
have any portion of an advance of the Loans be LIBOR Loans, the entire amount of
such advance shall constitute Base Rate Loans. In the event that Borrower fails
to Continue a LIBOR Loan within the time period and as otherwise provided in
this Section (and notwithstanding the foregoing provisions regarding notices for
conversions into Base Rate Loans), such LIBOR Loan will automatically be
converted to a Base Rate Loan.
Section 2.15 Late Payment Premium. Borrower shall, at Administrative
Agent's option, pay to Administrative Agent for the account of Lenders a late
payment premium in the amount of 5% of any payments of interest under the Loans
made more than ten (10) days after the due date thereof, which shall be due with
any such late payment.
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Section 2.16 Letters of Credit.
(a) Borrower, by notice to Administrative Agent, may request, in lieu
of advances of proceeds of the Tranche A portion of the Loans, that
Administrative Agent issue unconditional, irrevocable standby letters of credit
(each, a "Letter of Credit") for the account of Borrower, payable by sight
drafts, for such beneficiaries and with such other terms as Borrower shall
specify. Promptly upon issuance of a Letter of Credit, Administrative Agent
shall notify each Lender.
(b) The amount of any Letter of Credit shall be limited to the lesser
of (x) $50,000,000 less the aggregate amount of all Letters of Credit
theretofore issued and outstanding or (y) the then aggregate amount of the
Tranche A Loan Commitments of all Tranche A Lenders available to be advanced
hereunder, it being understood that the amount of each Letter of Credit issued
and outstanding shall (A) effect a reduction, by an equal amount, of the
aggregate available Tranche A Loan Commitments (such reduction to be allocated
to each Tranche A Lender's Tranche A Loan Commitment ratably in accordance with
the Tranche A Lenders' respective Tranche A Pro Rata Shares) and (B) be treated
as advanced as of the date of issuance of the Letter of Credit for purposes of
calculating the commitment fee under Section 2.07(a).
(c) The amount of each Letter of Credit shall be further subject to the
limitations applicable to amounts of advances set forth in Section 2.03 and the
procedures for the issuance of each Letter of Credit shall be the same as the
procedures applicable to the making of advances as set forth in the first
sentence of Section 2.04. Administrative Agent's issuance of each Letter of
Credit shall be subject to Administrative Agent's determination that Borrower
has satisfied all conditions precedent to its entitlement to an advance of
proceeds of the Loans.
(d) No Letter of Credit shall have an expiration date later than (x)
one (1) year after the date of its issuance or (y) one (1) month prior to the
Maturity Date of Tranche A and the Tranche A Notes.
(e) In connection with, and as a further condition to the issuance of,
each Letter of Credit, Borrower shall execute and deliver to Administrative
Agent an application for the Letter of Credit on Administrative Agent's standard
form therefor, together with such other documents, opinions and assurances as
Administrative Agent shall reasonably require.
(f) In connection with each Letter of Credit, Borrower hereby covenants
to pay to Administrative Agent the following fees each payable quarterly in
arrears (on the first Business Day of each calendar quarter following the
issuance of the Letter of Credit): (x) a fee, for the account of the Tranche A
Lenders in accordance with their Tranche A Pro Rata Shares, computed daily on
the amount of the Letter of Credit issued and outstanding at a rate per annum
equal to the "Lenders' L/C Fee Rate" (as hereinafter defined) and (y) a fee, for
Administrative Agent's own account, computed daily on the amount of the Letter
of Credit issued and outstanding at a rate per annum equal to 0.125%. For
purposes of this Agreement, the "Lenders' L/C Fee Rate" shall mean, at any time,
a rate per annum equal to the Applicable Margin for LIBOR Loans
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under Tranche A less 0.125% per annum. It is understood and agreed that the last
installment of the fees provided for in this paragraph (f) with respect to any
particular Letter of Credit shall be due and payable on the first Business Day
of the calendar quarter following the return, undrawn, or cancellation of such
Letter of Credit. In addition, Borrower shall pay Administrative Agent's
customary administrative fees in connection with the extension, amendment and
drawing of all Letters of Credit.
(g) The parties hereto acknowledge and agree that, immediately upon
notice from Administrative Agent of any drawing under a Letter of Credit, each
Tranche A Lender shall, notwithstanding the existence of a Default or Event of
Default or the non-satisfaction of any conditions precedent to the making of an
advance of the Loans, advance proceeds of the Tranche A portion of its Loan, in
an amount equal to its Tranche A Pro Rata Share of such drawing, which advance
shall be made to Administrative Agent to reimburse Administrative Agent, for its
own account, for such drawing (to the extent such Tranche A Lender did not
previously make an advance with respect to such Letter of Credit pursuant to
paragraph (h) below). Each Tranche A Lender further acknowledges that its
obligation to fund its Tranche A Pro Rata Share of drawings under Letters of
Credit as aforesaid shall survive Lenders' termination of this Agreement or
enforcement of remedies hereunder or under the other Loan Documents.
(h) Upon the occurrence and at any time during the continuance of an
Event of Default, the Tranche A Lenders shall, at the direction of the Required
Lenders with the concurrence of the Majority Tranche A Lenders, advance proceeds
of Tranche A into a cash collateral account to be maintained with Administrative
Agent, such advance by each Tranche A Lender to be in an account equal to its
Tranche A Pro Rata Share of the aggregate amount of all the outstanding Letters
of Credit, which cash collateral shall be held by Administrative Agent as
security for the payment and performance of the Obligations relating to Tranche
A. Borrower irrevocably authorizes Lenders to make such advance, and agrees to
execute and deliver to Administrative Agent such documents as Administrative
Agent reasonably requests to confirm and perfect the assignment of such cash
collateral to Administrative Agent. The amount so advanced shall be evidenced by
the Tranche A Notes and secured by the Mortgages. Borrower shall be obligated to
pay interest on such amount, but Borrower shall have no obligation to make
further payments of the fees provided for in clauses (x) and (y) of paragraph
(f) of this Section.
Section 2.17 Additional Conditions to Advances of Tranche A. Each
advance of Tranche A shall be subject, in addition to the other limitations and
conditions set forth herein, to (i) Administrative Agent's receipt of a
certificate of Borrower stating that there exists no Default or Event of Default
and no Default or Event of Default will result from the making of the advance
and (ii) at Administrative Agent's request, Administrative Agent's receipt of a
certificate, of the sort required by clause (ii) of paragraph (3) of Section
6.09, which shall demonstrate Borrower's and Guarantor's compliance, as of the
end of the most recently ended calendar quarter for which financial results are
required hereunder to have been reported by Borrower and Guarantor (and taking
into account pro-forma adjustments for all acquisitions and Dispositions
subsequent to the end of such quarter required to be reported pursuant to
paragraph (7) of
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Section 6.09), with all covenants enumerated in said clause (ii) of paragraph
(3), assuming that the amount that will be outstanding under the Loans following
the making of the advance that is being requested was outstanding as of the end
of such most recently ended calendar quarter.
ARTICLE III
YIELD PROTECTION; ILLEGALITY; ETC.
Section 3.01 Additional Costs. Borrower shall pay directly to each
Lender from time to time on demand such amounts as such Lender may determine to
be necessary to compensate it for any increased costs which such Lender
determines are attributable to its making or maintaining a LIBOR Loan, or its
obligation to make or maintain a LIBOR Loan, or its obligation to Convert a Base
Rate Loan to a LIBOR Loan hereunder, or any reduction in any amount receivable
by such Lender hereunder in respect of its LIBOR Loan or such obligations (such
increases in costs and reductions in amounts receivable being herein called
"Additional Costs"), in each case resulting from any Regulatory Change which:
(1) changes the basis of taxation of any amounts payable to such Lender
under this Agreement or the Notes in respect of any such LIBOR Loan (other
than changes in the rate of general corporate, franchise, branch profit,
net income or other income tax imposed on such Lender or its Applicable
Lending Office by the jurisdiction in which such Lender has its principal
office or such Applicable Lending Office); or
(2) (other than to the extent the LIBOR Reserve Requirement is taken
into account in determining the LIBOR Rate at the commencement of the
applicable Interest Period) imposes or modifies any reserve, special
deposit, deposit insurance or assessment, minimum capital, capital ratio or
similar requirements relating to any extensions of credit or other assets
of, or any deposits with or other liabilities of, such Lender (including
any LIBOR Loan or any deposits referred to in the definition of "LIBOR
Interest Rate" in Section 1.01), or any commitment of such Lender
(including such Lender's Loan Commitment hereunder); or
(3) imposes any other condition affecting this Agreement or the Notes
(or any of such extensions of credit or liabilities).
Without limiting the effect of the provisions of the first paragraph of
this Section, in the event that, by reason of any Regulatory Change, any Lender
either (i) incurs Additional Costs based on or measured by the excess above a
specified level of the amount of a category of deposits or other liabilities of
such Lender which includes deposits by reference to which the LIBOR Interest
Rate is determined as provided herein or a category of extensions of credit or
other assets of such Lender which includes loans based on the LIBOR Interest
Rate or (ii) becomes subject to restrictions on the amount of such a category of
liabilities or assets which it may hold, then, if such Lender so elects by
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notice to Borrower (with a copy to Administrative Agent), the obligation of such
Lender to permit Elections of, to Continue, or to Convert Base Rate Loans into,
LIBOR Loans shall be suspended (in which case the provisions of Section 3.04
shall be applicable) until such Regulatory Change ceases to be in effect.
Determinations and allocations by a Lender for purposes of this Section
of the effect of any Regulatory Change pursuant to the first or second paragraph
of this Section, on its costs or rate of return of making or maintaining its
Loan or portions thereof or on amounts receivable by it in respect of its Loan
or portions thereof, and the amounts required to compensate such Lender under
this Section, shall be conclusive absent manifest error.
Section 3.02 Limitation on Types of Loans. Anything herein to the
contrary notwithstanding, if on or prior to the determination of the LIBOR
Interest Rate for any Interest Period:
(1) Administrative Agent determines (which determination shall be
conclusive) that quotations of interest rates for the relevant deposits
referred to in the definition of "LIBOR Interest Rate" in Section 1.01 are
not being provided in the relevant amounts or for the relevant maturities
for purposes of determining rates of interest for the LIBOR Loans as
provided herein; or
(2) a Lender determines (which determination shall be conclusive) and
promptly notifies Administrative Agent that the relevant rates of interest
referred to in the definition of "LIBOR Interest Rate" in Section 1.01 upon
the basis of which the rate of interest for LIBOR Loans for such Interest
Period is to be determined do not cover the cost to such Lender of making
or maintaining such LIBOR Loan for such Interest Period;
then Administrative Agent shall give Borrower prompt notice thereof, and so long
as such condition remains in effect, Lenders (or, in the case of the
circumstances described in clause (2) above, the affected Lender) shall be under
no obligation to permit Elections of LIBOR Loans, to Convert Base Rate Loans
into LIBOR Loans or to Continue LIBOR Loans and Borrower shall, on the last
day(s) of the then current Interest Period(s) for the affected outstanding LIBOR
Loans, either (x) prepay the affected LIBOR Loans and terminate the affected
Lender's Loan Commitment to the extent of such prepayment (which shall be
permitted notwithstanding the provisions of clauses (y) and (z) of Section
2.10(a))or (y) Convert the affected LIBOR Loans into Base Rate Loans in
accordance with Section 2.12.
Section 3.03 Illegality. Notwithstanding any other provision of this
Agreement, in the event that it becomes unlawful for any Lender or its
Applicable Lending Office to honor its obligation to make or maintain a LIBOR
Loan hereunder, to allow Elections of a LIBOR Loan or to Convert a Base Rate
Loan into a LIBOR Loan, then such Lender shall promptly notify Administrative
Agent and Borrower thereof and such Lender's obligation to make or maintain a
LIBOR Loan, or to permit Elections of, to Continue, or to Convert its Base Rate
Loan into, a LIBOR Loan shall be suspended (in
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which case the provisions of Section 3.04 shall be applicable) until such time
as such Lender may again make and maintain a LIBOR Loan.
Section 3.04 Treatment of Affected Loans. If the obligations of any
Lender to make or maintain a LIBOR Loan, or to permit an Election of a LIBOR
Loan, to Continue its LIBOR Loan, or to Convert its Base Rate Loan into a LIBOR
Loan, are suspended pursuant to Sections 3.01 or 3.03 (each LIBOR Loan so
affected being herein called an "Affected Loan"), such Lender's Affected Loan
shall be automatically Converted into a Base Rate Loan on the last day of the
then current Interest Period for the Affected Loan (or, in the case of a
Conversion (or conversion) required by Sections 3.01 or 3.03, on such earlier
date as such Lender may specify to Borrower).
To the extent that such Lender's Affected Loan has been so Converted
(or the interest rate thereon so converted), all payments and prepayments of
principal which would otherwise be applied to such Lender's Affected Loan shall
be applied instead to its Base Rate Loan and such Lender shall have no
obligation to Convert its Base Rate Loan into a LIBOR Loan.
Section 3.05 Certain Compensation. Borrower shall pay to Administrative
Agent for the account of the applicable Lender, upon the request of such Lender
through Administrative Agent (which request shall include a calculation of the
amount(s) due), such amount or amounts as shall be sufficient (in the opinion of
such Lender) to compensate it for any loss, cost or expense which such Lender
determines is attributable to:
(1) any payment or prepayment of a LIBOR Loan made by such Lender, or
any Conversion of a LIBOR Loan made by such Lender, in any such case on a
date other than the last day of an applicable Interest Period, whether by
reason of acceleration or otherwise; or
(2) any failure by Borrower for any reason to Convert or Continue a
LIBOR Loan to be Converted or Continued by such Lender on the date
specified therefor in the relevant notice under Section 2.14; or
(3) any failure by Borrower to borrow (or to qualify for a borrowing
of) a LIBOR Loan which would otherwise be made hereunder on the date
specified in the relevant Election notice under Section 2.14 given or
submitted by Borrower.
Without limiting the foregoing, such compensation shall include an
amount equal to the present value (using as the discount rate an interest rate
equal to the rate determined under clause (y) below) of the excess, if any, of
(x) the amount of interest which otherwise would have accrued on the principal
amount so paid, prepaid, Converted or Continued (or not Converted, Continued or
borrowed) for the period from the date of such payment, prepayment, Conversion
or Continuation (or failure to Convert, Continue or borrow) to the last day of
the then current applicable Interest Period (or, in the case of a failure to
Convert, Continue or borrow, to the last day of the applicable Interest Period
which would have commenced on the date specified therefor in the relevant
notice) at the
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applicable rate of interest for the LIBOR Loan provided for herein, over (y) the
amount of interest (as reasonably determined by such Lender) based upon the
interest rate which such Lender would have bid in the London interbank market
for Dollar deposits, for amounts comparable to such principal amount and
maturities comparable to such period. A determination of any Lender as to the
amounts payable pursuant to this Section shall be conclusive absent manifest
error.
Section 3.06 Capital Adequacy. If any Lender shall have determined
that, after the date hereof, the adoption of any applicable law, rule or
regulation regarding capital adequacy, or any change therein, or any change in
the interpretation or administration thereof by any Governmental Authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital adequacy
(whether or not having the force of law) of any such Governmental Authority,
central bank or comparable agency, has or would have the effect of reducing the
rate of return on capital of such Lender (or its Parent) as a consequence of
such Lender's obligations hereunder to a level below that which such Lender (or
its Parent) could have achieved but for such adoption, change, request or
directive (taking into consideration its policies with respect to capital
adequacy) by an amount deemed by such Lender to be material, then from time to
time, within fifteen (15) Business Days after demand by such Lender (with a copy
to Administrative Agent), Borrower shall pay to such Lender such additional
amount or amounts as will compensate such Lender (or its Parent) for such
reduction. A certificate of any Lender claiming compensation under this Section,
setting forth in reasonable detail the basis therefor, shall be conclusive
absent manifest error.
Section 3.07 Substitution of Lenders. If any Lender (an "Affected
Lender") (i) makes demand upon Borrower for (or if Borrower is otherwise
required to pay) Additional Costs pursuant to Section 3.01 or (ii) gives notice
to Borrower that such Lender is unable to make or maintain a LIBOR Loan as a
result of a condition described in Section 3.03 or clause (2) of Section 3.02,
Borrower may, within ninety (90) days of receipt of such demand or notice (or
the occurrence of such other event causing Borrower to be required to pay
Additional Costs or causing said Section 3.03 or clause (2) of Section 3.02 to
be applicable), as the case may be, give notice (a "Substitution Notice") to
Administrative Agent and to each Lender of Borrower's intention either (x) to
prepay in full the Affected Lender's Notes and to terminate the Affected
Lender's entire Loan Commitment or (y) to replace the Affected Lender with
another financial institution (a "Substitute Lender") designated in such
Substitution Notice.
In the event Borrower opts to give the notice provided for in clause
(x) above, and if the Affected Lender shall not agree within thirty (30) days of
its receipt thereof to waive the payment of the Additional Costs in question or
the effect of the circumstances described in Section 3.03 or clause (2) of
Section 3.02, then, so long as no Event of Default shall exist, Borrower may
(notwithstanding the provisions of clause (y) of Section 2.10(a)) terminate the
Affected Lender's entire Loan Commitment, provided that in connection therewith
it pays to the Affected Lender all outstanding principal and accrued and unpaid
interest under the Affected Lender's Notes, together with all other
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amounts, if any, due from Borrower to the Affected Lender, including all amounts
properly demanded and unreimbursed under this Article III.
In the event Borrower opts to give the notice provided for in clause
(y) above, and if (A) Administrative Agent shall, within thirty (30) days of its
receipt of the Substitution Notice, notify Borrower and each Lender in writing
that the proposed Substitute Lender is reasonably satisfactory to Administrative
Agent and (B) the Affected Lender shall not, prior to the end of such thirty
(30)-day period, agree to waive the payment of the Additional Costs in question
or the effect of the circumstances described in Section 3.03 or clause (2) of
Section 3.02, then the Affected Lender shall, so long as no Event of Default
shall exist, assign its Notes and all of its rights and obligations under this
Agreement to the Substitute Lender, and the Substitute Lender shall assume all
of the Affected Lender's rights and obligations, pursuant to an agreement,
substantially in the form of an Assignment and Assumption Agreement, executed by
the Affected Lender and the Substitute Lender. In connection with such
assignment and assumption, the Substitute Lender shall pay to the Affected
Lender an amount equal to the outstanding principal amount under the Affected
Lender's Notes plus all interest accrued thereon, plus all other amounts, if any
(other than the Additional Costs in question), then due and payable to the
Affected Lender; provided, however, that prior to or simultaneously with any
such assignment and assumption, Borrower shall have paid to such Affected Lender
all amounts properly demanded and unreimbursed under this Article III. Upon the
effective date of such assignment and assumption and the payment by the
Substitute Lender to Administrative Agent of a fee, for Administrative Agent's
own account, in the amount of $3,500, the Substitute Lender shall become a party
to this Agreement and shall have all the rights and obligations of a Lender as
set forth in such Assignment and Assumption Agreement, and the Affected Lender
shall be released from its obligations hereunder, and no further consent or
action by any party shall be required. Upon the consummation of any assignment
pursuant to this Section, substitute notes shall be issued to the Substitute
Lender by Borrower, in exchange for the return of the Affected Lender's Notes.
The obligations evidenced by such substitute notes shall constitute
"Obligations" for all purposes of this Agreement and the other Loan Documents
and shall be secured by the Mortgages. In connection with Borrower's execution
of substitute notes as aforesaid, Borrower shall deliver to Administrative Agent
such evidence of the due authorization, execution and delivery of the substitute
notes and any related documents as Administrative Agent may reasonably request.
If the Substitute Lender is not incorporated under the Laws of the United States
or a state thereof, it shall, prior to the first date on which interest or fees
are payable hereunder for its account, deliver to Borrower and Administrative
Agent certification as to exemption from deduction or withholding of any United
States federal income taxes in accordance with Section 10.13. Each Substitute
Lender shall be deemed to have made the representations contained in, and shall
be bound by the provisions of, Section 10.13.
Borrower, Administrative Agent and Lenders shall execute such
modifications to the Loan Documents as shall be reasonably required in
connection with and to effectuate the foregoing.
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Section 3.08 "Lender" to Include Participants. For purposes of Sections
3.01 through 3.06 and of the definition of "Additional Costs", the term "Lender"
shall, at each Lender's option, be deemed to include such Lender's present and
future Participants in its Loan to the extent of each such Participant's actual
Additional Costs or other losses, costs or expenses payable pursuant to this
Article III.
ARTICLE IV
CONDITIONS PRECEDENT
Section 4.01 Conditions Precedent to the Initial Advance. The
obligations of Lenders hereunder and the obligation of each Lender to make the
Initial Advance are subject to the condition precedent that Administrative Agent
shall have received and approved on or before the Closing Date (other than with
respect to the items listed in paragraph (23) below, which shall be received and
approved by Administrative Agent prior to the Initial Advance) each of the
following documents, and that each of the following requirements shall have been
fulfilled (it being understood that the documents set forth in paragraphs (4)
through (17) below are required for each Property, except that (x) in the case
of the Properties identified on SCHEDULE A as Austin Center and Omni Hotel, said
two (2) Properties shall be covered by a single Mortgage and Indemnity and the
requirements of paragraphs (6) through (17) below may be satisfied jointly with
respect to such Properties, where appropriate; (y) certain requirements with
respect to the Disposition Properties shall be deferred as provided in Section
12.19; and (z) in the case of Woodlands, the items listed in paragraphs (4)
through (10) and (12) through (16) shall not be required; provided, however,
that if Woodlands has not been sold as contemplated by the Sales Contract
therefor as provided in this Agreement by June 15, 2000 (as such date may be
extended by Administrative Agent, but no later than December 15, 2000), or if
said Sales Contract terminates or is cancelled, then the requirements of
paragraphs (8), (10) and (12) through (16) with respect to Woodlands shall be
performed in full by Borrower and delivered to Administrative Agent within
thirty (30) days thereafter; provided, further, however, that if Woodlands is
not sold as contemplated by the Sales Contract therefor or encumbered by a first
Mortgage as security for the Loans (and the conditions of paragraphs (4) through
(10), (12) through 16 and (34) below shall have been satisfied) by December 15,
2000, then Woodlands shall be deemed to make no contribution to Office Value or
Property Net Operating Income and Borrower shall make, on December 15, 2000, a
payment in reduction of the outstanding principal amount of the Notes in an
amount such that the covenants of Article VIII (recomputed as of December 15,
2000, taking into account that Woodlands will make no contribution to Office
Value or Property Net Operating Income) are complied with);
(1) Fees and Expenses. The payment of all fees and expenses incurred by
UBS and Administrative Agent (including, without limitation, the reasonable
fees and expenses of legal counsel, the Engineering Consultant and any
valuation, environmental or insurance consultants, and the reasonable
out-of-pocket expenses of Administrative Agent which Borrower has agreed to
pay pursuant hereto);
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(2) Notes. The Notes for UBS and Fleet, each duly executed by Borrower;
(3) Guaranty. The Guaranty, duly executed by Guarantor;
(4) Mortgages and UCCs. The duly executed Mortgages, recorded or to be
recorded in the appropriate land records, together with duly executed
financing statements filed or about to be filed under the Uniform
Commercial Code of all jurisdictions necessary or, in the reasonable
opinion of Administrative Agent, desirable to perfect the lien created by
each Mortgage;
(5) Indemnities. The duly executed Indemnities;
(6) Title Policy. A paid title insurance policy in the amount of the
Mortgage (or such lesser amount as may be approved by Administrative
Agent), in form approved by Administrative Agent and issued by the Title
Insurer, which shall insure the Mortgage to be a valid first lien on
Borrower's (or, in the case of Washington Harbour, Spectrum Centre and
Xxxxxxxx Xxxx Center, on the Other Mortgagor's) interests in the Property
and Improvements, free and clear of all liens, defects, encumbrances and
exceptions other than those previously approved by Administrative Agent,
and shall contain (i) a reference to the survey but no survey exceptions,
(ii) if such policy is dated earlier than the date of the Initial Advance,
an endorsement to such policy, in a form approved by Administrative Agent,
conforming to the pending disbursements requirements set forth above and
setting forth no additional exceptions other than those approved by
Administrative Agent and (iii) such affirmative insurance and endorsements
(including with respect to pending disbursements and revolving credits) as
Administrative Agent may require; and shall be accompanied by such
reinsurance agreements between the Title Insurer and title companies
approved by Administrative Agent, in ALTA facultative form approved by
Administrative Agent and with direct access provisions, as Administrative
Agent may require;
(7) Survey. A current ALTA/ACSM survey, certified to Administrative
Agent and the Title Insurer, showing (i) the location of the perimeter of
the Property by courses and distances, (ii) all easements, rights-of-way,
and utility lines referred to in the title policy required by this
Agreement or which actually service or cross the Property (with instrument,
book and page number indicated), (iii) the lines of the streets abutting
the Property and the width thereof, and any established building lines (and
that such roads have been dedicated for public use and are completed and
have been accepted by all required Governmental Authorities), (iv) any
encroachments and the extent thereof upon the Property, (v) locations of
all portions (with the acreage thereof also identified) of the Property, if
any, which are located in an area designated as a "flood prone area" as
defined by U.S. Department of Housing and Urban Development pursuant to the
Flood Disaster Protection Act of 1973 and (vi) the Improvements, and the
relationship thereof by distances to the perimeter of the Property,
established building lines and street lines;
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(8) Appraisal. An independent M.A.I. appraisal, commissioned by
Administrative Agent, of the value of the Property, which appraisal shall
comply in all respects with the standards for real estate appraisals
established pursuant to the Financial Institutions Reform, Recovery, and
Enforcement Act of 1989;
(9) Insurance Policies. The certificates of hazard and other insurance
required by the Mortgage, together with evidence of the payment of the
premiums therefor;
(10) Hazardous Materials Report. A Phase I environmental site
assessment by a properly qualified engineer with respect to the Property;
(11) Intentionally Omitted.
(12) Consultant's Report. A detailed report from the Engineering
Consultant to the effect that (i) the Improvements are in satisfactory
condition and have been constructed in accordance with the plans and
specifications therefor approved by all applicable Governmental
Authorities, (ii) the Improvements comply with all applicable zoning and
other Laws, (iii) all roads and utilities necessary for the full
utilization of the Improvements for their intended purposes have been
completed and (iv) there exists a sufficient number of parking spaces
necessary to satisfy the requirements of all zoning and other applicable
Laws with respect to the Property, and all required landscaping, sidewalks
and other amenities, and all off-site improvements, related to the
Improvements have been completed;
(13) Permits and Other Approvals. Copies of any and all certificates of
occupancy required by all Governmental Authorities;
(14) Leases. Copies, certified to be true and complete, of all executed
leases of the Improvements, accompanied by notices of assignments in the
form of EXHIBIT F and, in the case of Major Leases (i) estoppel
certificates from the tenants thereunder, (ii) at Administrative Agent's
option, subordination, non-disturbance and attornment agreements and (iii)
to the extent available, current financial statements of the tenants (and
guarantors of the tenants' obligations, if applicable) thereunder; together
with a certified copy of the standard form of lease Borrower is using in
connection with the leasing of space in the Improvements and the first rent
roll, leasing report and operating/cash statements required by paragraph
(14) of Section 6.09;
(15) Premises Documents and Ground Leases. Copies, certified to be true
and complete, of the Premises Documents, together with estoppel
certificates with respect thereto from each of the parties thereto (to the
extent obtainable by Borrower after exerting reasonable efforts) and, if
available, current financial statements of such parties; and, in the case
of (i) those Properties in which Borrower has a leasehold interest (i.e.,
those Properties identified on SCHEDULE A as Stemmons Place and Frost Bank)
and (ii) Washington Harbour, copies, certified by Borrower or CWH, as the
case may be, to be true and complete, of the
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ground lease(s) of the Property, together with an estoppel certificate with
respect thereto from the ground lessors and/or ground lessees thereunder;
(16) Management and Leasing Contracts. Copies, certified to be true and
complete, of all existing contracts providing for the management and/or
leasing of the Property and Improvements, together with, in each case, such
subordinations, collateral assignments and/or "will-serve" letters as
Administrative Agent may require;
(17) UCC Searches. Uniform Commercial Code searches with respect to
Borrower, the Other Mortgagor and each of the "Assignors" under the
Collateral Assignments, and advice from the Title Insurer to the effect
that searches of the proper public records disclose no leases of personalty
or financing statements filed or recorded against Borrower, the Other
Mortgagor, any of said Assignors, or any of the Collateral;
(18) Financial Statements. (i) Guarantor's Consolidated Financial
Statements as of and for the year ended December 31, 1998, certified by the
chief financial officer of Guarantor and audited by Guarantor's
Accountants, (ii) unaudited Guarantor's Consolidated Financial Statements,
certified by the chief financial officer of Guarantor, as of and for the
quarter ended September 30, 1999, (iii) financial statements of the Other
Mortgagor, as of and for the year ended December 31, 1998, certified by the
chief financial officer and audited by Guarantor's Accountants, (iv)
unaudited financial statements of the Other Mortgagor, certified by the
chief financial officer, as of and for the quarter ended September 30, 1999
and (v) unaudited operating statements for each Property for the year ended
December 31, 1999, certified by the chief financial officer of Borrower;
(19) Organizational Documents. For CEI, CEI Ltd. and any general
partner or member of Borrower, Guarantor, CHW, SMA or CCRH which is a
corporation, current copies of the following documents with respect to each
(unless otherwise indicated):
(i) a good-standing certificate from the jurisdiction of its
incorporation (other than for CEI),
(ii) a resolution, certified by the corporate secretary, of the
shareholders or directors of the corporation authorizing the
consummation of the transactions contemplated hereby and the execution,
delivery and performance of the Loan Documents and other documents to
be executed, delivered or performed by said corporation (including any
substitute or replacement Notes to be executed and delivered pursuant
to the terms hereof), and
(iii) a certificate of the corporate secretary as to the
incumbency of the officers executing any of the documents required
hereby,
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and for Borrower, CEI LP, CWH, SMA, CCRH and any general partner or member
(in the case of a limited liability company) of Borrower, Guarantor, CWH or
SMA which is a partnership, venture, limited liability company or trust:
(iv) the entity's organizational/operating agreement and all
amendments and attachments thereto, certified by a general partner,
venturer, member or trustee to be true and complete,
(v) good standing certificates from, and any other certificates
filed or required to be filed by the entity in, the jurisdiction of its
formation and in any of the jurisdictions where the Properties are
located, and
(vi) evidence of the authorization of the consummation of the
transactions contemplated hereby and the execution, delivery and
performance of the Loan Documents and any other documents to be
executed, delivered and performed by said entity (including any
substitute or replacement Notes to be executed and delivered pursuant
to the terms hereof), and including any required consents by partners,
venturers, members, trustees or beneficiaries;
(20) Solvency Certificate. A duly executed Solvency Certificate with
respect to Borrower, Guarantor and the Other Mortgagor;
(21) Opinions of Counsel. Favorable opinions, dated the Closing Date,
of counsel for Borrower, Guarantor and the Other Mortgagor, as to such
matters as Administrative Agent may reasonably request;
(22) Authorization Letter. The Authorization Letter, duly executed by
Borrower;
(23) Request for Advance. A request for an advance in accordance with
Section 2.04, together with such supporting documentation as Administrative
Agent may reasonably request;
(24) Certificate. The following statements shall be true and
Administrative Agent shall have received a certificate dated the Closing
Date signed by a duly authorized signatory of Borrower stating, to the best
of the certifying party's knowledge, the following:
(i) All representations and warranties contained in this Agreement
and in each of the other Loan Documents are true and correct on and as
of the Closing Date as though made on and as of such date,
(ii) No Default or Event of Default has occurred and is
continuing, or could result from the transactions contemplated by this
Agreement and the other Loan Documents, and
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(iii) None of the Improvements on any Property has been injured or
damaged by fire or other casualty which has not been satisfactorily
repaired or restored as of the Closing Date;
(25) Assignment of Loan Rights. The Assignments of Loan Rights, duly
executed by Borrower and SMA, as the case may be (and related Uniform
Commercial Code financing statements) and the related absolute
assignment(s)/subordination(s) in recordable form required thereby (and
related Uniform Commercial Code assignment statements), together with the
original executed collateral Notes and Mortgages and related documents
being assigned (or, in the case of any such documents which have been lost
or destroyed, such estoppels, affidavits or indemnities as Administrative
Agent may require), and, to the extent obtainable by Borrower with
reasonable effort, an acknowledgement and agreement with respect thereto by
the obligors and mortgagors/grantors thereunder;
(26) Partnership Assignments. The Partnership Assignments, duly
executed by Borrower and CEI LP, as the case may be (and related Uniform
Commercial Code financing statements), together with copies, certified by
Borrower or CEI LP, as the case may be, to be true and complete of the
partnership agreements for SMA and Woodlands Office Equities;
(27) Assignment of Sales Proceeds. The Assignment of Sales Proceeds,
duly executed by CEI LP (and related Uniform Commercial Code financing
statements);
(28) Agreement Regarding Encumbrances. The Agreement Regarding
Encumbrances, duly executed by CEI LP and in proper form for recording in
the appropriate land records;
(29) Evidence regarding Existing Credit Facilities. Evidence that the
Existing Credit Facilities have been or will be repaid in full and
terminated upon the making of the Initial Advance;
(30) Sales Contracts. Copies, certified by CEI LP to be true and
complete, of the Sales Contracts;
(31) Disposition Property Conveyance Documents. The duly executed
Disposition Property Conveyance Documents;
(32) Covenant Compliance. A covenant compliance certificate of the sort
required by paragraph (3) of Section 6.09;
(33) Contribution Agreement. A Contribution Agreement among Borrower
and the Other Mortgagor; and
(34) Additional Materials. Such other approvals, documents, instruments
or opinions as Administrative Agent may reasonably request.
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Section 4.02 Conditions Precedent to Advances After the Initial
Advance. The obligation of each Tranche A Lender to make advances of the Loans
subsequent to the Initial Advance shall be subject to satisfaction of the
following conditions precedent:
(1) All conditions of Section 4.01 shall have been and remain satisfied
as of the date of the advance;
(2) No Default or Event of Default shall have occurred and be
continuing as of the date of the advance;
(3) Each of the representations and warranties contained in this
Agreement and in each of the other Loan Documents shall be true and correct
as of the date of the advance;
(4) No Material Adverse Change shall have occurred and be continuing as
of the date of the advance;
(5) Administrative Agent shall have received a request for an advance
in accordance with Section 2.04 and the other provisions hereof, together
with such supporting documentation as Administrative Agent may reasonably
request; and
(6) The conditions set forth in Section 2.17 shall have been satisfied.
From time to time, Administrative Agent may cause the Title Insurer to
provide, at Borrower's expense, an informational continuation report (and, if
available at reasonable cost, a date down endorsement) with respect to any or
all of the Properties.
Section 4.03 Deemed Representations. Each request by Borrower for, and
acceptance by Borrower of, an advance of proceeds of the Loans shall constitute
a representation and warranty by Borrower, Guarantor and the Other Mortgagor
that, as of both the date of such request and the date of the advance (and
taking into account the advance), (i) no Default or Event of Default has
occurred and is continuing and (ii) each representation or warranty contained in
this Agreement or the other Loan Documents is true and correct in all material
respects.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Administrative Agent and each
Lender as follows:
Section 5.01 Due Organization and General Power and Authority. Each of
Borrower, CEI LP, SMA and CCRH is a limited partnership duly organized, validly
existing and in good standing under the Laws of the State of Delaware, with its
principal office in the State of Texas, has the power and authority to own its
assets and to
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transact the business in which it is now engaged, and, if applicable, is duly
qualified for the conduct of business and in good standing under the Laws of
each jurisdiction where a Property is located and each other jurisdiction in
which such qualification is required. CEI is a real estate investment trust duly
organized, validly existing and in good standing under the Laws of the State of
Texas, with its principal place of business in the State of Texas, has the power
and authority to own its assets and to transact the business which it is now
engaged and, if applicable, is duly qualified for the conduct of business and in
good standing under the Laws of each other jurisdiction in which such
qualification is necessary. Each of CEI, Ltd. and Crescent Commercial Realty
Corp. (CCRH's general partner) is a corporation duly organized, validly existing
and in good standing under the Laws of the State of Delaware, with its principal
place of business in the State of Texas, has the power and authority to own its
assets and to transact the business which it is now engaged and, if applicable,
is duly qualified for the conduct of business and in good standing under the
Laws of each other jurisdiction in which such qualification is necessary. Each
of CWH and CRE Management VIII, LLC (Borrower's sole general partner) is a
limited liability company duly organized, validly existing and in good standing
under the Laws of the State of Delaware, has the power and authority to own its
assets and to transact the business in which it is now engaged, and, if
applicable, is duly qualified for the conduct of business and in good standing
under the Laws of each jurisdiction where a Property is located and each other
jurisdiction in which such qualification is required.
Section 5.02 Power and Authority Regarding Loans; No Conflicts;
Compliance With Laws. Each of Borrower, Guarantor and the Other Mortgagor has
full power and authority to consummate the transactions contemplated hereby and
to execute, deliver and perform this Agreement and any Loan Document to which it
is a party. The execution, delivery and performance of the Obligations required
to be performed by Borrower, Guarantor and/or the Other Mortgagor does not and
will not (i) require the consent or approval of its shareholders, partners or
members, as the case may be, or such consent or approval has been obtained, (ii)
contravene its certificate of incorporation, by-laws, partnership agreement or
other organizational documents, (iii) violate in any material way any provision
of, or require any filing, registration, consent or approval under, any Law
(including, without limitation, Regulation U), order, writ, judgment,
injunction, decree, determination or award presently in effect having
applicability to it, (iv) require any consent under any indenture or loan or
credit agreement or any other agreement, lease or instrument to which it may be
a party or by which it or its properties may be bound or affected except for
consents which have been obtained, (v) result in, or require, the creation or
imposition of any Lien, upon or with respect to any of its properties now owned
or hereafter acquired or (vi) cause it to be in default under any such
indenture, agreement, lease or instrument, which default is likely to result in
a Material Adverse Change; each of Borrower, Guarantor and the Other Mortgagor
is in material compliance with all Laws applicable to it and its properties.
Section 5.03 Legally Enforceable Agreements. Each Loan Document is a
legal, valid and binding obligation of Borrower, Guarantor and/or the Other
Mortgagor enforceable against said parties in accordance with its terms, except
to
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the extent that such enforcement may be limited by applicable bankruptcy,
insolvency and other similar Laws affecting creditors' rights generally.
Section 5.04 Litigation. Except as set forth on SCHEDULE 5.04, there
are no actions, suits or proceedings pending or, to its knowledge, threatened
against Borrower, Guarantor, CWH, any Material Affiliate, any Property or the
Improvements thereon, the validity or enforceability of any Mortgage or the
priority of the Lien thereof, at law or in equity, before any court or
arbitrator or any Governmental Authority (and, to the knowledge of Borrower,
there are no such actions, suits or proceedings pending or threatened against
Woodlands, Woodlands Office Equities, Xxxxxxxx Xxxx Center, CCRH, Spectrum
Centre or SMA), except actions, suits or proceedings which have been disclosed
to Administrative Agent in writing and which are fully covered by insurance or
would, if adversely determined, not substantially impair the ability of
Borrower, Guarantor, or the Other Mortgagor to pay when due any amounts which
may become payable under the Notes or other Loan Documents or to otherwise pay
and perform their respective Obligations.
Section 5.05 Good Title to Properties. Borrower, Guarantor, the Other
Mortgagor and each Material Affiliate have good, marketable and legal title to
all of the properties and assets each of them purports to own (including,
without limitation, those reflected in the financial statements referred to in
Section 5.13), only with exceptions which do not materially detract from the
value of such property or assets or the use thereof in Borrower's, Guarantor's,
the Other Mortgagor's or such Material Affiliate's business. Borrower,
Guarantor, the Other Mortgagor and each Material Affiliate enjoy peaceful and
undisturbed possession of all leased property necessary in any material respect
in the conduct of their respective businesses. All such leases are valid and
subsisting and are in full force and effect.
Section 5.06 Taxes. Each of Borrower, Guarantor and the Other Mortgagor
has filed all tax returns (federal, state and local) required to be filed and
has paid all taxes, assessments and governmental charges and levies due and
payable without the imposition of a penalty, including interest and penalties,
except to the extent they are the subject of a Good Faith Contest.
Section 5.07 ERISA. Each of Borrower, Guarantor and the Other Mortgagor
is in compliance in all material respects with all applicable provisions of
ERISA. Neither a Reportable Event nor a Prohibited Transaction has occurred with
respect to any Plan which could result in liability of any of said parties; no
notice of intent to terminate a Plan has been filed nor has any Plan been
terminated within the past five (5) years; no circumstance exists which
constitutes grounds under Section 4042 of ERISA entitling the PBGC to institute
proceedings to terminate, or appoint a trustee to administer, a Plan, nor has
the PBGC instituted any such proceedings; Borrower, Guarantor, the Other
Mortgagor and the ERISA Affiliates have not completely or partially withdrawn
under Sections 4201 or 4204 of ERISA from a Multiemployer Plan; Borrower,
Guarantor, the Other Mortgagor and the ERISA Affiliates have met the minimum
funding requirements of Section 412 of the Code and Section 302 of ERISA of each
with respect to the Plans of each and there is no material "Unfunded Current
Liability" (as such quoted term is defined in ERISA) with respect to any Plan
established
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or maintained by each; and Borrower, Guarantor, the Other Mortgagor and the
ERISA Affiliates have not incurred any liability to the PBGC under ERISA (other
than for the payment of premiums under Section 4007 of ERISA). No part of the
funds to be used by Borrower or Guarantor in satisfaction of their respective
Obligations constitute "plan assets" of any "employee benefit plan" within the
meaning of ERISA or of any "plan" within the meaning of Section 4975(e)(1) of
the Code, as interpreted by the Internal Revenue Service and the U.S. Department
of Labor in rules, regulations, releases, bulletins or as interpreted under
applicable case law. Neither the extension of credit evidenced by the Notes nor
any other transaction contemplated under the Loan Documents constitutes a
Prohibited Transaction.
Section 5.08 No Default on Outstanding Judgments or Orders. Borrower,
Guarantor, the Other Mortgagor and each Material Affiliate have satisfied all
judgments which are not being appealed, and are not in default with respect to
any judgment, order, writ, injunction, decree, rule or regulation of any court,
arbitrator or federal, state, municipal or other Governmental Authority,
commission, board, bureau, agency or instrumentality, domestic or foreign, where
such default is likely to result in a Material Adverse Change.
Section 5.09 No Defaults on Other Agreements. Except as disclosed to
Administrative Agent in writing, neither Borrower, Guarantor, the Other
Mortgagor nor any Affiliate of any of them is a party to any indenture, loan or
credit agreement or any lease or other agreement or instrument or subject to any
partnership, trust or other restriction which is likely to result in a Material
Adverse Change. Neither Borrower, Guarantor, the Other Mortgagor nor any
Affiliate of any of them is in default in any respect in the performance,
observance or fulfillment of any of the obligations, covenants or conditions
contained in any agreement or instrument which is likely to result in a Material
Adverse Change.
Section 5.10 Government Regulation. Neither Borrower, Guarantor nor the
Other Mortgagor is subject to regulation under the Investment Company Act of
1940 or any statute or regulation limiting its ability to incur indebtedness for
money borrowed as contemplated hereby.
Section 5.11 Environmental Protection. To the best of Borrower's
knowledge, except as disclosed in the Phase I environmental reports delivered
pursuant to paragraph (10) of Section 4.01 (the "Environmental Reports"), (a)
none of Borrower's, Guarantor's or the Other Mortgagor's or any of their
respective Affiliates' properties contains any Hazardous Materials that, under
any Environmental Law currently in effect, (i) would impose liability on
Borrower, Guarantor or the Other Mortgagor that is likely to result in a
Material Adverse Change or (ii) is likely to result in the imposition of a Lien
on any assets of Borrower, Guarantor or the Other Mortgagor, in each case if not
properly handled in accordance with applicable Law; and (b) neither it,
Guarantor, the Other Mortgagor nor any portion of any Property or the
Improvements thereon is in violation of, or subject to any existing, pending or,
to the best of Borrower's knowledge, threatened investigation or proceeding by
any Governmental Authority under, any Environmental Law. Except as described in
the Environmental Reports, (c) neither Borrower, Guarantor nor the Other
Mortgagor is aware of any matter, claim, condition or circumstance which
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would reasonably cause a Person to make further inquiry with respect to such
matters in order to ascertain whether any Environmental Discharge has occurred
on or to any portion of any Property, the Improvements thereon or any
surrounding areas; (d) neither Borrower, Guarantor nor the Other Mortgagor is
required by any Environmental Law to obtain any material permits or license to
construct or use any improvements, fixtures, or equipment with respect to any
Property, or if such permit or license is required it has been obtained; and (e)
to the best of Borrower's knowledge, the prior use of each Property has not
resulted in any Environmental Discharge on or to any portion of the Property or
any surrounding areas in violation of applicable Law.
Section 5.12 Solvency. Each of Borrower, Guarantor and the Other
Mortgagor is, and upon consummation of the transactions contemplated by this
Agreement, the other Loan Documents and any other documents, instruments or
agreements relating thereto, will be, Solvent.
Section 5.13 Financial Statements. Borrower's Consolidating Financial
Statements, Guarantor's Consolidated Financial Statements and the Other
Mortgagor's financial statements most recently delivered to Administrative Agent
pursuant to the terms of the Prior Loan Agreement or this Agreement are in all
material respects complete and correct and fairly present the financial
condition of the subjects thereof as of the dates of and for the periods covered
by such statements, all in accordance with GAAP. There has been no Material
Adverse Change since the date of such most recently delivered Borrower's
Consolidating Financial Statements, Guarantor's Consolidated Financial
Statements and the Other Mortgagor's financial statements, and no borrowings
which might give rise to a Lien or claim against all or any portion of the
Collateral or against the proceeds of the Loans have been made by Borrower or
others since the dates of such most recently delivered Borrower's Consolidating
Financial Statements, Guarantor's Consolidated Financial Statements and the
Other Mortgagor's financial statements.
Section 5.14 Valid Existence of Affiliates. At the Closing Date, the
only material Affiliates of Borrower and/or Guarantor are the Material
Affiliates listed on EXHIBIT C. Each Material Affiliate is a corporation,
partnership or limited liability company duly organized and existing in good
standing under the Laws of the jurisdiction of its formation. As to each
Material Affiliate, its correct name, the jurisdiction of its formation,
Borrower's and/or Guarantor's percentage of beneficial interest therein, and the
type of business in which it is primarily engaged, are set forth on said EXHIBIT
C. Borrower, Guarantor and each of their respective Material Affiliates have the
power to own their respective properties and to carry on their respective
businesses now being conducted. Each Material Affiliate is duly qualified as a
foreign entity to do business and is in good standing in every jurisdiction in
which the nature of the respective businesses conducted by it or its respective
properties, owned or held under lease, make such qualification necessary.
Section 5.15 Insurance. Borrower and the Other Mortgagor have in force
paid insurance as required by the Mortgages and, generally, Borrower, Guarantor
and the Other Mortgagor have in force paid insurance with financially sound and
reputable insurance companies or associations in such amounts and covering such
risks as
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are usually carried by companies engaged in the same type of business and
similarly situated.
Section 5.16 Accuracy of Information; Full Disclosure. Neither this
Agreement nor any documents, financial statements, reports, notices, schedules,
certificates, statements or other writings furnished by or on behalf of Borrower
or Guarantor to Administrative Agent or any Lender in connection with the
negotiation of this Agreement or the other Loan Documents or the consummation of
the transactions contemplated hereby, or required herein or by the other Loan
Documents to be furnished by or on behalf of Borrower or Guarantor (other than
projections which are made by Borrower or Guarantor in good faith), contains any
untrue or misleading statement of a material fact or omits a material fact
necessary to make the statements herein or therein not misleading. There is no
fact which Borrower has not disclosed to Administrative Agent and Lenders in
writing which materially affects adversely or, so far as Borrower can now
foresee, will materially affect adversely any of the Collateral or the business,
prospects, profits or financial condition of Borrower or Guarantor or the
ability of Borrower or Guarantor to perform this Agreement and the other Loan
Documents.
Section 5.17 Separate Tax and Zoning Lot. Except for the Property
identified on SCHEDULE A as Avallon Phase II (with respect to taxes only), each
Property constitutes a distinct parcel for purposes of zoning and of taxes,
assessments and impositions (public or private) and is not otherwise considered
as part of a larger single lot for purposes of zoning or of taxes, assessments
or impositions (public or private). For purposes of the foregoing
representation, Omni Hotel and Austin Center constitute one (1) Property.
Section 5.18 Zoning and Other Laws; Covenants and Restrictions. As to
each Property, (i) the Improvements and the uses thereof comply in all material
respects with applicable zoning, ecological, landmark and other applicable Laws
(including any requirements with respect to parking spaces) and all requirements
for such uses have been satisfied and (ii) Borrower, the Other Mortgagors and
each of their respective Properties are in compliance in all material respects
with all applicable restrictions and covenants.
Section 5.19 Utilities Available. As to each Property, all utility
services necessary for the operation of the Improvements for their intended
purposes are available and servicing the Property, including water supply, storm
and sanitary sewer, gas, electric power and telephone facilities.
Section 5.20 Creation of Liens. Neither Borrower, Guarantor nor the
Other Mortgagor has entered into any contract or arrangement of any kind the
performance of which by the other party thereto would give rise to a Lien on all
or part of the Mortgaged Property prior to any Mortgage.
Section 5.21 Roads. As to each Property, all roads necessary for the
full utilization of the Improvements for their intended purposes have been
completed and dedicated to public use and accepted by all appropriate
Governmental Authorities.
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Section 5.22 Premises Documents and Leases. As to each Property, (i)
the Premises Documents are unmodified and in full force and effect, there are no
defaults under any thereof, and all conditions to the effectiveness and
continuing effectiveness thereof required to be satisfied as of the date hereof
have been satisfied and (ii) (A) all leases are unmodified (except for such
modifications as have been delivered to Administrative Agent pursuant to the
terms of this Agreement) and in full force and effect, there are no defaults
under any thereof except as disclosed to Administrative Agent in writing, and
all conditions to the effectiveness and continuing effectiveness thereof
required to be satisfied as of the date hereof have been satisfied; (B) the
tenant has accepted and now occupies its entire demised premises, all work
required by the lease to be performed by the landlord thereunder has been or
will be completed in accordance with the lease; and the landlord has no current
obligation to reimburse the tenant for any tenant improvement work, money
allowance or similar amount under the lease; (C) no advance rental or other
payment has been made in connection with the lease except rental for the current
month and all base rent, additional rent and other sums owning by the tenant
have been paid in full to and including March 31, 2000; (D) the tenant has no
offsets, set-offs, rebates, concessions, abatements or defenses against or with
respect to rent, additional rent, escalation rent or other sums payable under
the terms of the lease; (E) the amount of the security deposit, if any,
presently held by the landlord under the lease is set forth on the security
deposit reports required to be delivered by Borrower pursuant to the terms of
this Agreement, the landlord holds no other funds of the tenant, and interest is
not payable to the tenant on such security deposit except as may be specifically
set forth on said rent rolls; (F) there are no options to purchase all or part
of the demised premises contained in the lease, other than as set forth on
SCHEDULE 5.22; and (G) no tenant has delivered a notice of termination or
cancellation under its lease.
Section 5.23 Applicability of Representations and Warranties to
Residential Corporations and Investment Partnerships. Lenders agree that the
representations and warranties made by Borrower in this Agreement with respect
to any Affiliate (whether or not a Material Affiliate) in which Guarantor does
not own a controlling interest or otherwise control the day to day business
operations shall be limited to the best of Borrower's knowledge and belief.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any of the Notes shall remain unpaid, or the Loan
Commitments remain in effect, or any other amount is owing to Administrative
Agent or any Lender under any Loan Document or otherwise in respect of the
Loans, Borrower shall, and, in the case of Sections 6.01 through 6.07,
inclusive, shall (except as otherwise expressly provided) cause Guarantor, and,
in the case of Section 6.01 through 6.07, inclusive, 6.10, 6.11 and 6.12, shall
(except as otherwise expressly provided) cause the Other Mortgagor to:
Section 6.01 Maintenance of Existence. Preserve and maintain its legal
existence and good standing in the jurisdictions of its organization and, if
required
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by applicable Law, where each Property is located, and qualify and remain
qualified as a foreign entity in each other jurisdiction in which such
qualification is required.
Section 6.02 Maintenance of Records. Keep adequate records and books of
account, in which complete entries will be made reflecting all of its financial
transactions, in accordance with GAAP.
Section 6.03 Maintenance of Insurance. At all times, maintain and keep
in force (i) (in the case of Borrower only) the insurance required by each of
the Mortgages and (ii) insurance with financially sound and reputable insurance
companies or associations in such amounts and covering such risks as are usually
carried by companies engaged in the same type of business and similarly
situated, which insurance shall be reasonably acceptable to Administrative Agent
and may provide for reasonable deductibility from coverage thereof.
Section 6.04 Compliance with Laws; Payment of Taxes. Comply in all
material respects with all Laws applicable to it or to any of its properties or
any part thereof, such compliance to include, without limitation, paying before
the same become delinquent all taxes, assessments and governmental charges
imposed upon it or upon its property, except to the extent they are the subject
of a Good Faith Contest.
Section 6.05 Right of Inspection. At any reasonable time and from time
to time upon reasonable notice, permit Administrative Agent or any agent or
representative thereof to examine and make copies and abstracts from its records
and books of account and to discuss its affairs, finances and accounts with the
independent accountants of Borrower; as to each Property, cooperate with the
Engineering Consultant to enable it to perform its functions hereunder, as to
each Property, keep on site (other than the insurance policies referred to below
which may be kept at Borrower's principal office if part of a master or blanket
policy) and available for inspection by Administrative Agent, (i) a complete set
of the plans and specifications for the Improvements, a site plan (showing all
necessary approvals, utility connections and site improvements) and all
inspection and test records and reports made for the Property, (ii) copies of
any and all authorizations, including plot plan and subdivision approvals,
zoning variances, sewer, building and other permits, required by all
Governmental Authorities for the use, occupancy and operation of the Property
and/or Improvements in accordance with all applicable building, environmental,
ecological, landmark, subdivision and zoning Laws and (iii) copies of all
insurance policies required by the Loan Documents with respect to such Property;
and permit Administrative Agent or any Lender or any agent or representative
thereof, at reasonable times, on reasonable advance notice and at reasonable
frequencies, to visit and inspect any of its properties (including the
Properties), provided that no such visit or inspection shall unduly interfere
with the conduct of Borrower's, Guarantor's, or the Other Mortgagor's or their
respective tenants' business.
Section 6.06 Compliance With Environmental Laws. Comply in all material
respects with all applicable Environmental Laws and timely pay or cause to be
paid all costs and expenses incurred in connection with such compliance, except
to the extent the same are the subject of a Good Faith Contest; and at its sole
cost and expense,
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promptly remove or otherwise remediate in accordance with Environmental Laws, or
cause the removal or remediation of, any and all Hazardous Materials at any time
identified as being on, in, under or affecting any Property or the Improvements
thereon in violation of applicable Environmental Law.
Section 6.07 Maintenance of Properties. Do all things reasonably
necessary to maintain, preserve, protect and keep its properties in good repair,
working order and condition.
Section 6.08 Payment of Costs. Pay all costs and expenses required for
the satisfaction of the conditions of this Agreement, including, without
limitation, (i) all document and stamp taxes, recording and filing expenses and
fees and commissions lawfully due to brokers in connection with the transactions
contemplated hereby and (ii) any taxes, assessments, impositions (public or
private), insurance premiums, Liens, security interests or other claims or
charges against any Property.
Section 6.09 Reporting and Miscellaneous Document Requirements. Furnish
directly to Administrative Agent (who will promptly furnish to each Lender):
(1) Annual Financial Statements. As soon as available and in any event
within ninety five (95) days after the end of each Fiscal Year, Borrower's
Consolidating Financial Statements, Guarantor's Consolidated Financial
Statements and the Other Mortgagor's financial statements, as of the end of
and for such Fiscal Year, each in reasonable detail and stating in
comparative form the respective figures for the corresponding date and
period in the prior Fiscal Year, certified by the entity's chief financial
officer or, in the case of the Other Mortgagor, by another appropriate
officer and audited by Guarantor's Accountants;
(2) Quarterly Financial Statements. As soon as available and in any
event within forty-five (45) days after the end of each calendar quarter,
unaudited Borrower's Consolidating Financial Statements, Guarantor's
Consolidated Financial Statements and the Other Mortgagor's financial
statements, as of the end of and for such calendar quarter, each in
reasonable detail and stating in comparative form the respective figures
for the corresponding date and period in the prior Fiscal Year and
certified by Guarantor's chief financial officer or, in the case of the
Other Mortgagor, by another appropriate officer;
(3) Certificate of No Default and Financial Compliance. Within
forty-five (45) days after the end of each calendar quarter, a certificate
of Guarantor's chief financial officer (i) stating that, to the best of his
or her knowledge, no Default or Event of Default has occurred and is
continuing, or if a Default or Event of Default has occurred and is
continuing, specifying the nature thereof and the action which is proposed
to be taken with respect thereto and (ii) stating that the covenants
contained in Article VIII and in paragraphs 9 and 10 of the Guaranty have
been complied with (or specifying those that have not been complied with)
and including computations, in reasonable detail, demonstrating such
compliance (or non-compliance);
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(4) Certificate of Borrower's Accountants. Simultaneously with the
delivery of the annual financial statements required by paragraph (1) of
this Section, (i) a statement of Guarantor's Accountants who audited such
financial statements comparing the computations set forth in the financial
compliance certificate required by paragraph (3) of this Section to the
audited financial statements required by paragraph (1) of this Section and
(ii) when the audited financial statements required by paragraph (1) of
this Section have a qualified auditor's opinion, a statement of Guarantor's
Accountants who audited such financial statements of whether, to their
knowledge, any Default or Event of Default has occurred and is continuing;
(5) Notice of Litigation. Promptly after the commencement and knowledge
thereof, notice of all actions, suits, and proceedings before any court or
arbitrator or any Governmental Authority, affecting (i) Borrower, Guarantor
or the Other Mortgagor which, if determined adversely to Borrower,
Guarantor or the Other Mortgagor, are likely to result in a Material
Adverse Change or (ii) all or any portion of the Collateral;
(6) Notices of Defaults and Events of Default. As soon as possible and
in any event within ten (10) days after Borrower becomes aware of the
occurrence of a material Default or any Event of Default, a written notice
setting forth the details of such Default or Event of Default and the
action which is proposed to be taken with respect thereto;
(7) Dispositions or Acquisitions of Assets. Within thirty (30) days
after the occurrence thereof, written notice of any Disposition or
acquisition of assets (other than acquisitions or Dispositions of
investments such as certificates of deposit, Treasury securities and money
market deposits in the ordinary course of Guarantor's cash management) by
Guarantor in excess of $25,000,000, together with, in the case of any
acquisition of such an asset, (i) a certificate, of the sort required by
clause (ii) of paragraph (3) of this Section, containing covenant
compliance calculations that include the pro-forma adjustments set forth in
paragraph 11 of the Guaranty, which calculations shall demonstrate
Guarantor's compliance, on a pro-forma basis, as of the end of the most
recently ended calendar quarter for which financial results are required
hereunder to have been reported, with all covenants of Guarantor enumerated
in said clause (ii) of paragraph (3) and (ii) such other information
relating to the acquisition as Administrative Agent may reasonably request;
(8) Material Adverse Change. As soon as is practicable and in any event
within five (5) days after knowledge of the occurrence of any event or
circumstance which is likely to result in or has resulted in a Material
Adverse Change, written notice thereof;
(9) Offices. Thirty (30) days' prior written notice of any change in
the chief executive office or principal place of business of Borrower or
Guarantor;
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(10) Environmental and Other Notices. As soon as possible and in any
event within thirty (30) days after receipt, copies of (i) all
Environmental Notices received by Borrower, Guarantor or the Other
Mortgagor which are not received in the ordinary course of business and
which relate to any Property or a situation which is likely to result in a
Material Adverse Change and (ii) all reports of any official searches made
by any Governmental Authority having jurisdiction over any Property or the
Improvements thereon, and of any claims of material violations thereof;
(11) Insurance Coverage. Promptly, such information concerning
Borrower's or Guarantor's insurance coverage as Administrative Agent may
reasonably request;
(12) Proxy Statements, Etc. Promptly after the sending or filing
thereof, copies of all proxy statements, financial statements and reports
which Borrower, Guarantor or any Material Affiliate sends to its
shareholders, and copies of all regular, periodic and special reports, and
all registration statements which Borrower, Guarantor or any Material
Affiliate files with the Securities and Exchange Commission or any
Governmental Authority which may be substituted therefor, or with any
national securities exchange;
(13) Bankruptcy of Tenants. Promptly after becoming aware of the same,
written notice of the bankruptcy, insolvency or cessation of operations of
(i) any tenant in any property of Guarantor or in which Guarantor has an
interest to which 5% or more of aggregate minimum rent payable to Guarantor
directly or through its "Consolidated Businesses" or "UJV's" (as such
quoted terms are defined in the Guaranty) is attributable or (ii) the
tenant under any Major Lease;
(14) Rent Rolls, Leasing Reports and Other Property Information. As
soon as available and in any event within forty-five (45) days after the
end of each calendar quarter, a rent roll, security deposit report, leasing
report (including lease expirations) and operating and cash statements, all
for each Property;
(15) Capital Expenditures and Budgets. As soon as available and in any
event within ninety (90) days after the end of each Fiscal Year, a schedule
of such Fiscal Year's capital expenditures, a budget for the next Fiscal
Year's planned capital expenditures and a detailed operating budget for
such next Fiscal Year, including supporting schedules, all for each
Property;
(16) Receipts for Impositions. Promptly following the payment of any
taxes, assessments, levies, charges or other impositions imposed on or
assessed against any Property, or any part thereof, copies of the receipted
bills therefor or other reasonably acceptable evidence of payment; and
(17) General Information. Promptly, such other information respecting
the condition or operations, financial or otherwise, of Borrower,
Guarantor, the Other Mortgagors, any Property or any other properties of
Borrower or Guarantor as Administrative Agent may from time to time
reasonably request.
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Section 6.10 Premises Documents; Leases. As to each Property, (i)
deliver to Administrative Agent, promptly following the execution thereof,
copies of (x) all amendments or supplements to any Premises Documents or any
lease and (y) all leases, together with (A) to the extent available, current
financial statements of the tenants thereunder (and of any guarantors of such
tenants' obligations) and (B) notices of assignment in the form of EXHIBIT F;
(ii) keep all Premises Documents and leases in full force and effect, faithfully
comply with and perform all of its obligations thereunder and at all times do
all things reasonably necessary to compel performance by the parties to the
Premises Documents or the tenants under such leases, as the case may be, of all
material obligations, covenants and agreements by such parties or tenants, as
the case may be, to be kept and performed thereunder; (iii) without
Administrative Agent's prior written consent, which consent will not be
unreasonably withheld or delayed, not (x) enter into or modify (other than
immaterial modifications) any Premises Document or Major Lease where such action
involves (A) a net space contraction or space contraction payment, (B) a net
reduction in rent, (C) the shortening of any lease term or (D) a material
increase in the landlord's potential liability or financial obligation, (y)
modify (other than immaterial modification), release or terminate any guaranty
of any Major Lease or (z) enter into any lease (other than a Major Lease) of any
portion of the Improvements unless such lease is (A) substantially on a standard
form approved by Administrative Agent, (B) at commercially reasonable market
rent and (C) otherwise on commercially reasonable terms; (iv) without
Administrative Agent's prior written consent (which will not be unreasonably
withheld or delayed), except where the tenant is in default thereunder, not
terminate or consent to the termination or surrender of any lease of any portion
of the Improvements having an unexpired term of one (1) year or more except (x)
in the case of a Major Lease, where a substitute lease, approved by
Administrative Agent in accordance with this Section, is entered into or (y) in
the case of any other lease, in the normal course of business consistent with
sound and customary leasing and management practices for similar properties; (v)
deliver promptly to Administrative Agent copies of any material notices which it
gives or receives under any Premises Document or Major Lease; (vi) deliver to
Administrative Agent, within thirty (30) days following Administrative Agent's
request therefor, subordination, non-disturbance and attornment agreements (on
Administrative Agent's then standard form) from the tenants under such Major
Leases as Administrative Agent may from time to time specify; and (vii) deliver
to Administrative Agent, within thirty (30) days following any request by
Administrative Agent made within sixty (60) days of the Closing Date, estoppel
certificates from any tenants who have more than one lease of space in the
Improvements on such Property, which leases demise, in the aggregate, 10,000
square feet or more. Notwithstanding the foregoing, Borrower shall be required
to comply with requirements of clauses (i) through (vii) above with respect to
Woodlands, Spectrum Centre and Xxxxxxx Xxxx only to the extent it is able to do
so with reasonable effort. As to the Office Properties, not enter into any
Equity Share Leases covering more than 7% of the leasable area of the
Improvements on any single Office Property (other than the lease to be entered
into with Infospinner, Inc., a Delaware corporation, covering approximately
60,000 square feet in the Improvements on the Property identified on SCHEDULE A
as Palisades Central I) or more than 3% of the leasable area of the Improvements
on all Office Properties as a whole.
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Provided there exists no Event of Default, except as expressly provided
in this Section 6.10 and in Section 1.14 of each of the Mortgages, Borrower and
the Other Mortgagor shall have the authority to enter into such executions,
modifications, terminations or extensions of leases with respect to each
Property and to undertake all other commercially reasonable actions in
exercising its legal remedies as landlord under the leases. With respect to any
action that requires Administrative Agent's prior written consent pursuant to
this Section, Administrative Agent shall be deemed to have approved Borrower's
written request for approval if Administrative Agent fails to respond, either by
reasonably requesting additional information or by disapproving the request,
within five (5) Business Days after Administrative Agent's receipt of such
request from Borrower, provided such request shall make specific reference to
the provisions of this Section and shall expressly state, in solid capital
letters on the first page thereof: "YOU ARE HEREBY REMINDED THAT YOUR FAILURE TO
PROVIDE NOTIFICATION OF APPROVAL OR DISAPPROVAL NOT LATER THAN FIVE (5) BUSINESS
DAYS AFTER YOUR RECEIPT OF THIS REQUEST SHALL BE DEEMED, PURSUANT TO SECTION
6.10 OF THE AMENDED AND RESTATED SECURED LOAN AGREEMENT, TO CONSTITUTE YOUR
APPROVAL THEREOF."
In the case of each Equity Share Lease, Borrower shall (or cause the
Other Mortgagor to), simultaneously with its entering into such Equity Share
Lease, (i) execute and deliver to Administrative Agent a pledge agreement, in
form reasonably satisfactory to Administrative Agent, as security for the Loans,
with respect to any Permitted Stock received by the landlord in connection with
such Equity Share Lease and (ii) deliver to Administrative Agent possession of
the original stock certificates evidencing such Permitted Stock, to be held by
Administrative Agent to perfect its security interest in such Permitted Stock.
Section 6.11 Compliance with Covenants, Restrictions and Easements.
Comply with all restrictions, covenants and easements affecting each Property or
the Improvements thereon and cause the satisfaction of all conditions of this
Agreement.
Section 6.12 Management and Leasing Contracts. Deliver to
Administrative Agent, as and when executed, certified copies of all management
and leasing contracts entered into with respect to any Property, each of which
shall be entered into with a party, and on terms and conditions, reasonably
acceptable to Administrative Agent; and contemporaneously with entering into
each such contract, at Administrative Agent's option, cause each of the
foregoing to be subordinated and collaterally assigned to Administrative Agent
for the benefit of Lenders as additional security for the Loans and/or cause the
service provider under each such contract to undertake, inter alia, to continue
performance on Lenders' behalf without additional cost in the event of a
Default; and keep in full force and effect and not materially modify the
management and leasing agreement(s) approved pursuant to paragraph (16) of
Section 4.01 without Administrative Agent's prior written consent.
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ARTICLE VII
SINGLE PURPOSE ENTITY AND CONTROL
So long as any of the Notes shall remain unpaid, or the Loan
Commitments remain in effect, or any other amount is owing to Administrative
Agent or any Lender under any Loan Document or otherwise in respect of the
Loans:
Section 7.01 Single Purpose Entity.
(a) Borrower represents and warrants that it and its sole general
partner, CRE Management VIII, LLC, a Delaware limited liability company (such
sole general partner, "Principal"), and, by its execution of this Agreement
Principal represents and warrants that Principal, shall be a specifically-formed
single-purpose entity and that neither Borrower nor Principal has, and covenants
and agrees that neither Borrower nor Principal shall:
(i) with respect to Borrower, engage in any business or activity other
than the ownership, operation and maintenance of the Properties and
activities incidental thereto; and with respect to Principal, engage in any
business or activity other than the ownership of its interest in Borrower
and such activities as are directly related to its acting as general
partner of Borrower;
(ii) with respect to Borrower, acquire or own any material assets other
than (A) the Properties, (B) such incidental personal property as may be
necessary for the operation of the Properties and (C) Permitted Stock
acquired under Equity Share Leases; and with respect to Principal, acquire
or own any material assets other than its ownership interest in Borrower
and such incidental personal property as may be necessary in connection
therewith;
(iii) merge into or consolidate with any Person or dissolve, terminate
or liquidate in whole or in part, transfer or otherwise dispose of all or
substantially all of its assets or change its legal structure;
(iv) fail to preserve its existence as an entity duly organized,
validly existing and in good standing (if applicable) under the laws of the
jurisdiction of its organization or formation, or, without the prior
consent of the Required Lenders, amend, modify or terminate any provisions
of its organizational documents which relate to separateness or the role of
the Independent Manager or which may hereafter be required by this
Agreement;
(v) own any subsidiary or make any investment in any Person other than,
with respect to Borrower, Permitted Stock acquired under any Equity Share
Lease and, with respect to Principal, its interest in Borrower;
(vi) commingle its assets with the assets of any of its general
partners, managing members, Affiliates or Principals, or of any other
Person;
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(vii) with respect to Borrower, incur any debt, secured or unsecured,
direct or contingent (including guaranteeing any obligation), other than
(A) the Loans, (B) trade payables in the ordinary course of its business of
owning and operating the Properties, provided that such trade payables are
not evidenced by a note and are paid when due (but in any event, within
sixty (60) days of the date incurred); and with respect to Principal, incur
any debt, secured or unsecured, direct or contingent (including
guaranteeing any obligation);
(viii) become insolvent or fail to pay its debts and liabilities from
its assets as the same shall become due;
(ix) fail to maintain its records, books of account and bank accounts
(if any) separate and apart from those of any other Person;
(x) enter into any contract or agreement with any Affiliate of Borrower
or of Principal, except upon terms and conditions that are substantially
similar to those that would be available on an arm's-length basis with
third parties other than such Affiliate;
(xi) partition, or seek to partition, any of the Properties, or seek
the dissolution or winding up, in whole or in part, of Borrower or of
Principal, as the case may be;
(xii) fail to correct any known misunderstandings regarding the
separate identity of Borrower or Principal, as the case may be;
(xiii) hold itself out to be responsible for the debts of another
Person;
(xiv) make any loans or advances to any third party, including any
Affiliate of Borrower or of Principal;
(xv) fail to file its own tax returns, if required, unless part of the
consolidated returns of another Person;
(xvi) agree to, enter into or consummate any transaction which would
render Borrower unable to make the representation contained in Section
5.12;
(xvii) fail either to hold itself out to the public as a legal entity
separate and distinct from any other Person or to conduct its business
solely in its own name in order not (A) to mislead others as to the
identity with which such other party is transacting business or (B) to
suggest that Borrower or Principal, as the case may be, is responsible for
the debts of any third party (including any Affiliate of Borrower or of
Principal);
(xviii) hold itself out as or be designated as a department or division
of (A) any Affiliate of Borrower or of Principal or (B) any other Person;
or
(xix) file or consent to the filing of any bankruptcy or insolvency
petition or otherwise institute insolvency proceedings with respect to
itself or any entity in
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which it has a direct or indirect ownership interest without, in the case
of Borrower, the unanimous consent of all partners and the consent of the
Independent Manager and, in the case of Principal, the unanimous consent of
all members, the consent of its Manager and the consent of the Independent
Manager.
(b) Borrower and Principal covenant and agree that (i) the limited
partnership agreement of Borrower shall provide that (A) Borrower shall dissolve
only with the unanimous consent of all partners and the consent of the
Independent Manager and (B) any provision of such partnership agreement that
requires the consent of the Independent Manager for a particular action may not
be amended without the consent of the Independent Manager; (ii) the limited
liability company agreement of Principal shall provide that (A) Principal shall
be (x) governed by a Manager and (y) at all times have an Independent Manager
who will have the right to consent to certain actions by Principal, (B)
Principal shall dissolve only with the unanimous consent of all members, the
consent of its Manager and the consent of the Independent Manager and (C) any
provision of such limited liability company agreement that requires the consent
of the Independent Manager for a particular action may not be amended without
the consent of the Independent Manager; (iii) at all times, Principal shall have
an Independent Manager; and (iv) the partnership agreement and limited liability
company agreement of Borrower and Principal, respectively, shall include
provisions substantially similar to those contained in paragraph (a) of this
Section.
(c) As used in this Agreement, the term "Independent Manager" means an
individual, acting in the capacity described in clause (ii) (A) (y) of paragraph
(b) above, who is not at the time of initial appointment, or at any time while
serving as Independent Manager, and has not been at any time during the
preceding five (5) years, (i) a stockholder, director, officer, employee,
partner, attorney or counsel of Principal, Borrower, Guarantor or any Affiliate
thereof, (ii) a customer, supplier or other Person who derives any of its
purchases or revenues from its activities with Principal, Borrower, Guarantor or
any Affiliate thereof, (iii) an Affiliate of any such stockholder, partner,
customer, supplier or other Person or (iv) a member of the immediate family of
any such stockholder, director, officer, employee, partner, customer, supplier
or other Person. An individual that otherwise satisfies the foregoing shall not
be disqualified from serving as an Independent Manager if such individual is at
the time of initial appointment, or at any time while serving as an Independent
Manager, an independent manager of an Affiliate of Principal, Borrower,
Guarantor or independent manager or director of a "special purpose entity"
affiliated with Principal, Borrower or Guarantor.
Section 7.02 Ownership and Control. Borrower shall not at any time
permit or suffer (i) the failure of CEI LP to be the sole member of the sole
general partner of Borrower or the failure of Borrower or CWH to be wholly-owned
and controlled subsidiaries of CEI LP or the failure of SMA to be a majority
owned and controlled subsidiary of Borrower or the failure of CCRH to be a 99.9%
owned and controlled subsidiary of CEI LP; or (ii) the failure of CEI LP to be
controlled by, and at least 75% beneficially owned by (in either case, directly
or indirectly) CEI; or (iii) the failure of CEI Ltd. to be a wholly-owned and
controlled subsidiary of CEI; or (iv) the
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pledge or encumbrance of any ownership interest in Borrower or CRE Management
VIII, LLC; or (v) the occurrence of a Change in Control.
ARTICLE VIII
FINANCIAL COVENANTS
Section 8.01 Financial Covenants. So long as any of the Notes shall
remain unpaid, or the Loan Commitments remain in effect, or any other amount is
owing to Administrative Agent or any Lender under any Loan Document or otherwise
in respect of the Loans, Borrower shall not permit or suffer any or all of the
following:
(1) Leverage. As of the end of any calendar quarter, the outstanding
principal amount under the Notes plus the total amount of outstanding
Letters of Credit to exceed the sum of (i) 65% of Office Value plus (ii)
55% of Hotel Value.
(2) Debt Yield. For any calendar quarter, the ratio of (i) the
aggregate of Property Net Operating Income for all Properties for such
quarter and the three (3) immediately preceding calendar quarters to (ii)
the outstanding principal amount of the Notes plus the total amount of
outstanding Letters of Credit as of the end of such quarter, to be less
than 13.5%.
(3) Hotel Debt Yield. For any calendar quarter, the ratio of (i) the
aggregate of Property Net Operating Income for all Hotel Properties for
such quarter and the three (3) immediately preceding calendar quarters to
(ii) the product of (x) the ratio of Hotel Value to Total Value, each as of
the end of such quarter, multiplied by (y) the outstanding principal amount
of the Notes plus the total amount of outstanding Letters of Credit as of
the end of such quarter, to be less than 15%.
(4) Interest Coverage. For any calendar quarter, the ratio of (i) the
aggregate of Property Net Operating Income for all Properties for such
quarter and the three (3) immediately preceding calendar quarters to (ii)
interest on the Notes for such quarter and the three (3) immediately
preceding calendar quarters, to be less than 1.5 to 1.0.
ARTICLE IX
EVENTS OF DEFAULT
Section 9.01 Events of Default. Any of the following events shall be an
"Event of Default":
(1) If Borrower shall: fail to pay the principal of any Notes as and
when due; or fail to pay interest accruing on any Notes as and when due,
and such failure to pay shall continue unremedied for two (2) Business Days
after the due date of such interest; or fail to pay any fee or any other
amount due under this
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Agreement or any other Loan Document as and when due and such failure to
pay shall continue unremedied for two (2) Business Days after notice by
Administrative Agent of such failure to pay; or
(2) If any representation or warranty made by Borrower, Guarantor or
the Other Mortgagor in this Agreement or in any other Loan Document or
which is contained in any certificate, document, opinion, financial or
other statement furnished at any time under or in connection with a Loan
Document shall prove to have been incorrect in any material respect on or
as of the date made; or
(3) If Borrower (i) shall fail to perform or observe any term, covenant
or agreement contained in Article VII or Article VIII; or (ii) if Guarantor
shall fail to perform or observe any term, covenant or agreement contained
in paragraphs 9 or 10 of the Guaranty; or (iii) if any of Borrower,
Guarantor or the Other Mortgagor shall fail to perform or observe any term,
covenant or agreement contained in this Agreement (other than obligations
specifically referred to elsewhere in this Section 9.01) or any other Loan
Document, or any other document executed by Borrower, Guarantor or the
Other Mortgagor and delivered to Administrative Agent or Lenders in
connection with the transactions contemplated hereby and such failure under
this clause (iii) shall remain unremedied for thirty (30) consecutive days
after notice thereof to Borrower (or such shorter cure period as may be
expressly prescribed in the applicable document); provided, however, that
if any such default under clause (iii) above cannot by its nature be cured
within such thirty (30) day, or shorter, as the case may be, grace period
and so long as Borrower, Guarantor or the Other Mortgagor, as the case may
be, shall have commenced cure within such thirty (30) day, or shorter, as
the case may be, grace period and shall, at all times thereafter,
diligently prosecute the same to completion, Borrower, Guarantor or the
Other Mortgagor, as the case may be, shall have an additional period, not
to exceed sixty (60) days, to cure such default; in no event, however, is
the foregoing intended to effect an extension of the Maturity Date; or
(4) If any of Borrower, Guarantor or the Other Mortgagor shall fail (i)
to pay any Debt (other than the payment obligations described in paragraph
(1) of this Section) in an amount equal to or greater than, in the case of
Borrower and the Other Mortgagor, $1,000,000, or, in the case of Guarantor,
$25,000,000, in any such case when due (whether by scheduled maturity,
required prepayment, acceleration, demand, or otherwise) after the
expiration of any applicable grace period; or (ii) to perform or observe
any material term, covenant, or condition under any agreement or instrument
relating to any such Debt, when required to be performed or observed, if
the effect of such failure to perform or observe is to accelerate, or to
permit the acceleration of, after the giving of notice or the lapse of
time, or both, the maturity of such Debt, or any such Debt shall be
declared to be due and payable, or required to be prepaid (other than by a
regularly scheduled or otherwise required prepayment), prior to the stated
maturity thereof; or
(5) If Borrower, Guarantor, the Other Mortgagor, or any Material
Affiliate to which $50,000,000 or more of "Capitalization Value" (as such
quoted
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term is defined in the Guaranty) is attributable, shall (i) generally not,
or be unable to, or shall admit in writing its inability to, pay its debts
as such debts become due; or (ii) make an assignment for the benefit of
creditors, petition or apply to any tribunal for the appointment of a
custodian, receiver or trustee for it, all or any portion of any Property
or a substantial part of its other assets; or (iii) commence any proceeding
under any bankruptcy, reorganization, arrangement, readjustment of debt,
dissolution or liquidation Law of any jurisdiction, whether now or
hereafter in effect; or (iv) have had any such petition or application
filed or any such proceeding shall have been commenced, against it or all
or any portion of any Property, in which an adjudication or appointment is
made or order for relief is entered, or which petition, application or
proceeding remains undismissed or unstayed for a period of sixty (60) days
or more; or (v) be the subject of any proceeding under which all or any
portion of any Property or all or a substantial part of its other assets
may be subject to seizure, forfeiture or divestiture; or (vi) by any act or
omission indicate its consent to, approval of or acquiescence in any such
petition, application or proceeding or order for relief or the appointment
of a custodian, receiver or trustee for all or any portion of any Property
or all or any substantial part of its other property; or (vii) suffer any
such custodianship, receivership or trusteeship for any or any portion of
any Property or all or any substantial part of its other property, to
continue undischarged for a period of sixty (60) days or more; or
(6) If one or more judgments, decrees or orders for the payment of
money aggregating in excess of $1,000,000 shall be rendered against
Borrower or the Other Mortgagor, or in excess of $25,000,000 shall be
rendered against Guarantor, or in excess of $5,000,000 shall be rendered
against any Material Affiliate, and any such judgments, decrees or orders
shall continue unsatisfied and in effect for a period of thirty (30)
consecutive days without being vacated, discharged, satisfied or stayed or
bonded pending appeal; or
(7) If any of the following events shall occur or exist with respect to
Borrower, Guarantor, the Other Mortgagor or any ERISA Affiliate: (i) any
Prohibited Transaction involving any Plan; (ii) any Reportable Event with
respect to any Plan; (iii) the filing under Section 4041 of ERISA of a
notice of intent to terminate any Plan or the termination of any Plan; (iv)
any event or circumstance which would constitute grounds for the
termination of, or for the appointment of a trustee to administer, any Plan
under Section 4042 of ERISA, or the institution by the PBGC of proceedings
for any such termination or appointment under Section 4042 of ERISA; or (v)
complete or partial withdrawal under Section 4201 or 4204 of ERISA from a
Multiemployer Plan or the reorganization, insolvency, or termination of any
Multiemployer Plan; and in each case above, if such event or conditions, if
any, could in the reasonable opinion of any Lender subject Borrower,
Guarantor, the Other Mortgagor or any ERISA Affiliate to any tax, penalty,
or other liability to a Plan, Multiemployer Plan, the PBGC or otherwise (or
any combination thereof) which in the aggregate exceeds or is likely to
exceed $50,000; or
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(8) If an "Event of Default" shall occur under any Mortgage (as such
quoted term is defined therein); or
(9) If, at any time, (i) CEI LP (or in the case of Spectrum, Woodlands,
Xxxxxxxx Xxxx Center and those Office Properties identified on SCHEDULE A
as Three Westlake and Four Westlake, the Person currently serving as
property manager/leasing agent therefor), or a replacement manager/leasing
agent acceptable in all respects to Administrative Agent (other than CEI LP
which shall be deemed to be acceptable to Administrative Agent), shall
cease to provide the management and leasing services for any Office
Property or (ii) any of the Hotel Properties are managed by a Person which
has not been approved by Administrative Agent; or
(10) If, at any time, CEI is not a qualified real estate investment
trust under Sections 856 through 860 of the Code or is not a publicly
traded company listed on a recognized U.S. national stock exchange; or
(11) If, at any time, a Material Adverse Change shall occur; or
(12) If, at any time, any portion of Borrower's, Guarantor's or the
Other Mortgagor's assets constitute plan assets for ERISA purposes (within
the meaning of C.F.R. Section 2510.3-101).
Section 9.02 Remedies. If any Event of Default shall occur and be
continuing, Administrative Agent shall, upon request of the Required Lenders,
(i) declare the outstanding balance of the Notes, all interest thereon, and all
other amounts payable under this Agreement and the other Loan Documents to be
forthwith due and payable, whereupon such balance, all such interest, and all
such amounts due under this Agreement and under the other Loan Documents shall
become and be forthwith due and payable, without presentment, demand, protest,
or further notice of any kind, all of which are hereby expressly waived by
Borrower and/or (ii) exercise any remedies provided in any of the Loan Documents
or by Law.
ARTICLE X
ADMINISTRATIVE AGENT; RELATIONS AMONG LENDERS
Section 10.01 Appointment, Powers and Immunities of Administrative
Agent. Each Lender hereby irrevocably appoints and authorizes Administrative
Agent to act as its agent hereunder and under any other Loan Document with such
powers as are specifically delegated to Administrative Agent by the terms of
this Agreement and any other Loan Document, together with such other powers as
are reasonably incidental thereto. Administrative Agent shall at all times
administer the Loans in accordance herewith using the same standard of care it
uses in connection with similar loans for its own account. Administrative Agent
shall have no duties or responsibilities except those expressly set forth in
this Agreement and any other Loan Document or required by Law, and shall not by
reason of this Agreement be a fiduciary
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or trustee for any Lender except to the extent that Administrative Agent acts as
an agent with respect to the receipt or payment of funds (nor shall
Administrative Agent have any fiduciary duty to Borrower nor shall any Lender
have any fiduciary duty to Borrower or to any other Lender). No implied
covenants, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or otherwise exist against Administrative Agent. Neither
Administrative Agent nor any of its directors, officers, employees, agents,
attorneys-in-fact or Affiliates shall be responsible to any Lender for any
recitals, statements, representations or warranties made by Borrower or any
officer, partner or official of Borrower or any other Person contained in this
Agreement or any other Loan Document, or in any certificate or other document or
instrument referred to or provided for in, or received by any of them under,
this Agreement or any other Loan Document, or for the value, legality, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document or any other document or instrument referred to or
provided for herein or therein, for the perfection or priority of any Lien
securing the Obligations or for any failure by Borrower to perform any of its
Obligations. Administrative Agent may employ agents and attorneys-in-fact and
shall not be responsible, except as to money or securities received by it or its
authorized agents, for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. Neither Administrative
Agent nor any of its directors, officers, employees, agents, attorneys-in-fact
or Affiliates shall be liable or responsible for any action taken or omitted to
be taken by it or them hereunder or under any other Loan Document or in
connection herewith or therewith, except for its or their own gross negligence
or willful misconduct.
Section 10.02 Reliance by Administrative Agent. Administrative Agent
shall be entitled to rely upon any certification, notice or other communication
(including any thereof by telephone, telex, telegram or cable) believed by it to
be genuine and correct and to have been signed or sent by or on behalf of the
proper Person or Persons, and upon advice and statements of legal counsel,
independent accountants and other experts selected by Administrative Agent.
Administrative Agent may deem and treat each Lender as the holder of the Loan
made by it for all purposes hereof and shall not be required to deal with any
Person who has acquired a Participation in any Loan or Participation from a
Lender. As to any matters not expressly provided for by this Agreement or any
other Loan Document, Administrative Agent shall in all cases be fully protected
in acting, or in refraining from acting, hereunder in accordance with
instructions signed by the Required Lenders, and such instructions of the
Required Lenders and any action taken or failure to act pursuant thereto shall
be binding on all Lenders and any other holder of all or any portion of any Loan
or Participation.
Section 10.03 Defaults. Administrative Agent shall not be deemed to
have knowledge of the occurrence of a Default or Event of Default unless
Administrative Agent has actual knowledge thereof or has received notice from a
Lender or Borrower specifying such Default or Event of Default and stating that
such notice is a "Notice of Default." In the event that Administrative Agent has
such actual knowledge or receives such a notice of the occurrence of a Default
or Event of Default, Administrative Agent shall give prompt notice thereof to
Lenders. Administrative Agent shall promptly send to each Lender a copy of any
notice of Default or Event of Default that Administrative
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Agent sends to Borrower. Administrative Agent, following consultation with
Lenders, shall (subject to Section 10.07) take such action with respect to such
Default or Event of Default which is continuing as shall be directed by the
Required Lenders; provided, however, that, unless and until Administrative Agent
shall have received such directions, Administrative Agent may take such action,
or refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interest of Lenders. In no event
shall Administrative Agent be required to take any such action which it
determines to be contrary to the Loan Documents or to Law. Each Lender
acknowledges and agrees that no individual Lender may separately enforce or
exercise any of the provisions of any of the Loan Documents (including, without
limitation, the Notes) other than through Administrative Agent.
Section 10.04 Rights of Administrative Agent as a Lender. With respect
to its Loan Commitment and the Loan provided by it, Administrative Agent in its
capacity as a Lender hereunder shall have the same rights and powers hereunder
as any other Lender and may exercise the same as though it were not acting as
Administrative Agent, and the term "Lender" or "Lenders" shall include
Administrative Agent in its capacity as a Lender. Administrative Agent and its
Affiliates may (without having to account therefor to any Lender) accept
deposits from, lend money to (on a secured or unsecured basis), and generally
engage in any kind of banking, trust or other business with Borrower (and any
Affiliates of Borrower) as if it were not acting as Administrative Agent.
Section 10.05 Sharing of Costs by Lenders; Indemnification of
Administrative Agent. Each Lender agrees to pay its ratable share, based on the
respective outstanding principal balances under its Notes and the other Notes,
of any expenses incurred by Administrative Agent (and not paid or reimbursed by
Borrower after demand for payment is made by Administrative Agent) by or on
behalf of Lenders in connection with any Default or Event of Default, including,
without limitation, costs of enforcement of the Loan Documents and any advances
to pay taxes or insurance premiums or otherwise to preserve the Lien of any of
the Mortgages or the Collateral Assignments or to preserve or protect any of the
Collateral (it being understood, however, that in no event shall Administrative
Agent incur such expenses aggregating more than $5,000,000 without the approval
of the Required Lenders). In the event a Lender fails to pay its share of
expenses as aforesaid, and all or a portion of such unpaid amount is paid by
Administrative Agent and/or one or more of the other Lenders, then the
defaulting Lender shall reimburse Administrative Agent and/or the other
Lender(s) for the portion of such unpaid amount paid by it or them, as the case
may be, together with interest thereon at the Base Rate from the date of payment
by Administrative Agent and/or the other Lender(s). In addition, each Lender
agrees to indemnify Administrative Agent (to the extent not reimbursed under
Section 12.04 or under other applicable provisions of any Loan Document, but
without limiting the obligations of Borrower under Section 12.04 or such other
provisions), for its ratable share, based upon the outstanding principal
balances under its Notes and the other Notes, of any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever which may be imposed
on, incurred by or asserted against Administrative Agent in any way relating to
or arising out of this Agreement, any other
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Loan Document or any other documents contemplated by or referred to herein or
the transactions contemplated hereby or thereby (including, without limitation,
the costs and expenses which Borrower is obligated to pay under Section 12.04 or
under any other applicable provisions of any other Loan Document) or the
enforcement of any of the terms hereof or thereof or of any such other documents
or instruments; provided, however, that no Lender shall be liable for (i) any of
the foregoing to the extent they arise from the gross negligence or willful
misconduct of the party to be indemnified or (ii) any loss of principal or
interest with respect to Administrative Agent's Loan.
Section 10.06 Non-Reliance on Administrative Agent and Other Lenders.
Each Lender agrees that it has, independently and without reliance on
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own analysis of the
Collateral and of the credit of Borrower and Guarantor, and its own decision to
enter into this Agreement and that it will, independently and without reliance
upon Administrative Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
analysis and decisions in taking or not taking action under this Agreement or
any other Loan Document. Except for notices, reports and other documents and
information expressly required to be furnished to Lenders by Administrative
Agent hereunder, Administrative Agent shall not have any duty or responsibility
to provide any Lender with any credit or other information concerning the
affairs, financial condition or business of Borrower or Guarantor (or any
Affiliate of Borrower or Guarantor) which may come into the possession of
Administrative Agent or any of its Affiliates. Administrative Agent shall not be
required to file this Agreement, any other Loan Document or any document or
instrument referred to herein or therein, for record or give notice of this
Agreement, any other Loan Document or any document or instrument referred to
herein or therein, to anyone.
Section 10.07 Failure of Administrative Agent to Act. Except for action
expressly required of Administrative Agent hereunder, Administrative Agent shall
in all cases be fully justified in failing or refusing to act hereunder unless,
in cases where Section 10.05 is applicable, it shall have received further
assurances (which may include cash collateral) of the indemnification
obligations of Lenders under Section 10.05 in respect of any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action. If any indemnity furnished to Administrative Agent for any
purpose shall, in the opinion of Administrative Agent, be insufficient or become
impaired, Administrative Agent may call for an additional indemnity and cease,
or not commence, the action indemnified against until such additional indemnity
is furnished.
Section 10.08 Resignation or Removal of Administrative Agent.
Administrative Agent may resign on at least thirty (30) days' written notice to
Lenders and Borrower (whether before or after the occurrence of an Event of
Default). Administrative Agent may be removed at any time (x) with cause, by the
Required Lenders, or (y) if the outstanding plus undisbursed amount of its Loan
Commitment is less than five percent (5%) of the outstanding plus undisbursed
amount of the Total Loan Commitment, without cause, by the Required Lenders and
the Majority Lenders by
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Tranche, provided that in either case Borrower and the other Lenders shall be
promptly notified thereof. Upon any such resignation or removal of
Administrative Agent, the Required Lenders shall have the right to appoint a
successor Administrative Agent which successor Administrative Agent, so long as
it is reasonably acceptable to the Required Lenders, shall be that Lender then
having the greatest Loan Commitment. If no successor Administrative Agent shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within twenty (20) days after the Required Lenders' removal of the
retiring Administrative Agent, then the retiring Administrative Agent may, on
behalf of Lenders, appoint a successor Administrative Agent, which shall be one
of Lenders. The Required Lenders or the retiring Administrative Agent, as the
case may be, shall upon the appointment of a successor Administrative Agent
promptly so notify Borrower and the other Lenders. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent shall be discharged
from its duties and obligations hereunder. After any retiring Administrative
Agent's removal hereunder as Administrative Agent, the provisions of this
Article X shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as Administrative Agent.
Section 10.09 Amendments Concerning Agency Function. Notwithstanding
anything to the contrary contained herein, Administrative Agent shall not be
bound by any waiver, amendment, supplement or modification hereof or of any
other Loan Document which affects its duties, rights, and/or functions hereunder
or thereunder unless it shall have given its prior written consent thereto.
Section 10.10 Liability of Administrative Agent. Administrative Agent
shall not have any liabilities or responsibilities to Borrower on account of the
failure of any Lender to perform its obligations hereunder or to any Lender on
account of the failure of Borrower and/or Guarantor to perform any of their
respective Obligations.
Section 10.11 Transfer of Agency Function. Without the consent of
Borrower or any Lender, Administrative Agent may at any time or from time to
time transfer its functions as Administrative Agent hereunder to any of its
offices wherever located in the United States, provided that Administrative
Agent shall promptly notify Borrower and Lenders thereof.
Section 10.12 Non-Receipt of Funds by Administrative Agent;
Adjustments.
(a) Unless Administrative Agent shall have received notice from a
Lender or Borrower (either one as appropriate being the "Payor") prior to the
date on which such Lender is to make payment hereunder to Administrative Agent
of the proceeds of a Loan or Borrower is to make payment to Administrative
Agent, as the case may be (either such payment being a "Required Payment"),
which notice shall be effective upon receipt, that the Payor will not make the
Required Payment in full to Administrative Agent, Administrative Agent may
assume that the Required Payment has been made in full to Administrative Agent
on such date, and Administrative Agent in its
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sole discretion may, but shall not be obligated to, in reliance upon such
assumption, make the amount thereof available to the intended recipient on such
date. If and to the extent the Payor shall not have in fact so made the Required
Payment in full to Administrative Agent, the recipient of such payment shall
repay to Administrative Agent forthwith on demand such amount made available to
it together with interest thereon, for each day from the date such amount was so
made available by Administrative Agent until the date Administrative Agent
recovers such amount, at the Federal Funds Rate for three (3) Business Days and
thereafter at the Base Rate.
(b) If, after Administrative Agent has paid each Lender's share of any
payment received or applied by Administrative Agent in respect of the Loan, that
payment is rescinded or must otherwise be returned or paid over by
Administrative Agent, whether pursuant to any bankruptcy or insolvency Law,
sharing of payments clause of any loan agreement or otherwise, such Lender
shall, at Administrative Agent's request, promptly return its share of such
payment or application to Administrative Agent, together with such Lender's
proportionate share of any interest or other amount required to be paid by
Administrative Agent with respect to such payment or application. In addition,
if a court of competent jurisdiction shall adjudge that any amount received and
distributed by Administrative Agent is to be repaid, each Person to whom any
such distribution shall have been made shall either repay to Administrative
Agent its share of the amount so adjudged to be repaid or shall pay over the
same in such manner and to such Persons as shall be determined by such court.
Section 10.13 Withholding Taxes. Each Lender represents that it is
entitled to receive any payments to be made to it hereunder without the
withholding of any tax and will furnish to Administrative Agent such forms,
certifications, statements and other documents as Administrative Agent may
request from time to time to evidence such Lender's exemption from the
withholding of any tax imposed by any jurisdiction or to enable Administrative
Agent or Borrower to comply with any applicable Laws relating thereto. Without
limiting the effect of the foregoing, if any Lender is not created or organized
under the Laws of the United States or any state thereof, such Lender will
furnish to Administrative Agent a U.S. Internal Revenue Service Form W-8ECI in
respect of all payments to be made to such Lender by Borrower or Administrative
Agent under this Agreement or any other Loan Document or a U.S. Internal Revenue
Service Form W-8BEN establishing such Lender's complete exemption from United
States withholding tax in respect of payments to be made to such Lender by
Borrower or Administrative Agent under this Agreement or any other Loan
Document, or such other forms, certifications, statements or documents, duly
executed and completed by such Lender as evidence of such Lender's exemption
from the withholding of U.S. tax with respect thereto. Administrative Agent
shall not be obligated to make any payments hereunder to such Lender in respect
of any Loan or Participation or such Lender's Loan Commitment or obligation to
purchase Participations until such Lender shall have furnished to Administrative
Agent the requested form, certification, statement or document.
Section 10.14 Pro Rata Treatment. Except to the extent otherwise
provided, (i) each advance of proceeds of the Tranche A Loans shall be made by
the
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Tranche A Lenders, (ii) each reduction of the amount of the Total Loan
Commitment under Section 2.10 shall be applied to the Loan Commitments of the
Tranche A Lenders, and (iii) each payment of the commitment fee accruing under
Section 2.07(a) shall be made for the account of the Tranche A Lenders, ratably
according to the amounts of their respective Tranche A Loan Commitments.
Section 10.15 Sharing of Payments Among Lenders. If a Lender shall
obtain payment of any principal of or interest on any Loan made by it through
the exercise of any right of setoff, banker's lien, counterclaim, or by any
other means (including direct payment), and such payment results in such Lender
receiving a greater payment than it would have been entitled to had such payment
been paid directly to Administrative Agent for disbursement to Lenders, then
such Lender shall promptly purchase for cash from the other Lenders
Participations in the Loans made by the other Lenders in such amounts, and make
such other adjustments from time to time as shall be equitable to the end that
all Lenders shall share ratably the benefit of such payment. To such end,
Lenders shall make appropriate adjustments among themselves (by the resale of
Participations sold or otherwise) if such payment is rescinded or must otherwise
be restored.
Section 10.16 Possession of Documents. Each Lender shall keep
possession of its own Notes. Administrative Agent shall hold all the other Loan
Documents and related documents in its possession and maintain separate records
and accounts with respect thereto, and shall permit Lenders and their
representatives access at all reasonable times to inspect such Loan Documents,
related documents, records and accounts.
Section 10.17 Intentionally Omitted.
Section 10.18 Effect of a Lender's Failure to Make an Advance. In the
event any Lender fails for any reason to fund the portion it is required to fund
of any advance of Loan proceeds by 3:00 p.m. (New York time) on the second
Business Day after the date established by Administrative Agent as the date such
advance is to be made, such Lender shall be a "Delinquent Lender" for all
purposes hereunder until and unless such delinquency is cured in accordance with
the terms of and by the time permitted under Section 10.19, and the following
provisions shall apply:
(1) Administrative Agent shall notify (such notice being referred to as
the "Delinquency Notice") each Lender and Borrower of any Lender's failure
to fund. Each Non-Delinquent Lender shall have the right, but in no event
or under any circumstance the obligation, to fund such Delinquent Lender's
portion of such advance, provided that, within ten (10) days of the date of
the Delinquency Notice (the "Election Period"), such Non-Delinquent Lender
or Lenders (each such Lender, an "Electing Lender") irrevocably commit(s)
by notice in writing (an "Election Notice") to Administrative Agent, the
other Lenders and Borrower to fund the Delinquent Lender's portion of the
advance that is the subject of the delinquency (the "Delinquency Amount").
If Administrative Agent receives more than one Election Notice within the
Election Period, then the Electing Lenders sending such notices shall be
deemed to have committed to fund ratable shares of
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the Delinquency Amount based upon the amounts of their respective Loan
Commitments. If there are one or more Electing Lenders and the Delinquent
Lender fails to cure during the Election Period as provided in Section
10.19, then upon the expiration of the Election Period, each Electing
Lender's Loan Commitment shall be automatically increased by the
Delinquency Amount (if there is only one Electing Lender) or such Electing
Lender's ratable share, determined as aforesaid, of the Delinquency Amount
(if there are two (2) or more Electing Lenders), and the Delinquent
Lender's Loan Commitment shall automatically be reduced by the Delinquency
Amount. Administrative Agent shall thereupon notify Borrower and each
Lender of (i) the adjusted amounts of the Loan Commitments and (ii) the
date the Delinquency Amount is to be remitted by the Electing Lenders to
Administrative Agent (which date shall be no sooner than three (3) Business
Days after such notice). In the event Administrative Agent shall not have
advanced the Delinquency Amount pursuant to Section 10.12 or Borrower shall
have refunded such advance pursuant to paragraph (5) of this Section,
Administrative Agent shall advance to Borrower the Delinquency Amount no
later than one (1) Business Day after Administrative Agent receives the
same from the Electing Lender(s). In the event Administrative Agent shall
have previously advanced the Delinquency Amount pursuant to Section 10.12
and Borrower shall not have refunded such advance pursuant to paragraph (5)
of this Section, Administrative Agent shall reimburse itself for such
advance from the funds received from the Electing Lender(s).
Notwithstanding anything to the contrary contained herein, if
Administrative Agent advances its own funds in respect of a Delinquent
Lender's portion of an advance, Administrative Agent shall be entitled to
the interest on the portion of the outstanding principal amount of the
Loans represented thereby, from the date Administrative Agent makes such
advance until the date it is reimbursed therefor.
(2) In connection with the adjustment of the amounts of the Loan
Commitments of the Delinquent Lender and Electing Lender (s) upon the
expiration of the Election Period as aforesaid, Borrower covenants that it
shall, promptly following the request of the Electing Lender(s), execute
and deliver to each Electing Lender and the Delinquent Lender substitute
Tranche A Notes substantially in the form of EXHIBIT B-1 and stating (in
the case of the substitute note to the Delinquent Lender and, if the
Electing Lender was previously a Tranche A Lender, the substitute note to
the Electing Lender): "This Tranche A Note is a substitute Tranche A Note
as contemplated by Section 10.18 of the Loan Agreement; it replaces and is
in lieu of that certain Tranche A Note made by [Maker] dated [date of Note]
to the order of [Lender] in the principal sum of [Lender's original Tranche
A Loan Commitment]." Such substitute notes shall be in amounts equal to
such Lenders' respective Loan Tranche A Commitments, as adjusted. All such
substitute notes shall constitute Notes and the obligations evidenced by
such substitute notes shall constitute "Obligations" for all purposes of
this Agreement and the other Loan Documents and shall be secured by the
Mortgages. In connection with Borrower's execution of substitute notes as
aforesaid, Borrower shall deliver to Administrative Agent such evidence of
the due authorization, execution and delivery of the substitute notes and
any related
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documents as Administrative Agent may reasonably request. The execution and
delivery of substitute notes as required above shall be a condition
precedent to any further advances of proceeds of the Loans. Upon receipt of
its substitute note, the Electing Lender and the Delinquent Lender will
return to Borrower their notes that were replaced; provided that the
delivery of a substitute note to the Delinquent Lender pursuant to this
Section 10.18 shall operate to void and replace the note(s) previously held
by the Delinquent Lender regardless of whether or not the Delinquent Lender
returns same as required hereby. Borrower, Administrative Agent and Lenders
shall execute such modifications to the Loan Documents as shall, in the
reasonable judgment of Administrative Agent, be necessary or desirable in
connection with the adjustment of the amounts of Loan Commitments in
accordance with the foregoing provisions of this Section.
(3) In the event that no Lender elects to commit to fund the
Delinquency Amount within the Election Period as provided in paragraph (1)
of this Section, Administrative Agent shall, upon the expiration of the
Election Period, so notify Borrower and each Lender.
(4) Subject to a Delinquent Lender's right to cure as provided in
Section 10.19, but notwithstanding anything else to the contrary contained
in this Agreement, the Delinquent Lender's interest in, and any and all
amounts due to a Delinquent Lender under, the Loan Documents (including,
without limitation, all principal, interest, fees and expenses) shall be
subordinate in lien priority and to the repayment of all amounts
(including, without limitation, interest) then or thereafter due or to
become due to the Non-Delinquent Lenders under the Loan Documents
(including future advances), and the Delinquent Lender thereafter shall
have no right to participate in any discussions among and/or decisions by
Lenders hereunder and/or under the other Loan Documents. Further, subject
to Section 10.19, any Delinquent Lender shall be bound by any amendment to,
or waiver of, any provision of, or any action taken or omitted to be taken
by Administrative Agent and/or the Non-Delinquent Lenders under, any Loan
Document which is made subsequent to the Delinquent Lender's becoming a
Delinquent Lender.
(5) If, pursuant to the operation of Section 10.12, an advance of Loan
proceeds is made without Administrative Agent's receipt of a Delinquent
Lender's portion thereof, in addition to Borrower's obligations under
Section 10.12, Borrower shall, upon demand of Administrative Agent, refund
the Delinquency Amount to Administrative Agent. Borrower's failure to do so
within ten (10) days of such demand shall, notwithstanding anything to the
contrary contained herein or in any Mortgage, constitute an Event of
Default.
If a Delinquent Lender's obligations with respect to the Delinquency
Amount are assumed by one or more Electing Lenders, then, notwithstanding
anything to the contrary contained in this Agreement (including Section
10.14), subsequent advances of the Loans shall be made by Lenders in
proportion to the remaining available amounts of their respective Loan
Commitments.
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Section 10.19 Cure by Delinquent Lender. A Delinquent Lender may cure a
delinquency arising out of its failure to fund its required portion of any
advance if, within the Election Period, it remits to Administrative Agent its
required portion of such advance (together with interest thereon at the Default
Rate from the date such advance was to have been made if such advance was made
by Administrative Agent and not refunded by Borrower pursuant to either Section
10.12 or paragraph (5) of Section 10.18), in which event Administrative Agent
shall so notify Borrower and the Non-Delinquent Lenders of its receipt of such
funds. If Administrative Agent shall not have advanced the Delinquency Amount
from its own funds pursuant to Section 10.12 (or such advance shall have been
made but shall have been refunded by Borrower pursuant to paragraph (5) of
Section 10.18), Administrative Agent shall, within one (1) Business Day of its
receipt thereof from the Delinquent Lender, advance the Delinquency Amount to
Borrower. If Administrative Agent shall have advanced the Delinquency Amount
pursuant to Section 10.12 and Borrower shall not have refunded such advance
pursuant to paragraph (5) of Section 10.18, Administrative Agent shall notify
Borrower and each Lender of its intention to reimburse itself from funds
received from the Delinquent Lender (which reimbursement is hereby authorized)
for funding the Delinquency Amount. In the event any Delinquent Lender cures a
delinquency prior to the expiration of the Election Period (or thereafter with
the consent of all of the Non-Delinquent Lenders), such Delinquent Lender
nonetheless shall be bound by any amendment to or waiver of any provision of, or
any action taken or omitted to be taken by Administrative Agent and/or the
Non-Delinquent Lenders under, any Loan Document which is made subsequent to that
Lender's becoming a Delinquent Lender and prior to its curing the delinquency as
provided in this Section; provided that such amendment or waiver of action was
taken in accordance with the provisions of this Agreement. A Delinquent Lender
shall have absolutely no right to cure any delinquency after the expiration of
the Election Period unless all Non-Delinquent Lenders, in their sole discretion,
elect to permit such cure.
Section 10.20 Delinquent Lender Not Excused. Nothing contained in
Sections 10.18 or 10.19 shall release or in any way limit a Delinquent Lender's
obligations as a Lender hereunder and/or under any other of the Loan Documents.
Further, a Delinquent Lender shall indemnify and hold harmless Administrative
Agent and each of the Non-Delinquent Lenders from any claim, loss, or costs
incurred by Administrative Agent and/or the Non-Delinquent Lenders as a result
of a Delinquent Lender's failure to comply with the requirements of this
Agreement, including, without limitation, any and all additional losses,
damages, costs and expenses (including, without limitation, attorneys' fees)
incurred by Administrative Agent and any Lender as a result of and/or in
connection with (i) a Non-Delinquent Lender's acting as an Electing Lender, (ii)
any enforcement action brought by Administrative Agent against a Delinquent
Lender and (iii) any action brought against Administrative Agent and/or Lenders.
The indemnification provided above shall survive any termination of this
Agreement.
Section 10.21 Notices Regarding Delinquent Lender. Notices by
Administrative Agent or Lenders pursuant to Sections 10.18 or 10.19 may be by
telephone or by facsimile.
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Section 10.22 Replacement Lender. In the event any Lender becomes a
Delinquent Lender and none of the other Lenders elects to be an Electing Lender
pursuant to Section 10.18, Borrower shall have the right, at any time, provided
there exists no Default or Event of Default, to replace the Delinquent Lender as
a Lender with another bank, financial institution, insurance company or
investment company or fund reasonably acceptable to the Required Lenders on the
then-existing terms and conditions of the Loan Documents (such replacement
institution, a "Replacement Lender"). If Borrower opts to exercise such right,
it shall give notice thereof to Administrative Agent, which notice shall specify
the proposed Replacement Lender. Administrative Agent shall promptly send a copy
of such notice to each Lender. If the Required Lenders do not reasonably
disapprove the Replacement Lender, Administrative Agent shall so notify Borrower
and each Lender and the Delinquent Lender shall assign all of the rights in
respect of its Loan, and the Replacement Lender shall assume all the Delinquent
Lender's obligations in respect of such Loan, pursuant to an agreement
substantially in the form of an Assignment and Assumption Agreement. In
connection with such assignment and assumption, the Replacement Lender shall pay
the Delinquent Lender an amount equal to the outstanding principal amount under
the Delinquent Lender's Note plus all interest accrued thereon plus all other
amounts then due and payable to the Delinquent Lender. Upon the effective date
of such assignment and assumption and the payment by the Replacement Lender to
Administrative Agent of a fee, for Administrative Agent's own account, in the
amount of $3,500, the Replacement Lender shall become a "Lender" for all
purposes hereunder, with a Loan Commitment in an amount equal to the former Loan
Commitment of the Delinquent Lender, and the Delinquent Lender's Loan Commitment
shall automatically be reduced to zero. In connection with the foregoing,
Borrower shall execute and deliver to the Replacement Lender substitute Notes
substantially in the forms of EXHIBIT X-0, X-0 xxx/xx X-0, as applicable, with
each stating: "This Note is a substitute [Tranche A, B or C, as applicable] Note
as contemplated by Section 10.22 of the Loan Agreement; it replaces and is in
lieu of that certain [Tranche A, B or C, as applicable] Note made by [Maker]
dated [date of Note] to the order of [Delinquent Lender] in the principal sum of
[Delinquent Lender's original Tranche A, B or C Loan Commitment, as
applicable]." Such substitute notes shall constitute Notes and the obligations
evidenced thereby shall constitute "Obligations" for all purposes of this
Agreement and the other Loan Documents and shall be secured by the Mortgages. In
connection with Borrower's execution and delivery of substitute notes as
aforesaid, (i) Borrower shall deliver to Administrative Agent such evidence of
the due authorization, execution and delivery of the substitute notes and any
related documents as Administrative Agent may reasonably request and (ii) the
Delinquent Lender will return to Borrower its notes that were replaced; provided
that the delivery of substitute notes to the Replacement Lender pursuant to this
Section 10.22 shall operate to void and replace the notes previously held by the
Delinquent Lender regardless of whether or not the Delinquent Lender returns the
same as required hereby. If the Replacement Lender is not incorporated under the
Laws of the United States or a state thereof, it shall, prior to the first date
on which interest or fees are payable hereunder for its account, deliver to
Borrower and Administrative Agent certification as to exemption from deduction
or withholding of any United States federal income taxes in accordance with
Section 10.13.
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Borrower, Administrative Agent and Lenders shall execute such
modifications to the Loan Documents as shall, in the reasonable judgment of
Administrative Agent, be necessary or desirable in connection with the
substitution of Lenders in accordance with the foregoing provisions of this
Section.
Lenders shall reasonably cooperate with Borrower's attempts to obtain a
Replacement Lender, but they shall not be obligated to modify the Loan Documents
in connection therewith, other than modifications pursuant to the immediately
preceding paragraph.
ARTICLE XI
NATURE OF OBLIGATIONS
Section 11.01 Absolute and Unconditional Obligations. Borrower
acknowledges and agrees that its obligations and liabilities under this
Agreement and under the other Loan Documents shall be absolute and unconditional
irrespective of (i) any lack of validity or enforceability of any of the
Obligations, any Loan Documents or any agreement or instrument relating thereto,
(ii) any change in the time, manner or place of payment of, or in any other term
in respect of, all or any of the Obligations, or any other amendment or waiver
of or consent to any departure from any Loan Documents or any other documents or
instruments executed in connection with or related to the Obligations, (iii) any
exchange or release of any Collateral, or of any other Person from all or any of
the Obligations or (iv) any other circumstances which might otherwise constitute
a defense available to, or a discharge of, Borrower or any other Person in
respect of the Obligations.
The Obligations shall not be conditioned or contingent upon the pursuit
by any Lender or any other Person at any time of any right or remedy against
Borrower or any other Person which may be or become liable in respect of all or
any part of the Obligations or against any Collateral or security or guarantee
therefor or right of setoff with respect thereto.
Section 11.02 Non-Recourse to Borrower's Principals. Notwithstanding
anything to the contrary contained herein, in any of the other Loan Documents,
or in any other instruments, certificates, documents or agreements executed in
connection with the Loans (all of the foregoing, for purposes of this Section,
hereinafter referred to, individually and collectively, as the "Relevant
Documents"), no recourse under or upon any Obligation, representation, warranty,
promise or other matter whatsoever shall be had against any of Borrower's
Principals and each Lender expressly waives and releases, on behalf of itself
and its successors and assigns, all right to assert any liability whatsoever
under or with respect to the Relevant Documents against, or to satisfy any claim
or obligation arising thereunder against, any of Borrower's Principals;
provided, however, that nothing in this Section shall be deemed to (i) release
Borrower, Guarantor or the Other Mortgagor from any personal liability pursuant
to, or from any of its respective obligations under, the Relevant Documents, or
from personal liability for its fraudulent actions or fraudulent omissions, (ii)
release any of Borrower's Principals from
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personal liability for her or his own fraudulent actions or fraudulent
omissions, (iii) constitute a waiver of any obligation evidenced or secured by,
or contained in, the Relevant Documents or affect in any way the validity or
enforceability of the Relevant Documents or (iv) limit the right of
Administrative Agent and/or Lenders to proceed against or realize upon all or
part of the Mortgaged Property under any Mortgage or any other Collateral or any
and all of the assets of Borrower and/or Guarantor (notwithstanding the fact
that any or all of Borrower's Principals may have an ownership interest in
Borrower and/or Guarantor and, thereby, an interest in the assets of Borrower
and/or Guarantor) or to name Borrower, Guarantor and/or the Other Mortgagor (or,
to the extent that the same are required by applicable Law or are determined by
a court to be necessary parties in connection with an action or suit against
Borrower, Guarantor and/or the Other Mortgagor, all or part of the Mortgaged
Property under any Mortgage or any other Collateral, any of Borrower's
Principals) as a party defendant in, and to enforce against all or part of the
Mortgaged Property under any Mortgage or any other Collateral and/or assets of
Borrower and/or Guarantor any judgment obtained by Administrative Agent and/or
Lenders with respect to, any action or suit under the Relevant Documents so long
as no judgment shall be taken (except to the extent taking a judgment is
required by applicable Law or determined by a court to be necessary to preserve
Administrative Agent's and/or Lenders' rights against all or part of the
Mortgaged Property under any Mortgage or any other Collateral or Borrower,
Guarantor or the Other Mortgagor, but not otherwise) or shall be enforced
against Borrower's Principals or their assets.
ARTICLE XII
MISCELLANEOUS
Section 12.01 Binding Effect of Request for Advance. Borrower agrees
that, by its acceptance of any advance of proceeds of the Loans under this
Agreement, it shall be bound in all respects by the request for advance
submitted on its behalf in connection therewith with the same force and effect
as if Borrower had itself executed and submitted the request for advance and
whether or not the request for advance is executed and/or submitted by an
authorized person.
Section 12.02 Amendments and Waivers. No amendment or material waiver
of any provision of this Agreement or any other Loan Document nor consent to any
material departure by Borrower, Guarantor or the Other Mortgagor therefrom shall
in any event be effective unless the same shall be in writing and signed by the
Required Lenders and, solely for purposes of its acknowledgment thereof,
Administrative Agent, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given; provided,
however, that no amendment, waiver or consent shall, unless in writing and
signed or consented to by (a) the Required Lenders and the Majority Tranche A
Lenders, do either of the following: (i) have the effect (either immediately or
at some later time) of enabling Borrower to satisfy a condition precedent to the
making of an advance of Tranche A or (ii) change the definition of "Majority
Tranche A Lenders"; or (b) the Required Lenders and the Majority Lenders by
Tranche, do any of the following: (i) change the proviso in the definition of
"Hotel Value", (ii) alter the manner in which payments or prepayments of
principal, interest or
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other amounts under the Loan Documents shall be applied as between Lenders or
Tranches or (iii) increase the Total Loan Commitment; or (c) all Lenders, do any
of the following: (i) reduce the principal of, or interest on, the Notes or any
fees due hereunder or any other amount due hereunder or under any other Loan
Document, (ii) postpone any date fixed for any payment of principal of, or
interest on, the Notes or any fees due hereunder or under any other Loan
Document, (iii) change the definition of "Required Lenders" or "Majority Lenders
by Tranche", (iv) amend this Section or any other provision requiring the
consent of all Lenders, (v) waive any default under paragraph (5) of Section
9.01, (vi) release, in whole or in part, any Guarantor other than in accordance
with the Loan Documents, (vii) change Section 12.17, (viii) increase the amount
of a Lender's individual Loan Commitment or (ix) release any material portion of
the Mortgaged Property under any Mortgage or of any other Collateral other than
in accordance with the Loan Documents.
Any advance of proceeds of the Loans made prior to or without the
fulfillment by Borrower of all of the conditions precedent thereto, whether or
not known to Administrative Agent and Lenders, shall not constitute a waiver of
the requirement that all conditions, including the non-performed conditions,
shall be required with respect to all future advances. No failure on the part of
Administrative Agent or any Lender to exercise, and no delay in exercising, any
right hereunder shall operate as a waiver thereof or preclude any other or
further exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by Law.
All communications from Administrative Agent to Lenders requesting
Lenders' determination, consent, approval or disapproval (x) shall be given in
the form of a written notice to each Lender, (y) shall be accompanied by or
include a description or copy of the matter or thing as to which such
determination, approval, consent or disapproval is requested and (z) shall
include Administrative Agent's recommended course of action or determination in
respect thereof. Each Lender shall reply promptly, but in any event within ten
(10) Business Days (or five (5) Business Days with respect to any decision to
accelerate or stop acceleration of the Loans) after receipt of the request
therefor by Administrative Agent (the "Lender Reply Period"). Unless a Lender
shall give written notice to Administrative Agent that it objects to the
recommendation or determination of Administrative Agent (together with a written
explanation of the reasons behind such objection) within the Lender Reply
Period, such Lender shall be deemed to have approved or consented to such
recommendation or determination.
Section 12.03 Usury. Anything herein to the contrary notwithstanding,
the obligations of Borrower under this Agreement and the Notes shall be subject
to the limitation that payments of interest shall not be required to the extent
that receipt thereof would be contrary to provisions of Law applicable to a
Lender limiting rates of interest which may be charged or collected by such
Lender.
Section 12.04 Expenses; Indemnification. Borrower covenants and agrees
to pay all costs, expenses and charges (including, without limitation, all
reasonable fees and expenses of counsel, engineers, appraisers and consultants)
incurred by
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Administrative Agent or any Lender in connection with (i) the preparation for
and consummation of the transactions contemplated hereby or for the performance
hereof and of the other Loan Documents, and for any services which may be
required in addition to those normally and reasonably contemplated hereby and
(ii) the enforcement hereof or of any or all of the other Loan Documents;
provided, however, that Borrower shall not be responsible for (x) the fees and
expenses of legal counsel for any Lender other than UBS incurred in connection
with said counsel's review of this Agreement and the other Loan Documents prior
to execution, (y) costs, expenses and charges incurred by Administrative Agent
and Lenders in connection with the administration of the Loan (other than the
administration fee separately agreed to by Borrower and Administrative Agent and
the reasonable fees and expenses of Administrative Agent's counsel) and (z) the
fees and expenses of any Participant or Assignee or their respective counsel. In
connection with the foregoing, Lenders agree, to the extent practicable, to
appoint a single counsel and local counsel, selected by Administrative Agent, to
act on behalf of all Lenders in connection with the enforcement of the Loan
Documents. If Borrower fails to pay promptly any costs, charges or expense
required to be paid by it as aforesaid, and Administrative Agent or any Lender
pays such costs, charges or expenses, Borrower shall reimburse Administrative
Agent or such Lender, as appropriate, on demand for the amounts so paid,
together with interest thereon at the Default Rate for Base Rate Loans from the
date of demand. Borrower agrees to indemnify Administrative Agent and each
Lender and their respective directors, officers, employees and agents from, and
hold each of them harmless against, any and all losses, liabilities, claims,
damages or expenses incurred by any of them arising out of or by reason of (A)
any claims by brokers due to acts or omissions by Borrower or (B) any
investigation or litigation or other proceedings (including any threatened
investigation or litigation or other proceedings) relating to any actual or
proposed use by Borrower of the proceeds of the Loans, including, without
limitation, the reasonable fees and disbursements of counsel incurred in
connection with any such investigation or litigation or other proceedings (but
excluding any such losses, liabilities, claims, damages or expenses incurred by
reason of the gross negligence or willful misconduct of the Person to be
indemnified).
The obligations of Borrower under this Section and under Article III
shall survive the repayment of all amounts due under or in connection with any
of the Loan Documents and the termination of the Loans.
Section 12.05 Assignment; Participation. This Agreement shall be
binding upon, and shall inure to the benefit of, Borrower, Administrative Agent,
Lenders and their respective successors and permitted assigns. Borrower may not
assign or transfer its rights or obligations hereunder.
Any Lender may at any time grant to one or more banks or other
financial institutions, insurance companies or investment companies or funds not
affiliated with Borrower (each a "Participant") participating interests in its
Loan ("Participations"). In the event of any such grant by a Lender of a
Participation to a Participant, whether or not Borrower or Administrative Agent
was given notice, such Lender shall remain responsible for the performance of
its obligations hereunder, and Borrower and Administrative Agent shall continue
to deal solely and directly with such Lender in
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connection with such Lender's rights and obligations hereunder. Any agreement
pursuant to which any Lender may grant a Participation shall provide that such
Lender shall retain the sole right and responsibility to enforce the obligations
of Borrower hereunder and under any other Loan Document, including, without
limitation, the right to approve any amendment, modification or waiver of any
provision of this Agreement or any other Loan Document; provided, however, that
such participation agreement may provide that such Lender will not agree to any
modification, amendment or waiver of this Agreement described in sub-clauses (i)
through (ix) of clause (c) of Section 12.02 without the consent of the
Participant.
Any Lender may at any time assign (a) to any bank or other financial
institution, insurance company or investment company or fund not affiliated with
Borrower with the consent of Administrative Agent and, provided there exists no
Event of Default, of Borrower, which consents shall not be unreasonably withheld
or delayed, or (b) to one or more banks or other financial institutions,
insurance companies or investment companies or funds not affiliated with
Borrower which are majority owned subsidiaries of a Lender or of the Parent of a
Lender or which is the surviving entity in a merger or consolidation of a Lender
or its Parent, or which, in the case of an investment company or fund, are
managed by the same advisor (each such consented to (under clause (a) above) or
permitted (under clause (b) above) bank or other financial institution,
insurance company or investment company or fund, an "Assignee") all, or a
proportionate part of all, of its rights and obligations under this Agreement
and its Notes, and such Assignee shall assume rights and obligations, pursuant
to an Assignment and Assumption Agreement executed by such Assignee and the
assigning Lender, provided that, in each case, after giving effect to such
assignment the Assignee's Loan Commitment, and, in the case of a partial
assignment, the assigning Lender's Loan Commitment, each will be equal to or
greater than $5,000,000, unless otherwise permitted by Administrative Agent (it
being understood that in the case of two (2) or more investment companies or
funds managed by the same advisor, such minimum Loan Commitments shall be
calculated by aggregating the Loan Commitments of all such funds, provided,
however, that the Loan Commitment of each such individual investment company or
fund shall be equal to or greater than $1,000,000, unless otherwise permitted by
Administrative Agent); provided, further, however, that the assigning Lender
shall not be required to maintain a Loan Commitment in the minimum amount
aforesaid in the event it assigns all of its rights and obligations under this
Agreement and its Notes. Upon (i) execution and delivery of such instrument,
(ii) payment by such Assignee to the assigning Lender of an amount equal to the
purchase price agreed between such Lender and such Assignee and (iii) payment by
such Assignee to Administrative Agent of a fee, for Administrative Agent's own
account, in the amount of $3,500 (provided that only one such fee shall be
required in the event of a simultaneous assignment to two (2) or more investment
companies or funds managed by the same advisor), such Assignee shall be a Lender
under this Agreement and shall have all the rights and obligations of a Lender
as set forth in such Assignment and Assumption Agreement, and the assigning
Lender shall be released from its obligations hereunder to a corresponding
extent, and no further consent or action by any party shall be required. Upon
the consummation of any assignment pursuant to this paragraph, substitute Notes
shall be issued to the assigning Lender (in the case of a partial assignment)
and Assignee by Borrower, in exchange for the return of the original Notes
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of the assigning Lender. The obligations evidenced by such substitute notes
shall constitute "Obligations" for all purposes of this Agreement and the other
Loan Documents and shall be secured by the Mortgages. In connection with
Borrower's execution of substitute notes as aforesaid, Borrower shall deliver to
Administrative Agent such evidence of the due authorization, execution and
delivery of the substitute notes and any related documents as Administrative
Agent may reasonably request. If the Assignee is not incorporated under the Laws
of the United States or a state thereof, it shall, prior to the first date on
which interest or fees are payable hereunder for its account, deliver to
Borrower and Administrative Agent certification as to exemption from deduction
or withholding of any United States federal income taxes in accordance with
Section 10.13. Each Assignee shall be deemed to have made the representations
contained in, and shall be bound by the provisions of, Section 10.13.
Unless otherwise permitted by Administrative Agent, in the case of any
assignment by a Tranche A Lender or Tranche B Lender pursuant to this Section,
each such Lender's Tranche A Note and Tranche B Note (or proportionate parts of
each) must be assigned jointly and such Notes may not be assigned singly.
Any Lender may at any time freely assign all or any portion of its
rights under this Agreement and its Notes to a Federal Reserve Bank. Further,
any Lender that is a fund that invests in bank loans may (without the consent of
Borrower or Administrative Agent) pledge all or a portion of its rights in
connection with this Agreement to the trustee or other agent for holders of
obligations owed or securities issued, by such fund as security for such
obligations or securities. No such assignment or pledge, however, shall release
the transferor/pledgor Lender from its obligations hereunder.
Borrower recognizes that in connection with a Lender's selling of
Participations or making of assignments, any or all documentation, financial
statements, appraisals and other data, or copies thereof, relevant to Borrower
or the Loans may be exhibited to and retained by any such Participant or
assignee or prospective Participant or assignee. In connection with a Lender's
delivery of any financial statements and appraisals to any such Participant or
assignee or prospective Participant or assignee, such Lender shall also indicate
that the same are delivered on a confidential basis. Each Lender agrees to
provide Administrative Agent and Borrower with notice of all Participations sold
by such Lender.
Section 12.06 Documentation Satisfactory. All documentation required
from or to be submitted on behalf of Borrower in connection with this Agreement
and the documents relating hereto shall be subject to the prior approval of, and
be satisfactory in form and substance to, Administrative Agent, its counsel and,
where specifically provided herein, Lenders. In addition, the persons or parties
responsible for the execution and delivery of, and signatories to, all of such
documentation, shall be acceptable to, and subject to the approval of,
Administrative Agent and its counsel.
Section 12.07 Notices. Except as expressly provided otherwise, all
notices, demands, consents, approvals and statements required or permitted
hereunder
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shall be in writing and shall be deemed to have been sufficiently given or
served for all purposes when presented personally, three (3) days after mailing
by registered or certified mail, postage prepaid, or one (1) day after delivery
to a nationally recognized overnight courier service providing evidence of the
date of delivery, addressed to a party at its address on the signature page
hereof or of the applicable Assignment and Assumption Agreement, or at such
other address of which a party shall have notified the party giving such notice
in writing in accordance with the foregoing requirements.
Section 12.08 Setoff. Borrower agrees that, in addition to (and without
limitation of) any right of setoff, bankers' lien or counterclaim a Lender may
otherwise have, Administrative Agent and each Lender shall be entitled, but only
with the prior consent of the Required Lenders, to offset balances (general or
special, time or demand, provisional or final) held by it for the account of
Borrower at any of Administrative Agent's or such Lender's offices, in Dollars
or in any other currency, against any amount payable by Borrower to
Administrative Agent or such Lender under this Agreement or such Lender's Notes
or any other Loan Document which is not paid when due (regardless of whether
such balances are then due to Borrower), in which case it shall promptly notify
Borrower and (in the case of setoff by a Lender) Administrative Agent thereof;
provided, however, that failure to give such notice shall not affect the
validity thereof. Payments by Borrower hereunder or under the other Loan
Documents shall be made without setoff or counterclaim.
Section 12.09 Severability. The provisions of this Agreement are
intended to be severable. If for any reason any provision of this Agreement
shall be held invalid or unenforceable in whole or in part in any jurisdiction,
such provision shall, as to such jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without in any manner affecting the validity
or enforceability thereof in any other jurisdiction or the remaining provisions
hereof in any jurisdiction.
Section 12.10 Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument, and any party hereto may execute this Agreement by signing any
such counterpart.
Section 12.11 Intentionally Omitted.
Section 12.12 Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the Laws of the State of New York
(without giving effect to New York's principles of conflicts of law).
Section 12.13 Waivers. In connection with the obligations and
liabilities as aforesaid, Borrower hereby waives (i) promptness and diligence,
(ii) notice of any actions taken by Administrative Agent or any Lender under
this Agreement, any other Loan Document or any other agreement or instrument
relating thereto except to the extent otherwise provided herein, (iii) all other
notices, demands and protests, and all other formalities of every kind in
connection with the enforcement of the Obligations, the omission of or delay in
which, but for the provisions of this Section, might constitute grounds for
relieving Borrower of its obligations hereunder, (iv) any requirement that
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Administrative Agent or any Lender protect, secure, perfect or insure any Lien
on all or any portion of the Mortgaged Property under any Mortgage or on any
other Collateral or exhaust any right or take any action against Borrower,
Guarantor or any other Person or against all or any portion of the Mortgaged
Property under any Mortgage or any other Collateral, (v) any right or claim of
right to cause a marshalling of the assets of Borrower, Guarantor or any other
Person and (vi) all rights of subrogation or contribution, whether arising by
contract or operation of law (including, without limitation, any such right
arising under the Federal Bankruptcy Code) or otherwise by reason of payment by
Borrower, either jointly or severally, pursuant to this Agreement or other Loan
Documents.
Section 12.14 Year 2000. Borrower represents, warrants and covenants
that it and Guarantor have taken and shall take all action reasonably necessary
to assure that its data processing (including internal accounting and
bookkeeping) systems, information technology systems and building systems
(including microprocessors for building systems) are capable of effectively
processing data and information, including dates on and after January 1, 2000,
and shall not cease to perform, or provide, or cause any software and/or system
which is material to its operations or any interface therewith to provide,
invalid or incorrect results as a result of date functionality and/or data, or
otherwise experience any material degradation of performance or functionality
arising from, relating to or including date functionality and/or data which
represents or references different centuries or more than one century or leap
years, and that all such systems shall be reasonably effective and accurate in
managing and manipulating data derived from, involving or relating in any way to
dates (including single century formulas and multi-century or leap year
formulas), and will not cause a material abnormally ending scenario within such
systems or in any software and/or system with which such systems interface, or
generate materially incorrect values or invalid results involving such dates. At
the request of Administrative Agent, Borrower shall provide, and cause Guarantor
to provide, Administrative Agent with reasonably acceptable assurance of
Borrower's and Guarantor's year 2000 capability.
Section 12.15 Jurisdiction; Immunities. Borrower, Administrative Agent
and each Lender hereby irrevocably submit to the jurisdiction of any New York
State or U.S. federal court sitting in New York City over any action or
proceeding arising out of or relating to this Agreement, the Notes or any other
Loan Document. Borrower, Administrative Agent, and each Lender irrevocably agree
that all claims in respect of such action or proceeding may be heard and
determined in such New York State or U.S. federal court. Borrower,
Administrative Agent, and each Lender irrevocably consent to the service of any
and all process in any such action or proceeding by the mailing of copies of
such process to Borrower, Administrative Agent or each Lender, as the case may
be, at the addresses specified herein. Borrower, Administrative Agent and each
Lender agree that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by Law. Borrower, Administrative Agent and each
Lender further waive any objection to venue in the State of New York and any
objection to an action or proceeding in the State of New York on the basis of
forum non conveniens.
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Nothing in this Section shall affect the right of Borrower,
Administrative Agent or any Lender to serve legal process in any other manner
permitted by Law.
To the extent that Borrower, Administrative Agent or any Lender have or
hereafter may acquire any immunity from jurisdiction of any court or from any
legal process (whether from service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to itself
or its property, Borrower, Administrative Agent and each Lender hereby
irrevocably waive such immunity in respect of its obligations under this
Agreement, the Notes and any other Loan Document.
BORROWER, ADMINISTRATIVE AGENT AND EACH LENDER WAIVE ANY RIGHT EACH
SUCH PARTY MAY HAVE TO JURY TRIAL IN CONNECTION WITH ANY SUIT, ACTION OR
PROCEEDING BROUGHT WITH RESPECT TO THIS AGREEMENT, THE NOTES OR THE LOANS. IN
ADDITION, BORROWER FURTHER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, IN
CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING BROUGHT BY OR ON BEHALF OF
ADMINISTRATIVE AGENT OR LENDERS WITH RESPECT TO THIS AGREEMENT, THE NOTES OR
OTHERWISE IN RESPECT OF THE LOAN, ANY AND EVERY RIGHT BORROWER MAY HAVE TO (X)
INJUNCTIVE RELIEF, (Y) INTERPOSE ANY COUNTERCLAIM THEREIN, OTHER THAN A
COMPULSORY COUNTERCLAIM AND (Z) HAVE THE SAME CONSOLIDATED WITH ANY OTHER OR
SEPARATE SUIT, ACTION OR PROCEEDING. NOTHING CONTAINED IN THE IMMEDIATELY
PRECEDING SENTENCE SHALL PREVENT OR PROHIBIT BORROWER FROM INSTITUTING OR
MAINTAINING A SEPARATE ACTION AGAINST ADMINISTRATIVE AGENT OR LENDERS WITH
RESPECT TO ANY ASSERTED CLAIM.
Section 12.16 Gross-Up For Taxes. All payments made by Borrower under
this Agreement and the Notes shall be made free and clear of, and without
deduction or withholding for or on account of, any present or future income,
stamp or other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or assessed
by any Governmental Authority, excluding income taxes and franchise or other
taxes (imposed in lieu of income taxes) imposed on a Lender as a result of a
present or former connection between such Lender and the jurisdiction of the
Governmental Authority imposing such tax or any political subdivision or taxing
authority thereof or therein (other than any such connection arising solely from
such Lender's having executed, delivered or performed its obligations or
received a payment under, or enforced, this Agreement or its Notes). If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") are required to be withheld from any amounts
payable to such Lender hereunder or under its Notes the amounts so payable to
such Lender shall be increased to the extent necessary to yield to such Lender
(after payment of all Non-Excluded Taxes) interest or any such other amounts
payable with respect to the its Loan at the rates or in the amounts specified in
this Agreement and its Notes; provided, however, that Borrower shall not be
required to increase any such amounts payable to such Lender if such Lender is
not organized under the Laws of the United States or a state thereof and such
Lender fails to comply with the requirements of Section
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10.13. Whenever any Non-Excluded Taxes are payable by Borrower, as promptly as
possible thereafter Borrower shall send to Administrative Agent for the account
of such Lender a certified copy of an original official receipt received by
Borrower showing payment thereof. If Borrower fails to pay any Non-Excluded
Taxes when due to the appropriate taxing authority or fails to remit to
Administrative Agent the required receipts or other required documentary
evidence, Borrower shall indemnify such Lender for any incremental taxes,
interest or penalties that may become payable by such Lender as a result of any
such failure. The agreements in this Section shall survive the termination of
this Agreement and the payment of the Notes and all other amounts payable
hereunder.
Section 12.17 Additions and Releases of Properties.
(a) Subject to the conditions set forth below in this Section, Borrower
shall have the right from time to time to (1) cause one or more office
properties owned by Borrower and approved by Required Lenders and the Majority
Lenders by Tranche, each in their sole and absolute discretion, to be encumbered
by a Mortgage and thereby become an Office Property or (2) obtain the release of
a Property from the Mortgage encumbering such Property, each such addition or
release of a Property to effect an immediate change in the computations of
compliance with the covenants set forth in Section 8.01. (b) The addition of any
new Property shall be subject to the satisfaction of the following conditions,
in addition to the conditions set forth in clause (1) of paragraph (a) of this
Section:
(i) There shall exist no Default or Event of Default;
(ii) Administrative Agent shall have received (x) a Mortgage of the
Property, duly executed by Borrower and recorded (or delivered for
recording) in the appropriate land records, together with executed
financing statements filed (or delivered for filing) under the Uniform
Commercial Code of all jurisdictions necessary or, in the opinion of
Administrative Agent, desirable to perfect the lien created by said
Mortgage and (y) an Indemnity, duly executed by Borrower and Guarantor
(each such Mortgage and Indemnity to be substantially in the form of the
Mortgages and Indemnities with respect to the Properties initially given as
security for the Loans but with such changes as Administrative Agent
reasonably deems necessary or advantageous under local law or in connection
with the particular Property);
(iii) Each of the Property-specific representations and warranties set
forth in this Agreement shall be true and correct in all material respects
with respect to the Property;
(iv) The Property shall not have suffered any material casualty and no
eminent domain proceedings material to the Property shall have been
commenced (or threatened) with respect to all or any part thereof;
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(v) Administrative Agent shall have received and approved an operating
statement with respect to the Property for the most recent Fiscal Year and
for the stub period ending with the most recent calendar quarter; at the
request of a Lender, Administrative Agent shall send a copy thereof to such
Lender promptly following such request;
(vi) Administrative Agent shall have received and approved (x) each of
the items listed in paragraphs (6) through (17), (21) and (24) of Section
4.01 with respect to the Property; and (y) such endorsements to the title
insurance policies insuring the Mortgages as Administrative Agent shall
reasonably require; at the request of a Lender, Administrative Agent shall
send a copy of any of such items to such Lender promptly following such
request;
(vii) Administrative Agent shall have received from Borrower, and
approved, a certificate of the sort required by clause (ii) of paragraph
(3) of Section 6.09 (a copy of which Administrative Agent shall send to any
Lender promptly following such Lender's request), which shall demonstrate
Borrower's compliance, as of the date of the addition of the Property to be
added, taking into account the addition of the Property, with the covenants
of Borrower enumerated in said clause (ii);
(viii) Administrative Agent shall have received such other documents,
opinions and assurances as it may reasonably request, all in form and
substance reasonably satisfactory to Administrative Agent; and
(ix) Administrative Agent shall have received payment of all its
reasonable out-of-pocket expenses in connection with the addition of the
Property, including reasonable fees and expenses of counsel.
At the time of the approval of the Property to be added, Borrower,
Administrative Agent and the Required Lenders and Majority Lenders by Tranche
will confirm in writing what the appraised value of the Property is.
(c) The release of any Property shall be subject to the satisfaction of
the following conditions:
(i) There shall exist no Default or Event of Default;
(ii) Administrative Agent shall have received from Borrower, and
approved, a certificate of the sort required by clauses (i) and (ii) of
paragraph (3) of Section 6.09 (a copy of which Administrative Agent shall
promptly send to each Lender), which shall demonstrate Borrower's and
Guarantor's compliance, as of the date of the proposed release of the
Property, with the covenants contained in Article VIII hereof and
paragraphs 9 and 10 of the Guaranty, taking into account the release of the
Property; Borrower shall, concurrently with the release of the Property,
make a payment in reduction of the outstanding principal amount of the
Notes in an amount equal to the greater of (x) the amount such that said
covenants are complied with or (y) the Release Price of such Property; for
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purposes hereof, "Release Price" shall mean, (A) in the case of an Office
Property listed on SCHEDULE A under "Office - Part II" that is released
prior to June 30, 2000, 65% of the Property Allocated Value thereof at the
time of the release, (B) in the case of an Office Property other than an
Office Property described in clause (A) above, 110% multiplied by 65% of
the Property Allocated Value thereof at the time of the release or (C) in
the case a Hotel Property, 110% multiplied by 55% of the Property Allocated
Value thereof at the time of the release, in any such case disregarding the
proviso in the definition of "Property Allocated Value";
(iii) Concurrently with such release, the Property shall be conveyed to
a Person other than Borrower; and
(iv) Administrative Agent shall have received from Borrower payment of
Administrative Agent's reasonable out-of-pocket expenses in connection with
such release, including reasonable fees and expenses of counsel.
Section 12.18 Reappraisals of Hotel Properties. At the request of
Administrative Agent, any Hotel Property shall be reappraised from time to time
for purposes of determining its Property Allocated Value; provided, however,
that no Hotel Property shall be reappraised more than once during any twelve
(12)-month period. Each such reappraisal shall (1) conform to the requirements
of Section 4.01(8) and (2) be reasonably acceptable in form and substance
(including methods, procedures and scope of services) to the Administrative
Agent. The cost of each such appraisal shall be paid by Borrower.
Section 12.19 Certain Provisions Regarding Disposition Properties.
(a) Notwithstanding the provisions of Section 4.01, although a Mortgage
of each Disposition Property will be required to be executed and delivered to
Administrative Agent as a condition precedent to the making of the Initial
Advance, the recording of such Mortgages, as well as the delivery of certain
other items relating to the Disposition Properties, shall be deferred as
hereinafter provided (the parties hereto acknowledging that, as of the Closing
Date, the Disposition Properties are not owned by Borrower, but may, under
certain circumstances, be conveyed to Borrower as hereinafter provided).
(b) On or before the Closing Date:
(i) Borrower shall cause CEI LP to deliver to Administrative Agent
documents, duly executed by CEI LP (and Borrower where applicable) and in
proper form for recording, where applicable, to effect the conveyance of
fee title in the Disposition Properties to Borrower, such documents to
include: (A) a Warranty Deed and Assignment, (B) a Blanket Conveyance, Xxxx
of Sale and General Assignment, (C) an Assignment and Assumption of Leases
and Rents and (D) a Bills Paid Affidavit (the foregoing documents,
collectively, the "Disposition Property Conveyance Documents"); and
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(ii) Borrower shall deliver to Administrative Agent the Mortgage and
related UCC-1 financing statements for each Disposition Property, each duly
executed and in proper form for recording or filing (the foregoing
documents, collectively, the "Disposition Property Mortgages").
The Disposition Property Conveyance Documents and the Disposition
Property Mortgages shall be held by Administrative Agent and not recorded or
filed or otherwise released from Administrative Agent's possession except as set
forth below in this Section. If (x) an Event of Default shall occur, then, with
respect to all Disposition Properties or (y) if the Disposition Property
identified on SCHEDULE A as AT&T Building shall not be conveyed by CEI LP as
contemplated by the Sales Contract therefor on or before May 26, 2000 (as such
date may be extended by Administrative Agent, but no later than December 15,
2000) or if the Sales Contract therefor terminates or is cancelled, then, with
respect to each such non-conveyed Disposition Property: (A) Administrative Agent
shall be irrevocably and unconditionally authorized to immediately record/file
the Disposition Property Conveyance Documents and the Disposition Property
Mortgages in the appropriate offices and (B) Borrower shall, within thirty (30)
days after the occurrence of the condition set forth in clause (x) or (y) above,
as applicable, deliver to Administrative Agent, at Borrower's expense, the items
required by paragraphs (6), (8), (10) and (12) of Section 4.01.
Borrower agrees, within five (5) days after demand by Administrative
Agent, to execute or cause the execution of all additional documents and
instruments, and to pay all costs, necessary to carry out the intention of this
Section. If Borrower shall fail to perform any of the covenants or satisfy any
of the conditions contained in this Section, Administrative Agent and/or Lenders
may perform such covenants or satisfy such conditions on Borrower's behalf, and
Borrower hereby irrevocably and unconditionally directs and authorizes Lenders
and/or Administrative Agent to make advances to pay the costs of performing such
covenants or satisfying such conditions on Borrower's behalf, including, without
limitation, the payment of recording and transfer taxes and fees and reasonable
attorneys' fees. Any such advances made by Administrative Agent or Lenders shall
be repaid by Borrower at the Default Rate for Base Rate Loans and shall be
secured by the Mortgages and the Collateral Assignments. Borrower hereby
appoints Administrative Agent as its attorney-in-fact (which appointment shall
be coupled with an interest and irrevocable) for the purpose of executing any
documents or doing any acts necessary to carry out the intention of this
Section.
(c) Upon the conveyance of a Disposition Property as contemplated by
the Sales Contract therefor (which conveyance shall be subject to the
satisfaction of the conditions for release of a Property set forth in Section
12.17), Administrative Agent shall return to Borrower the Disposition Property
Mortgage and Disposition Property Conveyance Documents for such Disposition
Property being so conveyed.
Section 12.20 Partial Releases. Provided there exists no Default or
Event of Default, Administrative Agent shall release the liens of the Mortgages
on the Properties identified on SCHEDULE A as Four Westlake and Avallon Phase II
from portions of such Properties (each such portion, a "Release Parcel"), in
connection with the development by an Affiliate of Borrower on each such Release
Parcel of office or
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other facilities, all reasonably approved by Administrative Agent, that are
compatible with the Improvements on the balance of the applicable Property and
of a first class quality and character consistent with said Improvements. The
Release Parcel, in the case of Four Westlake, shall be an approximately 3.1759
acre parcel identified as the "Development Parcel" on the survey by Xxxxxxxxxx
Engineering Corporation, dated May 11, 1998, and, in the case of Avallon Phase
II, shall be of a size, and have a location and configuration, reasonably
acceptable to Administrative Agent. Such releases shall be subject to (a) in the
case of the Release Parcel in respect of Avallon Phase II, Administrative
Agent's reasonable determination that such Release Parcel did not contribute to
the value determined by the appraisal of Avallon Phase II required by paragraph
(8) of Section 4.01 and (b) Administrative Agent's receipt, in each case, of:
(i) evidence that the balance of the Property constitutes a separate tax lot and
endorsements to the title insurance policy for the Mortgage of the Property to
such effect and further insuring that the lien of such Mortgage will not be
impaired by virtue of the release of the Release Parcel, (ii) an opinion of
Borrower's counsel (or other evidence) that the portion of the Property
remaining subject to the Mortgage complies with all applicable requirements of
Governmental Authorities (including zoning), (iii) a current survey of the
Premises, specifically delineating the Release Parcel, certified to
Administrative Agent and the Title Insurer, (iv) evidence that the portion of
the Property remaining subject to the Mortgage has adequate pedestrian and
vehicular access for the contemplated uses thereof to publicly dedicated roads,
(v) such other documents, opinions and assurances as Administrative Agent may
reasonably request (all of the foregoing items (i) through (v) to be in form and
substance reasonably satisfactory to Administrative Agent), and (vi) payment of
Administrative Agent's reasonable out-of-pocket expenses, including the fees and
expenses of its counsel, in connection with the foregoing transactions.
Section 12.21 Special Provisions Regarding Results of Operations of
Hotel Properties. Lenders and Administrative Agent acknowledge that results of
operations of the Hotel Properties for a particular month are reported to
Borrower by the lessees/operators of the Hotel Properties sixty (60) days after
the end of such month and, consequently, it is difficult for Borrower to report
results of operations for a particular calendar quarter, to the extent they
relate to the Hotel Properties, within forty-five (45) days after the end of
such calendar quarter, as required by paragraphs (2) and (14) of Section 6.09.
Therefore, the parties hereto have agreed to make certain adjustments in
financial measurement and reporting relating to the Hotel Properties. To wit,
the provisions and definitions of this Agreement pertaining to the measurement
and reporting of results of operations on a quarterly basis (such as paragraphs
(2), (3) and (14) of Section 6.09 shall, to the extent such results of
operations relate to Hotel Properties, refer not to the results of a particular
calendar quarter or twelve (12)-month period ending with such calendar quarter,
but instead shall be deemed to refer to the three (3)-month period consisting of
the first two (2) months of such calendar quarter and the last month of the
preceding calendar quarter, or the twelve (12)-month period ending with such
three (3) month period, as the case may be. Similar adjustments will be made in
the reporting required under this Agreement pertaining to results of operations
of Guarantor, to the extent such results relate to hotel properties. The
foregoing shall not alter any provisions or definitions to the extent they
relate to Office Properties (or properties of Guarantor other than hotel
properties).
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
CRESCENT REAL ESTATE FUNDING VIII, L.P., a
Delaware limited partnership (as Borrower)
By: CRE Management VIII, LLC, a Delaware
limited liability company, its general partner
By: Crescent Real Estate Equities, Ltd., a
Delaware corporation, its manager
By: /s/ Xxxxxxxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Vice President & Treasurer
Address for notices:
c/o Crescent Real Estate Equities Limited Partnership
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxx Xxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
For the purpose of signifying its agreement to the
provisions of Section 7.01:
CRE MANAGEMENT VIII, LLC,
a Delaware limited liability company
By: Crescent Real Estate Equities, Ltd., a Delaware
corporation, its manager
By: /s/ Xxxxxxxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Vice President & Treasurer
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UBS AG, STAMFORD BRANCH
(as Lender and Administrative Agent)
By: /s/ Xxxxx Xxxxxxx
-------------------
Name: Xxxxx Xxxxxxx
Title: Director
By: /s/ Xxxxxxx X. Xxxx
-------------------
Name: Xxxxxxx X. Xxxx
Title: Executive Director
Address for notices, Administrative Agent's Office and
Applicable Lending Office:
UBS AG, Stamford Branch
c/o Warburg Dillon Read LLC
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
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FLEETBOSTON XXXXXXXXX XXXXXXXX INC.
(as Syndication Agent)
By
--------------------
Name:
Title:
CITICORP REAL ESTATE, INC.
(as Documentation Agent)
By: /s/ Xxxxxxx Chlysak
-------------------
Name: Xxxxxxx Chlysak
Title: Vice President
FLEET NATIONAL BANK
(as Lender)
By
--------------------
Name:
Title:
Address for notices and
Applicable Lending Office:
Fleet National Bank
000 Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxx Xxxxxxxxxxxx
Telephone: 000-000-0000
Telecopy: 000-000-0000
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SCHEDULE A
PROPERTIES - AS OF CLOSING DATE
SQUARE
FOOTAGE/# OF PROPERTY
PROPERTY ROOMS LOCATION ALLOCATED VALUE
-------- ------------ -------- ---------------
OFFICE - PART I:
0000 Xxx Xxxxxxx 233,769 0000 Xxx Xxxxxxx Xxxxxx, XX $26,700,000
Four Westlake 561,065 000 Xxxxxxxx Xxxx Xxxx. Xxxxxxx, XX 75,000,000
Greenway I & IA 146,704 0000 Xxxxxxxx Xxxx. Xxxxxxxxxx XX 19,900,000
The Addison 215,016 00000 Xxxxxxx Xxxx Xxxxxx, XX 23,500,000
Three Westlake 414,251 000 Xxxxxxxx Xxxx Xxxx. Xxxxxxx, XX 49,500,000
5050 Quorum 133,594 0000 Xxxxxx Xxxxx Xxxxxx, XX 12,900,000
Addison Tower 145,886 00000 Xxxxxx Xxxxxxx Xxxxxx, XX 14,000,000
Austin Center 343,665 000 Xxxxxx Xxxxxx Xxxxxx, XX 42,000,000
Avallon Phase II 106,342 00000 Xxxxxx Xxxxxx Xxxxxx, XX 15,500,000
Cedar Springs Plaza 110,923 0000 Xxxxx Xxxxxxx Xxxxxx, XX 11,700,000
Greenway II 154,329 0000 Xxxxxxxx Xxxx. Xxxxxxxxxx, XX 18,300,000
Post Oak Central 1,277,516 0000 Xxxx Xxx Xxxxxxxxx Xxxxxxx, XX 170,000,000
Spectrum Centre 598,250 0000 Xxxxxxxx Xxxxx Xxxxxx, XX 71,300,000
Stemmons Place 634,381 0000 Xxxxxxxx Xxxxxxx Xxxxxx, XX 50,000,000
Xxxxxxxx Xxxx Center 1,128,331 0000 Xxxx Xxxxxx Xxxxxx, XX 164,300,000
0000 Xxxx Xxxx Xxxxx 399,777 0000 Xxxx Xxxx Xxxxx Xxxxxxx, XX 40,000,000
Palisades Central I 180,503 0000 X. Xxxxxxx Xxxxxxxxxx Xxxxxxxxxx, XX 17,300,000
Palisades Central II 237,731 0000 X. Xxxxxxx Xxxxxxxxxx Xxxxxxxxxx, XX 24,900,000
Washington Harbour 536,206 3050 K. Street, N.W. Washington, D.C. 145,000,000
OFFICE - PART II:
Amberton Tower 255,052 0000 X. Xxxxxxx Xxxxxxxxxx Xxxxxx, XX 17,000,000
Concourse Office Park 244,897 0000-0000 XXX Xxxxxxx Xxxxxx, XX 15,900,000
One Preston Park 40,525 0000 Xxxx Xxxxx, XX 2,500,000
Valley Centre 74,861 0000 Xxxxxx Xxxxx Xxxxxxx Xxxxxx, XX 7,100,000
Walnut Green* 158,669 0000 Xxxxxxxxxx Xxxxxx Xxxxxx, XX *** 2,364,107
AT&T Building* 184,581 0000 Xxxxxxxx Xxxxxx Xxxxxx, XX *** 11,376,644
Woodlands* 810,630 **The Woodlands, TX *** 63,326,325
Bank One - Austin 389,503 000 Xxxx 0xx Xxxxxx Xxxxxx, XX 61,000,000
Frost Bank Plaza 433,024 000 Xxxxxxxx Xxxxxx Xxxxxx, XX 67,000,000
1615 Poydras* 508,741 0000 Xxxxxxx Xxxxxx Xxx Xxxxxxx, XX *** 44,532,389
(Freeport-McMoran)
Central Park Plaza* 409,850 000 Xxxxx 00xx Xxxxxx Xxxxx, XX *** 31,009,283
HOTEL/RESORT:
Sonoma Mission Inn 198 00000 Xxxxxx Xxxxxxx 00 Xxxxx Xxx Xxxxxxx, XX 85,000,000
Sonoma Golf Club -- 00000 Xxxxxx Xxxxx Xxxxxx, XX 15,000,000
Canyon Ranch Tucson 250 0000 X. Xxxxxxxxx Xxxx Xxxxxx, XX 70,200,000
Ventana Inn 00 Xxxxxxx Xxx Xxx Xxx, XX 32,000,000
Omni Austin 315 700 San Jacinto at 0xx Xxxxxx Austin, TX 40,000,000
----------
* Indicates Property under contract as of the Closing Date
** 3606 Research Forest, 3200 Research Forest, 0000 Xxx Xxxxx Xxxxx, 0000
Xxx Xxxxxx Xx., 4200 Research Forest Drive, 0000 Xxx Xxxxxx Xxxxx, 0000
Xxx Xxxxxx Drive, 10200 Xxxxxx'x Mill Road, 10077 Xxxxxx'x Mill Road,
10055 Xxxxxx'x Xxxx Xxxx, 0000 Xxxxxxxx Xxxxxx and 0000 Xxxxxxxxx
Xxxxx, all in The Woodlands, Texas
*** Initial Property Capitalization Value is used as initial Property
Allocated Value for these Properties
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SCHEDULE A-1
PROPERTIES - AS OF DATE OF AMENDED
AND RESTATED AGREEMENT
SQUARE
FOOTAGE/# OF PROPERTY
PROPERTY ROOMS LOCATION ALLOCATED VALUE
-------- ------------ -------- ---------------
OFFICE - PART I:
0000 Xxx Xxxxxxx 233,769 0000 Xxx Xxxxxxx Xxxxxx, XX $26,700,000
Four Westlake 561,065 000 Xxxxxxxx Xxxx Xxxx. Xxxxxxx, XX 75,000,000
Greenway I & IA 146,704 0000 Xxxxxxxx Xxxx. Xxxxxxxxxx XX 19,900,000
The Addison 215,016 00000 Xxxxxxx Xxxx Xxxxxx, XX 23,500,000
Three Westlake 414,251 000 Xxxxxxxx Xxxx Xxxx. Xxxxxxx, XX 49,500,000
5050 Quorum 133,594 0000 Xxxxxx Xxxxx Xxxxxx, XX 12,900,000
Addison Tower 145,886 00000 Xxxxxx Xxxxxxx Xxxxxx, XX 14,000,000
Austin Center 343,665 000 Xxxxxx Xxxxxx Xxxxxx, XX 42,000,000
Avallon Phase II 106,342 00000 Xxxxxx Xxxxxx Xxxxxx, XX 15,500,000
Cedar Springs Plaza 110,923 0000 Xxxxx Xxxxxxx Xxxxxx, XX 11,700,000
Greenway II 154,329 0000 Xxxxxxxx Xxxx. Xxxxxxxxxx, XX 18,300,000
Post Oak Central 1,277,516 0000 Xxxx Xxx Xxxxxxxxx Xxxxxxx, XX 170,000,000
Spectrum Centre 598,250 0000 Xxxxxxxx Xxxxx Xxxxxx, XX 71,300,000
Stemmons Place 634,381 0000 Xxxxxxxx Xxxxxxx Xxxxxx, XX 50,000,000
Xxxxxxxx Xxxx Center 1,128,331 0000 Xxxx Xxxxxx Xxxxxx, XX 164,300,000
0000 Xxxx Xxxx Xxxxx 399,777 0000 Xxxx Xxxx Xxxxx Xxxxxxx, XX 40,000,000
Palisades Central I 180,503 0000 X. Xxxxxxx Xxxxxxxxxx Xxxxxxxxxx, XX 17,300,000
Palisades Central II 237,731 0000 X. Xxxxxxx Xxxxxxxxxx Xxxxxxxxxx, XX 24,900,000
Washington Harbour 536,206 3050 K. Street, N.W. Washington, D.C. 145,000,000
OFFICE - PART II:
Valley Centre 74,861 0000 Xxxxxx Xxxxx Xxxxxxx Xxxxxx, XX 7,100,000
AT&T Building* 184,581 0000 Xxxxxxxx Xxxxxx Xxxxxx, XX *** 11,376,644
Woodlands* 810,630 **The Woodlands, TX *** 63,326,325
Bank One - Austin 389,503 000 Xxxx 0xx Xxxxxx Xxxxxx, XX 61,000,000
Frost Bank Plaza 433,024 000 Xxxxxxxx Xxxxxx Xxxxxx, XX 67,000,000
HOTEL/RESORT:
Sonoma Mission Inn 198 00000 Xxxxxx Xxxxxxx 00 Xxxxx Xxx Xxxxxxx, XX 85,000,000
Sonoma Golf Club -- 00000 Xxxxxx Xxxxx Xxxxxx, XX 15,000,000
Canyon Ranch Tucson 250 0000 X. Xxxxxxxxx Xxxx Xxxxxx, XX 70,200,000
Ventana Inn 00 Xxxxxxx Xxx Xxx Xxx, XX 32,000,000
Omni Austin 315 700 San Jacinto at 0xx Xxxxxx Austin, TX 40,000,000
----------
* Indicates Property currently under contract
** 3606 Research Forest, 3200 Research Forest, 0000 Xxx Xxxxx Xxxxx, 0000
Xxx Xxxxxx Xx., 4200 Research Forest Drive, 0000 Xxx Xxxxxx Xxxxx, 0000
Xxx Xxxxxx Drive, 10200 Xxxxxx'x Mill Road, 10077 Xxxxxx'x Mill Road,
10055 Xxxxxx'x Xxxx Xxxx, 0000 Xxxxxxxx Xxxxxx and 0000 Xxxxxxxxx
Xxxxx, all in The Woodlands, Texas
*** Initial Property Capitalization Value is used as initial Property
Allocated Value for these Properties
88
EXHIBIT A
AUTHORIZATION LETTER
, 2000
--------------- ---
[NAME AND ADDRESS OF ADMINISTRATIVE AGENT]
Re: Secured Loan Agreement dated as of ____________, 2000 (the
"Loan Agreement"; capitalized terms not otherwise defined
herein shall have the meanings ascribed to such terms in the
Loan Agreement) among us, as Borrower, the Lenders named
therein, and you, as Administrative Agent for said Lenders
Dear Sir/Madam:
In connection with the captioned Loan Agreement, we hereby designate
any of the following persons to give to you instructions, including notices
required pursuant to the Loan Agreement, orally, by telephone or teleprocess, or
in writing:
[NAMES]
Instructions may be honored on the oral, telephonic, teleprocess or
written instructions of anyone purporting to be any one of the above designated
persons even if the instructions are for the benefit of the person delivering
them. We will furnish you with written confirmation of each such instruction
signed by any person designated above (including any telecopy which appears to
bear the signature of any person designated above) on the same day that the
instruction is provided to you, but your responsibility with respect to any
instruction shall not be affected by your failure to receive such confirmation
or by its contents.
Without limiting the foregoing, we hereby unconditionally authorize any
one of the above-designated persons to execute and submit requests for advances
of proceeds of the Loans (including the Initial Advance) and notices of
Elections, Conversions and Continuations to you under the Loan Agreement with
the identical force and effect in all respects as if executed and submitted by
us.
You and Lenders shall be fully protected in, and shall incur no
liability to us for, acting upon any instructions which you in good faith
believe to have been given by any person designated above, and in no event shall
you or Lenders be liable for special, consequential or punitive damages. In
addition, we agree to hold you and Lenders and your and their respective agents
harmless from any and all liability, loss and expense arising directly or
indirectly out of instructions that we provide to you in
A-1
89
connection with the Loan Agreement except for liability, loss or expense
occasioned by your gross negligence or willful misconduct.
Upon notice to us, you may, at your option, refuse to execute any
instruction, or part thereof, without incurring any responsibility for any loss,
liability or expense arising out of such refusal if you in good faith believe
that the person delivering the instruction is not one of the persons designated
above or if the instruction is not accompanied by an authentication method that
we have agreed to in writing.
We will promptly notify you in writing of any change in the persons
designated above and, until you have actually received such written notice and
have had a reasonable opportunity to act upon it, you are authorized to act upon
instructions, even though the person delivering them may no longer be
authorized.
Very truly yours,
CRESCENT REAL ESTATE FUNDING VIII, L.P., a Delaware
limited partnership
By: CRE Management VIII, LLC, a Delaware
limited liability company, its general partner
By: Crescent Real Estate Equities
Limited Partnership, a Delaware
limited partnership, its sole member
By: Crescent Real Estate
Equities, Ltd., a Delaware
corporation, its general
partner
By
------------------------------------
Name:
Title:
A-2
90
EXHIBIT B-1
TRANCHE A NOTE
(Revolving)
$___________ New York, New York
________, 2000
For value received, CRESCENT REAL ESTATE FUNDING VIII, L.P., a Delaware
limited partnership ("Borrower"), hereby promises to pay to the order of
___________ or its successors or assigns (collectively, "Lender"), at the
principal office of UBS AG, Stamford Branch located at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 ("Administrative Agent") for the account of the Applicable
Lending Office of Lender, the principal sum of ________ Dollars ($____________),
or if less, the amount loaned by Lender under its Loan to Borrower pursuant to
the Loan Agreement (as defined below) and actually outstanding, in lawful money
of the United States and in immediately available funds, in accordance with the
terms set forth in the Loan Agreement. Borrower also promises to pay interest on
the unpaid principal balance hereof, for the period such balance is outstanding,
in like money, at said office for the account of said Applicable Lending Office,
at the time and at a rate per annum as provided in the Loan Agreement. The Loan
Agreement provides in certain cases for the accrual of interest at the Default
Rate.
The date and amount of each advance of the Loan made by Lender to
Borrower under the Loan Agreement referred to below, and each payment of said
Loan, shall be recorded by Lender on its books and, prior to any transfer of
this Note (or, at the discretion of Lender, at any other time), may be endorsed
by Lender on the schedule attached hereto and any continuation thereof.
This Note is one of the Tranche A Notes referred to in the Amended and
Restated Secured Loan Agreement dated as of _________, 2000 (as the same may be
amended, restated or supplemented from time to time, the "Loan Agreement") among
Borrower, the "Lenders" named therein (including Lender) and Administrative
Agent, as administrative agent for Lenders. All of the terms, conditions and
provisions of the Loan Agreement are hereby incorporated by reference. All
capitalized terms used herein and not defined herein shall have the meanings
given to them in the Loan Agreement.
This Note is secured by, among other things, the various Mortgages
which contain, among other things, provisions for the prepayment of and
acceleration of this Note upon the happening of certain stated events. Reference
to each of the Mortgages is hereby made for a description of the "Mortgaged
Property" encumbered thereby and the rights of Borrower and Lenders (including
Lender) with respect to such Mortgaged Property. In addition, the Loan Agreement
contains, among other things, provisions for the prepayment of and acceleration
of this Note upon the happening of certain stated events.
B-1-1
91
Borrower agrees that it shall be bound by any agreement extending the
time or modifying the terms of payment set forth above and in the Loan
Agreement, made by or on behalf of Lenders and the owner or owners of any of the
Mortgaged Property under any of the Mortgages or any other Collateral, whether
with or without notice to Borrower, and Borrower shall continue liable to pay
the amount due hereunder in accordance with the terms set forth herein and in
the Loan Agreement, but with interest at a rate no greater than the rate of
interest provided therein, according to the terms of any such agreement of
extension or modification.
Should the indebtedness represented by this Note or any part thereof be
collected at law or in equity, or in bankruptcy, receivership or any other court
proceeding (whether at the trial or appellate level), or should this Note be
placed in the hands of attorneys for collection upon default, Borrower agrees to
pay, in addition to the principal, interest and other sums due and payable
hereon, all costs of collecting or attempting to collect this Note, including
reasonable attorneys' fees and expenses.
All parties to this Note, whether principal, surety, guarantor or
endorser, hereby waive presentment for payment, demand, protest, notice of
protest and notice of dishonor.
This Note shall be governed by, and construed and enforced in
accordance with, the Laws of the State of New York (without giving effect to New
York's principles of conflicts of law); provided that, as to the maximum lawful
rate of interest which may be charged or collected, if the Laws applicable to
Lender permit it to charge or collect a higher rate than the Laws of the State
of New York, then such Law applicable to Lender shall apply to Lender under this
Note.
CRESCENT REAL ESTATE FUNDING VIII,
L.P., a Delaware limited partnership
By: CRE Management VIII, LLC, a Delaware
limited liability company, its general partner
By: Crescent Real Estate Equities
Limited Partnership, a Delaware
limited partnership, its sole member
By: Crescent Real Estate
Equities, Ltd., a Delaware
corporation, its general
partner
By
------------------------------------
Name:
Title:
X-0-0
00
Xxxxxx xx Xxxxxx of Balance
Date Advance Payment Outstanding Notation by
---- --------- --------- ----------- -----------
B-1-3
93
EXHIBIT B-2
TRANCHE B NOTE
(Term)
$___________ New York, New York
________, 2000
For value received, CRESCENT REAL ESTATE FUNDING VIII, L.P., a Delaware
limited partnership ("Borrower"), hereby promises to pay to the order of
___________ or its successors or assigns (collectively, "Lender"), at the
principal office of UBS AG, Stamford Branch located at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 ("Administrative Agent") for the account of the Applicable
Lending Office of Lender, the principal sum of ________ Dollars ($____________),
or if less, the amount loaned by Lender under its Loan to Borrower pursuant to
the Loan Agreement (as defined below) and actually outstanding, in lawful money
of the United States and in immediately available funds, in accordance with the
terms set forth in the Loan Agreement. Borrower also promises to pay interest on
the unpaid principal balance hereof, for the period such balance is outstanding,
in like money, at said office for the account of said Applicable Lending Office,
at the time and at a rate per annum as provided in the Loan Agreement. The Loan
Agreement provides in certain cases for the accrual of interest at the Default
Rate.
The date and amount of the advance of the Loan made by Lender to
Borrower under the Loan Agreement referred to below, and each payment of said
Loan, shall be recorded by Lender on its books and, prior to any transfer of
this Note (or, at the discretion of Lender, at any other time), may be endorsed
by Lender on the schedule attached hereto and any continuation thereof.
This Note is one of the Tranche B Notes referred to in the Amended and
Restated Secured Loan Agreement dated as of _____________, 2000 (as the same may
be amended, restated or supplemented from time to time, the "Loan Agreement")
among Borrower, the "Lenders" named therein (including Lender) and
Administrative Agent, as administrative agent for Lenders. All of the terms,
conditions and provisions of the Loan Agreement are hereby incorporated by
reference. All capitalized terms used herein and not defined herein shall have
the meanings given to them in the Loan Agreement.
This Note is secured by, among other things, the various Mortgages
which contain, among other things, provisions for the prepayment of and
acceleration of this Note upon the happening of certain stated events. Reference
to each of the Mortgages is hereby made for a description of the "Mortgaged
Property" encumbered thereby and the rights of Borrower and Lenders (including
Lender) with respect to such Mortgaged Property. In addition, the Loan Agreement
contains, among other things, provisions for the prepayment of and acceleration
of this Note upon the happening of certain stated events.
B-2-1
94
Borrower agrees that it shall be bound by any agreement extending the
time or modifying the terms of payment set forth above and in the Loan
Agreement, made by or on behalf of Lenders and the owner or owners of any of the
Mortgaged Property under any of the Mortgages or any other Collateral, whether
with or without notice to Borrower, and Borrower shall continue liable to pay
the amount due hereunder in accordance with the terms set forth herein and in
the Loan Agreement, but with interest at a rate no greater than the rate of
interest provided therein, according to the terms of any such agreement of
extension or modification.
Should the indebtedness represented by this Note or any part thereof be
collected at law or in equity, or in bankruptcy, receivership or any other court
proceeding (whether at the trial or appellate level), or should this Note be
placed in the hands of attorneys for collection upon default, Borrower agrees to
pay, in addition to the principal, interest and other sums due and payable
hereon, all costs of collecting or attempting to collect this Note, including
reasonable attorneys' fees and expenses.
All parties to this Note, whether principal, surety, guarantor or
endorser, hereby waive presentment for payment, demand, protest, notice of
protest and notice of dishonor.
This Note shall be governed by, and construed and enforced in
accordance with, the Laws of the State of New York (without giving effect to New
York's principles of conflicts of law); provided that, as to the maximum lawful
rate of interest which may be charged or collected, if the Laws applicable to
Lender permit it to charge or collect a higher rate than the Laws of the State
of New York, then such Law applicable to Lender shall apply to Lender under this
Note.
CRESCENT REAL ESTATE FUNDING VIII,
L.P., a Delaware limited partnership
By: CRE Management VIII, LLC, a Delaware
limited liability company, its general partner
By: Crescent Real Estate Equities
Limited Partnership, a Delaware
limited partnership, its sole member
By: Crescent Real Estate
Equities, Ltd., a Delaware
corporation, its general
partner
By
------------------------------------
Name:
Title:
X-0-0
00
Xxxxxx xx Xxxxxx of Balance
Date Advance Payment Outstanding Notation by
---- --------- --------- ----------- -----------
B-2-3
96
EXHIBIT B-3
TRANCHE C NOTE
(Term)
$___________ New York, New York
________, 2000
For value received, CRESCENT REAL ESTATE FUNDING VIII, L.P., a Delaware
limited partnership ("Borrower"), hereby promises to pay to the order of
___________ or its successors or assigns (collectively, "Lender"), at the
principal office of UBS AG, Stamford Branch located at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 ("Administrative Agent") for the account of the Applicable
Lending Office of Lender, the principal sum of ________ Dollars ($____________),
or if less, the amount loaned by Lender under its Loan to Borrower pursuant to
the Loan Agreement (as defined below) and actually outstanding, in lawful money
of the United States and in immediately available funds, in accordance with the
terms set forth in the Loan Agreement. Borrower also promises to pay interest on
the unpaid principal balance hereof, for the period such balance is outstanding,
in like money, at said office for the account of said Applicable Lending Office,
at the time and at a rate per annum as provided in the Loan Agreement. The Loan
Agreement provides in certain cases for the accrual of interest at the Default
Rate.
The date and amount of the advance of the Loan made by Lender to
Borrower under the Loan Agreement referred to below, and each payment of said
Loan, shall be recorded by Lender on its books and, prior to any transfer of
this Note (or, at the discretion of Lender, at any other time), may be endorsed
by Lender on the schedule attached hereto and any continuation thereof.
This Note is one of the Tranche C Notes referred to in the Amended and
Restated Secured Loan Agreement dated as of ___________, 2000 (as the same may
be amended, restated or supplemented from time to time, the "Loan Agreement")
among Borrower, the "Lenders" named therein (including Lender) and
Administrative Agent, as administrative agent for Lenders. All of the terms,
conditions and provisions of the Loan Agreement are hereby incorporated by
reference. All capitalized terms used herein and not defined herein shall have
the meanings given to them in the Loan Agreement.
This Note is secured by, among other things, the various Mortgages
which contain, among other things, provisions for the prepayment of and
acceleration of this Note upon the happening of certain stated events. Reference
to each of the Mortgages is hereby made for a description of the "Mortgaged
Property" encumbered thereby and the rights of Borrower and Lenders (including
Lender) with respect to such Mortgaged Property. In addition, the Loan Agreement
contains, among other things, provisions for the prepayment of and acceleration
of this Note upon the happening of certain stated events.
B-3-1
97
Borrower agrees that it shall be bound by any agreement extending the
time or modifying the terms of payment set forth above and in the Loan
Agreement, made by or on behalf of Lenders and the owner or owners of any of the
Mortgaged Property under any of the Mortgages or any other Collateral, whether
with or without notice to Borrower, and Borrower shall continue liable to pay
the amount due hereunder in accordance with the terms set forth herein and in
the Loan Agreement, but with interest at a rate no greater than the rate of
interest provided therein, according to the terms of any such agreement of
extension or modification.
Should the indebtedness represented by this Note or any part thereof be
collected at law or in equity, or in bankruptcy, receivership or any other court
proceeding (whether at the trial or appellate level), or should this Note be
placed in the hands of attorneys for collection upon default, Borrower agrees to
pay, in addition to the principal, interest and other sums due and payable
hereon, all costs of collecting or attempting to collect this Note, including
reasonable attorneys' fees and expenses.
All parties to this Note, whether principal, surety, guarantor or
endorser, hereby waive presentment for payment, demand, protest, notice of
protest and notice of dishonor.
This Note shall be governed by, and construed and enforced in
accordance with, the Laws of the State of New York (without giving effect to New
York's principles of conflicts of law); provided that, as to the maximum lawful
rate of interest which may be charged or collected, if the Laws applicable to
Lender permit it to charge or collect a higher rate than the Laws of the State
of New York, then such Law applicable to Lender shall apply to Lender under this
Note.
CRESCENT REAL ESTATE FUNDING VIII,
L.P., a Delaware limited partnership
By: CRE Management VIII, LLC, a Delaware
limited liability company, its general partner
By: Crescent Real Estate Equities
Limited Partnership, a Delaware
limited partnership, its sole member
By: Crescent Real Estate
Equities, Ltd., a Delaware
corporation, its general
partner
By
------------------------------------
Name:
Title:
X-0-0
00
Xxxxxx xx Xxxxxx of Balance
Date Advance Payment Outstanding Notation by
---- --------- --------- ----------- -----------
B-3-3
99
EXHIBIT C
MATERIAL AFFILIATES
Name State of Formation % Interest* Principal Business
---- ------------------ ---------- ------------------
----------
* specifying whether Borrower's, CEI's, CEI LP's or CEI Ltd's
C-1
100
EXHIBIT D
SOLVENCY CERTIFICATE
The person executing this certificate is a _______________ of Crescent
Real Estate Equities, Ltd., a Delaware corporation ("CEI Ltd."), the general
partner Crescent Real Estate Equities Limited Partnership ("CEI LP"), a Delaware
limited partnership of which Crescent Real Estate Funding VIII, L.P., a Delaware
limited partnership ("Borrower"), is a wholly owned and controlled subsidiary,
and is familiar with Borrower's and Guarantor's properties, assets and
businesses (and those of Crescent Washington Harbour, LLC ("CWH"), Crescent
Commercial Realty Holdings, L.P., a Delaware limited partnership ("CCRH") and
Spectrum Mortgage Associates, L.P., a Delaware limited partnership ("SMA"), all
of which are also subsidiaries of CEI LP) and is duly authorized to execute this
certificate on behalf of Borrower, Guarantor, CWH, CCRH and SMA pursuant to the
Secured Loan Agreement dated as of the date hereof (the "Loan Agreement") among
Borrower, the lenders party thereto (each, a "Lender" and collectively,
"Lenders") and UBS AG, Stamford Branch, as administrative agent for Lenders (in
such capacity, together with its successors in such capacity, "Administrative
Agent"). In executing this Certificate, such person is acting solely in his or
her capacity as the _________ of CEI Ltd., and not in his or her individual
capacity. Unless otherwise defined herein, terms defined in the Loan Agreement
are used herein as therein defined.
The undersigned further certifies that he or she has carefully reviewed
the Loan Agreement and the other Loan Documents and the contents of this
Certificate and, in connection herewith, has made such investigation and
inquiries as he or she deems reasonably necessary and prudent therefor. The
undersigned further certifies that the financial information and assumptions
which underlie and form the basis for the representations made in this
Certificate were reasonable when made and were made in good faith and continue
to be reasonable as of the date hereof.
The undersigned understands that Administrative Agent and Lenders are
relying on the truth and accuracy of this Certificate in connection with the
transactions contemplated by the Loan Agreement.
The undersigned certifies that each of Borrower, Guarantor, CWH, CCRH
and SMA is Solvent.
IN WITNESS WHEREOF, the undersigned has executed this Certificate on
_____________, 2000.
-----------------------------------------
Name:
D-1
101
EXHIBIT E
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated as of __________, 200_,
between [insert name of assigning Lender] ("Assignor") and [insert name of
Assignee] ("Assignee").
Preliminary Statement
1. This Assignment and Assumption Agreement (this "Agreement") relates
to the Amended and Restated Secured Loan Agreement dated as of _____________,
2000 (as the same may be amended from time to time, the "Loan Agreement") among
____________ ("Borrower"), the lenders party thereto (each a "Lender" and,
collectively, "Lenders") and ________________, as administrative agent for
Lenders ("Administrative Agent"). All capitalized terms not otherwise defined
herein shall have the respective meanings set forth in the Loan Agreement.
2. Subject to the terms and conditions set forth in the Loan Agreement,
Assignor has made a Loan Commitment to Borrower in an aggregate principal amount
of $____________ ("Assignor's Loan Commitment"), consisting of a Tranche A Loan
Commitment in the amount of $__________, a Tranche B Loan Commitment in the
amount of $__________, and a Tranche C Loan Commitment in the amount of
$__________.
3. The aggregate outstanding principal amount of Assignor's Loan made
pursuant to Assignor's Loan Commitment at commencement of business on the date
hereof is $__________, consisting of $__________ under Tranche A, $__________
under Tranche B and $__________ under Tranche C.
4. Assignor desires to assign to Assignee all of the rights of Assignor
under the Loan Agreement in respect of a portion of its Loan and Loan Commitment
thereunder in an amount equal to $__________ with respect to Tranche A,
$__________ with respect to Tranche B and $__________ with respect to Tranche C
(collectively the "Assigned Loan and Commitment"); and Assignee desires to
accept assignment of such rights and assume the corresponding obligations from
Assignor on such terms.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Assignment. Assignor hereby assigns and sells to Assignee
all of the rights of Assignor under the Loan Agreement in and to the Assigned
Loan and Commitment, and Assignee hereby accepts such assignment from Assignor
and assumes all of the obligations of Assignor under the Loan Agreement with
respect to the Assigned Loan and Commitment. Upon the execution and delivery
hereof by Assignor, Assignee, Administrative Agent (and, if applicable,
Borrower), and the payment of the amount specified in Section 2 hereof required
to be paid on the date hereof, (1) Assignee shall, as
E-1
102
of the commencement of business on the date hereof, succeed to the rights and
obligations of a Lender under the Loan Agreement with a Loan and a Loan
Commitment in amounts equal to the Assigned Loan and Commitment (broken down
among Tranches A, B and C as set forth in Preliminary Statement 4 above) and (2)
the Loan and Loan Commitment of Assignor shall, as of the commencement of
business on the date hereof, be reduced correspondingly and Assignor released
from its obligations under the Loan Agreement to the extent such obligations
have been assumed by Assignee. Assignor represents and warrants that it (x) owns
the Assigned Loan and Commitment free and clear of all liens and other
encumbrances and (y) is legally authorized to enter into and perform this
Agreement. Except as provided in the immediately preceding sentence, the
assignment provided for herein shall be without representation or warranty by,
or recourse to, Assignor.
SECTION 2. Payments. As consideration for the assignment and sale
contemplated in Section 1 hereof, Assignee shall pay to Assignor on the date
hereof in immediately available funds an amount equal to $___________. Except as
otherwise agreed by Assignor and Assignee, it is understood that any fees paid
to Assignor under the Loan Agreement are for the account of Assignor. Each of
Assignor and Assignee hereby agrees that if it receives any amount under the
Loan Agreement which is for the account of the other party hereto, it shall
receive the same for the account of such other party to the extent of such other
party's interest therein and shall promptly pay the same to such other party.
SECTION 3. Consents; Execution and Delivery of Notes. This Agreement is
conditioned upon the consent of Administrative Agent and, provided there exists
no Event of Default, of Borrower pursuant to Section 12.05 of the Loan
Agreement. The execution of this Agreement by Borrower (if required) and
Administrative Agent is evidence of this consent. [CONSENTS NOT REQUIRED FOR
CERTAIN ASSIGNMENTS TO ENTITIES RELATED TO A LENDER.] Pursuant to Section 12.05
of the Loan Agreement, Borrower has agreed to execute and deliver Notes payable
to the respective orders of Assignee and Assignor to evidence the assignment and
assumption provided for herein.
SECTION 4. Non-Reliance on Assignor. Assignor makes no representation
or warranty in connection with, and shall have no responsibility with respect
to, the solvency, financial condition, or statements of Borrower or any other
party to any Loan Document, or the validity and enforceability of the
obligations of Borrower or any other party to a Loan Document in respect of the
Loan Agreement or any other Loan Document. Assignee acknowledges that it has,
independently and without reliance on Assignor, and based on such documents and
information as it has deemed appropriate, made its own analysis of the
Collateral, credit analysis of Borrower and the other parties to the Loan
Documents, and decision to enter into this Agreement, and will continue to be
responsible for making its own independent appraisal of the Collateral and of
the business, affairs and financial condition of Borrower and the other parties
to the Loan Documents.
E-2
103
SECTION 5. Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the Laws of the State of New York
(without giving effect to New York's principles of conflicts of law).
SECTION 6. Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
SECTION 7. Certain Representations and Agreements by Assignee. Assignee
represents and warrants that it is legally authorized to enter into and perform
this Agreement. In addition, Assignee hereby represents that it is entitled to
receive any payments to be made to it under the Loan Agreement or hereunder
without the withholding of any tax and agrees to furnish the evidence of such
exemption as specified therein and otherwise to comply with the provisions of
Section 10.13 of the Loan Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
E-3
104
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
-----------------------------------------
(as Assignor)
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
-----------------------------------------
(as Assignee)
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
Applicable Lending Office and
Address for notices:
-----------------------------------------
-----------------------------------------
-----------------------------------------
Attention:
------------------------------
Telephone:
------------------------------
Telecopy:
-------------------------------
E-4
105
-----------------------------------------
(as Administrative Agent)
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
-----------------------------------------
(as Borrower)
By:
-------------------------------------
Name:
Title:
X-0
000
XXXXXXX X
XXXXXX-XX-XXXXXXXXXX OF LEASE
(On Letterhead of Borrower)
_____________, 200_
[Name and Address of Tenant]
Re: Lease Dated:
Mortgagee: _______________________ (as
administrative agent for itself and other lenders)
Address of Mortgagee:
Mortgage Dated: ____________
Dear Sir/Madam:
The undersigned has assigned by a mortgage or deed of trust (the
"Mortgage") dated as shown above to or for the benefit of the Mortgagee
identified above (hereinafter "Mortgagee") all its estate, right, title and
interest in, to and under the Lease between you and the undersigned dated as set
forth above, as said Lease may have been heretofore modified or amended (the
"Lease"), together with all right, title and interest of the undersigned as
lessor thereunder, including, without limitation, the right upon the occurrence
of an Event of Default (as defined in the Mortgage) to collect and receive all
earnings, revenues, rents, issues, profits and income of the property subject to
the Mortgage.
[*CERTAIN PROVISIONS OF THE MORTGAGE, THE TEXT OF WHICH ARE ATTACHED
HERETO, RESTRICT SOME OF THE UNDERSIGNED'S RIGHTS UNDER THE LEASE. HOWEVER, SAID
S]aid assignment does not impair or diminish any of our obligations to you under
the provisions of the Lease, nor are any such obligations imposed upon Mortgagee
or upon the lenders for whom Mortgagee is acting as administrative agent, or
their respective successors or assigns.
Pursuant to said assignment you are hereby notified that in the event
of a demand on you by Mortgagee or its successors and assigns for the payment to
it of the rents due under the Lease, you may, and are hereby authorized and
directed to, pay said rent to Mortgagee and we hereby agree that the receipt by
you of such a demand shall be conclusive evidence of Mortgagee's right to the
receipt thereof and that the payment of the rents by you to Mortgagee pursuant
to such demand shall constitute performance in full of your obligation under the
Lease for the payment of rent to the undersigned.
----------
NOTE: To be sent in accordance with notice requirements of the Lease.
* To be used if property located in New York.
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Kindly indicate your receipt of this letter and your agreement to the
effect set forth below by signing the enclosed copy thereof and mailing it to
Mortgagee at its address identified above to the attention of its Real Estate
Finance Office.
[BORROWER]
By
--------------------------------------
Name:
Title:
The undersigned acknowledges receipt of the original of this letter and
agrees for the benefit of Mortgagee that it shall notify Mortgagee of any
default on the part of the landlord under the Lease which would entitle the
undersigned to cancel the Lease or to xxxxx the rent payable thereunder, and
further agrees that, notwithstanding any provision of the Lease, no notice of
cancellation thereof shall be effective unless Mortgagee has received the notice
aforesaid and has failed within 30 days of the date thereof to cure, or if the
default cannot be cured within 30 days has failed to commence and to diligently
prosecute the cure, of landlord's default which gave rise to the right to
cancel.
[NAME OF TENANT]
By
--------------------------------------
,
------------------------
its authorized officer
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108
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS AND CONSTRUCTION OF TERMS..........................................................2
Section 1.01 Definitions...................................................................2
Section 1.02 Accounting Terms.............................................................17
Section 1.03 Computation of Time Periods..................................................17
Section 1.04 Rules of Construction........................................................17
ARTICLE II THE LOANS....................................................................................18
Section 2.01 The Loans....................................................................18
Section 2.02 Purpose......................................................................19
Section 2.03 Advances, Generally..........................................................19
Section 2.04 Procedures for Advances after Initial Advance................................19
Section 2.05 Interest Periods; Renewals...................................................20
Section 2.06 Interest.....................................................................20
Section 2.07 Fees.........................................................................20
Section 2.08 Notes........................................................................21
Section 2.09 Prepayments..................................................................21
Section 2.10 Cancellation of Commitments..................................................22
Section 2.11 Method of Payment............................................................22
Section 2.12 Elections, Conversions or Continuation of Loans..............................23
Section 2.13 Minimum Amounts..............................................................24
Section 2.14 Certain Notices Regarding Elections, Conversions and Continuations of Loans..24
Section 2.15 Late Payment Premium.........................................................24
Section 2.16 Letters of Credit............................................................25
Section 2.17 Additional Conditions to Advances of Tranche A...............................26
ARTICLE III YIELD PROTECTION; ILLEGALITY; ETC...........................................................27
Section 3.01 Additional Costs.............................................................27
Section 3.02 Limitation on Types of Loans.................................................28
Section 3.03 Illegality...................................................................28
Section 3.04 Treatment of Affected Loans..................................................29
Section 3.05 Certain Compensation.........................................................29
Section 3.06 Capital Adequacy.............................................................30
Section 3.07 Substitution of Lenders......................................................30
Section 3.08 "Lender" to Include Participants.............................................32
ARTICLE IV CONDITIONS PRECEDENT.........................................................................32
Section 4.01 Conditions Precedent to the Initial Advance..................................32
Section 4.02 Conditions Precedent to Advances After the Initial Advance...................38
Section 4.03 Deemed Representations.......................................................38
ARTICLE V REPRESENTATIONS AND WARRANTIES................................................................38
Section 5.01 Due Organization and General Power and Authority.............................38
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Section 5.02 Power and Authority Regarding Loans; No Conflicts; Compliance With Laws......39
Section 5.03 Legally Enforceable Agreements...............................................39
Section 5.04 Litigation...................................................................40
Section 5.05 Good Title to Properties.....................................................40
Section 5.06 Taxes........................................................................40
Section 5.07 ERISA........................................................................40
Section 5.08 No Default on Outstanding Judgments or Orders................................41
Section 5.09 No Defaults on Other Agreements..............................................41
Section 5.10 Government Regulation........................................................41
Section 5.11 Environmental Protection.....................................................41
Section 5.12 Solvency.....................................................................42
Section 5.13 Financial Statements.........................................................42
Section 5.14 Valid Existence of Affiliates................................................42
Section 5.15 Insurance....................................................................42
Section 5.16 Accuracy of Information; Full Disclosure.....................................43
Section 5.17 Separate Tax and Zoning Lot..................................................43
Section 5.18 Zoning and Other Laws; Covenants and Restrictions............................43
Section 5.19 Utilities Available..........................................................43
Section 5.20 Creation of Liens............................................................43
Section 5.21 Roads........................................................................43
Section 5.22 Premises Documents and Leases................................................44
Section 5.23 Applicability of Representations and Warranties to Residential Corporations and
Investment Partnerships......................................................44
ARTICLE VI AFFIRMATIVE COVENANTS........................................................................44
Section 6.01 Maintenance of Existence.....................................................44
Section 6.02 Maintenance of Records.......................................................45
Section 6.03 Maintenance of Insurance.....................................................45
Section 6.04 Compliance with Laws; Payment of Taxes.......................................45
Section 6.05 Right of Inspection..........................................................45
Section 6.06 Compliance With Environmental Laws...........................................45
Section 6.07 Maintenance of Properties....................................................46
Section 6.08 Payment of Costs.............................................................46
Section 6.09 Reporting and Miscellaneous Document Requirements............................46
Section 6.10 Premises Documents; Leases...................................................49
Section 6.11 Compliance with Covenants, Restrictions and Easements........................50
Section 6.12 Management and Leasing Contracts.............................................50
ARTICLE VII SINGLE PURPOSE ENTITY AND CONTROL...........................................................51
Section 7.01 Single Purpose Entity........................................................51
Section 7.02 Ownership and Control........................................................53
ARTICLE VIII FINANCIAL COVENANTS........................................................................54
Section 8.01 Financial Covenants..........................................................54
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ARTICLE IX EVENTS OF DEFAULT............................................................................54
Section 9.01 Events of Default............................................................54
Section 9.02 Remedies.....................................................................57
ARTICLE X ADMINISTRATIVE AGENT; RELATIONS AMONG LENDERS.................................................57
Section 10.01 Appointment, Powers and Immunities of Administrative Agent...................57
Section 10.02 Reliance by Administrative Agent.............................................58
Section 10.03 Defaults.....................................................................58
Section 10.04 Rights of Administrative Agent as a Lender...................................59
Section 10.05 Sharing of Costs by Lenders; Indemnification of Administrative Agent.........59
Section 10.06 Non-Reliance on Administrative Agent and Other Lenders.......................60
Section 10.07 Failure of Administrative Agent to Act.......................................60
Section 10.08 Resignation or Removal of Administrative Agent...............................60
Section 10.09 Amendments Concerning Agency Function........................................61
Section 10.10 Liability of Administrative Agent............................................61
Section 10.11 Transfer of Agency Function..................................................61
Section 10.12 Non-Receipt of Funds by Administrative Agent; Adjustments....................61
Section 10.13 Withholding Taxes............................................................62
Section 10.14 Pro Rata Treatment...........................................................62
Section 10.15 Sharing of Payments Among Lenders............................................63
Section 10.16 Possession of Documents......................................................63
Section 10.17 Intentionally Omitted........................................................63
Section 10.18 Effect of a Lender's Failure to Make an Advance..............................63
Section 10.19 Cure by Delinquent Lender....................................................66
Section 10.20 Delinquent Lender Not Excused................................................66
Section 10.21 Notices Regarding Delinquent Lender..........................................66
Section 10.22 Replacement Lender...........................................................67
ARTICLE XI NATURE OF OBLIGATIONS........................................................................68
Section 11.01 Absolute and Unconditional Obligations.......................................68
Section 11.02 Non-Recourse to Borrower's Principals........................................68
ARTICLE XII MISCELLANEOUS...............................................................................69
Section 12.01 Binding Effect of Request for Advance........................................69
Section 12.02 Amendments and Waivers.......................................................69
Section 12.03 Usury........................................................................70
Section 12.04 Expenses; Indemnification....................................................70
Section 12.05 Assignment; Participation....................................................71
Section 12.06 Documentation Satisfactory...................................................73
Section 12.07 Notices......................................................................73
Section 12.08 Setoff.......................................................................74
Section 12.09 Severability.................................................................74
Section 12.10 Counterparts.................................................................74
Section 12.11 Intentionally Omitted........................................................74
Section 12.12 Governing Law................................................................74
Section 12.13 Waivers......................................................................74
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Section 12.14 Year 2000....................................................................75
Section 12.15 Jurisdiction; Immunities.....................................................75
Section 12.16 Gross-Up For Taxes...........................................................76
Section 12.17 Additions and Releases of Properties.........................................77
Section 12.18 Reappraisals of Hotel Properties.............................................79
Section 12.19 Certain Provisions Regarding Disposition Properties..........................79
Section 12.20 Partial Releases.............................................................80
Section 12.21 Special Provisions Regarding Results of Operations of Hotel Properties.......81
SCHEDULE A - Properties - As of Closing Date
SCHEDULE A-1 - Properties - As of Date of Amended and Restated Agreement
SCHEDULE 5.04 - Litigation
SCHEDULE 5.22 - Lease Purchase Options
EXHIBIT A - Authorization Letter
EXHIBIT X-0 - Xxxxxxx X Xxxx
XXXXXXX X-0 - Xxxxxxx X Note
EXHIBIT B-3 - Tranche C Note
EXHIBIT C - Information Regarding Material Affiliates
EXHIBIT D - Solvency Certificate
EXHIBIT E - Assignment and Assumption Agreement
EXHIBIT F - Notice of Assignment of Lease
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As of May 18, 2000
Crescent Real Estate Funding VIII, L.P.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000-0000
Attention: Mr. Xxxxxxxxxxx Xxxxxx
Re: Amended and Restated Secured Loan Agreement, dated as of May 10,
2000, among Crescent Real Estate Funding VIII, L.P., as Borrower,
UBS AG, Stamford Branch ("UBS") and Fleet National Bank, as
Lenders, FleetBoston Xxxxxxxxx Xxxxxxxx Inc., as Syndication
Agent, Citicorp Real Estate, Inc., as Documentation Agent, and
UBS, as Administrative Agent (the "Loan Agreement")
Dear Sir/Madam:
This is to confirm the agreement among the parties to the Loan
Agreement that Section 2.09 of the Loan Agreement is amended as follows:
1. In the first and second lines of Section 2.09, the phrase
"fifteen (15) days' notice" is amended to "fifteen(15) days' notice
(in the case of prepayments of Tranche B or C) or three (3)
Business Days' notice (in the case of prepayments of LIBOR Loans
under the Tranche A) or one (1) Business Day's notice (in the case
of prepayments of Base Rate Loans under Tranche A)"; and
2. Paragraph (a) of Section 2.09 is amended and restated in
its entirety to read as follows:
"(a) If the aggregate outstanding principal amount under the
Tranche A, B and C Notes exceeds $700,000,000, prepayments shall be
applied (x) in the case of prepayments required by Section 12.17 (c),
first, to the Tranche B and C Notes in proportion to the outstanding
principal amount under the Tranche B and C Notes until such time as the
aggregate outstanding principal amount under the Tranche A, B and C
Notes has been reduced to $700,000,000 and, second, in accordance with
paragraph (b) below and (y) in the case of any other prepayment, first,
at Borrower's option, to either the Tranche A, B or C Notes until such
time as the aggregate outstanding principal amount under the Tranche A,
B and C
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Notes has been reduced to $700,000,000 and, second, in accordance with
paragraph (b)below; or".
Except as so modified, the Loan Agreement shall remain unchanged and in
full force and effect.
This letter agreement may be executed in multiple counterparts, each of
which shall constitute an original and together which shall constitute but one
and the same instrument.
Kindly acknowledge your agreement with the foregoing by signing and
returning the enclosed copies of this letter. The Lenders other than UBS will
acknowledge their agreement with the foregoing by executing the signature pages
attached hereto.
Very truly yours,
UBS AG, STAMFORD BRANCH,
As Lender and Administrative Agent
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxx
Title: Director
By: /s/ Xxxxxxx X. Xxxx
---------------------------------
Name: Xxxxxxx X. Xxxx
Title: Executive Director
Agreement acknowledged:
CRESCENT REAL ESTATE FUNDING VIII,
L.P., a Delaware limited partnership
By: CRE Management VIII, LLC, a Delaware
limited liability company, its general
manager
By: Crescent Real Estate Equities, Ltd.
a Delaware corporation, its manager
By: /s/ Xxxxxxxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Vice President and Treasurer
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