MASTER LOAN AGREEMENT
THIS MASTER LOAN AGREEMENT, dated as of this 22nd day of December, 1998
by and between TCC NNN TRADING, INC., a Delaware corporation, and KEYBANK
NATIONAL ASSOCIATION, a national banking association;
WITNESSETH:
The parties hereto, in consideration of their mutual covenants
hereinafter set forth and intending to be legally bound hereby, agree as
follows:
ARTICLE I
DEFINITIONS
1.01. CERTAIN DEFINITIONS. The following words and terms shall have the
following meanings, respectively, unless the context hereof clearly otherwise
requires:
"Adjusted LIBOR Interest Rate" shall mean a rate per annum equal
to the quotient obtained (rounded upwards, if necessary, to the nearest
1/100th of 1%) by dividing (i) the sum of the applicable LIBOR Interest
Rate by (ii) 1.00 minus the Reserve Percentage.
"Advance" shall mean an advance to the Borrower on the account of
Loan.
"Advance Maturity Date" shall have the meaning ascribed thereto in
Section 2.05 hereof.
"Agreement" shall mean this Master Loan Agreement, as the same may
be supplemented, modified or amended from time to time.
"Assignment" shall mean an Assignment in the form attached hereto
as EXHIBIT F, with blanks completed appropriately, given by the Borrower
to the Bank with respect to a Project as security for the Borrower's
obligation under the Loan, subject to such changes as may be required to
comply with the requirements of the law of the state in which such
Project is located, as the same may be supplemented, modified or amended
from time to time.
"Assignment of Rents" shall mean an Assignment of Rents and Leases
in the form attached hereto as EXHIBIT E, with blanks completed
appropriately, given by the Borrower to the Bank with respect to a
Project as security for the Borrower's obligations under the Loan,
subject to such changes as may be required to comply with the
requirements of the law of the state in which such Project is located, as
the same may be supplemented, modified or amended from time to time.
"Bank" shall mean KeyBank National Association, a national banking
association, its successors and assigns.
"Borrower" shall mean TCC NNN Trading, Inc., a Delaware
corporation.
"Borrower's Affidavit" shall mean a Borrower's Closing Affidavit
in the form of EXHIBIT H attached hereto, with blanks completed
appropriately, given by the Borrower to the Bank with respect to a
Project.
"Closing" shall mean the execution and delivery by the Borrower to
the Bank of this Agreement and the Note.
"Closing Date" shall mean the date of the Closing.
"Collateral Assignment of Purchase Agreement" shall mean a
Collateral Assignment of Purchase Agreement in the form attached hereto
as EXHIBIT G, with blanks completed appropriately, given by the Borrower
to the Bank with respect to a Project as security for the Borrower's
obligations under the Loan, as the same may be supplemented, modified or
amended from time to time.
"Commitment Fee" shall mean an amount equal to Fifty Thousand
Dollars ($50,000) to be paid by the Borrower to the Bank in accordance
with the terms hereof.
"Conditional Default" shall mean any condition, event, act or
omission which, with the giving of notice or passage of time or both,
would constitute an Event of Default.
"Debt Service Coverage Ratio" shall mean the ratio of (i)
projected total annual income to be received under the Lease for an
applicable Project, defined as base rent, common area maintenance
payments, insurance and real estate tax payments or reimbursements made
by Tenant to Borrower and miscellaneous sources, less the projected total
annual expenses and non-capitalized costs of operating and maintaining
such Project, including any annual management fee paid by the Borrower in
respect of such Project, an annual charge of Ten Cents ($.10) per square
foot of such Project for a capital reserve, and expenses for common area
maintenance, insurance, real estate taxes and repairs actually paid by
the Borrower in respect of such Project, to (ii) the projected total
annual sum of all interest payments and principal payments on the Advance
made in respect of such Project which would be due and payable assuming
the level amortization of such Advance over a period equal to the lesser
of (a) twenty (20) years or (b) the remaining term of the applicable
Lease, plus five (5) years, at a per annum interest rate equal to the
lesser of (y) Seven and One-Half Percent (7-1/2%) or (z) Two Percent (2%)
above the most recent weekly average yield on United States Treasury
Securities adjusted to a constant maturity of ten (10) years.
"Default Rate" shall mean a rate of interest from time to time
which is Two Percent (2%) per annum above the applicable Interest Rates
otherwise then in effect.
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"Deposit" shall mean an xxxxxxx money deposit made by a buyer
under a Purchase Agreement and held by a Title Company or by the
Borrower.
"Disbursement Request" shall mean a statement of the Borrower
setting forth the amount of an Advance being requested and containing
such other information as is required by Paragraph (a) of Section 5.01
hereof.
"Environmental Indemnity Agreement" shall mean an Environmental
Indemnity Agreement in the form attached hereto as EXHIBIT I, with blanks
completed appropriately, to be executed and delivered with respect to a
Project by the Borrower and the Guarantor to the Bank, as the same may be
supplemented, modified or amended from time to time.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"ERISA Affiliate" shall mean any trade or business, whether or not
incorporated, which together with the Borrower would be treated as a
single employer under ERISA.
"Event of Default" shall mean any of the events of default
described in Section 8.01 hereof.
"FEMA" shall mean the Federal Emergency Management Agency, or any
successor entity.
"Fixtures" shall mean all personal property now or hereafter owned
by the Borrower and now or hereafter affixed to, incorporated into or to
be incorporated into, or used or useful in connection with, a Project or
any part thereof, all replacements thereof, additions thereto and
substitutions therefor.
"GAAP" shall mean generally accepted accounting principles in the
United States of America in effect from time to time as promulgated by
the Financial Standards Accounting Board and recognized and interpreted
by the American Institute of Certified Public Accountants.
"Governmental Authorities" shall mean the United States of
America, the state and local jurisdictions in which a Project is located
and any political subdivision thereof, and any agency, department,
commission, board, bureau or instrumentality of any of them.
"Governmental Requirement" shall mean any law, ordinance, order,
rule or regulation of any Governmental Authority, including but not
limited to laws, ordinances, orders, rules or regulations with regard to
zoning, subdivision, building, safety, fire protection or environmental
matters applicable to a Project.
"Guarantor" shall mean Xxxxxxxx Xxxx Company, a Delaware
corporation.
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"Guarantor's $150,000,000 Credit Agreement" shall mean that
certain Credit Agreement, dated as of December 1, 1997, among the
Guarantor, the Lenders listed therein, NationsBank of Texas, N.A. and
Bankers Trust Company, without amendment or modification. Nothing herein
shall prohibit or be deemed to prohibit Guarantor from entering into or
agreeing to any modification or amendment to such Credit Agreement.
However, no reference to any such modification or amendment shall be made
for purposes of this definition.
"Hazardous Constituent" shall have the meaning assigned thereto
under 40 C.F.R. Section 260.10.
"Hazardous Materials" shall mean, collectively, Hazardous
Substances, Hazardous Constituent and Solid Wastes.
"Hazardous Materials Laws" shall mean all laws, statutes,
ordinances, rules, regulations, permits, licenses, judgments, writs,
injunctions, decrees, orders, determinations, directives and standards
promulgated by any governmental authority concerning Hazardous Materials
or concerning the protection of, or regulation of the discharge of
substances into, the environment or concerning the health or safety of
persons with respect to environmental hazards, and includes, without
limitation, the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986, 42 U.S.C. Sections 9601 et seq., Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery Act of
1976 and Solid and Hazardous Waste Amendments of 1984, 42 U.S.C. Sections
6901 et seq., Federal Water Pollution Control Act, as amended by the
Clean Water Act of 1977, 33 U.S.C. Sections 1251 et seq., Clean Air Act
of 1966, as amended, 42 U.S.C. Sections 7401 et seq., Toxic Substances
Control Act of 1976, 15 U.S.C. Sections 2601 et seq., Occupational Safety
and Health Act of 1970, as amended, 29 U.S.C. Sections 651 et seq.,
Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C.
Sections 11001 et seq., National Environmental Policy of 1975, 42 U.S.C.
Sections 4321 et seq., Safe Drinking Water Act of 1974, as amended, 42
U.S.C. Section 300(f) et seq., the Hazardous Materials Transportation
Act, 42, U.S.C. Section 1801 et seq., the Federal Insecticide, Fungicide,
and Rodenticide Act, U. S.C. Section 7401 et seq., and any similar or
implementing law of the state in which a Project is located, and all
amendments, rules, and regulations promulgated thereunder or implementing
the same.
"Hazardous Substances" shall mean at any time any substance,
waste, pollutant, contaminant or material, in solid, liquid or gaseous
form, which: (i) is a substance regulated or defined or designated as
hazardous, extremely or imminently hazardous, objectionable, dangerous,
or toxic pursuant to any law, by any local, state, territorial or federal
governmental authority; (ii) is a substance with respect to which such a
governmental authority otherwise requires environmental compliance,
investigation, monitoring, reporting, or remediation; including but not
limited to, (A) all substances, wastes, pollutants, contaminants and
materials regulated, or defined or designated as hazardous, extremely or
imminently hazardous, dangerous, objectionable or toxic, under any
Hazardous Materials Law; (B) petroleum and petroleum based products
including crude oil, used oil and any fractions thereof; (C) natural gas,
synthetic gas, and any mixtures thereof; (D) radon; (E)
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radioactive substances and materials; (F) asbestos; (G) urea
formaldehyde; (H) polychlorinated biphenyls; (I) lead; (J) methane;
(K) flammable substances and materials; and (L) explosives.
"Improvements" shall mean the improvements portion of a Project.
"Inspecting Architect" shall mean an independent architectural or
engineering firm employed by the Bank with respect to a Project. The
Borrower may submit to the Bank a list of suggested architectural and
engineering firms for consideration by the Bank. The Bank shall not,
however, be obligated to select or retain an Inspecting Architect from
such list.
"Interest Rate" shall mean, as to each Advance, a rate per annum
equal to (i) for Prime Advances, the Prime Interest Rate and (ii) for
LIBOR Advances, the Adjusted LIBOR Interest Rate.
"Lease" shall mean a lease of a Project (excluding any incidental
real estate which is contiguous to the leased real estate and
improvements and which the Borrower is or was required to purchase as
part of the acquisition of the leased real estate and improvements) by
and between the Borrower, as landlord, and a Tenant, as tenant.
"LIBOR" shall mean the average (rounded upward to the nearest
1/16 of 1%) of the per annum rates at which deposits in immediately
available funds in U.S. dollars for the applicable LIBOR Interest Period
and in the amount of the applicable LIBOR Advance are offered to the Bank
by prime banks in the London interbank Eurodollar market, determined as
of 11:00 a.m. London time (or as soon thereafter as practicable) two (2)
London Banking Days prior to the beginning of the applicable LIBOR
Interest Period;
"LIBOR Advance" shall mean any Advance which is determined with
reference to the Adjusted LIBOR Interest Rate;
"LIBOR Interest Period" shall mean a period of one (1) month,
three (3) months or six (6) months, as selected by the Borrower;
"LIBOR Interest Rate" shall mean a rate per annum equal to One and
Three Quarters Percent (1-3/4%) above LIBOR.
"Loan" shall mean a revolving loan from the Bank to the Borrower
in a principal amount not to exceed Twenty Million Dollars ($20,000,000)
at any time outstanding.
"Loan Commitment Expiration Date" shall mean December 22, 2000.
"Loan Documents" shall mean, this Agreement, the Note, and all
Project Agreements, Mortgages, Assignments of Rents, Assignments,
Collateral Assignments of Purchase Agreement, Transaction Guaranties,
Borrower's Affidavits, Environmental Indemnities and other documents
executed and/or delivered by or on behalf of the Borrower or the
Guarantor
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in connection with the Loan or any Advance which are in effect from
time to time, as the same may be supplemented, modified or amended
from time to time.
"London Banking Day" shall mean a day on which commercial banks
are open for business in London, England, and quoting deposit rates for
U.S. dollar deposits.
"Material Adverse Effect" shall mean any event, circumstance or
condition that could reasonably be expected to have a material adverse
effect on (a) the business, operations, financial condition or properties
of the Borrower taken as a whole, (b) the ability of the Borrower to
repay the Loan or perform all other material obligations under the Loan
Documents, (c) the validity or enforceability of any of the Loan
Documents, or any material provision thereof or any transaction
contemplated thereby, or (d) the rights and remedies of the Bank under
any of the Loan Documents.
"Monetary Event of Default" shall mean an Event of Default under
Section 8.01(a) hereof or any other Event of Default which can be cured
by the payment of money.
"Mortgage" shall mean a Real Estate Mortgage and Security
Agreement in the form of EXHIBIT D-1 attached hereto, with blanks
completed appropriately, or a Deed of Trust and Security Agreement in the
form of EXHIBIT D-2 attached hereto, with blanks completed
appropriately, given by the Borrower to the Bank with respect to a
Project as security for the Borrower's obligations under the Loan,
subject to such changes as may be required to comply with the
requirements of the laws of the state in which the Project is located, as
the same may be supplemented, modified or amended from time to time.
"Mortgage Release Price" shall mean with respect to a Project, an
amount equal to (a) if when such Project is sold no Event of Default is
then continuing, the amount of the Advance made in respect of such
Project, less any principal payment previously made in respect of such
Advance, or (b) if when such Project is sold a Non-Monetary Event of
Default is then continuing, the greater of (i) the amount described in
subsection (a) of this definition and (ii) the Net Sales Price of such
Project; or (c) if when such Project is sold, a Monetary Event of Default
is then continuing, the amount described in subsection (a) of this
definition, plus that portion of the Net Sales Proceeds Excess which is
necessary to fully cure all Monetary Events of Default then continuing,
provided that, if the application of all of the Net Sales Proceeds Excess
would not cure all Non-Monetary Events of Default then continuing, the
Mortgage Release Price under this subsection (c) for such Project will be
the Net Sales Price of such Project.
"Net Sales Price" shall mean with respect to a Project, an amount
equal to One Hundred Percent (100%) of the gross sales price of such
Project, less closing costs payable by the Borrower in respect of the
sale of such Project, provided such closing costs are in a reasonable
amount and are of a type customarily paid by a Seller in the area in
which such Project is located. Such closing costs shall include without
limitation, pro rations for property taxes, costs of survey and title
insurance and the cost of any brokerage commissions or fees payable in
respect of such sale; provided, however, that a brokerage fee or
commission
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payable to an affiliate of the Borrower or the Guarantor shall not be
permitted as a closing cost in calculating the Net Sales Price of such
project.
"Net Sales Proceeds Excess" shall mean the amount by which the Net
Sales Price for a Project exceeds the amount of the Advance made in
respect of such Project which is outstanding as of the closing of the
sale of such Project.
"Non-Monetary Event of Default" shall mean any Event of Default,
other than a Monetary Event of Default.
"Non-Pre-Approved Tenant" shall mean any tenant having an S & P
Rating of less than BBB- and any tenant which would use a Project for a
restaurant operation, a fast food operation or any other food service
operation.
"Note" shall mean the Revolving Credit Note in the form of
EXHIBIT C attached hereto, with blanks completed appropriately, executed
by the Borrower payable to the order of the Bank to evidence the Loan, as
the same may be renewed, extended, supplemented, modified or amended from
time to time.
"OfficeMax" shall mean OfficeMax, Inc., an Ohio corporation.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to ERISA, or any successor entity.
"Personal Property" shall mean all tangible personal property
owned by the Borrower and now or at any time hereafter located on or at a
Project owned by the Borrower or used in connection therewith or with the
improvements forming a part of such Project.
"Plan" shall mean an Employee Benefit Plan which is covered by
Title 4 of ERISA or subject to the minimum lending standards under
Section 412 of the Internal Revenue Service as to which the Borrower may
have any liability.
"Plans and Specifications" shall mean the plans and specifications
for the construction of the Improvements forming part of an applicable
Project prepared by the architect therefor.
"Prime Advance" shall mean any Advance which is determined with
reference to the Prime Rate.
"Prime Interest Rate" shall mean a rate per annum equal to the
Prime Rate.
"Prime Rate" shall mean the interest rate per annum announced from
time to time by the Bank as its prime rate. Each interest rate determined
by reference to the Prime Rate shall change automatically from time to
time, effective as of the effective date of each change in the Prime
Rate. The Bank's Prime Rate is not necessarily the rate at which the Bank
lends its funds. The Prime Rate is only an index rate from which interest
rates actually charged to the
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Bank's customers may be measured. The use of the Prime Rate does not
constitute a commitment by the Bank to lend money at a preferred rate.
"Prohibited Transaction" shall have the meaning ascribed thereto
by ERISA.
"Project" shall mean the real estate and all improvements thereon
which will be owned by the Borrower and leased to a Tenant under a Lease,
together with any incidental real estate which is contiguous to the
leased real estate and improvements and which the Borrower is or was
required to purchase as part of the acquisition of the leased real estate
and improvements.
"Project Agreement" shall mean a Project Agreement in the form of
EXHIBIT A attached hereto, with blanks completed appropriately, to be
entered into by the Bank and the Borrower, pursuant to which the Bank
approves an Advance for funding hereunder as required by Section 2.02, as
the same may be supplemented, modified or amended from time to time.
"Project Costs" shall mean with respect to a Project, the purchase
price paid by the Borrower for its acquisition of a Project (including
ordinary closing costs therefor paid by the Borrower which increase the
purchase price (including, without limitation, pro-rated property taxes,
brokers commissions and title insurance)), the Project Fee for the
Advance made in respect of such Project, the legal fees, survey charges
and appraisal fees incurred in respect of such Advance, and the
Inspecting Architect's fees for such Project.
"Project Fee" shall mean an amount equal to One Quarter of One
Percent (1/4 of 1%) of the principal amount of an Advance.
"Project Purchase Agreement" shall mean with respect to a Project,
a purchase agreement between the Borrower and a buyer not affiliated with
the Borrower or the Guarantor which is approved by the Bank in a form
reasonably acceptable to the Bank, pursuant to which agreement the
Borrower agrees to sell, and such buyer agrees to purchase, a Project.
Such purchase agreement shall require the buyer thereunder to deposit a
Deposit with the Borrower or a Title Company or other escrow agent.
"Project Site" shall mean the real estate portion of a Project.
"Rating" shall mean the rating from time to time established by
S & P for senior, unsecured, non-credit-enhanced long-term debt of a
Tenant.
"Regulation U" shall mean Regulation U of the Board of Governors
of the Federal Reserve System, as amended from time to time.
"Reportable Event" shall have the meaning ascribed thereto by
ERISA.
"Reserve Percentage" shall mean for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by
the Board of Governors of the Federal
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Reserve System (or any successor) for determining the maximum reserve
requirement (including, without limitation, all basic, supplemental,
marginal and other reserves and taking into account any transitional
adjustments or other scheduled changes in reserve requirements) for a
member of the Federal Reserve System in Cleveland, Ohio, in respect
of "Eurocurrency Liabilities." The Adjusted LIBOR Interest Rate shall
be adjusted automatically on and as of the effective date of any
change in the Reserve Percentage;
"Solid Wastes" shall have the meaning assigned thereto in
40 C.F.R. Section 261.2.
"S & P" shall mean Standard & Poor's Ratings Services, a division
of XxXxxx-Xxxx Companies, Inc., or if S & P no longer publishes ratings,
then another ratings agency acceptable to the Bank.
"Storage Containers" shall mean existing and future containers for
Hazardous Materials and above ground and underground storage tank systems
(including underground piping, conduits or sumps).
"Subordination, Non-Disturbance and Attornment Agreement" shall
mean a Subordination, Non-Disturbance and Attornment Agreement in the
form of EXHIBIT K attached hereto, with blanks completed appropriately,
entered into by the Bank, the Borrower and a Tenant with respect to a
Project, subject to such changes as may be required to comply with the
requirements of the law of the state in which the Project is located, as
the same may be supplemented, modified or amended from time to time.
"Tenant" shall mean Office Max, Inc., any tenant (other than a
tenant which would use a Project for a restaurant operation, a fast food
operation or any other food service operation) having an S & P rating of
BBB- or higher, and any other retail tenant which the Bank approves in
its sole discretion.
"Title Company" shall mean with respect to a Project, Chicago
Title Insurance Company or any other title insurer designated by the
Borrower and approved by the Bank which agrees to insure the priority of
the lien of the Mortgage on such Project.
"Title Policy" shall mean with respect to a Project, the policy of
title insurance issued by a Title Company to the Bank insuring the
priority of the lien of the Mortgage on such Project.
"Transaction Guaranty" shall mean a Transaction Guaranty in the
form attached hereto as EXHIBIT J, with blanks completed appropriately,
given to the Bank by the Guarantor with respect to an Advance, pursuant
to which the Guarantor guarantees the Borrower's obligations in respect
of such Advance, as the same may be supplemented, modified or amended
from time to time.
"Wetlands" shall mean any wetlands area or other area which is
subject to the regulatory jurisdiction of the United States Environmental
Protection Agency and/or Army
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Corps of Engineers and/or any other Governmental Authority, under any
Governmental Requirement, including, without limitation, the Clean
Water Act, 33 U.S.C. Section 1251, ET. SEQ.
"Year 2000 Issues" shall mean the anticipated costs, problems and
uncertainties associated with the inability of certain computer
applications to effectively handle data including dates on and after
January 1, 2000, as it affects the business, operations, and financial
condition of the Borrower.
Unless the context clearly otherwise requires, the foregoing definitions
shall be equally applicable to both the singular and plural forms.
1.02 SECTION 8.01(p). All defined terms used in Section 8.01(p) hereof,
but not defined herein, shall have the meanings assigned to such terms in
Guarantor's $150,000,000 Credit Agreement. All provisions and defined terms in
the Guarantor's $150,000,000 Credit Agreement are incorporated herein by
reference to the extent such provisions and terms are necessary for the
interpretation or construction of any defined terms used in Section 8.01(p).
Reference shall continue to be made to the Guarantor's $150,000,000 Credit
Agreement for defined terms which are used in Section 8.01(p) hereof, but not
defined herein, even upon the termination or cancellation thereof.
ARTICLE II
THE LOAN
2.01. LOAN. Subject to the terms and conditions hereof, and relying
upon the representations and warranties herein set forth, the Bank agrees to
make the Loan to the Borrower. The Bank's commitment to make Advances shall
expire on the Loan Commitment Expiration Date. In no event shall the Bank be
obligated to make any Advance on or after the Loan Commitment Expiration Date.
The proceeds of the Loan will be used solely for the acquisition by the Borrower
of Projects approved by the Bank in accordance with the terms of Section 2.02
hereof. The proceeds of the Loan will be advanced to the Borrower in accordance
with and subject to the requirements and limitations set forth herein. Proceeds
of the Loan shall be allocated to the Projects by the Borrower in such manner as
the Borrower shall determine and the Bank may approve pursuant to Section 2.02
hereof. If prior to the Loan Commitment Expiration Date, the Borrower repays
any Advance(s), or any portion thereof, Loan proceeds in an amount equal to the
amount of the repayment will again be made available to the Borrower for
Advances, subject to the terms and conditions hereof.
2.02. PROJECT APPROVAL. In connection with a request for approval for
an Advance, the Borrower shall submit to the Bank those materials identified in
EXHIBIT B attached hereto. If the Project for which an Advance is requested is
or will be leased to a Non Pre-Approved Tenant, the Borrower shall submit to the
Bank such other information as the Bank deems reasonable, appropriate and
necessary with respect to such Advance and the Project to be acquired with the
proceeds thereof. The Bank may not withhold its approval for an Advance for a
Project if the Project will be leased to Office Max or a tenant which will lease
the Property for a retail operation and has a Rating of BBB- or higher;
provided, however, Bank may withhold, in its sole discretion, its approval for
an Advance for a Project to be leased to OfficeMax or a tenant which will lease
the Property for a retail
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operation and has a Rating of BBB- or higher, if the Borrower will not own
fee simple title to such Project at the time of the Advance therefor. If the
Bank approves an Advance for a Project which the Borrower will not own fee
simple to (e.g., a Project in which the Borrower owns only a leasehold estate
or a subleasehold estate) at the time of the Advance therefor, the Bank may
impose requirements regarding such Advance in addition to those set forth
herein. The Bank may withhold, in it sole discretion, its approval for an
Advance for a Project if the Project will be leased to a Non-Pre-Approved
Tenant. The Bank covenants and agrees to use its best efforts to approve or
disapprove an Advance for a Project to be leased to a Non-Pre-Approved Tenant
within five (5) business days following receipt of a request for approval by
the Borrower. In connection with the approval of an Advance for a Project
leased to a Non-Pre-Approved Tenant, the Bank may impose requirements
regarding disbursement of such Advance in addition to those set forth herein.
Such additional requirements will be set forth in the Project Agreement to be
executed by the Bank and the Borrower in respect of such Project, which
Project Agreement, when executed, shall be deemed to be a modification and
amendment of this Agreement as to the particular Advance.
2.03. PROJECT NOTE. The Loan and all Advances thereunder shall be
evidenced by the Borrower's receipts and the Note.
2.04. RATE OF INTEREST. During the term of the Loan, the unpaid
principal amount thereof shall, subject to the terms and conditions hereinafter
set forth, bear interest on a basis selected by the Borrower from the following
interest rate selections: (a) the Adjusted LIBOR Interest Rate; and (b) the
Prime Interest Rate.
Each Advance shall be made as either a Prime Advance or a LIBOR Advance,
as selected by the Borrower. The Borrower may have Prime Advances and LIBOR
Advances outstanding simultaneously; provided, however, the Borrower may not
have more than five (5) LIBOR Advances in existence at any time and each LIBOR
Advance must be in an amount which is greater than or equal to $1,000,000. The
Borrower may convert any Prime Advances aggregating at least $100,000 in
principal amount into a LIBOR Advance on the first day of a calendar month. At
the end of the LIBOR Interest Period applicable to a LIBOR Advance, the Borrower
may renew the LIBOR Advance or may convert the LIBOR Advance to a Prime Advance.
If the Borrower fails to renew any LIBOR Advance or if the Borrower shall
receive any new Advance without designating whether such Advance is a LIBOR
Advance or a Prime Advance, such Advance shall automatically be deemed to be a
Prime Advance. At any time that the Borrower desires a LIBOR Advance or intends
to renew a LIBOR Advance or convert a Prime Advance into a LIBOR Advance, the
Borrower must notify the Bank at least three (3) London Banking Days prior to
the day on which the Borrower desires such Advance, renewal or conversion to be
effective. The Borrower shall have no right to designate a new Advance as, or
convert an existing Prime Rate Advance to, a LIBOR Advance if an Event of
Default is then continuing. The Borrower shall have no right to select a LIBOR
Interest Period for a LIBOR Advance if such LIBOR Interest Period would extend
beyond the Advance Maturity Date therefor.
While and so long as no Event of Default is continuing, interest shall
accrue at the applicable Interest Rates upon the daily principal balance of the
Loan, based on a three hundred sixty (360) day year, for the actual number of
days elapsed since the date to which interest has been paid. While and so long
as an Event of Default is continuing, interest shall accrue at the applicable
Default Rates upon
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the daily principal balance of the Loan, based on a three hundred sixty (360)
day year, for the actual number of days elapsed since the date to which
interest has been paid.
If the Bank shall determine, after the date hereof, that the adoption of
any applicable law, rule, regulation or guideline 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 compliance by the Bank (or
its lending office) with any request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing the rate of return
on the Bank's capital (or on the capital of the Bank's holding company) as a
consequence of the Loan to a level below that the Bank (or its holding company)
could have achieved but for such adoption, change or compliance (taking into
consideration the Bank's policies or the policies of its holding company with
respect to capital adequacy) by an amount deemed by the Bank to be material,
then from time to time, within fifteen (15) days after demand by the Bank, the
Borrower shall either (a) pay to the Bank such additional amount or amounts as
will compensate the Bank (or its holding company) for such reduction, or (b)
convert all LIBOR Advances to a Prime Advance. If the Borrower elects the
option provided in the foregoing subparagraph (b), the Borrower shall not be
subject to the requirement hereunder that the Borrower reimburse the Bank for
any loss, cost or expense incurred by the Bank as a result of the Borrower
paying a LIBOR Advance prior to the end of the applicable LIBOR Interest Period,
provided, however, thereafter the Borrower may not elect for any Advances to be
LIBOR Advances. The Bank will designate a different lending office if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the judgment of the Bank, be otherwise disadvantageous to the
Bank. In determining such amount, the Bank may use any reasonable averaging and
attribution methods. Failure on the part of the Bank to demand compensation for
any reduction in return on capital with respect to any period shall not
constitute a waiver of the Bank's rights to demand compensation for any
reduction in return on capital in such period or in any other period. The
protection of this Section shall be available to the Bank regardless of any
possible contention of the invalidity of the law, regulation or other condition
which shall have been imposed.
2.05. PRINCIPAL PAYMENT OF ADVANCE. An Advance shall be due and payable
upon the earlier of (the "Advance Maturity Date"): (a) twelve (12) months from
the funding thereof; or (b) the sale of the Project in respect of which such
Advance was made, unless such Advance is sooner paid or payable pursuant to the
terms hereof.
2.06. INTEREST PAYMENTS. The Borrower shall pay interest at the
applicable Interest Rates on the outstanding principal balance of the Loan on
the first (1st) day of each calendar month while proceeds of the Loan remain
outstanding, commencing on the first (1st) day of the first (1st) calendar month
following the first Advance.
2.07. PRINCIPAL PAYMENTS. If an Advance has not been fully repaid by
the One Hundred Eighty-First day (181st) day following the funding thereof, the
Borrower shall pay to the Bank on such date an amount equal to Ten Percent (10%)
of the original amount of such Advance, which payment shall be applied in
reduction of the principal balance of such Advance. Upon the sale of a Project,
the Borrower shall pay to the Bank an amount equal to the Mortgage Release Price
payable in respect thereof, and such Mortgage Release Price payment when
received by the Bank, shall be
12
applied in reduction of the principal balance of the Advance which was made
in respect of such Project. Notwithstanding the foregoing provisions, during
the continuance of an Event of Default, any Mortgage Release Price payment
received by the Bank may be applied, in the discretion of the Bank, in
reduction of any accrued and unpaid interest on the Loan or any outstanding
Advance made pursuant to Section 5.01(c) hereof, so long as the Bank provides
to Borrower all documents necessary to release the Project being sold. The
Borrower shall pay to the Bank a reasonable service fee, not to exceed Fifty
Dollars ($50.00), for the processing of the requested release of a Mortgage.
Upon the Bank's receipt of the Mortgage Release Price payment made in respect
of a Project, the Bank will release the Mortgage and all other security of
the Bank encumbering such Project.
At the request of the Bank, the Borrower will furnish to the Bank
copies of any closing statement, purchase agreement and similar documents
relating to the sale of a Project prior to the release by the Bank of its
security with respect to such Project.
2.08. LOAN PREPAYMENTS. The Borrower may prepay the principal amount of
any Prime Advance in whole or in part from time to time without any prepayment
penalty. The Borrower may not prepay any LIBOR Advance before the expiration of
the LIBOR Interest Period applicable to such LIBOR Advance, except upon the
payment of the amount provided for below.
If any LIBOR Advance becomes due and payable or is prepaid prior to the
last day of the applicable LIBOR Interest Period (including any prepayment
resulting from the acceleration of the Loan by the Bank as a consequence of an
Event of Default), the Borrower also promises to reimburse the Bank on demand
for any resulting loss, cost, or expense incurred by the Bank as a result
thereof including, without limitation, any loss incurred in obtaining,
liquidating, or employing deposits from third parties, but excluding the Bank's
loss of margin for the period after any such payment; provided, however, the
Borrower shall not be required to reimburse the Bank for any loss, cost or
expenses incurred by the Bank as a result of the prepayment of a LIBOR Advance
prior to the last day of the applicable LIBOR Interest period if such LIBOR
Advance is paid in full and such prepayment results from the sale of the Project
in respect of which such LIBOR Advance was made. If, because of the
introduction of or any change in, or because of any judicial, administrative, or
other governmental interpretation of, any law or regulation, there shall be any
increase in the cost to the Bank of making, funding, maintaining, or allocating
capital to LIBOR Advances, then from time to time, within fifteen (15) days
after demand by the Bank, the Borrower shall either (a) pay to the Bank
additional amounts sufficient to compensate the Bank for such increased cost; or
(b) convert all LIBOR Advances to a Prime Advance. If the Borrower elects the
option provided in the foregoing subparagraph (b), the Borrower shall not be
subject to the requirement hereunder that the Borrower reimburse the Bank for
any loss, cost or expense incurred by the Bank as a result of the Borrower
paying a LIBOR Advance prior to the end of the applicable LIBOR Interest Period;
provided, however, thereafter the Borrower may not elect for any Advances to be
LIBOR Advances. If, because of the introduction of or any change in, or because
of any judicial, administrative, or other governmental interpretation of, any
law or regulation, it becomes unlawful for the Bank to make, fund, or maintain
any LIBOR Advance, then the Bank's obligation to make, fund, or maintain any
LIBOR Advance shall terminate.
2.09. LATE FEE. If any sum of principal or interest in respect of the
Loan is not paid within five (5) days after the date when due, then, in addition
to and not in lieu of any other rights or
13
remedies available to the Bank, the Borrower shall pay to the Bank, on
demand, a late fee in an amount equal to the greater of five percent (5%) of
such sum or Twenty-Five Dollars ($25.00), but not to exceed Two Hundred Fifty
Dollars ($250.00). In no event, however, shall a late fee be payable under
this Section 2.09 in respect of an Advance and the interest therein if the
Borrower fails to pay such Advance and interest on the Advance Maturity Date
therefor or on the date on which such Advance and interest are payable as a
result of the acceleration of the Loan pursuant to the terms of this
Agreement.
2.10. NON-USE FEE. The Borrower agrees to pay to the Bank a non-use
fee (the "Non-Use Fee") calculated at the rate of 0.20% per annum on the daily
unborrowed portion of the Loan (which is equal to the daily average of the
difference between the maximum principal amount of the Loan (i.e., $20,000,000)
and the then outstanding balance of the Loan owed during any calculation period)
from the Closing Date to and including the Loan Commitment Expiration Date,
payable quarterly in arrears on the last day of each calendar quarter hereafter.
Notwithstanding the foregoing, all accrued Non-Use Fees shall be payable on the
effective date of any termination of the Bank to make Advances. The Non-Use Fee
shall be calculated based on a year of 360 days.
2.11. EXCULPATION. Notwithstanding anything to the contrary contained
herein or in the other Loan Documents, it is intended that the obligations of
the Borrower under this Loan Agreement, the Note and the other Loan Documents
shall be payable only out of the Projects encumbered by Mortgages in effect from
time to time, the enforcement of the provisions contained in such Mortgages or
any other Loan Documents and out of any other property, security or guaranties
securing or given for such obligations (the "Additional Property"), and,
accordingly, except as hereafter provided, no liability shall be asserted or be
enforceable against the Borrower, its successors and assigns, or their assets
and estates (other than such Projects and the Additional Property) because of or
in respect of the Loan or any other obligations of the Borrower under the Loan
Documents, all such liability, if any, being expressly waived by the Bank. The
foregoing provisions shall not limit or be construed to limit or impair the
Bank's rights against the Borrower for costs or damages arising from (the
following being referred to as the "Non-Recourse Exceptions"): (a) fraud or
material misrepresentations made by the Borrower in connection with the Note,
any Mortgage or any other Loan Document; (b) the misapplication by the Borrower
of insurance proceeds or condemnation awards paid in connection with a Project
prior to foreclosure of the Mortgage encumbering the same or conveyance of such
Project by a power of sale or a deed in lieu of foreclosure; (c) the
misapplication by Borrower of gross receipts from rental of a Project encumbered
by a Mortgage applicable to the period after an Event of Default and prior to
the foreclosure of such Mortgage or conveyance of such Project by a power of
sale or a deed in lieu of foreclosure after an Event of Default, (d) the
unauthorized removal by Borrower of any portion of a Project encumbered by a
Mortgage; (e) waste committed by the Borrower with respect to a Project
encumbered by a Mortgage; (f) the failure by the Borrower to provide the
insurance coverage or to pay taxes or assessments required by a Mortgage; or (g)
the misapplication by Borrower of proceeds of the Loan in violation of the
provisions of the Loan Documents.
Nothing herein shall be deemed a waiver by the Bank of any right which
the Bank may have pursuant to the Bankruptcy Code of the United States of
America or any similar state law to file a claim for the full amount of the
indebtedness and other obligations of the Borrower under the Loan Documents or
to require that all collateral or security for such indebtedness and obligations
shall
14
continue to secure the entire amount of such indebtedness and obligations in
accordance with the Loan Documents. In addition, nothing herein contained
shall affect or impair the liability or obligation of the Guarantor under
any Transaction Guaranty or of any other guarantor or co-maker or other
person who by separate instrument shall be or become liable upon or
obligated for any of the indebtedness and other obligations of the Borrower
under the Loan Documents or any of the covenants or agreements contained in
the Loan Documents, and nothing herein contained shall limit the Borrower's
personal liability under Section 6.09 hereof and under Section 4.10 of any
Mortgage from the Borrower to the Bank or the Borrower's and the Guarantor's
personal liability under any Environmental Indemnity Agreement from the
Borrower and the Guarantor to the Bank.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Bank that as of the Closing
Date:
3.01. ORGANIZATION AND QUALIFICATION. The Borrower is a duly formed and
validly existing corporation under the laws of the State of Delaware. The
Guarantor is a duly formed and validly existing corporation under the laws of
the State of Delaware.
3.02. RIGHT AND POWER; CORPORATE AUTHORITY. The Borrower has full
right, power and authority to execute and deliver this Agreement and the Note
and to perform its obligation thereunder. The Borrower has taken the necessary
corporate action to authorize the execution and delivery of the Agreement and
the Note and the borrowings thereunder.
3.03. CONFLICT WITH OTHER INSTRUMENTS. The execution and delivery of
this Agreement and the Note, the consummation of the transactions contemplated
thereby, and the compliance with the terms, conditions and provisions thereof
will not conflict with or result in a breach of any of the terms, conditions or
provisions of the articles or certificate of incorporation or by-laws of the
Borrower, or, to the Borrower's actual knowledge, any law or any regulation,
order, writ, injunction or decree of any court or Governmental Authority or any
agreement or instrument to which the Borrower is a party or by which the
Borrower or its properties or assets are subject to or bound, or constitute a
default thereunder or result in the creation or imposition of any lien, charge,
security interest or encumbrance of any nature whatsoever upon any of the
property of the Borrower pursuant to the terms of any such agreement or
instrument, except as created by the Loan Documents.
3.04. AUTHORITY, VALIDITY AND BINDING EFFECT. The execution and
delivery of this Agreement and the Note, and the making of the borrowings
contemplated by the provisions hereof and thereof, have been duly authorized by
all necessary action on the part of the Borrower, and no authorization, approval
or consent by, or filing with, any Governmental Authority or public regulatory
authority is necessary therefor. This Agreement and the Note have been duly and
validly executed and delivered by the Borrower and constitute a legal, valid and
binding obligation of the Borrower, enforceable in accordance with their terms,
except as the enforceability thereof may be limited by bankruptcy, insolvency or
other laws of general application affecting the enforcement of creditors' rights
generally and by principles of equity.
15
3.05. FINANCIAL CONDITION. The financial statements of the Borrower, if
any, and the Guarantor furnished to the Bank are complete and correct in all
material respects. Such financial statements were prepared in accordance with
GAAP consistently applied. The financial statements of the Borrower and the
Guarantor fairly present their respective financial condition at the respective
dates indicated therein. Since the dates of such financial statements, there
has been no material adverse change in the assets, liabilities or financial
condition of the Borrower and the Guarantor from that reflected thereon.
3.06. LITIGATION. There are no actions, suits or proceedings pending
or, to the Borrower's actual knowledge, threatened, against or affecting the
Borrower or the Guarantor before any court or Governmental Authority which might
have a Material Adverse Effect on the Borrower or the Guarantor or their
operations or financial condition.
3.07 ERISA. The Borrower and each ERISA Affiliate is in compliance in
all material respects with all applicable provisions of ERISA, and neither the
Borrower nor any ERISA Affiliate has incurred any liability to the PBGC.
Neither a Reportable Event nor a Prohibited Transaction, has occurred under, nor
has there occurred any complete or partial withdrawal from, nor has there
occurred any other event which would constitute grounds for termination of or
the appointment of a trustee to administer any "employee benefit plan"
(including any "multi-employer plan") maintained for employees of Borrower or
any ERISA Affiliate, all within the meanings ascribed by ERISA.
3.08 REGULATION U. The Borrower is not engaged in the business of
extending credit for the purpose of purchasing or carrying margin stock (within
the meaning of Regulation U) and the Borrower does not hold any margin stock (as
defined in Regulation U).
3.09 INVESTMENT COMPANY ACT. Neither the Borrower nor the Guarantor
is an "investment company" or a company "controlled" by an "investment company,"
within the meaning of the Investment Company Act of 1940, as amended.
3.10 PUBLIC UTILITY HOLDING COMPANY. Neither the Borrower nor the
Guarantor is a "holding company" or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company," within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
3.11 INSOLVENCY. Neither the Borrower nor the Guarantor is "insolvent"
within the meaning of that term as defined in the Federal Bankruptcy Code and
the Borrower and the Guarantor are each able to pay their debts as they mature.
3.12 YEAR 2000 COMPLIANCE. The Borrower is in the process of making a
full and complete assessment of the Year 2000 Issues and will use commercially
reasonable efforts to develop a realistic and achievable program for remediating
the Year 2000 Issues on a timely basis. Based on this assessment and program,
the Borrower does not reasonably anticipate any Material Adverse Effect as a
result of Year 2000 Issues. To the Borrower's actual knowledge, the Borrower
does not reasonably anticipate any Material Adverse Effect as a result of Year
2000 Issues that affect the
16
Borrower's and its tenants, customers, suppliers, third party payors
(including Governmental Authorities) or vendors.
The representations and warranties contained above and in the other Loan
Documents shall be true on and as of the date of each Advance with the same
effect as though such representations and warranties had been made on and as of
each such date.
By acceptance of an Advance, the Borrower warrants and represents that:
3.13. ORGANIZATION AND QUALIFICATION. To the extent required by
Governmental Requirement, the Borrower is duly qualified to conduct business in
the state in which the Project in respect of which such Advance is being made is
located.
3.14 RIGHT AND POWER; CORPORATE AUTHORITY. The Borrower has full
right, power and authority to execute and deliver the Loan Documents
contemplated by the provisions hereof for such Advance and to perform its
obligation thereunder. The Borrower has taken the necessary corporate action to
authorize the execution and deliver of such Loan Documents.
3.15. CONFLICT WITH OTHER INSTRUMENTS. The execution and delivery of
the Loan Documents contemplated by the provisions hereof for such Advance, the
consummation of the transactions contemplated thereby, and the compliance with
the terms, conditions and provisions thereof will not conflict with or result in
a breach of any of the terms, conditions or provisions of the articles or
certificate of incorporation or by-laws of the Borrower, or, to the Borrower's
actual knowledge, any law or any regulation, order, writ, injunction or decree
of any court or Governmental Authority or any agreement or instrument to which
the Borrower is a party or by which the Borrower or its properties or assets are
subject to or bound, or constitute a default thereunder or result in the
creation or imposition of any lien, charge, security interest or encumbrance of
any nature whatsoever upon the Project in respect of which such Advance is being
made or any other property of the Borrower pursuant to the terms of any such
agreement or instrument, except as created by the Loan Documents.
The execution and delivery of the Transaction Guaranty in respect of such
Advance, the Guarantor's guarantee contemplated thereby, and the compliance
with the terms, conditions and provisions thereof will not conflict with or
result in a breach of any of the terms, conditions or provisions of the
articles or certificate of incorporation or by-laws of the Guarantor, or, to the
Guarantor's actual knowledge, any law or any regulation, order, writ, injunction
or decree of any court or Governmental Authority or any agreement or instrument
to which the Guarantor is a party or by which the Guarantor or its properties or
assets are subject to or bound, including, without limitation, the Guarantor's
$150,000,000 Credit Agreement, or constitute a default thereunder or result in
the creation or imposition of any lien, charge, security interest or encumbrance
of any nature whatsoever upon any of the property of the Guarantor pursuant to
the terms of any such agreement or instrument.
3.16. AUTHORITY, VALIDITY AND BINDING EFFECT. The execution and
delivery of the Loan Documents contemplated by the provisions hereof for such
Advance, have been duly authorized by all necessary action on the part of the
Borrower, and no authorization, approval or consent by, or
17
filing with, any Governmental Authority or public regulatory authority is
necessary therefor. Such Loan Documents have been duly and validly executed
and delivered by the Borrower and constitute legal, valid and binding
obligations of the Borrower, enforceable in accordance with their terms,
except as the enforceability thereof may be limited by bankruptcy, insolvency
or other laws of general application affecting the enforcement of creditors'
rights generally and by principles of equity.
3.17 LITIGATION. There are no actions, suits or proceedings pending
or, to the Borrower's actual knowledge, threatened, against or affecting the
Project in respect of which such Advance is being made before any court or
Governmental Authority which might have a Material Adverse Effect on the
Borrower or such Project.
3.18 COMPLIANCE WITH GOVERNMENTAL REQUIREMENTS. The intended use of
the Project in respect of which such Advance is being made complies in all
material respects with all applicable Governmental Requirements, as the same may
be modified by any applicable variances and exceptions, and all material
provisions of any applicable restrictive covenants, and the Borrower has
obtained all material required permits with respect to the operation and use of
such Project.
3.19 UTILITY SERVICES. All utility services necessary for the use and
operation of the Project in respect of which such Advance is being made
contemplated by the Lease for such Project are available at the boundaries of
the Project and are located within a public right of way adjacent to the Project
or within an easement benefiting the Project, which easement is contiguous to
the Project and a public right of way, and, to the actual knowledge of Borrower,
such utilities have sufficient capacity to serve such Project.
3.20 HAZARDOUS MATERIALS; STORAGE CONTAINERS; WETLANDS. The Borrower
has not used Hazardous Materials on, from or affecting the Project in respect of
which such Advance is being made in any manner which violates any Governmental
Requirements or Hazardous Materials Laws, and, to the best of the Borrower's
knowledge, except as disclosed in any written reports and data provided to the
Bank, no prior owner of such Project or prior occupant thereof, has used
Hazardous Materials on, from or affecting the Project in any manner which
violates any Governmental Requirements or Hazardous Materials Laws. The
Borrower further represents to the Bank that, except as disclosed in any written
reports and data provided to the Bank, the Borrower has not received any notice
of any violations of Governmental Requirements or Hazardous Materials Laws
governing the use, storage, treatment, transportation, manufacture, refinement,
handling, production or disposal of Hazardous Materials at such Project and, to
the best of the Borrower's knowledge, there have been no actions commenced or
threatened by any party for non-compliance with any such laws or regulations at
such Project. The Borrower further represents that, except as disclosed in any
written reports and data provided to the Bank, no Storage Containers are located
on or under such Project, except in compliance with all applicable Hazardous
Materials Laws, and the Project does not contain any Wetlands.
3.21 COVENANTS AND RESTRICTIONS. There are no covenants, conditions or
restrictions of record or of which the Borrower has knowledge that prohibit the
Project in respect of which such Advance is being made from being used and
operated as contemplated by the Lease for such Project.
18
3.22 FLOOD HAZARD. Except as may be disclosed in any survey or flood
hazard certificate provided to the Bank, no part of the Improvements forming a
part of the Project in respect of which such Advance is being made are located
in or on an "area having special flood hazards" ("SFHA"), as that term is
defined in the Flood Disaster Protection Act of 1973, as amended by the 1994
National Flood Insurance Reform Act, and as otherwise amended. If such
Improvements (or any portion thereof) are located in an SFHA, the building floor
elevations of such Improvements are located at the height prescribed (if any) by
Governmental Requirements above the designated flood plain elevation for the
SFHA, as determined by FEMA. For purposes of this Paragraph 3.22, the defined
term Improvements shall include only walled and roofed buildings.
ARTICLE IV
CONDITIONS OF LENDING
The Borrower agrees that the obligation of the Bank to make an Advance is
subject to the accuracy in all material respects, as of the date hereof and the
date of such Advance of the representations and warranties contained herein and
under the other Loan Document, to performance by the Borrower of its agreements
to be performed hereunder and under the other Loan Document on or before the
date of such Advance, and to the satisfaction of the following further
conditions:
4.01. INITIAL ADVANCE. Prior to the initial Advance by the Bank:
a. ORGANIZATIONAL DOCUMENTS. There shall have been furnished
to the Bank by the Borrower:
i. A copy of the articles or certificate of incorporation
of the Borrower, together with any and all amendments thereto,
filed with the appropriate Governmental Authorities of the State
of Delaware;
ii. A copy of the by-laws of the Borrower, together with
any and all amendments thereto;
iii. An original or a copy of a Certificate of Existence for
the Borrower issued by the Secretary of State of Delaware bearing
a recent date;
iv. A copy of the resolutions of the Board of Directors
of the Borrower authorizing the Loan and the execution of this
Agreement and the Note;
v. A copy of the articles or certificate of
incorporation for the Guarantor, together with any and all
amendments thereto;
vi. A copy of the by-laws of the Guarantor, together
with any and all amendments thereto; and
19
vii. An original or a copy of a Certificate of Existence
for the Guarantor issued by the Secretary of State of Delaware
bearing a recent date.
b. BORROWER'S COUNSEL OPINION. The Borrower shall furnish to
the Bank an opinion of counsel for the Borrower and the Guarantor in form
and substance similar to that attached hereto as EXHIBIT L-1, with blanks
appropriately completed.
c. NOTE. The Borrower shall have executed and delivered to
the Bank the Note with blanks appropriately completed.
d. COMMITMENT FEE. The Borrower shall have paid to the Bank
the Commitment Fee. The Commitment Fee shall be paid on the Closing
Date.
4.02 ADVANCE FOR A SPECIFIC PROJECT. Concurrently with or prior to an
Advance in respect of a specific Project, the Borrower shall have satisfied each
of the following conditions:
a. ORGANIZATIONAL DOCUMENTS. There shall have been furnished
to the Bank by the Borrower:
i. A certificate of the Borrower, certifying that no
amendments or modifications have been made to the articles of
incorporation or by-laws of the Borrower furnished to the Bank
pursuant to Section 4.01(a) hereof, other than such amendments or
modifications as have been furnished to the Bank pursuant to
Section 6.14 hereof.
ii. An original or copy of a Certificate of Existence
for the Borrower issued by the Secretary of State of Delaware
bearing a recent date;
iii. To the extent required by Governmental Requirement,
an original or copy of a Certificate of Authority for the Borrower
as a foreign corporation doing business in the state in which the
Project in respect of which such Advance is being made is located;
iv. A copy of the resolutions of the Board of Directors
of the Borrower authorizing the Advance and the execution of the
Loan Documents contemplated by the provisions hereof for such
Advance;
v. A certificate of the Guarantor certifying that no
amendments or modifications have been made to the articles of
incorporation or by-laws of the Guarantor furnished to the Bank
pursuant to Section 4.01(a) hereof, other than such amendments or
modifications as have been furnished to the Bank pursuant to
Section 6.14 hereof;
vi. An original or copy of a Certificate of Existence
for the Guarantor issued by the Secretary of State of Delaware
bearing a recent date; and
20
vii. A copy of the resolutions of the Board of Directors
of the Guarantor authorizing the Transaction Guaranty for such
Advance or for all Advances made pursuant to this Agreement.
b. BORROWER'S COUNSEL OPINION. The Borrower shall furnish to
the Bank the opinions of counsel for the Borrower and the Guarantor in
form and substance similar to that attached hereto as EXHIBIT L-2, with
blanks appropriately completed, and EXHIBIT L-3, with blanks completed
appropriately.
c. PROJECT AGREEMENT. The Bank and the Borrower shall have
entered into a satisfactory Project Agreement in respect of such Advance.
d. SECURITY DOCUMENTS. There shall have been executed and
delivered to the Bank the following security documents with respect to
such Project:
i. a Mortgage which shall constitute a first
mortgage or deed of trust lien, as applicable, on the
Borrower's fee simple interest in such Project;
ii. an Assignment of Rents and Leases pursuant to
which the Borrower shall have collaterally assigned to the
Bank all the right, title and interest of the Borrower as
landlord in and to all existing and future leases of space
in such Project, including, without limitation, the Lease
for such Project, and all rentals and other monies due and
to become due under said leases;
iii. an Assignment pursuant to which the Borrower
shall have collaterally assigned to the Bank all the right,
title and interest of the Borrower in and to the permits,
licenses, warranties and other agreements in respect of
such Project;
iv. If the Borrower has then entered into a
Project Purchase Agreement for such Project, a Collateral
Assignment of Purchase Agreement pursuant to which the
Borrower shall have collaterally assigned to the Bank all
the right, title and interest of the Borrower in, to and
under such Project Purchase Agreement and the Deposit made
thereunder; and
v. Such financing statements as are deemed
necessary by the Bank to perfect the security interests
granted under the Loan Documents executed in respect of
such Project, which financing statements shall be on forms
prescribed by the laws of the state in which such Project
is located and which financing statements will have
attached thereto a legal description of such Project and an
exhibit in the form and substance similar to that attached
hereto as EXHIBIT M.
21
Each of the above-described collateral documents shall be properly
completed and reflect only such further changes as may be necessary to
comply with the requirements of the jurisdiction in which such Project is
located.
e. TRANSACTION GUARANTY. The Guarantor shall have executed
and delivered to the Bank a Transaction Guaranty in respect of such
Advance pursuant to which the Guarantor shall have guaranteed the
obligations of the Borrower in respect of such Advance in accordance with
the terms thereof. Such Transaction Guaranty shall provide that the
amount guaranteed thereunder shall be limited to an amount equal to the
sum of (A) the product of (1) the Guarantor's Percentage, MULTIPLIED by
(2) the outstanding principal balance from time to time of the Advance;
PLUS (B) all interest outstanding in respect of such Advance from time to
time; PLUS (C) the costs of collection in respect of such Transaction
Guaranty. For purposes of a Transaction Guaranty, "Guarantor's
Percentage" shall be equal to (a) Ten Percent (10%), if the Tenant under
the Lease for the Project in respect of which such Advance is being made
has a Rating of A- or higher; (b) Twenty Five Percent (25%) if the Tenant
under the Lease for such Project has a Rating of BBB- or higher, but less
than A-; (c) Forty Percent (40%), if the Tenant under the Lease for such
Project has a Rating of BB+ or lower; and (d) Thirty Five Percent (35%),
if the Tenant under the Lease for such Project is Office Max (no matter
its Rating); provided, however, if no Event of Default is then
continuing, at such time as the Borrower provides to the Bank an executed
Project Purchase Agreement for such Project, together with evidence that
the Deposit required thereunder has been made, and the Borrower executes
and delivers to the Bank a Collateral Assignment of Purchase Agreement
with respect to such Purchase Agreement, "Guarantor's Percentage" for
purposes of such Transaction Guaranty shall be reduced to (a) Zero, if
the Tenant under the Lease for such Project has a Rating of A- or higher;
or (b) Ten Percent (10%) if the Tenant under the Lease for such Project
is Office Max or has a Rating of less than A-. The Bank will provide a
letter to the Borrower and the Guarantor to evidence each such reduction
in the Guarantor's Percentage. If prior to the payment in full of such
Advance, such Purchase Agreement is terminated for any reason, or the
closing thereunder does not occur, Guarantor's Percentage shall revert to
the percentage which would have been in effect had the Borrower not
provided to the Bank such Purchase Agreement.
f. BORROWER'S AFFIDAVIT. The Borrower shall have furnished to
the Bank an executed Borrower's Affidavit with respect to such Project.
g ENVIRONMENTAL INDEMNITY. The Borrower and the Guarantor
shall have furnished to the Bank an executed Environmental Indemnity
Agreement with respect to such Project.
h. TITLE POLICY. A Title Company shall have issued and
delivered to the Bank a policy of title insurance acceptable to the Bank
insuring the priority of the lien of the Mortgage encumbering such
Project in the amount of the Advance made in respect of such Project.
The Title Policy shall have an effective date of no earlier than the date
of such Advance, shall provide extended coverage (i.e., all preprinted
or standard exceptions shall be deleted), a 3.0 zoning endorsement (if
such endorsement is selected by the Borrower pursuant to Section
4.01(j)(i) hereof to evidence proper zoning of the Project), an access
22
endorsement, a comprehensive endorsement, a subdivision endorsement
(where necessary), a last dollar endorsement, a contiguity endorsement
(if needed), a revolving credit endorsement and affirmative coverage with
respect to filed or unfiled mechanic's lien (where available at
reasonable cost) and shall be subject only to such exceptions as may be
reasonably approved by the Bank.
i. SURVEY. The Borrower shall have furnished to the Bank an
Urban Class ALTA/ACSM Minimum Standard Detail Survey (including Items
1,3,4,6,7,8,9,10,11 and 13 of Table A thereof) of the Project Site
forming a part of such Project, made by a registered engineer or surveyor
licensed by the state in which such Project is located and reasonably
satisfactory to the Bank and the Title Company and certified to each of
them as of a date not more than sixty (60) days prior to the date of the
Advance made in respect of such Project showing the boundaries of such
Project Site, the actual location of the Improvements located on such
Project Site, all building setback lines, easements, rights of way and
encroachments affecting such Project Site and other matters apparent
thereon and the relation of such Project Site to public thoroughfares for
access purposes, certifying that the Improvements (excluding Improvements
that are not walled and roofed buildings) located on the Project Site are
not located within a special flood hazard area as defined by the Flood
Disaster Protection Act of 1973, and showing the number of the Flood
Insurance Rate Map on which such Project Site is shown and the date of
such map, and shall specify the flood hazard zone in which such Project
Site is situated. Such survey shall be reasonably acceptable to the Bank
and shall not disclose, in the Bank's reasonable opinion, any facts or
circumstances which affect or could affect the marketability of such
Project Site or the Borrower's ability to sell or finance such Project;
j. APPROVALS AND PERMITS. The Borrower shall submit to the
Bank evidence reasonably satisfactory to the Bank to the effect that:
i. The Project Site forming a part of such
Project is presently zoned to permit its use and operation
as contemplated by the Lease for such Project, which
evidence may be a 3.0 zoning endorsement issued by the
Title Company or a satisfactory opinion of counsel admitted
to practice in the state in which such Project is located
or a zoning confirmation letter of the Governmental
Authority having zoning jurisdiction over such Project;
ii. The Borrower has obtained such access
easements and utility easements, if any, as may be
reasonably necessary for the contemplated use of such
Project and such easements are insured under the Title
Policy;
iii. All required permits, licenses and approvals
for the use and operation of such Project (including a
permanent occupancy permit or a certificate of occupancy,
if issued by the jurisdiction in which such Project is
located) have been obtained from the applicable
Governmental Authorities; and
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iv. All utility services necessary for the
operation of such Project are available at the boundaries
of the Project Site forming a part of such Project and are
located within a public right of way adjacent to the
Project or within an easement benefiting the Project, which
easement is contiguous to the Project and a public right of
way, and all such utilities have the capacity necessary to
provide service to such Project.
k. INSURANCE. The Borrower shall have furnished to the Bank
the insurance required by the Mortgage encumbering such Project, together
with evidence of payment in full of the premiums thereon.
l. PLANS AND SPECIFICATIONS. To the extent the same are in
the Borrower's or its agent's possession, the Borrower shall have
furnished to the Bank for its review and reasonable approval the Plans
and Specifications for such Project.
m. APPRAISAL. The Bank shall have received a written
appraisal in the form of a limited summary report of the leased fee
market value and fee simple market value of such Project (a "Project
Appraisal"), which Project Appraisal shall use the self comparison
approach and the income capitalization approach. Such Project Appraisal
must disclose that the leased fee market value of such Project (excluding
the value of the Project allocable to any incidental real estate which is
contiguous to the leased real estate and improvements which the Borrower
is or was required to purchase as part of the acquisition of the leased
real estate and improvements) is not less than the Project Costs of such
Project. The appraiser providing a Project Appraisal will be selected
and directly engaged by the Bank. The cost of a Project Appraisal will
be charged to the Borrower and paid by the Borrower upon the funding of
the applicable Advance, or if such Advance does not fund, upon the
Borrower's receipt of an invoice therefor. Each Project Appraisal shall
be prepared in accordance with the Uniform Standards of Professional
Appraisal Practice applicable to Federally Related Transactions as set
out in Appendix A to the real estate appraisal regulations adopted by the
Office of the Comptroller of the Currency pursuant to the Financial
Institutions Reform, Recovery and Enforcement Act of 1989 (Sub-part C of
12 C.F.R. 34) and shall be prepared in response to an engagement letter
to be issued by the Bank. Prior to the initial Advance hereunder the
Bank and the Borrower shall agree upon a list of appraisers from which
the Bank shall select appraisers to provide the Appraisals required
hereunder.
n. INSPECTING ARCHITECT'S REPORT. If requested by the Bank,
the Bank shall have received a satisfactory report of an Inspecting
Architect for such Project. If the Bank has not received a report for
such Project within twenty (20) days after the Bank's receipt from the
Borrower of the materials identified on EXHIBIT B attached hereto for
such Project, this condition shall be deemed waived by the Bank with
respect to such Project.
o. PROJECT FEE. The Borrower shall have paid to the Bank the
Project Fee in respect of such Advance.
p. ENVIRONMENTAL REPORT. The Borrower shall have furnished to
the Bank a copy of an environmental report by an environmental
consulting company reasonably acceptable
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to the Bank (the "Environmental Report") showing that the
environmental condition of such Project is reasonably acceptable to
the Bank. The Environmental Report shall be addressed to the Bank,
or, in the alternative, the Borrower shall provide to the Bank a
letter of the consulting company that prepared the Environmental
Report pursuant to which such consulting company authorizes the Bank
to rely on the Environmental Report.
q. LEASE. The Borrower shall have furnished to the Bank an
executed Lease for such Project which Lease shall be a "triple net lease"
shall have a remaining term of not less than six (6) years (excluding
optional extension or renewal periods) and shall be in a form and content
reasonably acceptable to the Bank in all other respects, including rental
amounts payable thereunder. Such Lease or a separate document from the
Tenant which is party thereto shall include the agreement of such Tenant
to subordinate its interest thereunder to any first mortgage or deed of
trust on such Project upon the request of the mortgagee or the
beneficiary thereunder (a "Mortgagee") and to attorn to such Mortgagee or
any purchaser of such Project at a foreclosure sale or a sale made under
any power of sale or pursuant to a deed in lieu of foreclosure, provided
the Bank agrees to reasonable non-disturbance provisions if the Tenant
under such Lease is not in default beyond any applicable cure period
thereunder.
The Borrower shall use reasonable efforts to attempt to obtain the
following provisions in such Lease or separate document:
i. The Tenant party thereto shall agree to give
a Mortgagee by registered or certified mail, a copy of any
notice of default served upon the landlord, provided that
prior to such notice of default such Tenant has been
notified in writing, of the existence of such mortgage or
deed of trust and the address of such Mortgagee;
ii. A Mortgagee shall have sixty (60) days after
its receipt from such Tenant of written notice of a default
by the landlord under the such Lease to correct or cure
such default; and
iii. Such Tenant shall comply with all Hazardous
Materials Laws, and shall not store any Hazardous Materials
in, on or under such Project, except in accordance with
Hazardous Materials Laws.
r. SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT.
The Borrower shall have furnished to the Bank a Subordination,
Non-Disturbance and Attornment Agreement for such Project, executed by
the Borrower, the Bank and the Tenant leasing such Project.
s. DEBT SERVICE COVERAGE. The Debt Service Coverage for such
Project shall be no less than 1.05 to 1.0.
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t. NO EVENT OF DEFAULT. On the date of such Advance no Event
of Default shall have occurred and be continuing.
u. DAMAGE. On the date of such Advance, such Project such
shall not have been materially injured or damaged by fire or other
casualty.
v. TENANT ESTOPPEL. The Borrower shall have furnished to the
Bank a tenant estoppel letter in respect of such Project executed by the
Tenant leasing such Project in a form which is reasonably satisfactory to
the Bank and such Tenant, stating that the Lease is in full force and
effect, that landlord is not in default and that Tenant is not aware of
any amounts it could setoff against rent and including such other
statements as are reasonably required by the Bank.
w. PURCHASE AGREEMENT FOR ACQUISITION OF PROJECT. The
Borrower shall have furnished to the Bank a copy of the executed purchase
agreement pursuant to which the Borrower has acquired or will acquire
such Project and a copy of the closing statement therefor.
x. SFHA. If the Improvements (or any portion thereof) forming
a part of such Project (excluding Improvements that are not walled and
roofed buildings) are located in an SFHA:
i. The Borrower shall have furnished
evidence satisfactory to the Bank that the building
floor elevations of such Improvements are located at
the height (if any) prescribed by Governmental
Requirements above the designated flood plain
elevation for the SFHA, as determined by FEMA; and
ii. The Borrower shall have provided to
the Bank either: (A) the flood insurance required
by the Mortgage encumbering such Project, together
with evidence of payment in full of the premium
thereon, or (B) a copy of a Letter of Map Revision
("LOMR") issued by FEMA, removing such Project from
the SFHA as determined by FEMA.
y. LEGAL MATTERS. All legal matters incident to the making of
such Advance shall be reasonably satisfactory to the Bank and its
counsel.
The Borrower shall furnish each of the items required under Section
4.02(h), (i), (j),(p) and (q) at least ten (10) days prior to the making of such
Advance.
4.03. PROCEEDINGS AND DOCUMENTS. All legal details and proceedings in
connection with the transactions contemplated by this Agreement shall be in form
and substance reasonably satisfactory to counsel for the Bank, and the Bank
shall have received all such counterpart originals or certified or other copies
of such documents and proceedings in connection with such transactions, in form
and
26
substance, as to certification and otherwise, reasonably satisfactory to such
counsel, as the Bank or its counsel may request.
ARTICLE V
DISBURSEMENTS
5.01. ADVANCES. Subject to the terms and conditions hereof, and relying
upon the representations and warranties herein set forth, the Bank agrees to
make Advances to the Borrower in accordance with, and subject to the following
requirements and limitations:
a. REQUESTS FOR LOAN ADVANCES. Not less than five (5)
business days prior to the making of an Advance of a Project, the
Borrower shall submit to the Bank a Request for Advance in such form as
the Bank may require setting forth the total amount of the Advance which
is requested. Each Request for Advance and each receipt of the Advance
requested thereby shall constitute a certification by the Borrower that
the representations and warranties contained in Article III hereof are
true and correct on the date of such Request for Advance or such receipt,
as the case may be. The Borrower shall be entitled to only one (1)
Advance per Project.
b. BORROWING LIMITATIONS. No proceeds of the Loan may be used
to acquire properties constructed or financed with the proceeds of any
"Project Loan" made by the Bank under the terms of that certain Master
Construction Loan Agreement between the Bank and Xxxxxxxx Xxxx BTS, Inc.,
dated August 4, 1997, as the same has been or is amended, restated,
modified or replaced.
c. ADVANCES TO CURE DEFAULTS; ETC. Notwithstanding the
foregoing provisions of this Section 5.01, and without receiving Requests
for Advances for such Advances, the Bank may at any time or from time to
time (i) make Advances to cure any Event of Default or Conditional
Default, (ii) make Advances to pay interest on the Loan, (iii) make
Advances to pay the reasonable fees and expenses of counsel for the Bank;
and (iv) make Advances to pay the reasonable fees and expenses payable to
a Title Company for the issuance of a Title Policy. Any Advances made
pursuant to this subparagraph (c) shall be evidenced by the Note, as
fully as if made to the Borrower, and shall be paid by the Borrower upon
demand by the Bank. The Bank shall provide written notice to the
Borrower of each Advance made under this subparagraph (c).
d. ADVANCE AMOUNT. Notwithstanding any other provision
contained herein to the contrary, the maximum principal amount of the
Advance for a Project shall not exceed an amount equal to the lesser of:
(a) Ninety Percent (90%) of the Project Costs for such Project, if the
Tenant under the Lease for such Project has a Rating of BBB- or higher;
(b) or Eighty Percent (80%) of the Project Costs for such Project, if the
Tenant under the Lease for such Project is Office Max or has a Rating of
BB+ or lower.
e. ADVANCE LIMIT. An Advance for a specific Project shall not
be less than Five Hundred Thousand Dollars ($500,000) or more than Five
Million Dollars ($5,000,000).
27
f. BORROWER'S INVESTMENT. No Advance shall be made by the
Bank for a Project until such time as the Borrower has furnished
satisfactory evidence to the Bank that the Borrower has sufficient funds
to pay the excess, if any, of the Project Costs for such Project over
the amount of such Advance.
g. CREDIT RATINGS. Notwithstanding any other provisions
contained herein to the contrary, the aggregate amount of Advances
outstanding in respect of Projects leased to Tenants having a Rating of
below BBB- shall not exceed Ten Million Dollars ($10,000,000). For
purposes of this subparagraph (g), the Rating of a Tenant shall be its
Rating as of the date of the Advance for the Project leased to such
Tenant.
h. GEOGRAPHIC LIMITATION. Notwithstanding any other
provisions contained herein to the contrary, the aggregate amount of
Advances outstanding in respect of Projects located in a single
Metropolitan Statistical Area (as determined by reference to the Census
Bureau's Survey of Metropolitan Statistical Areas) shall not exceed Ten
Million Dollars ($10,000,000).
ARTICLE VI
BORROWER'S AFFIRMATIVE COVENANTS
The Borrower covenants that until payment in full of the Loan and
performance of all of the Borrower's other obligations under the Loan Documents:
6.01. FINANCIAL STATEMENTS. The Borrower will deliver or cause to be
delivered to the Bank:
a. As soon as practicable, but in any event within ninety (90)
days after the close of each fiscal year of Borrower, financial
statements of Borrower, prepared by Borrower, including a balance sheet,
statement of income and retained earnings and a statement of cash flows.
Such financial statements shall be accompanied by a certification of
accuracy by an authorized officer of the Borrower.
b. As soon as practicable, but in any event within sixty (60)
days after the end of each fiscal quarter (excluding the fiscal quarter
ending at the fiscal year end) of the Borrower, financial statements of
Borrower prepared by Borrower, including a balance sheet, statement of
income and retained earnings, a statement of cash flows. Such financial
statements shall be accompanied by a certification of accuracy by an
authorized officer of the Borrower;
c. As soon as practicable, but in any event within sixty (60)
days after the end of each fiscal quarter of Borrower, a Project
inventory status report which shall list each Project in respect of which
an Advance has been made and remains outstanding, the location of such
Project, the Tenant for such Project, the rent payable by such Tenant and
the takeout status of such Project;
28
d. Within sixty (60) days after the end of each Fiscal Quarter
(as defined in the Guarantors $150,000,000 Credit Agreement) of the
Guarantor a covenant compliance worksheet in a form approved by the Bank
for the Bank's use in determining the Guarantor's compliance with the
financial covenants set forth in Section 8.01(p) hereof;
e. As soon as possible, but in any event within ten (10) days
after the Borrower becomes aware thereof, a written statement signed by
the chief executive officer or the chief financial officer of the
Borrower describing any Reportable Event or Prohibited Transaction which
has occurred with respect to any Plan and the action which the Borrower
proposes to take with respect thereto; and
f. The Borrower will with reasonable promptness furnish to the
Bank such additional financial and other information respecting the
financial condition, business or operations of the Borrower as the Bank
may from time to time reasonably request.
All such financial statements shall be prepared in accordance with GAAP
applied on a basis consistent with prior practice unless otherwise specifically
noted thereon. The Borrower will with reasonable promptness furnish to the Bank
such additional financial and other information respecting the financial
condition, business or operations of the Borrower as the Bank may from time to
time reasonably request.
6.02. NOTICES. The Borrower will promptly give the Bank written notice
of:
a. the occurrence or existence of any Event of Default of
which the Borrower has actual knowledge, together with a written
statement of the action being taken by the Borrower to remedy such Event
of Default; and
b. all litigation or proceedings before any court or
Governmental Authority affecting the Borrower or its properties that the
Borrower reasonably determines may have a Material Adverse Effect or that
affects the use or operation of a Project in respect of which an Advance
has been made and is outstanding.
6.03. ACCESS TO BOOKS AND INSPECTION. The Borrower will give any
officer or representative of the Bank access to, and permit such representative
to examine, copy or make extracts from, any and all books, records and documents
in the possession of the Borrower relating to the Projects financed with
proceeds of the Loan and to inspect such Projects (provided such inspections
shall not interfere with a Tenant's use of a Project), all at such reasonable
times and as often as the Bank may reasonably request; provided, however, that
the Bank shall have no obligation to make any such inspections nor have any
responsibility to the Borrower or any person, firm or corporation for any
defects or deficiency which may be or which would have been revealed by any such
inspection, whether or not discovered by the Bank.
6.04. GOVERNMENTAL REQUIREMENTS. The Borrower will comply with all
Governmental Requirements (including ERISA) and all material terms of
restrictive covenants applicable to the Projects in respect of which Advances
have been made and are outstanding.
29
6.05. MAINTENANCE. The Borrower will maintain each Project in respect
of which an Advance has been made and is outstanding in good repair and safe
condition at all times and indemnify and defend and hold the Bank harmless from
any and all claims relative to the use and occupancy of such Projects.
6.06. INSURANCE. The Borrower will maintain such insurance on each
Project as is required by the Mortgage encumbering such Project.
6.07. FURTHER ASSURANCES. The Borrower will execute, acknowledge when
appropriate, and deliver from time to time at the request of the Bank, such
instruments and documents as in the reasonable opinion of the Bank are necessary
or desirable to perfect the security interests required herein.
6.08. FAILURE TO PERFORM. If the Borrower neglects or refuses to pay
the costs, premiums, liabilities or other charges incurred in connection with
the Loan or otherwise fails to perform its covenants hereunder, the Bank may do
so and may add the cost thereof to the Loan as indebtedness evidenced by the
Note, and may collect the same from the Borrower upon demand with interest
thereon at the highest Default Rate until paid thereunder.
6.09. ENVIRONMENTAL. The Borrower covenants and agrees to keep or cause
each Project in respect of which an Advance has been made and remains
outstanding to be kept free of Hazardous Materials in violation of any
Governmental Requirement and, without limiting the foregoing, the Borrower shall
not cause or permit any such Project to be used to generate, manufacture,
refine, transport, treat, store, handle, dispose of, transfer, produce or
process Hazardous Materials, except in compliance with all applicable
Governmental Requirements, nor shall the Borrower cause or permit, as a result
of any intentional or unintentional act or omission on the part of the Borrower
or any tenant, subtenant or occupant, a release of Hazardous Materials in
violation of any Governmental Requirement onto any such Project or onto any
other property.
If Hazardous Materials are present at a Project in violation of the
requirements of this Section 6.09, the Borrower shall:
a. conduct and complete all investigations, studies, sampling
and testing, and all remedial, removal and other actions necessary to
clean up and remove all Hazardous Materials on, under or from such
Project in accordance with all applicable federal, state and local laws,
ordinances, rules, regulations and policies (including, without
limitation, Hazardous Materials Laws), to the reasonable satisfaction of
the Bank, and in accordance with the orders and directives of all
Governmental Authorities;
b. defend, indemnify and hold harmless the Bank, its
employees, agents, officers and directors (the "Bank Indemnified
Parties") from and against any claims, demands, penalties, fines,
liabilities, settlements, damages, costs or expenses of whatever kind or
nature, known or unknown, contingent or otherwise, arising out of or in
any way related to ("Environmental Losses").
30
i. the presence, disposal, release or threatened
release of any Hazardous Materials on, over, under, from or
affecting such Project or the soil, water, vegetation,
buildings, personal property, persons or animals thereon;
ii. any personal injury (including wrongful
death) or property damage (real or personal) arising out of
or related to such Hazardous Materials;
iii. any lawsuit brought or threatened, settlement
reached or government order relating to such Hazardous
Materials; and/or
iv. any violation of laws, orders, regulations,
requirements or demands of Governmental Authorities, which
are based upon or in any way related to such Hazardous
Materials, including, without limitation, attorney's and
consultant's fees, investigation and laboratory fees, court
costs and litigation expenses.
Notwithstanding any provision hereof, the Borrower does not indemnify the
Bank Indemnified Parties against any Environmental Losses (i) caused by any Bank
Indemnified Party, (ii) arising from the breach, violation or threatened
violation of any applicable Hazardous Materials Laws which first occurs after
the Bank takes actual possession of a Project pursuant to a foreclosure of the
Mortgage encumbering the same or pursuant to a transfer pursuant to a power of
sale or deed in lieu of foreclosure thereof; or (iii) any release, discharge,
disposal or presence of Hazardous Materials caused by a receiver of a Project or
which first occurs while a receiver is in possession of such Project. The
Borrower's obligations under this Section 6.09 with respect to a Project shall
be terminated two (2) years after the payment in full of the Advance made in
respect of such Project; provided, however, the Borrower shall remain liable and
obligated hereunder with respect to any claim asserted in writing against the
Borrower by the Bank hereunder with respect to such Project prior to the
expiration of such two (2) year period.
6.10. PERSONAL PROPERTY. Except for the security interest granted by
the Mortgage encumbering a Project, the Borrower will be the sole owner of all
Personal Property and Fixtures incorporated into such Project, free from any
adverse lien, security interest, encumbrance or adverse claims thereon of any
kind whatsoever. The Borrower will notify the Bank of, and will defend such
Personal Property and Fixtures against, all claims and demands of all persons at
any time claiming the same or any interest therein. Such Personal Property and
Fixtures will not be used or bought for personal, family or household purposes.
Such Personal Property and Fixtures will be kept on or at such Project and the
Borrower will not remove such Personal Property or Fixtures from such Project
without the prior written consent of the Bank, except such portions or items of
such Personal Property or fixtures which are consumed or worn out in ordinary
usage, all of which shall be promptly replaced by the Borrower. All covenants
and obligations of the Borrower contained herein and in the Loan Document shall
be deemed to apply to such Personal Property or Fixtures whether or not
expressly referred to herein or therein.
31
6.11. FINANCING STATEMENTS. At the request of the Bank, the Borrower
will join the Bank in executing one or more financing statements and renewals
and amendments thereof pursuant to the Uniform Commercial Code of the state in
which a Project is located in form satisfactory to the Bank, and will pay the
cost of filing the same in all public offices wherever filing is deemed by the
Bank to be necessary or desirable.
6.12. PROJECT PURCHASE AGREEMENT. If after the funding of an Advance,
the Borrower enters into a Project Purchase Agreement for the Project in respect
of which such Advance was made, the Borrower shall provide to the Bank:
a. A copy of such Project Purchase Agreement, together
with evidence that the Deposit required thereunder has been made;
and
b. An executed Collateral Assignment of Purchase
Agreement pursuant to which the Borrower shall have collaterally
assigned to the Bank all right, title and interest of the Borrower
in, to and under such Project Purchase Agreement.
6.13 BORROWER'S CORPORATE EXISTENCE. The Borrower shall preserve its
corporate existence.
6.14 ORGANIZATIONAL DOCUMENTS. The Borrower shall provide to the Bank
copies of any amendments or modifications to, or replacements of, the Borrower's
certificate or articles of incorporation or by-laws. The Borrower shall cause
to be provided to the Bank copies of any amendments or modifications to, or
replacements of, the Guarantor's certificate or articles of incorporation or
by-laws.
ARTICLE VII
BORROWER'S NEGATIVE COVENANTS
The Borrower covenants that until payment in full of Loan and performance
of all of the Borrower's other obligations under the Loan Documents:
7.01. PROHIBITION UPON TRANSFER, SECONDARY FINANCING. The Borrower
shall not convey, sell (other than pursuant to a Project Purchase Agreement),
lease (other than pursuant to a Lease) or otherwise dispose of all or any part
of a Project in respect of which an Advance has been made and remains
outstanding or any interest therein (legal or equitable), or grant any security
interest with respect to such Project without the prior written consent of the
Bank, unless in connection therewith the outstanding principal balance of such
Advance is fully paid.
7.02. EASEMENTS. The Borrower will not enter into any easement
affecting the Project Site forming a part of a Project in respect of which an
Advance has been made and remains outstanding without first obtaining the Bank's
written approval of such easement and the terms and conditions thereof;
provided, however, no such approval shall be required if such easement is
granted in the ordinary course of business and provides reasonable benefit to
such Project. The Borrower shall
32
provide to the Bank an executed copy of any easement entered into in respect
of a Project in respect of which an Advance has been made and remains
outstanding.
7.03. LEASE/PROJECT PURCHASE AGREEMENT. The Borrower will not modify,
amend, alter, terminate or cancel the Lease for a Project in respect of which an
Advance has been made and remains outstanding, or assign, transfer, pledge or
encumber any of its right, title or interest thereunder, without the Bank's
prior written consent. The Bank shall not unreasonably withhold or delay its
consent to a modification, amendment or alteration to such a Lease. If the
Borrower enters into a Project Purchase Agreement for a Project in respect of
which an Advance has been made and remains outstanding, the Borrower will not
assign, transfer, pledge or encumber any of its right, title or interest
thereunder, without the Bank's written consent, nor will the Borrower modify,
amend, alter, terminate or cancel such Project Purchase Agreement, without the
Bank's prior written consent, which consent shall not be unreasonably withheld
or delayed; provided, however, the Borrower may, without the prior written
consent of the Bank, (a) amend such Project Purchase Agreement to extend the
closing date thereunder so long as the closing date thereunder is at least ten
(10) days before the Advance Maturity Date for such Advance, and (b) amend such
Project Purchase Agreement to adjust the purchase price thereunder and provide
for adjustments thereunder so long as the Net Sales Price resulting from the
sale of such Project is not less than the amount of the Advance made in respect
of such Project. The Borrower shall provide notice to the Bank of the
termination or cancellation of such a Project Purchase Agreement within two (2)
business days after the effect thereof. The Borrower shall provide to the Bank
copies of any amendment or modification to a Project Purchase Agreement within
two (2) business days after the execution thereof.
7.04 MARGIN STOCK. The Borrower shall not use or cause or permit any
of the proceeds of the Loan to be used, either directly or indirectly, for the
purpose whether immediate, incidental or remote of purchasing or carrying any
margin stock within the meaning of Regulation U or of extending credit to others
for the purpose of purchasing or carrying any margin stock, and the Borrower
shall furnish to the Bank, upon its request, a statement in conformity with the
requirements of Federal Reserve Board Form U-1 referred to in Regulation U.
Further, no part of the proceeds of the Loan will be used for any purpose that
violates, or which is inconsistent with, the provisions of Regulations G, T, U
or X of the Board of Governors of the Federal Reserve System.
7.05 CHANGE NAME AND PLACE OF BUSINESS. The Borrower shall not change
its corporate name or principal place of business, except on not less than
fifteen (15) days' prior written notice to the Bank.
7.06 BENEFIT PLANS. The Borrower shall not permit any condition to
exist in connection with any employee benefit plan which might constitute
grounds for the PBGC to institute proceedings to have the employee benefit plan
terminated or a trustee appointed to administer the employee benefit plan; or
engage in, or permit to exist or occur any other condition, event or transaction
with respect to any employee benefit plan which could result in the Borrower
incurring any material liability, fine or penalty.
7.07 RESTRICTIVE AGREEMENTS. The Borrower shall not enter into any
agreement prohibiting the ability of the Borrower to amend or otherwise modify
this Agreement or any other Loan Document.
33
ARTICLE VIII
DEFAULTS
8.01. EVENTS OF DEFAULT. The Borrower agrees each of the following
described events shall constitute an "Event of Default" hereunder:
a. The Borrower shall fail to make any payment under the Note
within ten (10) days after the date the same is due and payable; or
b. Any representation or warranty made by the Borrower herein,
in any other Loan Document or in any certificate, financial statement or
other document furnished by the Borrower pursuant to the provisions
hereof, shall prove to have been materially false or misleading as of the
time made or furnished, and the Borrower does not, within thirty (30)
days after the earlier of receiving written notice from the Bank or the
Borrower's own determination that such representation or warranty is
false or misleading, commence and complete such actions as are necessary
to make such warranty or representation true and accurate; provided,
however, that the Borrower shall not be entitled to the foregoing cure
period if, the Borrower had actual knowledge that such representation or
warranty was false or misleading when made; or
c. The Borrower shall default in the performance or observance
of the covenant contained in Section 7.06 hereof, and such default has
not been cured or corrected within thirty (30) days following written
notice from the Bank to the Borrower; provided, however, that if such
default is of such a nature that it cannot be cured or corrected within
such thirty (30) day period, the Borrower shall be entitled to such
additional time as may be necessary to cure or correct such default if
the Borrower promptly commences such cure or corrective action and
diligently pursues such cure or corrective action to completion; or
d. The Borrower shall default in the performance or observance
of any other covenant contained in Article VII; or
e. The Borrower shall default in the performance or observance
of any other covenant, condition or provision herein contained, and such
default has not been cured or corrected within thirty (30) days
following written notice from the Bank to the Borrower; provided,
however, that if such default is of such a nature that it cannot be cured
or corrected within such thirty (30) day period, the Borrower shall be
entitled to such additional time as may be necessary to cure or correct
such default if the Borrower promptly commences such cure or corrective
action and diligently pursues such cure or corrective action to
completion; or
f. The Borrower shall default in the performance or observance
of any covenant, condition or provision contained in any other Loan
Document to which the Borrower is a party, and such default shall
continue uncured after any applicable cure or grace period, or if such
Loan Document does not contain an applicable cure period, such default
has not been cured or corrected within thirty (30) days following written
notice from the Bank to the
34
Borrower; provided, however, that if such default is of such a nature
that it cannot be cured or corrected within such thirty (30) day period,
the Borrower shall be entitled to such additional time as may be
necessary to cure or correct such default if the Borrower promptly
commences such cure or corrective action and diligently pursues such
cure or corrective action to completion; or
g. The Borrower shall neglect, refuse or fail to keep in full
force and effect any permit or approval issued by any Governmental
Authority required for the occupancy or use of a Project in respect of
which an Advance has been made and remains outstanding and the same is
not reinstated within thirty (30) days after the Borrower receives notice
(from any source) that such permit or approval is no longer in full force
and effect; or
h. A Project in respect of which an Advance has been made and
remains outstanding, or any part thereof shall be condemned or damaged by
fire or other casualty in such manner as to preclude, in the Bank's sole
reasonable judgment, the restoration of the Improvements forming a part
of such Project by the Advance Maturity Date for the Advance made in
respect of such Project, and the Borrower fails to provide to the Bank
within thirty (30) days after such condemnation or damage evidence
reasonably satisfactory to the Bank of the Borrower's ability to repay
such Advance by the Advance Maturity Date therefor; or
i. An accurate survey of a Project Site at any time shall show
that any of the Improvements constructed thereon materially encroach upon
any street, easement, right of way or adjoining property or violate any
set back requirement, unless such encroachment or violation is
satisfactorily insured against under the Title Policy issued in respect
of such Project Site, or that any adjoining structure materially
encroaches on a Project Site, unless such encroachment is cured within
sixty (60) days following receipt of notice thereof by the Borrower; or
j. There is any material adverse change in the financial
condition of the Borrower or the Guarantor which is not cured within
thirty (30) days following written notice from the Bank to the Borrower;
or
k. A writ of execution or attachment or any similar process
shall be issued or levied against all or any part of or interest in a
Project in respect of which an Advance has been made and remains
outstanding, or any judgment involving monetary damages shall be entered
against the Borrower which shall become a lien on a Project in respect of
which an Advance has been made and remains outstanding or any portion
thereof or interest therein and such execution, attachment or similar
process or judgment is not released, bonded, satisfied, vacated or stayed
within sixty (60) days after its entry or levy; or
l. The Borrower or the Guarantor shall file a voluntary
petition in bankruptcy or shall file any petition or answer seeking or
acquiescing in any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief for itself under
any present or future federal, state or other statute, law or regulation
relating to bankruptcy, insolvency or other relief for debtors; or shall
seek or consent to or acquiesce in the appointment of any trustee,
receiver, liquidator, assignee, custodian, sequestrator (or other similar
official) of the
35
Borrower or the Guarantor, or of all or any part of a Project in
respect of which an Advance has been made and remains outstanding, or
of any or all of the royalties, revenues, rents, issues or profits
thereof, or shall make any general assignment for the benefit of
creditors, or shall admit in writing its inability to pay its debts,
as the case may be, generally as they become due, or shall become
insolvent or unable to pay its debts as they mature, or shall make a
general assignment for the benefit of creditors, or shall voluntarily
suspend transaction of its business or take any corporate action in
furtherance of the foregoing; or
m. A court of competent jurisdiction shall enter an order,
judgment or decree adjudicating the Borrower or the Guarantor as bankrupt
or insolvent or approving a petition filed against the Borrower or the
Guarantor seeking any reorganization, dissolution or similar relief under
any present or future federal, state or other statute, law or regulation
relating to bankruptcy, insolvency, or other relief for debtors, and such
order, judgment or decree shall remain unvacated and unstayed for an
aggregate of sixty (60) days (whether or not consecutive) from the first
date of entry thereof; or any trustee, receiver or liquidator of the
Borrower or the Guarantor or of all or any part of a Project in respect
of which an Advance has been made and remains outstanding, or of any or
all of the royalties, revenues, rents, issues or profits thereof, shall
be appointed without the consent or acquiescence of the Borrower or the
Guarantor, as the case may be, and such appointment shall remain
unvacated and unstayed for an aggregate period of sixty (60) days
(whether or not consecutive); or
n. The Borrower has breached or defaulted under the Lease for
a Project in respect of which an Advance has been made and is
outstanding, and such breach or default has not been cured or corrected
within any applicable cure period provided under such Lease; or
o. Any shareholder of the Borrower, sells, assigns,
hypothecates, pledges or otherwise transfers its interest as a
shareholder of the Borrower; provided however, it shall not be an Event
of Default if a shareholder of Borrower transfers or assigns its interest
as a shareholder of the Borrower to Guarantor or any entity of which
Guarantor is and remains the general partner or managing member or of
which Guarantor owns more than a Fifty Percent (50%) ownership and voting
interest.
p. Guarantor shall:
i. Permit the Equity Value, as of the end of any Fiscal
Quarter, to be less than Two Hundred Fifty Million Dollars
($250,000,000);
ii. Permit the Total Leverage Ratio, as of the end of
any Fiscal Quarter to exceed 4.0 to 1.0;
iii. Permit the Interest Coverage Ratio, as of the end of
any Fiscal Quarter, to be less than 3.0 to 1.0;
iv. Permit Liquid Assets, as of the end of any Fiscal
Quarter, to be less than Fifteen Million Dollars ($15,000,000); or
36
v. Permit the ratio of Current Assets to Current
Liabilities, as of the end of any Fiscal Quarter, to be less than
1.5 to 1.0., or
q. there occurs a Reportable Event or a Prohibited Transaction
under, or any complete or partial withdrawal from, or any other event
which would constitute grounds for termination of or the appointment of a
trustee to administer, any "plan" maintained by the Borrower or any ERISA
Affiliate for the benefit of its "employees" (as such terms are defined
in ERISA) which could have a Material Adverse Effect.
If any Event of Default described in 8.01(l) or (m) occurs the Bank shall
be under no further obligation to make any Advances and the Loan and all
interest accrued thereon and any penalty or premium thereunder and all other
liabilities of the Borrower hereunder, thereunder and under the other Loan
Documents shall thereupon become and be immediately due and payable without any
election or action on the part of the Bank, and without presentment, demand,
protest, or notice of any kind, all of which are hereby expressly waived, and if
any other Event of Default described in Section 8.01 occurs, the Bank may
terminate its commitment to make Advances hereunder and declare the Loan and all
interest accrued thereon and any penalty or premium thereunder pursuant to
Section 2.08 hereof and all other liabilities of the Borrower hereunder,
thereunder and under the other Loan Documents to be due and payable, whereupon
the same shall become and be immediately due and payable without presentment,
demand, protest or notice of any kind, all of which are hereby expressly waived.
8.02. SPECIAL REMEDIES. If an Event of Default shall exist, the Bank
shall have the right, in addition to any rights or remedies available to it
under the Loan Documents or otherwise available to it at law or in equity, to
enter upon and take possession of the Projects in respect of which Advances have
been made and are then outstanding. For purposes of this Section 8.03, the
Borrower agrees that the Bank shall have the right, and hereby irrevocably
constitutes and appoints the Bank its true and lawful attorney-in-fact, coupled
with an interest, with full power of substitution, to (i) prosecute and defend
all actions or proceedings in connection with the Projects in respect of which
Advances have been made and are then outstanding and to take such action and
require such performance as the Bank deems necessary in connection therewith;
and (ii) generally do any and every act with respect to the occupancy and use of
such Projects as the Borrower may do in its own behalf. Should the unadvanced
portion of the Loan be insufficient to pay the sums expended or incurred by the
Bank for any of the foregoing purposes, the amount of the deficiency shall be
added to the indebtedness evidenced by the Note and in all events shall be
secured by the lien of the Loan Documents and shall be paid by the Borrower to
the Bank on demand with interest thereon at the respective Default Rates until
paid.
ARTICLE IX
MISCELLANEOUS
9.01. NO IMPLIED WAIVER; CUMULATIVE REMEDIES; WRITING REQUIRED. No
delay or failure of the Bank in exercising any right, power or privilege
hereunder (or under any Loan Document) shall affect such right, power or
privilege, nor shall any single or partial exercise thereof or any
37
abandonment or discontinuance of steps to enforce such a right, power or
privilege preclude any further exercise thereof or of any other right, power
or privilege. The rights and remedies of the Bank hereunder and under the
other Loan Documents are cumulative and not exclusive of any rights or
remedies which it would otherwise have. Any waiver, permit, consent or
approval of any kind or character on the part of the Bank of any breach or
default under this Agreement or any other Loan Document, or any waiver by the
Bank of any provision or condition of this Agreement or any other Loan
Document, must be in writing and shall be effective only to the extent as may
be specifically set forth in such writing.
9.02. TAXES. The Borrower shall pay any and all stamp, document,
mortgage, intangibles, transfer and recording taxes, fees (including notary fees
and mortgage/deed of trust release fees) and similar impositions payable or
hereafter determined to be payable in connection with the execution, delivery
and/or recording and release of the Loan Documents, and the Borrower agrees to
save the Bank harmless from and against any and all present or future claims or
liabilities with respect to, or resulting from, any delay in paying or omitting
to pay any such taxes, fees or similar impositions.
9.03. MODIFICATIONS AND AMENDMENTS. Upon execution thereof, each
Project Agreement shall automatically be deemed to be an amendment of this
Agreement, which amendment shall apply, however, only to the Project which is
the subject of such Project Agreement.
9.04. HOLIDAYS. Except as otherwise provided herein, whenever any
payment or action to be made or taken under any of the Loan Documents shall be
stated to be due or to be performed on a day which is not a business day, such
payment or action shall be made or taken on the next-following business day and
such extension of time shall be included in computing interest or fees, if any,
in connection with such payment or action.
9.05. NOTICES. All notices, statements, requests and demands given to
or made upon either party hereto in accordance with the provisions of this
Agreement shall be deemed to have been given or made three (3) days after the
same are deposited in the United States mail, postage prepaid, or immediately
upon receipt, if delivered by courier, addressed as follows:
If to the Bank: KeyBank National Association
00 Xxxx Xxxxxx Xxxxxx
0xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxx
If to the Borrower: TCC NNN Trading, Inc.
c/o Xxxxxxxx Xxxx Company
0000 Xxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
ATTN: Xxxxx Xxxxxx
With a copy to: Xxxxx X. XxXxxxx
38
Xxxxxxxxxx Xxxxx Xxxxxx & Xxxxxxxxxx, P.C.
Twenty Second Floor
000 Xxxxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
or in accordance with the latest unrevoked written direction from either party
to the other party hereto. Failure of Bank to furnish the Borrower's attorney
with a copy of any notice provided to the Borrower hereunder shall not be deemed
a failure of the Bank to provide the Borrower with such notice and shall not
affect, or in any way prevent or estop the Bank from exercising, any right or
remedy of the Bank hereunder or under any of the other Loan Documents.
9.06. REIMBURSEMENT FOR CERTAIN EXPENSES. All costs incidental to the
Loan and all Advances thereof, including, but not limited to, title insurance
premiums, survey charges, appraisal fees, insurance premiums, inspecting
engineers' and/or architects' fees, attorneys' costs and fees and any and all
other incidental expenses of the Bank, shall be paid by the Borrower. All such
fees and expenses shall be paid upon the receipt of a statement therefor.
9.07. NO THIRD PARTY RIGHTS. Nothing in this Agreement, whether express
or implied, shall be construed to give to any person other than the parties
hereto any legal or equitable right, remedy or claim under or in respect of this
Agreement or any other Loan Document, which is intended for the sole and
exclusive benefit of the parties hereto and thereto.
9.08. INTEREST LIMITATION. Notwithstanding anything to the contrary
contained herein or in any of the other Loan Documents, the obligations of the
Borrower to the Bank under this Agreement and any other Loan Documents are
subject to the limitation that payments of interest to the Bank shall not be
required to the extent that receipt by the Bank of any such payment by the
Borrower would be contrary to provisions of governmental requirements applicable
to the Bank which limit the maximum rate of interest which may be charged or
collected by the Bank.
9.09. SEVERABILITY. The provisions of this Agreement are intended to be
severable. If 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.
9.10. GOVERNING LAW. THE BORROWER AGREES WITH BANK THAT, EXCEPT AS
EXPRESSLY SET FORTH IN THE MORTGAGES AND THE ASSIGNMENTS OF RENTS AND ANY OTHER
LOAN DOCUMENTS, THE LAW OF THE STATE OF INDIANA SHALL GOVERN ALL MATTERS
RELATING TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS AND ALL OF THE
INDEBTEDNESS OR OBLIGATIONS OF THE BORROWER ARISING HEREUNDER OR THEREUNDER.
THE BORROWER (a) SHALL BE SUBJECT TO PERSONAL JURISDICTION IN THE STATE OF
INDIANA AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA LOCATED IN STATE
OF INDIANA (AND ANY APPELLATE COURTS TAKING APPEALS THEREFROM) FOR THE
ENFORCEMENT OF THE BORROWER'S OBLIGATIONS HEREUNDER AND UNDER THE OTHER LOAN
DOCUMENTS AND (b) WAIVES ANY AND ALL PERSONAL RIGHTS UNDER THE LAW
39
OF ANY OTHER STATE TO OBJECT TO JURISDICTION WITHIN INDIANA FOR THE PURPOSES
OF SUCH ACTION, SUIT, PROCEEDING OR LITIGATION TO ENFORCE SUCH OBLIGATIONS OF
THE BORROWER. THE BORROWER WAIVES AND AGREES NOT TO ASSERT, AS A DEFENSE IN
ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE OTHER LOAN DOCUMENTS (x) THAT IT IS NOT SUBJECT TO SUCH JURISDICTION OR
THAT SUCH ACTION, SUIT OR PROCEEDING MAY NOT BE BROUGHT OR IS NOT
MAINTAINABLE IN THOSE COURTS OR THAT THIS AGREEMENT AND SUCH OTHER LOAN
DOCUMENTS MAY NOT BE ENFORCED IN OR BY THOSE COURTS OR THAT IT IS EXEMPT OR
IMMUNE FROM EXECUTION, (y) THAT THE ACTION, SUIT OR PROCEEDING IS BROUGHT IN
AN INCONVENIENT FORUM, OR (z) THAT THE VENUE OF THE ACTION, SUIT OR
PROCEEDING IS IMPROPER. NOTHING IN THIS SECTION 9.10 SHALL BE DEEMED TO
PRECLUDE BANK FROM FILING ANY ACTION, SUIT OR PROCEEDING IN RESPECT OF THIS
AGREEMENT OR SUCH OTHER LOAN DOCUMENTS IN THE STATE IN WHICH THE BORROWER HAS
ITS CHIEF EXECUTIVE OFFICE OR THE FEDERAL COURTS OF THE UNITED STATES OF
AMERICA LOCATED IN THE STATE IN WHICH THE BORROWER HAS ITS CHIEF EXECUTIVE
OFFICE, OR, WITH RESPECT TO A SPECIFIC ADVANCE, THE STATE IN WHICH THE
PROJECT BEING ACQUIRED WITH SUCH ADVANCE IS LOCATED OR THE FEDERAL COURTS OF
THE UNITED STATES OF AMERICA LOCATED IN THE STATE IN WHICH THE PROJECT BEING
ACQUIRED WITH SUCH ADVANCE IS LOCATED.
9.11 CERTAIN FEES. No broker's or finder's fee or commission will be
payable with respect to the Loan, this Agreement, or the other Loan Documents,
or any of the transactions contemplated hereby, and the Borrower hereby
indemnifies the Bank against, and agrees that it will hold the Bank harmless
from, any claim, demand, or liability for any such broker's or finder's fee or
commission alleged to have been incurred in connection herewith or therewith and
any expenses (including reasonable fees, expenses, and disbursements of counsel)
arising in connection with any such claim, demand, or liability.
9.12. SURVIVAL. All representations, warranties, covenants, agreements
and obligations of the Borrower contained in this Agreement, as amended or
supplemented from time to time, shall survive the making of Advances and shall
continue in full force and effect so long as the Loan is outstanding and until
payment and performance in full of all of the Borrower's obligation thereunder
and under the Loan Documents.
9.13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which, when so executed and delivered by the parties, shall constitute an
original but all such counterparts together constituting but one and the same
instrument.
9.14. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
shall inure to the benefit of the Bank, the Borrower and their respective
successors and assigns, except that the Borrower may not assign or transfer its
rights and obligations hereunder or any interest herein without the prior
written consent of the Bank.
40
9.15 TIME OF ESSENCE. Time is of the essence under the Loan Documents.
9.16 NO JOINT VENTURE. Notwithstanding anything to the contrary herein
contained or implied, the Bank, by this Agreement, or by any action pursuant
hereto, shall not be deemed to be a partner of, or a joint venturer with, the
Borrower, and the Borrower hereby indemnifies and agrees to defend and hold the
Bank harmless, including the payment of reasonable attorneys' fees, from any
loss resulting from any judicial construction of the parties' relationship as
such.
9.17. BANK NOT IN CONTROL. None of the covenants or other provisions
contained in the Loan Documents shall, or shall be deemed to, give the Bank the
rights or power to exercise control over the affairs and/or management of the
Borrower, the power of the Bank being limited to the right to exercise the
rights and remedies provided to it in the Loan Documents.
9.18. WAIVER OF JURY TRIAL. The Borrower and the Bank, after consulting
or having had the opportunity to consult with counsel, knowingly, voluntarily
and intentionally waives any right they may have to a trial by jury in any
litigation based upon or arising out of the Loan, this Agreement or any other
Loan Document or any of the transactions contemplated hereby or by any other
Loan Document or any course of conduct, dealing, statements, whether oral or
written, or actions of the Borrower or the Bank. Neither the Borrower nor the
Bank shall seek to consolidate, by counterclaim or otherwise, any action in
which a jury trial has been waived with any other action in which a jury trial
cannot be or has not been waived. These provisions shall not be deemed to have
been modified in any respect or relinquished by the Bank or the Borrower except
by written instrument executed by both the Borrower and the Bank.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
"BORROWER"
TCC NNN Trading, INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Printed: Xxxx X. Xxxxxx
----------------------------
Title: Vice President
------------------------------
41
"BANK"
KEYBANK NATIONAL ASSOCIATION, a
national banking association
By: /s/ Xxxxxxxx X. Xxxxx
---------------------------------
Printed: Xxxxxxxx X. Xxxxx
----------------------------
Title: Vice President
------------------------------
42
