EXHIBIT 10.70
LOAN AGREEMENT
WITH SOUTHTRUST BANK, N.A.
REVOLVING LOAN AGREEMENT
THIS REVOLVING LOAN AGREEMENT (this "Loan Agreement") is entered into as of
the 3rd day of September, 2000, by and between XXXXX OPERATING PARTNERSHIP,
L.P., a Delaware limited partnership ("Borrower"), and SOUTHTRUST BANK, NATIONAL
ASSOCIATION, a national banking association ("Lender").
R e c i t a l s:
Pursuant to a Commitment Letter dated April 7, 2000 (the "Commitment
Letter"), Lender has agreed, subject to the terms and conditions set forth
therein, to make available to Borrower a revolving credit facility in the
maximum principal amount of $35,000,000.00 (or, if lesser, the Borrowing Base
hereinafter described). Borrower and Lender have entered into this Loan
Agreement to establish the terms and conditions of the such revolving credit
facility.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants, agreements, and warranties hereinafter set forth and of the sum of
Ten Dollars ($10.00) in hand paid by each party hereto to the other, Borrower
agrees with Lender, and represents and warrants to Lender, and Lender agrees
with Borrower, as follows:
ARTICLE ONE - DEFINITIONS OF GENERAL APPLICATION
In addition to any other terms that are defined in this Loan Agreement, the
following terms shall have the following meanings unless the context hereof
otherwise indicates:
"Acquiring Person" means a "person" or "group of persons" within the
meaning of Sections 13(d) and 14(d) of the Securities Exchange Act of
1934, as amended, but shall not include any such person or group of persons
who buy shares pursuant to an offering filed with the Securities Exchange
Commission.
"Advance" means any principal advance under the Revolving Loan made by
Lender pursuant to the terms of this Loan Agreement.
"Advance Request" means a written request for an Advance delivered by
Borrower to Lender pursuant to Section 2.4 hereof.
"Affiliate" means, as to any Person, any other Person (i) who directly
or indirectly controls, is controlled by, or is under common control with
such Person, (ii) who is a substantial creditor, customer, or supplier of
such Person, (iii) who is a director, officer, manager, partner, member,
shareholder, employee, or employer of such Person, or (iv) who is a member
of the immediate family of such Person. "Control," as used in this
definition, shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ownership of voting securities, by contract or
otherwise, including the power to elect a majority of the directors or
trustees of a corporation or trust, as the case might be.
"Authorized Representative" means the Person or Persons designated as
such in Disbursement Authorization. If more than one Person is designated
as an Authorized Representative, then the provisions of this Loan Agreement
relating to the Authorized Representative shall apply to each such Person
individually, and not jointly with any or all other Persons designated as
the Authorized Representative.
"Borrowing Base" means, for any specified date, the amount equal to
the least of the following amounts:
(i) Sixty percent (60%) of the aggregate appraised fair market
value of Properties, as determined by Lender based upon the most
recent appraisals delivered to Lender pursuant to Section 3.2.4 or
Section 5.2.4 hereof; or
(ii) Seventy percent (70%) of the aggregate actual cost of
Borrower's acquisition and/or construction of the Properties, as
determined by Lender based upon information and data furnished to
Lender by Borrower and other independent sources reasonably acceptable
to Lender; or
(iii) The quotient of (A) the combined Net Operating Income from
the Properties for the Trailing 12 Month Period (unless Lender, in its
sole discretion, selects a shorter period of calculation), divided by
(B) the Debt Service Coverage Ratio, with the resulting figure being
further divided by (C) the Mortgage Constant.
"Borrower" means Xxxxx Operating Partnership, L.P., a Delaware limited
partnership, and its successors and permitted assigns under the terms of
this Loan Agreement.
"Borrower Party" means each of Borrower, any general partner of
Borrower, and Guarantor, and "Borrower Parties" means all of such Persons
collectively.
"Business Day" means a day which is not a public holiday and on which
banks in Atlanta, Georgia, are customarily open for business.
"Change in Control" means the earliest to occur of (i) the date on
which Xxxxx REIT ceases for any reason whatsover to be the sole general
partner of Borrower, or (ii) the date on which Xxxxx REIT shall cease for
any reason to be the holder of 90% of the voting interest of Borrower or to
own at least 90% of the equity, profits,or other limited partnership
interests in, or any other securities or ownership interests) of, Borrower,
or (c) the date on which any Acquiring Person becomes (by acquisition,
consolidation, merger or otherwise), directly or indirectly, the beneficial
owner of more than 20% of the total voting equity capital (or of any other
securities or ownership interest) of Xxxxx REIT then outstanding, or (d)
the replacement (other than solely by reason of retirement at age sixty-
five or older, death, or disability) of more than fifty percent (50%) (or
such lesser percentage as is required for
decision-making by the board of directors or an equivalent governing body)
of the members of the board of directors or an equivalent governing body)
of Xxxxx REIT over a one-year period from the directors who constituted
such board of directors at the beginning of such period and such
replacement shall not have been approved by a vote of at least a majority
of the board of directors of Xxxxx REIT then still in office who either
were members of such board of directors at the beginning of such one-year
period or whose election as members of the board of directors was
previously so approved.
"Closing Date" means the date on which the initial Advance is made by
Lender to Borrower hereunder.
"Collateral" means the Properties and other collateral from time to
time or at any time encumbered by the Security Documents, including all
after-acquired property and all other collateral from time to time given by
Borrower or any other Person to secure the Obligations.
"Collateral Addition Date" means the date on which any Property is
added to the Collateral Pool in accordance with the conditions set forth in
Article Three hereof.
"Collateral Pool" means the aggregate total of the Collateral.
"Commitment Letter" shall have the meaning assigned to such term in
the recitals to this Loan Agreement.
"Commitment Period" means the period beginning on the Closing Date and
ending on the date that is sixty (60) days before the Maturity Date.
"Debt Service Coverage Ratio" means 1.35.
"Default" means the occurrence of any event or circumstance that, but
for only the giving of any notice by Lender or the passage of any cure
period (or both) required under the terms of this Loan Agreement or any
other Loan Document, would constitute an Event of Default.
"Default Rate" shall have the meaning assigned to such term in the
Note.
"Event of Default" shall have the meaning assigned to such term in
Section 7.1 hereof.
"GAAP" means general accepted accounting principles, consistently
applied.
"Governmental Authority" means any court, board, agency, commission,
office, or authority of any nature whatsoever for any governmental or
quasi-governmental unit (federal, state, county, district, municipal, city,
or otherwise), whether now or hereafter in existence.
"Guarantor" means, whether one or more, all present or future
endorsers, Guarantor, and sureties of the Obligations (or any portion
thereof). The initial Guarantor is Xxxxx REIT.
"Guaranty Agreement" means each agreement or instrument at any time
executed by Guarantor for the benefit of Lender with respect to the
Obligations, as from time to time amended, replaced, restated,
supplemented, or consolidated pursuant to the applicable term thereof.
"Leases" means any and all existing and future leases, subleases,
rental agreements, and other occupancy agreements, whether oral or written
and whether or not of record, for the use or occupancy of any portion of
any Property, together with all amendments to, and renewals and extensions
of, said leases, subleases, rental agreements, and other occupancy
agreements, all guaranties with respect thereto, all work letter
agreements, improvements agreements, and other agreements with any tenant,
all default letters or notices, estoppel letters, rental adjustment
notices, escalations notices, and other correspondence in regard thereto,
and all credit reports and accounting records in regard thereto.
"Legal Requirement" and "Legal Requirements" means, as the case might
be, any one or more of all present and future laws, codes, ordinances,
orders, judgments, decrees, injunctions, rules, regulations, and
requirements, even if unforseen or extraordinary, of every duly constituted
Governmental Authority (but excluding those which by their terms are not
applicable to and do not impose any obligation on Borrower or any
Property), including, without limitation, the requirements and conditions
of any Permits and all covenants, restrictions, and conditions now or
hereafter of record that might be applicable to Borrower or any Property or
to the use, manner of use, occupancy, possession, operation, maintenance,
alteration, repair, or reconstruction of any Property, even if compliance
therewith (i) necessitates structural changes or improvements (including
changes required to comply with the Americans with Disabilities Act and
regulations promulgated thereunder) or results in interference with the use
or enjoyment of any Property or (ii) requires Borrower to carry insurance
other than as required by the provisions of this Loan Agreement, the
Leases, and the Loan Documents.
"Loan Account" means the depositary account established by Borrower
with Lender, as more particularly identified in the Disbursement
Authorization.
"Loan Agreement" means this Revolving Loan Agreement, as from time to
time amended, replaced, restated, supplemented, restated, or consolidated
pursuant to the applicable provisions hereof.
"Loan Documents" means collectively this Loan Agreement, the Note, the
Security Documents, the Guaranty Agreements, and any and all other
documents now or hereafter executed by Borrower, Guarantor, or any other
Person which evidences, relates to, is executed in connection with, or
secures the Loan.
"Management Agreement" means (i) that certain Management Agreement by
and between Xxxxx REIT, as owner, and Xxxxx Management Company, Inc., as
manager, dated January 30, 1998, and as assigned to Borrower pursuant to
that certain Assignment and Assumption of Management Agreement of even date
herewith, (ii) that certain Property Management Agreement by and between
CNMK HQ Investors, L.P., as owner, and Cinemark USA, Inc., as manager,
dated December 21, 1999, as assigned to Borrower pursuant to that certain
Assignment and Assumption of Property Management Agreement dated December
21, 1999, and (iii) any management agreement for the Property hereafter
approved in writing by Lender pursuant to the applicable provisions of the
Loan Documents.
"Manager" means the Person initially selected by Borrower to manage
the Property pursuant to the Management Agreement, and any replacement
manager of the Property hereafter approved in writing by Lender in
accordance with the applicable provisions of the Loan Documents.
"Material Adverse Effect" means, with respect to any circumstance,
act, condition, or event of whatever nature (including any adverse
determination in any litigation, arbitration, or governmental investigation
or proceeding), whether singly or in conjunction with any other event or
events, act or acts, condition or conditions, or circumstance or
circumstances, whether or not related, a material adverse change in or a
materially adverse effect upon any of (i) the business, operations,
property, or condition (financial or otherwise) of any Borrower Party, (ii)
the present or future ability of any Borrower Party to perform the
Obligations for which it is liable, (iii) the validity, priority,
perfection or enforceability of this Agreement or any other Loan Document
or the rights or remedies of the Lender under any Loan Document, or (iv)
the value of, or the Lender's ability to have recourse against, any
Collateral.
"Maturity Date" means June 10, 2002.
"Maximum Loan Amount" means the principal sum of $35,000,000.00.
"Mortgage Constant" means a mortgage constant of 10.07%, as such
mortgage constant may be adjusted from time to time in Lender's reasonable
judgment based upon Lender's then current permanent loan underwriting
criteria for projects comparable to the Properties.
"Net Operating Income" shall mean the net operating income for a
Property, as determined by Lender based on reasonable and prudent
underwriting standards and in accordance with GAAP, with the following
considerations and qualifications:
(i) Operating income shall be reduced by an sub-market
economic vacancy and collection adjustment, as determined by
Lender, unless the actual vacancy and collections adjustment for
a Property is higher, in which case Lender may, in its
discretion,
choose between the actual vacancy rate and collection adjustment
and the sub-market vacancy rate and collections adjustment;
(ii) operating income shall include sundry, parking, and
reimbursable expenses, to the extent reported on the Operating
Statements for the Property and deemed recurring and sustainable
(provided that aggregate other income shall not exceed five
percent (5%) of total gross income), and all extraordinary and
non-recurring income shall be excluded from operating income;
(iii) non-cash expenses shall be excluded from operating
expenses;
(iv) operating expenses, insurance, and real estate taxes
shall be determined on a Stabilized Basis (as defined below);
(v) the actual management fees payable pursuant to the
Management Agreement shall be treated as an operating expenses
during each month of the Trailing 12 Month Period;
(vi) a reasonable, market replacement reserve shall be
treated as an operating expense during each month of the Trailing
12 Month Period;
(vi) with respect to any Lease with a term that commenced
during the Trailing 12 Month Period, the minimum base rent from
such Lease shall be included in the calculation of Net Operating
Income as if such Lease had been in effect throughout the
Trailing 12 Month Period, provided that the Tenant thereunder has
accepted possession of its demised premises and as commenced
payment of minimum base rent prior to the end of the Trailing 12
Month Period;
(vii) rent payable pursuant to any Lease that is in
default or is subject to rental abatement, and any Lease that
expires or terminates (or the Tenant thereunder has the
unilateral right to terminate such Lease) during the Trailing 12
Month Period or shall expire within ninety (90) days following
the end of the Trailing 12 Month Period shall not be treated as
operating income; and
(viii) any discount, concession, free rent, allowance,
inducement, or other agreement whereby any item or consideration
of value of any nature (other than the right of occupancy of the
Tenant's demised premises) is granted or provided under any Lease
shall be prorated over the current term of such Lease for
purposes of calculating operating income.
"Obligations" means the aggregate of all principal and interest owing
from time to time under the Note, and all expenses, charges, and other
amounts from time to time owing under the Note, this Loan Agreement, or any
of the other Loan Documents, and all covenants, agreements, and other
obligations from time to time owing to, or for the benefit of, Lender
pursuant to the Note, this Loan Agreement, and the other Loan Documents.
"Officer's Certificate" means a certificate in the form of Exhibit B
attached hereto executed by the chief executive officer of the Person on
whose behalf such certificate is being executed (or, if applicable, the
chief executive officer of the general partner or manager of such Person).
"Operating Statement" shall mean any operating statement, including
income and expense statement and statement of cash flows, with respect to
the Property, of which shall be prepared in accordance with GAAP throughout
the periods covered by such statement and which fairly present the
financial condition of Borrower and the Property as of their respective
dates and the results of operations and changes in financing position of
Borrower and the Property for the periods then ended. Each Operating
Statement shall be prepared on an accrual basis or, in the alternative,
Borrower shall provide Lender all data necessary to constitute the
adjustments necessary to convert such Operating Statement to accrual basis
Operating Statement.
"Permits" means all licenses, permits, certificates, approvals,
authorizations, and registrations required by or obtained from any
Governmental Authority with respect to the construction, ownership, rental,
operation, use, or occupancy of the Property, including, without
limitation, business licenses, zoning approvals and variances, food and
beverage service licenses, and licenses to conduct business.
"Permitted Encumbrances" means collectively (i) liens at any time
existing in favor of Lender, (ii) the matters affecting title to the Land
described in title insurance commitment issued in favor of Lender in
connection with the execution and delivery of this Loan Agreement, provided
that such matters are accepted by Lender in writing in Lender's discretion,
(iii) statutory liens incurred in the ordinary course of business for the
purchase of labor, services, materials, equipment, or supplies, or with
respect to workmen's compensation, unemployment insurance, or other forms
of governmental insurance or benefits, which are not delinquent or are paid
or bonded and removed of record in a manner satisfactory to Lender, and
(iv) liens for real property taxes, assessments, or governmental charges or
levies for the current year, the payment of which is not delinquent.
"Person" means any individual, corporation, partnership, joint
venture, association, trust, unincorporated organization, and any
Governmental Authority.
"Property" means each of the improved parcels of real estate described
in Exhibit A attached hereto, which are intended to be included in the
Collateral Pool on or after the Closing Date. No property other than the
Properties shall be eligible
for inclusion into the Collateral Pool except as may be approved by Lender
in writing in its discretion.
"Rent Roll" shall mean each rent roll for any Property delivered by
Borrower pursuant to this Loan Agreement, each of which shall show (i) a
description (by rentable square feet and location or unit number) of the
lease space; (ii) the name of the current tenants; (iii) the commencement
and expiration dates of the original Leases and any renewal terms thereof;
(iv) the rents during the term thereof; (v) all rents prepaid by tenants;
(vi) all delinquent rents; (vii) all concessions, allowances, credits, and
abatements to which any tenant is entitled; (viii) the security deposit
given by any tenant and interest accrued thereon; and (ix) the
identification of any security given to secure any tenant's obligations
including, without limitation, the identity of any guarantor of any Lease.
"Revolving Loan" means the revolving loan facility established by
Lender in favor of Borrower pursuant to Section 2.1 hereof.
"Revolving Note" means the Revolving Note of even date herewith
evidencing Borrower's promise to repay the Revolving Loan with interest
thereon, as the same might hereafter be amended, extended, renewed,
replaced, supplemented, restated, or consolidated pursuant to the
applicable provisions thereof.
"Security Documents" means collectively all Security Instruments,
separate assignments of leases and rents, and any and all other documents,
instruments, or financing statements heretofore or hereafter executed by
Borrower, Guarantor, or any other Person for the benefit of Lender as
security for all or any part of the Obligations.
"Security Instrument" means any mortgage or deed of trust executed by
Borrower for the benefit of Lender with respect to any Property, as the
same might hereafter be amended, extended, replaced, supplemented,
restated, or consolidated pursuant to the applicable provisions thereof.
"Senior Management" means (i) the Chief Executive Officer, Chairman of
the Board, President, Chief Financial Officer, and Chief Operating Officer
of Borrower or Guarantor, (ii) the Chief Executive Officer, Chairman of the
Board, President, Chief Financial Officer and Chief Operating Officer of
any advisor to Borrower or Guarantor, and (iii) any other Persons with
responsibility for any of the functions typically performed in a
corporation by the officers described in clauses (i) and (ii).
"Stabilized Basis" shall mean the annualization of payments, including
the adjustments for payments that have seasonal variation, together with
adjustment, as necessary for levels of occupancy and service, to reflect
the level of expense that would exist upon achievement of a stabilized
occupancy for properties similar in nature and in the general vicinity of
the Property, as determined by Lender. Lender may rely solely upon pro
forma payments estimated by Lender's appraiser and other
prevailing market conditions and information in determining the Stabilized
Basis of any payments and such determination shall control regardless of
the actual level of payments experienced by Borrower before or after the
Property achieves stabilized occupancy.
"Title Company" means the issuer of the mortgagee's policy of title
insurance with respect to any Security Instrument, as approved by Lender in
its discretion.
"Trailing 12 Month Period" means, for any specified date, the twelve
(12) month period ending with the last day of the most recent fiscal
quarter of Borrower for which financial statements have been delivered by
Borrower to the Lender pursuant to Section 5.1.5 hereof.
"Xxxxx REIT" means Xxxxx Real Estate Investment Trust, Inc., a
Maryland corporation.
ARTICLE TWO - REVOLVING LOAN
2.1 Commitment. Subject to the terms and conditions set forth in this
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Loan Agreement, Lender agrees and commits to make Advances to Borrower from time
to time during the Commitment Period in an aggregate principal amount not to
exceed, at any one time outstanding, the lesser of (i) the Maximum Loan Amount
or (b) the Borrowing Base. Within the aforesaid limits, Borrower may, at its
option, from time to time, subject to the terms and conditions hereof, without
penalty, borrow, repay, and reborrow amounts under the Revolving Loan.
2.2 Calculation of Borrowing Base. Lender shall calculate the Borrowing
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Base on the Closing Date and as of the end of each fiscal quarter of Borrower
subsequent to the Closing Date within ten (10) days after Lender's receipt of
the financial statements, reports, and certificates required under Section 5.1.5
hereof with respect to the Properties. If Borrower fails to deliver any such
financial statements, reports, and certificates within the time limits
prescribed in Section 5.1.5 hereof with respect to any Property, then Lender
may, in its sole discretion, exclude such Property entirely for purposes of
calculating the Borrowing Base. At Borrower's request, Lender shall notify
Borrower in writing as to the amount of the Borrowing Base so calculated by
Lender and the basis thereof in reasonably detail. Lender's calculation of the
Borrowing Base shall be binding and conclusive upon Borrower absent manifest
error. Lender may, in good faith but in its discretion, consider any and all
information and data available to Lender regarding the Properties in determining
the Borrowing Base and shall not be restricted only to the financial statements,
reports, and certificates delivered by Borrower to Lender.
2.3 Overadvances. If the aggregate amount of Advances outstanding under
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the Revolving Loan at any time exceeds the Borrowing Base as the result of a
decline in the Borrowing Base or for any other reason whatsoever (the amount of
such excess being herein referred to as an "Overadvance"), then Borrower shall
pay to Lender an amount equal to such Overadvance within seven (7) Business Days
after notice from Lender of such Overadvance. Until so paid, any Overadvance
shall bear interest as provided in the Revolving Note and shall constitute
Obligations which are secured by the Collateral pursuant the Security Documents.
2.4 Funding of Advances. To obtain an Advance, Borrower may from time to
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time deliver to Lender a written request for an Advance (an "Advance Request").
In each Advance Request, Borrower shall specify the amount and intended use of
the requested Advance and the date that the requested Advance is to be made
(which date shall be at least five (5) Business Days after Lender's receipt of
the Advance Request). Each Advance shall be accompanied by an Officer's
Certificate certifying that (i) Borrower has complied with and is in compliance
with all terms, covenants, and conditions of this Loan Agreement and the other
Loan Documents, (ii) no Default or Event of Default exists or, if such is not
the case, that one or more specified Defaults or Events of Default have
occurred, and (iii) the representations and warranties contained in this Loan
Agreement are true with the same effect as though made on the date of such
Officer's Certificate. Each Advance shall be in the minimum amount of
$2,000,000.00. If all conditions precedent to such Advance contained in Article
Three hereof are satisfied, Lender shall make the requested Advance by
depositing the proceeds thereof into the Loan Account. Each Advance shall be
made at the main office of Lender in Birmingham, Alabama (or such other place as
Lender may designate), and Lender not be obligated to make more an one (1)
Advance per calendar month during the Commitment Period. Each submission by
Borrower to Lender of an Advance Request (whether or not such Advance Request
complies with the provisions of this Section) shall constitute Borrower's
representation and warranty to Lender that all conditions to the Advance set
forth in this Loan Agreement are satisfied. The provisions of this Section are
solely for the benefit of Lender. Lender may, at its election, make one or more
Advances to Borrower upon written or oral disbursement requests not complying
with the requirements of this Section, and all such Advances shall, in the
absence of bad faith by Lender, conclusively be deemed to be within the
Obligations to the same extent as if they were made in strict compliance with
the requirements of this Section.
2.5 Interest Rate and Repayment Terms. Interest shall accrue of the
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principal amount outstanding under the Revolving Loan at the rate(s), and
calculated by the method, set forth in the Revolving Note. Accrued interest
shall be paid monthly on the dates set forth in the Note. Unless payment is
required to be made earlier under the terms of the Note or this Loan Agreement
following the occurrence of an Event of Default, Borrower shall pay the entire
principal amount outstanding under the Revolving Loan, together with all accrued
but unpaid interest and other agreed charges, in full on the Maturity Date.
2.6 Commitment Fee. Borrower shall pay to Lender a commitment fee in the
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amount of $87,500.00 (the "Commitment Fee"), which Commitment Fee (i) shall be
deemed fully earned at the closing of the transactions contemplated hereby, (ii)
shall be paid at the time of the initial Advance under the Loan, and (iii) shall
not be subject to refund or rebate under any circumstance whatsoever. The
Commitment Fee is intended to compensate Lender for the costs associated with
the origination, structuring, processing, approving, and closing of the
transactions contemplated by this Loan Agreement, including, but not limited to,
administrative and general overhead, but not including any out-of-pocket or
other expenses for which Borrower has agreed to reimburse Lender pursuant to any
other provisions of this Loan Agreement or any of the Loan Documents.
2.7 Advance Fee. Concurrently with the making of any Advance by Lender to
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Borrower, Borrower shall pay to Lender a fee in the amount equal to 0.125% of
the Advance amount (each an "Advance Fee"). Each Advance Fee (i) shall be
deemed fully earned at the time the Advance is made and (ii) shall not be
subject to refund or rebate under any circumstance whatsoever. The Advance Fee
is intended to compensate Lender for the costs associated with the
administration, processing, and closing of each Advance, including, but not
limited to, administrative and general
overhead, but not including any out-of-pocket or other expenses for which
Borrower has agreed to reimburse Lender pursuant to any other provisions of this
Loan Agreement or any of the Loan Documents.
ARTICLE THREE - CONDITIONS PRECEDENT
3.1 General Conditions Precedent. The obligations of Lender under this
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Loan Agreement to close the Revolving Loan, to make the initial Advance
hereunder, and to add any Property to the Collateral Pool (and to include such
Property in the determination of the Borrowing Base) are subject to the
satisfaction of the following conditions precedent:
3.1.1 Execution of Loan Documents. Execution, delivery, and, when
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appropriate, recording or filing of this Loan Agreement, the Note, the
Guaranty Agreement, the Security Documents, and all other Loan Documents,
all in form and content satisfactory to Lender.
3.1.2 Delivery of Advance Request. Receipt by Lender of an Advance
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Request with respect to the initial Advance.
3.1.3 Payment of Commitment Fee and Advance Fee. With respect to
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the closing of the Revolving Loan and the making of the initial Advance,
payment by Borrower of the Commitment Fee and the Advance Fee applicable to
the initial Advance.
3.1.4 Payment of Expenses. The payment or reimbursement by Borrower
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of all expenses incurred by or due to Lender in connection with the
Revolving Loan, the Loan Documents, and the addition of the Property to the
Collateral Pool, including, but not limited to, tax service monitoring
fees, fees and taxes on the Security Documents (including recording taxes),
title insurance premiums, and fees and expenses of Lender's counsel.
3.1.5 Proceedings. Receipt by Lender of certified copies of the
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organizational documents for Borrower, together with evidence that Borrower
is qualified, registered, and in good standing in the state of its
organization or formation and in the state where the Property is located
(or evidence satisfactory to Lender and its counsel that such qualification
and registration is not required under Legal Requirements), and certified
resolutions of the governing body of Borrower authorizing the Loan, the
execution and delivery of the Loan Documents, the addition of the Property
to the Collateral Pool, and the consummation or undertaking of all
Obligations.
3.1.6 Legal Opinions. Receipt by Lender's counsel of an opinion of
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counsel for Borrower Parties in form and substance satisfactory to Lender's
counsel.
3.1.7 Other Matters. Such additional legal opinions, certificates,
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proceedings, instruments, and other documents required under the terms of
the
Commitment or as Lender or its counsel may reasonably request to evidence
(i) compliance by Borrower with Legal Requirements, (ii) the truth and
accuracy, as of the date of this Loan Agreement, of the representations and
warranties of Borrower contained herein, and (iii) the due performance or
satisfaction by Borrower, at or prior to the date hereof, of all agreements
required to be performed and all conditions required to be satisfied by
Borrower pursuant hereto.
3.2 Further Conditions Precedent to Addition of Properties to Collateral
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Pool. In addition to the conditions precedent set forth in Section 3.1 above,
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no Property shall be added to the Collateral Pool, nor shall any Property be
included for purposes of determining the Borrowing Base, unless and until the
following conditions precedent have been satisfied with respect to such
Property:
3.2.1 Survey. Receipt by Lender of a current survey of the Property
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prepared by a registered land surveyor in accordance with Lender's standard
survey memorandum and including the certification of the surveyor as to
whether the Property or any portion thereof is within or without a special
flood hazard area according to a FIA flood hazard boundary map issued by
the Department of Housing and Urban Development Federal Insurance
Administration.
3.2.2 Title Insurance. Receipt by Lender of a paid title insurance
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policy issued by the Title Company in form and content acceptable to
Lender, which insures that Lender holds a valid first lien and security
interest in the Morttgaged Property pursuant to the Security Instrument,
free and clear of all defects and encumbrances except the Permitted
Encumbrances and such other matters as Lender might approve in its
discretion, and containing (i) full coverage against liens of mechanics,
materialman, laborers, and any other parties who might claim statutory or
common law liens, (ii) no other "standard exceptions" to coverage,
including survey exceptions, other than those approved by Lender, (iii) a
"tie in" endorsement in form and substance satisfactory to counsel for
Lender, and (iv) any additional endorsements reasonably required by Lender.
3.2.3 Lien Search. Receipt by Lender of a certification from the
-----------
Title Company or an attorney acceptable to Lender (which shall be updated
from time to time at Borrower's expense upon request by Lender) that a
search of the public records disclosed no conditional sales contract,
chattel mortgages, leases of personalty, financing statements, title
retention agreements, tax liens, or judgment liens that affects the
Property, except those in favor of Lender.
3.2.4 Appraisal. Receipt by Lender of an appraisal of the Property
---------
prepared in conformity with the requirements of the Commitment Letter.
3.2.5 Environmental Assessment. Receipt by Lender of an
------------------------
environmental site assessment of the Property prepared in conformity with
Lender's standard guidelines and otherwise acceptable to Lender in all
respects.
3.2.6 Operating Statements and Rent Roll. Receipt by Lender of
----------------------------------
current Operating Statements and Rent Rolls for the Property, certified as
true and correct
by the chief financial officer of Borrower, which shall be in form and
content acceptable to Lender and are sufficient for Lender to determine the
Net Operating Income for the Property for the Trailing 12 Month Period.
3.2.7 Insurance. Receipt by Lender of suitable policies of insurance
---------
against fire and other hazards in accordance with applicable requirements
of this Loan Agreement, the Security Documents, any Major Lease, and Legal
Requirements.
3.2.8 Access and Utilities. Receipt by Lender of evidence
--------------------
satisfactory to Lender as to (i) the methods of access to and egress from
the Property and nearby or adjoining public ways, meeting the reasonable
requirements of projects that are similar to the Property and the status of
completion of any required improvements to such access, (ii) the
availability of storm and sanitary sewer facilities meeting the reasonable
requirements of the Property, and (iii) the availability of all other
required utilities, in location and capacity sufficient to meet the
reasonable needs of the Property.
3.2.9 Legal Requirements. Receipt by Lender of evidence satisfactory
------------------
to Lender as to the compliance of the Property with Legal Requirements.
3.2.10 Leases. Receipt by Lender of a certified copy of all Leases in
------
effect with respect to the Property, containing terms and conditions that
are acceptable to Lender in its discretion, together with such
supplementary agreements from Tenants as Lender might request, including an
estoppel letter and a subordination and attornment agreement in form and
substance satisfactory to Lender.
3.2.11 Management Agreement. Receipt by Lender of the Management
--------------------
Agreement, together with a subordination agreement, in form satisfactory to
Lender, pursuant to which the Manager's rights under the Management
Agreement are subordinated to the rights of Lender pursuant to the Loan
Documents and addressing such other matters as Lender may request.
3.2.12 Accuracy of Representations and Warranties. All
------------------------------------------
representations and warranties of Borrower contained in this Loan Agreement
or in the other Loan Documents pertaining to the Property (other than those
representations and warranties which are, by their terms, expressly limited
to the date made or given) shall be true and correct in all material
respects as of the Collateral Addition Date with the same effect as those
such representations and warranties had been made on and as of the date of
such Collateral Addition Date, and Lender shall have received an Officer's
Certificate dated as of the Collateral Additional Date from Borrower
certifying to the foregoing matters.
3.2.13 Other Matters. Such additional legal opinions, certificates,
-------------
proceedings, instruments, and other documents as Lender or its counsel may
reasonably request to evidence (i) compliance of the Property with Legal
Requirements, (ii) the truth and accuracy, as of the Closing Date of the
representations and warranties of Borrower contained herein, and (iii) the
due
performance or satisfaction by Borrower, at or prior to the Closing Date,
of all agreements required to be performed and all conditions required to
be satisfied by Borrower pursuant hereto.
3.3 Conditions Precedent to Future Advances. The obligation of Lender to
---------------------------------------
make any Advance after the initial Advance hereunder is subject to the
performance by Borrower of its Obligations to be performed hereunder at or prior
to the disbursement of such Advance and to the satisfaction of the following
conditions at the time of (and after giving effect to) the making of such
Advance:
3.3.1 No Default. After giving effect to the Advance to be made, no
----------
Default or Event of Default has occurred or will occur as of the date of
such Advance.
3.3.2 Accuracy of Representations and Warranties. All
------------------------------------------
representations and warranties of Borrower contained in this Loan Agreement
or in the other Loan Documents (other than those representations and
warranties which are, by their terms, expressly limited to the date made or
given) shall be true and correct in all material respects with the same
effect as those such representations and warranties had been made on and as
of the date of such Advance.
3.3.3 No Adverse Proceedings. No action or proceeding have been
----------------------
instituted or be pending before any court or other Governmental Authority
or, to the knowledge of Borrower, threatened, which reasonably could be
expected to have a Material Adverse Effect or the intended or actual use,
occupancy, or operation of the Properties.
3.3.4 No Violations. The Advance to be made and the use thereof
-------------
shall not contravene, violate, or conflict with, or involve Lender in any
violation of, any Legal Requirement.
3.4 No Waiver. If Lender, at its option, elects to make one or more
---------
Advances prior to receipt and approval of all items required by this Article
Three, such election shall not obligate Lender to make any subsequent Advance
requested by Borrower. The closing of the Revolving Loan and execution of this
Loan Agreement shall not be construed as approval by Lender of items submitted
prior to closing or as a waiver of the right to require other items required by
this Loan Agreement or corrections or additional items that might be necessary
to Lender upon Lender's review of any items received after closing.
ARTICLE FOUR - REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties Regarding Borrower Parties. Borrower
---------------------------------------------------------
represents and warrants to Lender that:
4.1.1 Due Organization and Qualification. Borrower is a limited
----------------------------------
partnership duly organized, validly existing, and in good standing under
the laws of the state of its formation as set forth in the heading of this
Loan Agreement and is qualified to transact business and is in good
standing in each state in which the Properties are
located and in each other jurisdiction where the failure to be so qualified
and to be in good standing would adversely affect the conduct of its
business or the validity of, the enforceability of, or the ability of
Borrower to perform, the Obligations.
4.1.2 Power and Authority. Borrower has the requisite power and
-------------------
authority to (i) to own the its properties and to carry on its business as
now conducted and as contemplated to be conducted in connection with the
performance of the Obligations hereunder and under the other Loan Documents
and (ii) to execute and deliver this Loan Agreement and the other Loan
Documents, to incur and perform the Obligations, and to carry out the
transactions contemplated by this Loan Agreement and the other Loan
Documents.
4.1.3 Due Authorization. The execution, delivery, and performance of
-----------------
this Loan Agreement and the other Loan Documents have been duly authorized
by all necessary action and proceedings by or on behalf of Borrower, and no
further approvals or filings of any kind, including any approval of or
filing with any Governmental Authority, are required by or on behalf of
Borrower as a condition to the valid execution, delivery, and performance
by Borrower of this Loan Agreement and the other Loan Documents.
4.1.4 Enforceability. This Loan Agreement and each of the other Loan
--------------
Documents have been duly authorized, executed, and delivered by Borrower
and constitute the legal, valid, and binding obligation of Borrower,
enforceable against Borrower in accordance with their respective terms,
except as such enforceability may be affected by applicable
conservatorship, bankruptcy, insolvency, reorganization, moratorium, or
similar laws affecting the enforcement of creditors' rights generally.
This Loan Agreement and the other Loan Documents are not subject to any
right of rescission, set-off, counterclaim, or defense by Borrower,
including the defense of usury, and Borrower has not asserted any right of
rescission, set-off, counterclaim, or defense with respect thereto.
4.1.5 No Conflicts. Neither the execution and delivery of this Loan
------------
Agreement and the other Loan Documents, nor the fulfillment of or
compliance with the terms and conditions of this Loan Agreement and the
other Loan Documents, nor the performance of the Obligations (i) conflicts
with or result in (or will conflict with or result in) any breach or
violation of any Legal Requirement enacted or issued by any Governmental
Authority or other agency having jurisdiction over Borrower or any of the
Properties, or any judgment or order applicable to Borrower, or to which
Borrower or any of the Properties is subject; (ii) conflicts with or result
in (or will conflict with or result in) any material breach or violation
of, or constitute a default under, any of the terms, conditions, or
provisions of Borrower's organizational documents, any indenture, existing
agreement, or other instrument to which Borrower is a party, or to which
Borrower or any of the Properties is subject; (iii) results in or requires
(or will result in or require) the creation of any lien on all or any of
the Properties, except for the Permitted Liens; or (iv) requires (or will
require) the consent or approval of any creditor of Borrower, any
Governmental Authority, or any other Person except such consents or
approvals that have already been obtained.
4.1.6 Pending Litigation or other Proceedings. There is no pending
---------------------------------------
or, to the best knowledge of Borrower, threatened action, suit, proceeding,
or investigation, at law or in equity, before any court, board, body, or
official of any Governmental Authority or arbitrator against or affecting
any of the Properties or any other portion of the Collateral or other
assets of Borrower, which, if decided adversely to Borrower, would have, or
may reasonably be expected to have, a Material Adverse Effect. Borrower is
not in default with respect to any order of any Governmental Authority.
4.1.7 Solvency. Borrower is not insolvent and will not be rendered
--------
insolvent by the transactions contemplated by this Loan Agreement or the
other Loan Documents, and after giving effect to such transactions,
Borrower will not be left with an unreasonably small amount of capital with
which to engage in its business or undertakings, nor will Borrower have
incurred, have intended to incur, or believe that it has incurred, debts
beyond its ability to pay such debts as they mature. Borrower did not
receive less than a reasonably equivalent value in exchange for incurrence
of the Obligations. There (i) is no contemplated, pending or, to the best
of Borrower's knowledge, threatened bankruptcy, reorganization,
receivership, insolvency, or like proceeding, whether voluntary or
involuntary, affecting any Borrower Party or any of the Properties and (ii)
has been no assertion or exercise of jurisdiction over any Borrower Party
or any of the Properties by any court empowered to exercise bankruptcy
powers.
4.1.8 No Contractual Defaults. There are no defaults by Borrower or,
-----------------------
to the knowledge of Borrower, by any other Person under any contract to
which Borrower is a party relating to any of the Properties, including any
management, rental, service, supply, security, maintenance, or similar
contract, other than defaults which do not permit the non-defaulting party
to terminate the contract and which do not have, and are not reasonably be
expected to have, a Material Adverse Effect. Neither Borrower nor, to the
knowledge of Borrower, any other Person, has received notice or has any
knowledge of any existing circumstances in respect of which it could
receive any notice of default or breach in respect of any contracts
affecting or concerning any of the Properties.
4.1.9 Compliance with the Loan Documents. Borrower is in compliance
----------------------------------
with all provisions of the Loan Documents to which it is a party or by
which it is bound. The representations and warranties made by Borrower in
the Loan Documents are true, complete and correct and do not contain any
untrue statement of material fact or omit to state a material fact required
to be stated therein or necessary in order to make the statements made
therein, in light of the circumstances under which they were made, not
misleading.
4.1.10 Non-Foreign Person. Borrower is not a "foreign person" within
------------------
the meaning of (S) 1445(f)(3) of the Internal Revenue Code.
4.1.11 ERISA. Neither Borrower nor Xxxxx REIT has established and is
-----
a party to an "employee benefit plan" within the meaning of Section 3(3) of
Employee Retirement Income Security Act of 1974, as amended from time to
time ("ERISA"),
or any other option or deferred compensation plan or contract for the
benefit of its employees or officers, pension, profit sharing or retirement
plan, redemption agreement, or any other agreement or arrangement with any
officer, director or owner, members of their families, or trusts for their
benefit, and the assets of Borrower do not and shall not constitute "plan
assets" of one more such plans for purposes of ERISA.
4.1.12 Ownership. The ownership of all interests in Borrower have
---------
been accurately disclosed to Lender in writing. Except for warrants that
have been issued to some of the directors of Xxxxx REIT, there are no
outstanding warrants, options, or rights to purchase any ownership
interests of Borrower, nor does any Person have a Lien upon any of the
ownership interests of Borrower.
4.1.13 Investment Company Act. Borrower is not (i) an "investment
----------------------
company" or a company "controlled" by an "investment company," within the
meaning of the Investment Company Act of 1940, as amended, (ii) a "holding
company" or a "subsidiary company" of a "holding company" or an "affiliate"
of either a "holding company" or a "subsidiary company" within the meaning
of the Public Utility Holding Company Act of 1935, as amended, or (iii)
subject to any other federal or state law or regulation that purports to
restrict or regulate its ability to borrow money.
4.1.14 Financial Information. The financial projections relating to
---------------------
Borrower and delivered to the Lender on or prior to the date hereof, if
any, were prepared on the basis of assumptions believed by Borrower, in
good faith at the time of preparation, to be reasonable, and Borrower is
not aware of any fact or information that would lead it to believe that
such assumptions are incorrect or misleading in any material respect;
provided, however, that no representation or warranty is made that any
result set forth in such financial projections shall be achieved. The
financial statements of Borrower and any Rent Roll for the Properties which
have been furnished to Lender are complete and accurate in all material
respects and present fairly the financial condition of Borrower and the
leasing status of the Properties, and there are no liabilities, direct or
indirect, fixed or contingent, as of the respective dates of such financial
statements which are not reflected therein or in the notes thereto or in a
written certificate delivered with such statements. The financial
statements of Borrower have been prepared in accordance with GAAP. Since
the date of the most recent of such financial statements, no event has
occurred which would have, or may reasonably be expected to have, a
Material Adverse Effect, and there has not been any material transaction
entered into by Borrower other than transactions in the ordinary course of
business. Borrower has filed all federal, state, and local tax returns
that are required to be filed and has paid, or made adequate provision for
the payment of, all taxes that have or may become due pursuant to such
returns or to assessments received by Borrower.
4.1.15 Accuracy of Information. No information, statement, or report
-----------------------
furnished in writing to Lender by Borrower in connection with this Loan
Agreement or any other Loan Document, or in connection with the
consummation of the transactions contemplated hereby and thereby, contains
any material misstatement
of fact or omits to state a material fact necessary to make the statements
contained therein, in light of the circumstances under which they were
made, not misleading.
4.1.16 No Conflicts of Interest. To the best knowledge of Borrower,
------------------------
no officer, agent, or employee of Lender has been or is in any manner
interested, directly or indirectly, in that Person's own name, or in the
name of any other Person, in the Loan Documents, Borrower, or any of the
Properties, in any contract for property or materials to be furnished or
used in connection with the Property, or in any aspect of the transactions
contemplated by the Loan Documents.
4.1.17 No Reliance. Borrower acknowledges, represents, and warrants
-----------
that it understands the nature and structure of the transactions
contemplated by this Loan Agreement and the other Loan Documents, that it
is familiar with the provisions of all of the documents and instruments
relating to such transactions, that it understands the risks inherent in
such transactions, including the risk of loss of the Collateral or a part
thereof, and that it has not relied on Lender for any guidance or expertise
in analyzing the financial or other consequences of the transactions
contemplated by this Loan Agreement or any other Loan Document or otherwise
relied on Lender in any manner in connection with interpreting, entering
into, or otherwise in connection with this Loan Agreement, any other Loan
Document, or any of the matters contemplated hereby or thereby.
4.1.18 Contracts with Affiliates. Except as otherwise approved in
-------------------------
writing by Lender, Borrower has not entered into and is not a party to any
contract, lease, or other agreement with any Affiliate of Borrower for the
provision of any service, materials, or supplies to the Property (including
any contract, lease, or agreement for the provision of property management
services (other than the Management Agreement), cable television services
or equipment, gas, electric or other utilities, security services or
equipment, laundry services or equipment or telephone services or
equipment).
4.1.19 Lines of Business. Borrower is not engaged in any businesses
-----------------
other than the acquisition, ownership, development, construction, leasing,
financing, or management of commercial properties, and the conduct of these
businesses does not violate the organizational documents pursuant to which
it is formed.
4.2 Representations and Warranties Regarding Properties. Borrower
---------------------------------------------------
represents and warrants to Lender that, as of the Closing Date with respect to
each Property included in the Collateral Pool as of the Closing Date, and as of
the Collateral Addition Date with respect to each Property added to the
Collateral Pool subsequent to the Closing Date:
4.2.1 Title. Borrower has good, valid, marketable, and indefeasible
-----
title to the Property, free and clear of all liens whatsoever except the
Permitted Liens. The Security Instrument, if and when properly recorded in
the appropriate records, together with any Uniform Commercial Code
financing statements required to be filed in connection therewith, will
create a valid, perfected first lien on the Collateral intended to be
encumbered thereby (including the Leases and the rents and all rights to
collect rents under such Leases), subject only to Permitted Liens. Except
for any Permitted Liens, there are no lens or claims for work, labor,or
materials affecting the Property that are or may be prior to, subordinate
to, or of equal priority with, the liens created by the Loan Documents. The
Permitted Liens do not have, and may not reasonably be expected to have, a
Material Adverse Effect.
4.2.2 Impositions. Borrower has filed all property and similar tax
-----------
returns required to have been filed by it with respect to the Property and
has paid and discharged, or caused to be paid and discharged, all
installments for the payment of all taxes due to date, and all other
material Impositions imposed against, affecting, or relating to the
Property other than those which have not become due, together with any
fine, penalty, interest, or cost for nonpayment pursuant to such returns or
pursuant to any assessment received by it. Borrower has no knowledge of
any new proposed tax, levy, or other governmental or private assessment or
charge in respect of the Property which has not been disclosed in writing
to Lender.
4.2.3 Zoning. The Property complies in all material respects with
------
all Legal Requirements. Without limiting the foregoing, all material
Permits, including certificates of occupancy, have been issued and are in
full force and effect. Neither Borrower nor, to the knowledge of Borrower,
any former owner of the Property, has received any written notification or
threat of any actions or proceedings regarding the noncompliance or
nonconformity of the Property with any Legal Requirements, nor is Borrower
otherwise aware of any such pending actions or proceedings.
4.2.4 Leases. The Leases described in Exhibit A attached hereto are
------
the only Leases in effect with respect to the Property. Borrower has
delivered to Lender a true and correct copy of all such Leases, and such
Leases have not been modified, altered, or amended and constitute the
complete agreement among the parties named therein with respect to the
subject matter thereof.
4.2.5 Status of Landlord under Leases. Except for any assignment of
-------------------------------
leases and rents which is a Permitted Lien or which is to be released in
connection with the consummation of the transactions contemplated by this
Loan Agreement, Borrower is the owner and holder of the landlord's interest
under each of the Leases, and there are no prior outstanding assignments of
any such Lease, or any portion of the rents, additional rents, charges,
issues or profits due and payable or to become due and payable thereunder.
4.2.6 Enforceability of Leases. Each Lease constitutes the legal,
------------------------
valid, and binding obligation of Borrower and, to the knowledge of
Borrower, of each of the other parties thereto, enforceable in accordance
with its terms, subject only to bankruptcy, insolvency, reorganization or
other similar laws relating to creditors' rights generally, and equitable
principles, and except as disclosed in writing to Lender, no notice of any
default by Borrower which remains uncured has been sent by any tenant under
any such Lease, other than defaults which do not have, and are not
reasonably expected to have, a Material Adverse Effect on the Project.
4.2.7 No Lease Options. All premises demised to Tenants under Leases
----------------
are occupied by such Tenants as tenants only. Except as otherwise provided
in the
Leases, no Lease contains any option or right to purchase, right of first
refusal, or any other similar provisions. No option or right to purchase,
right of first refusal, purchase contract, or similar right exists with
respect to the Property.
4.2.8 Insurance. Borrower has delivered to Lender true and correct
---------
certified copies of all insurance policies currently in effect with respect
to the Property. Each such insurance policy complies in all material
respects with the requirements set forth in the Loan Documents.
4.2.9 Tax Parcels. The Property is on one or more separate tax
-----------
parcels, and each such parcel (or parcels) is (or are) separate and apart
from any other property.
4.2.11 Encroachments. Except as disclosed on the survey delivered to
-------------
Lender with respect to the Property, none of the Improvements encroaches
upon the property of any other Person or upon any easement encumbering the
Property nor lies outside of the boundaries and building restriction lines
of the Property, and no improvement located on property adjoining the
Property lies within the boundaries of or in any way encroaches upon the
Property.
4.2.12 Independent Unit. Except for Permitted Liens or as disclosed
----------------
in the title insurance policy or survey for the Property delivered to
Lender, the Property is an independent unit that does not rely on any
drainage, sewer, access, parking, structural, or other facilities located
on any property not included in either the Property or on public or utility
easements for the (i) fulfillment of any zoning, building code, or other
requirement of any Governmental Authority that has jurisdiction over the
Property, (ii) structural support, or (iii) the fulfillment of the
requirements of any Lease or other agreement affecting such Property.
Borrower, directly or indirectly, has the right to use all amenities,
easements, public or private utilities, parking, access routes, or other
items necessary or currently used for the operation of the Property. All
public utilities are installed and operating at the Property, and all
billed installation and connection charges have been paid in full. The
Property is either (x) contiguous to or (y) benefits from an irrevocable
unsubordinated easement permitting access from the Property to a physically
open, dedicated public street, and has all necessary permits for ingress
and egress and is adequately serviced by public water, sewer systems, and
utilities. No building or other improvement not located on the Property
relies on any part of the Property to fulfill any zoning requirements,
building code, or other requirement of any Governmental Authority that has
jurisdiction over the Property for structural support or to furnish to such
building or improvement any essential building systems or utilities.
4.2.13 Condition of the Property. Except as disclosed in any third
-------------------------
party report delivered to Lender or otherwise disclosed in writing by
Borrower to Lender prior to the Closing Date, the Property is in good
condition, order, and repair, there exist no structural or other material
defects in the Property (whether patent or, to the best knowledge of
Borrower, latent or otherwise), and Borrower has not received notice from
any insurance company or bonding company of any defects or inadequacies in
the Property, or any part of it, which would adversely affect the
insurability of the Property or cause the imposition of extraordinary
premiums or charges for insurance, or of any termination or threatened
termination of any policy of insurance or bond. No claims have been made
against any contractor, architect, or other party with respect to the
condition of the Property or the existence of any structural or other
material defect therein. The Property has not been materially damaged by
casualty which has not been fully repaired or for which insurance proceeds
have not been received or are not expected to be received except as
previously disclosed in writing to Lender. No proceedings are pending or,
to the best of Borrower's knowledge, threatened to acquire by power of
condemnation or eminent domain any portion of the Property, or any interest
therein, or to enjoin or similarly prevent the use of the Property.
4.3 Continuing Effectiveness. Borrower acknowledges and agrees that Lender
------------------------
has materially relied upon the representations and warranties set forth in this
Article. All representations and warranties contained herein shall continue in
effect at all times while any Obligations remain outstanding and shall be
incorporated by reference in each Request submitted by Borrower, unless Borrower
specifically notifies Lender of any change therein.
ARTICLE FIVE - COVENANTS
5.1 Covenants Pertaining To Borrower Generally. Borrower covenants and
------------------------------------------
agrees that, from the date of this Loan Agreement and so long as the Obligations
remain outstanding, Borrower shall comply with, perform, and observe at all
times the following covenants:
5.1.1 Maintain Existence. Borrower shall maintain its existence as a
------------------
limited partnership in good standing under the laws of the state of its
formation. Borrower Party shall continue to be duly qualified to do
business in each jurisdiction in which such qualification is necessary to
the conduct of its business and where the failure to be so qualified would
adversely affect the validity of, the enforceability of, or the ability to
perform, its obligations under this Loan Agreement or any other Loan
Document and its qualification to conduct business in the state in which
the Property is located. Borrower shall permit no amendment or
modification of, in any material respect, the organizational documents of
Borrower without obtaining the prior written consent of Lender, which
consent shall not be unreasonably withheld or delayed. Borrower shall not
dissolve or liquidate in whole or in part, or merge or consolidate with any
Person. Borrower shall not change the location of its chief executive
office without first giving Lender at least thirty (30) days prior written
notice thereof and promptly providing Lender such information as Lender may
request in connection therewith.
5.1.2 Operation and Separateness. Borrower shall (i) engage in no
--------------------------
business or activity other than the ownership, management, and operation of
the Properties and commercial properties, (ii) enter into no contract or
agreement with any Affiliate except upon terms and conditions that are
intrinsically fair and substantially similar to those that would be
available on an arms-length basis with third parties other than such
Affiliate, (iii) make no loan or advance to any Person (including any
Affiliate), (iv) hold itself out to the public as a legal entity separate
and
distinct from any other Person (including any Affiliate), (v) maintain
adequate capital for the normal obligations reasonably foreseeable in a
business of its size and character and in light of its contemplated
business operations, and (vi) maintain its assets in such a manner that it
shall not be costly or difficult to segregate, ascertain, or identify its
individual assets from those of any Affiliate or any other Person.
5.1.3 Books and Records. Borrower shall keep and maintain at all
-----------------
times complete and accurate books of accounts and records in sufficient
detail to correctly reflect all of Borrower's financial transactions and
assets and the results of the operation of the Properties, which books and
records shall reflect the consistent application of accepted accounting
methods, and copies of all written contracts, Leases and other instruments
which affect the Properties (including all bills, invoices and contracts
for electrical service, gas service, water and sewer service, waste
management service, telephone service and management services). Borrower
shall make such books and records available at reasonable times for
inspection and copying by Lender or its agent. Borrower shall not change
its methods of accounting without the prior written consent of Lender.
5.1.4 Reports and Notices. Borrower shall promptly inform Lender in
-------------------
writing of any of the following (and shall deliver to the Lender copies of
any related written communications, complaints, orders, judgments and other
documents relating to the following) of which Borrower has actual
knowledge: (a) The occurrence of any Default or Event of Default under
this Loan Agreement or any other Loan Document; (b) the commencement or
threat of, or amendment to, any proceedings by or against Borrower in any
federal, state, or local court or before any Governmental Authority, or
before any arbitrator, which, if adversely determined, would have, or at
the time of determination may reasonably be expected to have, a Material
Adverse Effect; (c) the commencement or threat of any condemnation or
similar proceedings with respect to any Property or of any proceeding
seeking to enjoin the intended use of any Property or any portion thereof;
(d) the occurrence of any material change in Legal Requirements; (e) the
commencement of any proceedings by or against Borrower under any applicable
bankruptcy, reorganization, liquidation, insolvency, or other similar law
now or hereafter in effect or of any proceeding in which a receiver,
liquidator, trustee, or other similar official is sought to be appointed
for it; (f) the receipt of notice from any Governmental Authority having
jurisdiction over Borrower that (i) Borrower is being placed under
regulatory supervision, (ii) any license, Permit, charter, membership, or
registration material to the conduct of Borrower's business or any Property
is to be suspended or revoked, or (iii) Borrower is to cease and desist any
practice, procedure, or policy employed by Borrower, as the case may be, in
the conduct of its business, and such cessation would have, or may
reasonably be expected to have, a Material Adverse Effect; and (g) the
occurrence of any act, omission, change, or event which has a Material
Adverse Effect.
5.1.5 Future Financial and Operating Statements. Borrower shall
-----------------------------------------
furnish or cause to be furnish to Lender within the time periods specified,
the following financial reports and information:
(a) Annual Financial Statements. As soon as available, and in any
---------------------------
event within ninety (90) days after the close of its fiscal year, the
audited consolidated balance sheet of Xxxxx REIT and Borrower as of
the end of such fiscal year, the audited consolidated statement of
income, equity and retained earnings of Xxxxx REIT and Borrower for
such fiscal year, and the audited consolidated statement of cash flows
of Xxxxx REIT and Borrower for such fiscal year, all in reasonable
detail and stating in comparative form the respective figures for the
corresponding date and period in the prior fiscal year, prepared in
accordance with GAAP, consistently applied, and accompanied by a
certificate of Xxxxx REIT's independent certified public accountants
to the effect that such financial statements have been prepared in
accordance with GAAP, consistently applied, and that such financial
statements fairly present the results of its operations and financial
condition for the periods and dates indicated, with such certification
to be free of exceptions and qualifications as to the scope of the
audit or as to the going concern nature of the business.
(b) Quarterly Financial Statements. As soon as avail-able, and in
------------------------------
any event within forty-five (45) days after each of the first three
fiscal quarters of each fiscal year, the unaudited consolidated
balance sheet of Xxxxx REIT and Borrower as of the end of such fiscal
quarter, the unaudited consolidated statement of income and retained
earnings of Xxxxx REIT and Borrower, and the unaudited consolidated
statement of cash flows of Xxxxx REIT and Borrower for the portion of
the fiscal year ended with the last day of such quarter, all in
reasonable detail and stating in comparative form the respective
figures for the corresponding date and period in the previous fiscal
year, accompanied by a certificate of the Chief Financial Officer of
Xxxxx REIT to the effect that such financial statements have been
prepared in accordance with GAAP, consistently applied, and that such
financial statements fairly present the results of its operations and
financial condition for the periods and dates indicated subject to
year end adjustments in accordance with GAAP.
(c) Monthly Property Statements. As soon as available, and in any
---------------------------
event within fifteen (15) days after each calendar month, an Operating
Statement and Rent Roll for each Property accompanied by a certificate
of the Chief Financial Officer of Xxxxx REIT to the effect that each
such Operating Statement and Rent Roll fairly, accurately, and
completely present the operations and leasing status of each such
Property for, or as of the end of, the period indicated (provided that
no Rent Roll shall be required for any Property which is leased
entirely under a single Lease).
(d) Annual Property Statements. As soon as available and in any
--------------------------
event within forty-five (45) days of the end of its fiscal year, an
annual Operating Statement for each Property accompanied by a
certificate of the Chief Financial Officer of Xxxxx REIT to the effect
that each such Operating Statement fairly, accurately, and completely
presents the operations of each such Property for the period
indicated.
(e) Security Law Reporting Information. So long as Xxxxx REIT is
----------------------------------
a reporting company under the Securities and Exchange Act of 1934,
promptly upon becoming available, (i) copies of all financial
statements, reports, and proxy statements sent or made available
generally by Xxxxx REIT or Borrower, or any of their Affiliates, to
their respective security holders, (ii) all regular and periodic
reports and all registration statements (other than the exhibits
thereto and any registration statements on Form S-8 or a similar form)
and prospectuses, if any, filed by Xxxxx REIT or Borrower, or any of
their Affiliates, with the Securities and Exchange Commission or other
Governmental Authorities, and (iii) all press releases and other
statements made available generally by Xxxxx REIT or Borrower, or any
of their Affiliates, to the public concerning material developments in
the business of Xxxxx REIT or other party.
(f) Accountants' Reports. Promptly upon receipt thereof, copies
--------------------
of any reports or management letters submitted to Xxxxx REIT or
Borrower by their independent certified public accountants in
connection with the examination of its financial statements made by
such accountants (except for reports otherwise provided pursuant to
subsection (a) above); provided, however, that Borrower shall only be
required to deliver such reports and management letters to the extent
that they relate to Xxxxx REIT, Borrower, or any Property.
(g) Tenant Information. As soon as available, all financial
------------------
reports and statements furnished by tenants to Borrower pursuant to
the Leases.
(h) Additional Information. Such additional financial information
----------------------
(including tax returns, detailed cash flow information, and contingent
liability information) of Borrower at such times as Lender shall deem
necessary.
Borrower shall furnished to Lender with each quarterly and annual financial
statements an Officer's Certificate certifying that (x) Borrower has
complied with and is in compliance with all terms, covenants and conditions
of this Loan Agreement, (y) no Default or Event of Default exists or, if
such is not the case, that one or more specified Defaults or Events of
Default have occurred, and (z) the representations and warranties contained
in this Loan Agreement are true with the same effect as though made on the
date of such certificate.
5.1.6 Security Deposit Information. Upon the Lender's request,
----------------------------
Borrower shall furnish an accounting of all security deposits held in
connection with any Lease of any part of the Property, including the name
and identification number of the accounts in which such security deposits
are held, the name and address of the financial institutions in which such
security deposits are held and the name and telephone number of the person
to contact at such financial institution, along with any authority or
release necessary for the Lender to access information regarding such
accounts.
5.1.7 Changes in Accounting. Borrower shall not change its methods
---------------------
of accounting, unless such change is permitted by GAAP, and provided such
change does not have the effect of curing or preventing what would
otherwise be a Default or an Event of Default had such change not taken
place.
5.1.8 Taxes and Insurance. Borrower shall pay promptly when due and
-------------------
before the accrual of penalties thereon all taxes, including all real and
personal property taxes and assessments levied or assessed against Borrower
or the Properties (or any portion thereof), and provide Lender with
receipted bills therefor if requested by Lender. Borrower shall acquire
and maintain in effect all insurance policies required by the Security
Documents, the Leases, and Legal Requirements.
5.1.9 ERISA. Borrower shall engage in no transaction which would
-----
cause any obligation, or action taken or to be taken, hereunder (or the
exercise by Lender of any of its rights under this Loan Agreement or any of
the other Loan Documents) to be a non-exempt (under a statutory or
administrative class exemption) prohibited transaction under the ERISA.
Borrower shall deliver to Lender such certifications or other evidence from
time to time, as requested by Lender in its sole discretion, that the
representations and warranties of Borrower contained in Section 4.1.11
above are true and correct.
5.1.10 Comply with Other Loan Documents. Borrower shall perform all
--------------------------------
its obligations under the Note, the Security Documents, and all other Loan
Documents.
5.2.11 Other Acts. At Lender's request, Borrower shall execute and
----------
deliver to Lender all further documents and perform all other acts that
Lender reasonably deems necessary or appropriate to perfect or protect its
security for the Obligations.
5.2 Covenants Relating to Each Property. Borrower further covenants and
-----------------------------------
agrees that, from the date that any Property is added to the Collateral Pool in
accordance with the terms of this Loan Agreement and thereafter so long as the
Obligations remain outstanding, Borrower shall comply with, perform, and observe
at all times the following covenants with respect to such Property:
5.2.1 Inspection Rights and Promotion. Borrower shall permit, and
-------------------------------
require Manager to permit, Persons designated by Lender to visit and
inspect the Property, to examine and make excerpts from the books and
records of Borrower and Manager, and to discuss the business affairs,
finances, and accounts of Borrower,
Manager, and the Property with representatives of Borrower and Manager, as
designated by Lender, all in such detail and at such times as Lender may
reasonably request.
5.2.2 Zoning Changes. Borrower hall not initiate or consent to any
--------------
zoning reclassification of the Property or seek any variance under any
zoning ordinance or use or permit the use of the Property in any manner
that could result in the use becoming a nonconforming use under any zoning
ordinance or any other applicable land use law, rule, or regulation.
5.2.3 Legal Requirements. Borrower shall comply with all Legal
------------------
Requirements in all respects. Borrower shall procure and continuously
maintain in full force and effect, and shall abide by and satisfy all
material terms and conditions of, all Permits. Without limiting the
generality of the foregoing covenant, Borrower specifically agrees that the
Property shall at all times strictly comply, to the extent applicable, with
the requirements of the Americans with Disabilities Act of 1990, all state
and local laws and ordinances related to handicapped access and all rules,
regulations, and orders issued pursuant thereto including, without
limitation, the Americans with Disabilities Act Accessibility Guidelines
for Buildings and Facilities (collectively "Access Laws"). Notwithstanding
any provisions set forth herein or in any other document regarding Lender's
approval of alterations of the Property, Borrower shall not alter or permit
the Property to be altered in any manner which would increase Borrower's
responsibilities for compliance with the applicable Access Laws without the
prior written approval of Lender. Lender may condition any such approval
upon receipt of a certificate of Access Law compliance from an architect,
engineer, or other person acceptable to Lender. Borrower agrees to give
prompt notice to Lender of the receipt by Borrower of any complaints
related to violation of any Access Laws and of the commencement of any
proceedings or investigations which relate to compliance with applicable
Access Laws.
5.2.4 Appraisals. Borrower shall permit Lender and its agents,
----------
employees, or independent contractors, at any time (but not more often than
once in any calendar year so long as no Event of Default has occurred),
while the Obligations remain outstanding, to enter upon and appraise the
Property, and Borrower shall cooperate with and provide any information
requested in connection with such appraisal. Borrower shall pay the costs
of any such appraisal (i) if an Event of Default has occurred and is
continuing or (ii) if such appraisal is required by external regulatory
authorities having jurisdiction over Lender.
5.2.5 Conduct of Business. Borrower shall cause the operation of the
-------------------
Property to be conducted at all times in a manner consistent with the level
of operation of the Property as of the date hereof. Without limiting the
foregoing, Borrower shall (i) operate the Property in a prudent manner in
compliance with Legal Requirements, (ii) maintain sufficient equipment and
supplies of types and quantities at the Property to enable Borrower or
Manager adequately to perform the operation of the Property and Borrower's
obligations under the Leases, and (iii) keep all Improvements in good
repair, working order and condition, reasonable wear and tear excepted, and
from time to time make all needed and proper repairs,
renewals, replacements, additions, and improvements thereto to keep the
same in good condition.
5.2.6 Leases. Borrower shall observe and perform all the obligations
------
imposed upon the lessor under the Leases and shall not do or permit to be
done anything to impair the value of the Leases or any guaranty of any
Lease as a security for the Obligations. Borrower shall, in the ordinary
course of its business, enforce all of the terms, covenants, and conditions
contained in the Leases upon the part of the Tenants thereunder to be
observed or performed. Borrower shall hold, or cause Manager to hold, all
security deposits with respect to Leases in a segregated account and
otherwise in conformity with Legal Requirements. Borrower (i) shall not
alter, modify, or change the terms of any Lease without the prior consent
of Lender, or cancel or terminate any Lease or accept a surrender thereof
or approve or consent to the cancellation or termination of any guaranty
with respect thereto, or convey or transfer or suffer or permit a
conveyance or transfer of the premises demised by any Lease or of any
interest therein so as to effect a merger of the estates and rights of, or
termination or diminution of the obligations of lessee thereunder, (ii)
shall not consent to, reject, approve or disapprove any action or inaction
requested by any tenant under any Lease, including, without limitation any
assignment of or subletting under any Lease (provided, however, that
Lender's consent to a subletting or assignment shall not be required if
such subletting or assignment is in accordance with the terms of such
Lease), which consent may be unreasonably withheld by Lender in its
discretion, and (iii) shall not pursue any remedies under any Lease or any
guaranty with respect thereto without the prior written consent of Lender.
Notwithstanding the foregoing, Borrower may, without the prior written
consent of Lender, make minor modifications or amendments, or give
consents, with respect to any Lease so long as such modification,
amendment, or consent does not potentially affect the length of the term of
such Lease and does not result in the reduction of the tenant's obligations
for the payment of rent, additional rent, or any other charges payable by
the tenant under such Lease, or amend or modify any provision of such Lease
relating to exclusivity of use, co-tenancy rights, or kick-out rights.
5.2.7 Management Agreement. Borrower shall maintain the Management
--------------------
Agreement in full force and effect and duly observe, perform, and comply
with all of Borrower's obligations thereunder and enforce performance of
all obligations of Manager thereunder. Borrower shall promptly notify
Lender of any dispute, default, event of default, or repudiation by Manager
under the Management Agreement. Borrower shall not enter into any
management agreement for the Property other than the Management Agreement,
unless Borrower first notifies Lender and provides Lender a copy of the
proposed management agreement, obtains Lender's written consent thereto and
obtains and provides Lender with a subordination agreement in form
satisfactory to Lender from such manager subordinating to all rights of
Lender. Borrower shall not enter into, terminate, amend, modify, or extend
the Management Agreement, or consent to any such action on the part of
Manager, without the prior written consent of Lender, which consent shall
not be unreasonably withheld.
5.2.8 Ownership of Personalty. Borrower shall furnish to Lender, if
-----------------------
Lender so requests, the contracts, bills of sale, receipted vouchers, and
agreements, or any of them, under which Borrower claims title to the
materials, articles, fixtures, and other personal property used or to be
used in the construction or operation of the Improvements.
ARTICLE SIX - PROHIBITION ON TRANSFERS OF COLLATERAL
6.1 General Prohibition. Borrower acknowledges that Lender has examined
-------------------
and relied on the experience of Borrower and the owners of the beneficial
interest in Borrower and Borrower's constituent entities in owning and operating
properties such as the Properties in agreeing to make the Loan, and that Lender
will continue to rely on Borrower's ownership of the Properties as a means of
maintaining the value of the Collateral as security for repayment of the
Obligations. Borrower acknowledges that Lender has a valid interest in
maintaining the value of the Properties so as to ensure that, should Borrower
default in the repayment of the Obligations, Lender can recover all or a portion
of the Obligations by a sale of the Collateral. Except as expressly provided
herein, Lender may, at Lender's option, declare all the Obligations immediately
due and payable, and Lender may invoke any rights and remedies permitted by this
Loan Agreement and the other Loan Documents, in the event that Borrower, without
the prior written consent of Lender, which consent may not be unreasonably
withheld by Lender after consideration of all relevant factors, sells, conveys,
alienates, mortgages, encumbers, pledges, or otherwise transfers the Collateral
or any part thereof or any interest therein, or permits the Collateral or any
part thereof or any interest therein to be sold, conveyed, alienated, mortgaged,
encumbered, pledged or otherwise transferred (collectively, a "Transfer").
6.2 Transaction Included. A Transfer within the meaning of Section 6.1
--------------------
shall be deemed to include, without limitation, (i) an installment sales
agreement wherein Borrower agrees to sell the Collateral or any part thereof for
a price to be paid in installments; (ii) an agreement by Borrower leasing all or
a substantial part of the Property for other than actual occupancy by a space
lessee thereunder or a sale, assignment or other transfer of, or the grant of a
security interest in, Borrower's right, title and interest in and to the Leases
or any rents therefrom; (iii) any divestiture of Borrower's title to the
Collateral or any interest therein in any manner or way, whether voluntary or
involuntary, or any merger, consolidation, dissolution or syndication affecting
Borrower; (iv) if Borrower or any general partner of Borrower is a corporation,
the voluntary or involuntary sale, conveyance, or transfer of any of such
corporation's stock or the creation or issuance of new stock in one or a series
of transactions by which an aggregate of more than ten percent (10%) of such
corporation's stock shall be vested in a party or parties who are not now
stockholders of such corporation or any change in the control of such
corporation directly or indirectly; (v) if Borrower or any general partner of
Borrower is a limited or general partnership, joint venture, or limited
liability company, the change, removal, resignation, or addition of a general
partner, managing partner, limited partner, joint venturer, manager, or member,
or the transfer of any partnership interest of any general partner, managing
partner, or limited partner, or the transfer of any interest of any joint
venturer or member (or the transfer of any interest of any Person directly or
indirectly controlling such partner, joint venturer, or member by operation of
law or otherwise); and (vi) if Borrower or any general partner of Borrower is a
business trust, the change, removal, resignation, or addition of a trustee, or
the voluntary or involuntary sale, conveyance, or transfer of any beneficial
interest.
6.3 Permitted Transfers. Notwithstanding the provisions of Section 6.1
-------------------
above, the following Transfers are permitted without the consent of Lender:
(a) The Transfer of shares of common stock or other beneficial or
ownership interest or other forms of securities in Xxxxx REIT, and the
issuance of all varieties of convertible debt, equity and other similar
securities of Xxxxx REIT and the subsequent Transfer of such securities,
provided that no Change in Control occurs as a result of such Transfer,
either upon such Transfer or upon the subsequent conversion to equity or
such convertible debt or other securities.
(b) The Transfer of limited partnership interests by the limited
partners of Borrower, including, without limitation, the conversion or
exchange of limited partnership interests in Borrower to shares of common
stock or other beneficial or ownership interests or other forms of
securities in Xxxxx REIT, provided that no Change in Control occurs as the
result of such Transfer.
(c) The issuance by Borrower of additional limited partnership units
or convertible debt, equity, and other similar securities, and the
subsequent Transfer of such units or other securities, provided that no
Change in Control occurs as the result of such Transfer, either upon such
Transfer or upon the subsequent conversion to equity of such convertible
debt or other securities.
(d) A sale or other disposition of obsolete or worn out personal
property, provided that such personal property is contemporaneously
replaced by comparable personal property of equal or greater value that is
free and clear of Liens other than the Permitted Encumbrances.
(e) Any Transfer that constitutes a Permitted Encumbrance at the time
such Transfer occurs.
(f) The grant of an easement, if prior to the granting of the
easement Borrower causes to be submitted to Lender all information required
by Lender to evaluate the easement, and if Lender determines that the
easement shall not materially affect the operation of the Property or
Lender's interest in the Property and Borrower pays to Lender, on demand,
all cost and expenses incurred by Lender in connection with reviewing
Borrower's request.
6.4 Prohibition Absolute. Lender shall not be required to demonstrate any
--------------------
actual impairment of its security or any increased risk of default hereunder in
order to declare the Obligations immediately due and payable upon the occurrence
of a Transfer without Lender's prior written consent or as otherwise expressly
permitted herein. This provision shall apply to every Transfer regardless of
whether voluntary or not, or whether or not Lender has consented to any previous
Transfer, except for those expressly allowed herein. Any Transfer made in
contravention of this Section shall be null and void and of no force and effect.
ARTICLE SEVEN - EVENTS OF DEFAULT AND REMEDIES
7.1 Events of Default. Each of the following events shall constitute an
-----------------
"Event of Default" under this Loan Agreement, whatever the reason for such event
and whether it shall be voluntary or involuntary, or within or without the
control of a Borrower Party, or be effected by operation of law or pursuant to
any judgment or order of any court or any order, rule, or regulation of any
Governmental Authority:
7.1.1 Borrower fails to pay interest, principal or any other sum due
under the terms of this Loan Agreement, the Note, or any other Loan
Document within ten (10) days after such payment is due; or
7.1.2 Any default or event of default (other than those specified
elsewhere in this Section) occurs pursuant to and as defined in the
Guaranty, the Note, the Security Documents, or any of the other Loan
Documents; or
7.1.3 Any Transfer of the Collateral occurs in violation of the
provisions of Article Six hereof, or any change occurs in the Senior
Management of any Borrower Party (whether or not in connection with or as
the result of a Transfer); or
7.1.4 Borrower assigns or attempts to assign this Loan Agreement,
any rights hereunder, or any Advance to be made hereunder to any Person, or
if Borrower's interest in or rights under this Loan Agreement are
voluntarily or involuntarily transferred to any Person, by operation of law
or otherwise, including, without limitation, such transfer by Borrower as
debtor-in-possession or by a trustee for Borrower under the United States
Bankruptcy Code, whether or not the Obligations are assumed by such Person;
or
7.1.5 Any Borrower Party files a voluntary petition in bankruptcy or
any Borrower Party is adjudicated as bankrupt or insolvent, or any Borrower
Party files any petition or answer seeking or acquiescing in any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution, or similar relief for such Borrower Party under any present or
future federal, state, or other statute, law, or regulation relating to
bankruptcy, insolvency, or other relief for debtors, or any Borrower Party
seeks or consents to, or acquiesces in, the appointment of any trustee,
receiver, or liquidator of such Borrower Party or of all or any substantial
part of such Borrower Party's property or of any or all of the rents,
revenues, issues, earnings, profits, or income thereof, or any Borrower
Party makes any general assignment for the benefit of creditors or admits
in writing an inability to pay such Borrower Party's debts generally as
they become due; or
7.1.6 A court of competent jurisdiction enters an order, judgment,
or decree approving a petition filed against any Borrower Party seeking any
reorganization, arrangement, composition, readjustment, liquidation,
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, which order, judgment, or decree remains
unvacated and unstayed for an aggregate of sixty (60) days (whether or not
consecutive) from the date of entry thereof, or any trustee, receiver, or
liquidator is appointed for any Borrower Party or of all or any substantial
part of such Borrower Party's property or of any or all of the rents,
revenues, issues,
earnings, profits, or income thereof, which appointment remains unvacated
and unstayed for an aggregate of sixty (60) days (whether or not
consecutive); or
7.1.7 Any certificate, statement, representation, warranty, or
audit, whether written or unwritten, heretofore or hereafter furnished by
or on behalf of any Borrower Party pursuant to or in connection with the
Commitment Letter, this Loan Agreement or otherwise (including, without
limitation, representations and warranties contained herein) or as an
inducement to Lender to extend any credit to or to enter into this or any
other agreement with Borrower proves to have been false in any material
respect at the time as of which the facts therein set forth were stated or
certified or to have omitted any substantial contingent or unliquidated
liability or claim against any Borrower Party, or if on the date of
execution of this Loan Agreement any materially adverse change has occurred
in any of the facts previously disclosed by any such certificate,
statement, representation, warranty, or audit, and such change was not
disclosed to Lender at or prior to the time of the execution of this Loan
Agreement; or
7.1.8 Any other indebtedness in an aggregate amount of $1,000,000 of
any Borrower Party or assumed by any Borrower Party (i) is not paid when
due nor within any applicable grace period in any agreement or instrument
relating to such Indebtedness or (ii) becomes due and payable before its
normal maturity by reason of a default or event of default, however
described, or any other event of default shall occur and continue after the
applicable grace period, if any, specified in the agreement or instrument
relating to such Indebtedness; or
7.1.9 A final judgment in an amount equal to or greater by $150,000
is entered by a court of law or equity against any Borrower Party that
remains undischarged for a period of thirty (30) days, unless such judgment
is either (i) fully covered by collectible insurance and such insurer has
within such period acknowledged such coverage in writing, or (ii) although
not fully covered by insurance, enforcement of such judgment has been
effectively stayed, such judgment is being contested or appealed by
appropriate proceedings and such Borrower Party has established reserves
adequate for payment in the event such Borrower Party is ultimately
unsuccessful in such contest or appeal and evidence thereof is provided to
Lender; or
7.1.10 If any provision of this Agreement or any other Loan Document
or the lien and security interest purported to be created hereunder or
under any Loan Document shall at any time for any reason cease to be valid
and binding in accordance with its terms on any Borrower Party, or shall be
declared to be null and void, or the validity or enforceability hereof or
thereof or the validity or priority of the lien and security interest
created hereunder or under any other Loan Document shall be contested by
any Borrower Party seeking to establish the invalidity or unenforceability
hereof or thereof, or any Borrower Party shall deny that it has any further
liability or obligation hereunder or thereunder; or
7.1.11 The failure by any Borrower Party to comply with any
requirement of any Governmental Authority within 30 days after written
notice of such requirement
shall have been given to the Borrower Party by such Governmental Authority;
provided that, if action is commenced and diligently pursued by the
Borrower Party within such 30 days, then the Borrower Party shall have an
additional 30 days to comply with such requirement; or
7.1.12 A dissolution or liquidation for any reason (whether voluntary
or involuntary) of any Borrower Party; or
7.1.13 The failure of Xxxxx REIT to be qualified, and be taxed as, a
real estate investment trust under Subchapter M of the Internal Revenue
Code; or
7.1.14 Borrower fails to properly and timely to perform or observe
any other covenant or condition set forth in this Loan Agreement that is
not cured within any applicable cure period as set forth herein or, if no
cure period is specified therefor, is not cured within thirty (30) days of
Lender's notice to Borrower thereof; provided that, if such default is not
reasonably susceptible to cure within such thirty (30) days period and
Borrower diligently and continuously pursues the cure of such default, then
upon Borrower's written request therefor, Lender shall grant a reasonable
extension of such cure period, but not exceeding ninety (90) days; or
7.1.15 If an "Event of Default" occurs under any Lease, which default
remains uncured after the giving of any applicable notice or the passage of
any applicable cure period, or any Lease is terminated, canceled,
repudiated, or rescinded for any reason whatsoever.
7.2 Remedies. Upon the occurrence of an Event of Default, Lender may do
--------
any one or more of the following (without presentment, protest or notice of
protest, all of which are expressly waived by the Borrower):
7.2.1 By written notice to the Borrower, to be effective upon
dispatch, terminate any obligation Lender might have to make further
Advances hereunder and declare the principal of, and interest on, the
Advances and all other sums owing by Borrower to Lender under any of the
Loan Documents forthwith due and payable, and the principal of, and
interest on, the Advances and all other sums owing by Borrower to Lender
under any of the Loan Documents will become forthwith due and payable.
7.2.2 Lender shall have the right to pursue any other remedies
available to it under any of the Loan Documents.
7.2.3 Lender shall have the right to pursue all remedies available
to it at law or in equity, including obtaining specific performance and
injunctive relief.
7.3 Waivers; Rescission of Declaration. Lender shall have the right, to
----------------------------------
be exercised in its complete discretion, to waive any breach hereunder
(including the occurrence of an Event of Default), by a writing setting forth
the terms, conditions, and extent of such waiver signed by the Lender and
delivered to the Borrower Parties. Unless such writing expressly provides to
the contrary, any waiver so granted shall extend only to the specific event or
occurrence which gave
rise to the waiver and not to any other similar event or occurrence which occurs
subsequent to the date of such waiver.
7.4 Lender's Right to Protect Collateral and Perform Covenants and Other
--------------------------------------------------------------------
Obligations. If any Borrower Party fails to perform the covenants and
-----------
agreements contained in this Loan Agreement or any of the other Loan Documents,
then the Lender at the Lender's option may make such appearances, disburse such
sums and take such action as the Lender deems necessary, in its sole discretion,
to protect the Lender's interest, including (i) disbursement of attorneys' fees,
(ii) entry upon any Property to make repairs and replacements, (iii) procurement
of satisfactory insurance as provided in the Security Instruments encumbering
the Properties, and (iv) if the Security Instrument is on a leasehold, exercise
of any option to renew or extend the ground lease on behalf of the Borrower and
the curing of any default of the Borrower in the terms and conditions of the
ground lease. Any amounts disbursed by the Lender pursuant to this Section,
with interest thereon, shall become additional indebtedness of the Borrower
secured by the Loan Documents. Unless the Borrower and the Lender agree to
other terms of payment, such amounts shall be immediately due and payable and
shall bear interest from the date of disbursement at the Default Rate unless
collection from the Borrower of interest at such rate would be contrary to
applicable law, in which event such amounts shall bear interest at the highest
rate which may be collected from the Borrower under applicable law. Nothing
contained in this Section shall require the Lender to incur any expense or take
any action hereunder.
7.5 No Remedy Exclusive. Unless otherwise expressly provided, no remedy
-------------------
herein conferred upon or reserved is intended to be exclusive of any other
available remedy, but each remedy shall be cumulative and shall be in addition
to other remedies given under the Loan Documents or existing at law or in
equity.
7.6 Application of Payments. Except as otherwise expressly provided in
-----------------------
the Loan Documents, and unless applicable law provides otherwise, (i) all
payments received by Lender from any of the Borrower Parties under the Loan
Documents shall be applied by Lender against any amounts then due and payable
under the Loan Documents by any of the Borrower Parties, in any order of
priority that the Lender may determine and (ii) the Borrower shall have no right
to determine the order of priority or the allocation of any payment it makes to
Lender.
7.7 Crossing of Security Documents. Each of the Security Documents shall
------------------------------
be cross-defaulted (i.e., a default under any Security Document, or under this
Loan Agreement, shall constitute a default under each Security Document and this
Loan Agreement) and cross-collateralized (i.e., each Security Instrument shall
secure all Obligations under this Loan Agreement and the other Loan Documents),
and it is the intent of the parties to this Loan Agreement that the Lender may,
except as provided in this Loan Agreement, exercise and perfect any and all of
its rights in and under the Loan Documents with regard to any Property without
the necessity to exercise and perfect its rights and remedies with respect to
any other Property and that any such exercise shall be without regard to the
amount of Advances allocable to such Property and that Lender may recover an
amount equal to the full amount of the outstanding Obligations in connection
with such exercise and any such amount shall be applied as determined by Lender
in its sole and absolute discretion.
ARTICLE EIGHT - MISCELLANEOUS PROVISIONS
8.1 Loan Agreement Part of Note and Other Loan Documents. The Note and
----------------------------------------------------
the other Loan Documents specifically incorporate this Loan Agreement by
reference, and in the event that the Note and the other Loan Documents are duly
assigned, this Loan Agreement shall be considered assigned in like manner. If a
conflict exists or arises between any of the provisions of this Loan Agreement
and any other Loan Document, the provisions of this Loan Agreement shall
control.
8.2 Indemnification. Borrower shall, at its sole cost and expense,
---------------
protect, defend, indemnify, release and hold harmless the Indemnified Parties
(defined below) from and against any and all claims, suits, liabilities
(including, without limitation, strict liabilities), actions, proceedings,
obligations, debts, damages, losses, costs, expenses, diminutions in value,
fines, penalties, charges, fees, expenses, judgments, awards, amounts paid in
settlement, or punitive damages, of whatever kind or nature (including, but not
limited to reasonable attorney's fees and other costs of defense) (the "Losses")
imposed upon or incurred by or asserted against any Indemnified Party (but
excluding (x) Losses arising out of Lender's gross negligence or willful
misconduct and (y) Losses arising out of Lender's ownership or operation of any
Property after title to such Property is transferred to Lender or another Person
following the foreclosure of the applicable Security Instrument or transfer in
lieu of foreclosure) and directly or indirectly arising out of or in any way
relating to (i) Lender's interest in any Property or Lender's relationship with
any Borrower Party by virtue of Lender's ownership of the Loan, the Note, the
Security Documents, or any other Loan Document, (ii) any amendment to, or
restructuring of, the Loan or the Loan Documents; (iii) any and all lawful
action that may be taken by Lender in connection with the enforcement of the
provisions of this Loan Agreement, the Security Documents, or any of the other
Loan Documents, whether or not suit is filed in connection with same, or in
connection with Borrower, Guarantor, and/or any member, partner, joint venturer,
or shareholder of Borrower becoming a party to a voluntary or involuntary
federal or state bankruptcy, insolvency or similar proceeding, (iv) any
accident, injury to or death of persons or loss of or damage to property
occurring in, on or about any Property or any part thereof or adjacent parking
areas, streets or ways, (v) any use, nonuse or condition in, on or about any
Property or any part thereof or on the adjoining sidewalks, curbs, adjacent
property or adjacent parking areas, streets, or ways, (vi) any failure on the
part of Borrower to perform or be in compliance with any of the terms of this
Loan Agreement, the Security Documents, or any of the other Loan Documents,
(vii) performance of any labor or services or the furnishing of any materials or
other property in respect of any Property or any part thereof, (viii) the
failure of any person to file timely with the Internal Revenue Service an
accurate Form 1099-B, Statement or Recipients of Proceeds from Real Estate,
Broker and Barter Exchange Transactions, which may be required in connection
with the Loan, or to supply copy thereof in a timely fashion to the recipient of
the proceeds of the Loan, (ix) any failure of any Property to be in compliance
with any Legal Requirement, (x) the enforcement by any Indemnified Party of the
provisions of this Section, (xi) the payment of any commission, charge or
brokerage fee to anyone which may be payable in connection with the funding of
the Loan, or (xii) any misrepresentation made by Borrower in this Loan Agreement
or in any of the other Loan Documents. Any amounts payable to Lender by reason
of the application of this Section shall become immediately due and payable and
shall bear interest at the Default Rate from the date loss or damage is
sustained by Lender until paid. For purposes of this Section, the term
"Indemnified Parties" means Lender and any Person who is or shall have been
involved in the origination or administration of the Loan, any Person in whose
name the encumbrance created by the Security Documents is or shall have been
recorded, Persons who may hold or acquire or shall have held a full or partial
interest in the Loan (including, but not limited to Investors or prospective
investors who hold or have held a full or partial interest in the Loan for the
benefit of third parties) as well as the respective directors, officers,
shareholders, members, partners, employees, agents, servants, representatives,
contractors, subcontractors, affiliates, subsidiaries, participants, successors
and assigns of any other Person who holds or acquires or shall have held a
participation or other full or partial interest in the Loan or any Property,
whether during the term of the Loan or as a part of or following a foreclosure
of the Loan and including, but not limited to any successors by merger,
consolidation or acquisition of all or a substantial portion of Lender's assets
and business.
8.3 Costs and Expenses. Borrower shall bear all taxes, fees, and
------------------
expenses (including reasonable fees and expenses of counsel for Lender) in
connection with the Loan, the Note, the preparation and, if applicable, the
recordation of this Loan Agreement and the other Loan Documents, and in
connection with any amendments, waivers, or consents pursuant to the provisions
hereof hereafter made and any workout or restructuring relating to the Loan.
If, at any time, an Event of Default occurs or Lender becomes a party to any
suit or proceeding in order to protect its interests or priority in any Property
or its rights under this Loan Agreement or any of the other Loan Documents, or
if Lender is made a party to any suit or proceeding by virtue of the Loan, this
Loan Agreement, or any Property and as a result of any of the foregoing, Lender
employs counsel to advise or provide other representation with respect to this
Loan Agreement, any Property, or to collect the Obligations, or to take any
action in or with respect to any suit or proceeding relating to this Loan
Agreement, any of the other Loan Documents, any Property, Borrower, or any other
Borrower Party, or to protect, collect, or liquidate any of the Collateral, or
attempt to enforce any security interest or lien granted to Lender by any of the
Loan Documents, then in any such event, all of the attorney's fees arising from
such services, including fees on appeal and in any bankruptcy proceedings, and
any expenses, costs, and charges relating thereto shall constitute additional
obligations of Borrower to Lender payable on demand of Lender. Without limiting
the foregoing, Borrower has undertaken the obligation for payment of, and shall
pay, all recording and filing fees, revenue or documentary stamps or taxes,
intangibles taxes, transfer taxes, recording taxes and other taxes, expenses and
charges payable in connection with this Loan Agreement, any of the other Loan
Documents, the Obligations, or the filing of any financing statements or other
instruments required to effectuate the purposes of this Loan Agreement, and if
Borrower fails to do so, Borrower agrees to reimburse Lender for the amounts
paid by Lender, together with penalties or interest, if any, incurred by Lender
as a result of underpayment or nonpayment. This Section shall survive for
eighteen (18) months after repayment of the Obligations.
8.3 Assignability. Neither this Loan Agreement, nor any rights or
-------------
obligations hereunder, nor any Advance to be made hereunder, is assignable by
Borrower. The rights of Lender under this Loan Agreement are assignable in part
or wholly and any assignee of Lender shall succeed to and be possessed of the
rights of Lender hereunder to the extent of the assignment made, including the
right to make Advances to Borrower or any approved assignee of Borrower in
accordance with this Loan Agreement.
8.4 Relationship of the Parties. Borrower agrees that its relationship
---------------------------
with Lender is solely that of debtor and creditor. Nothing contained in this
Loan Agreement or in any other Loan Document shall be deemed to create a
partnership, tenancy-in-common, joint tenancy, joint venture, or co-ownership by
or between Borrower and Lender, or make Lender the agent or
representative of Borrower. Lender shall not be in any way liable or responsible
for any debts, losses, obligations, or duties of Borrower with respect to the
Property or otherwise, including, without limitation, any debts, obligations, or
duties owed at any time to materialmen, contractors, craftsmen, laborers, or
others for goods delivered to or services performed by them in relation to any
Property, it being understood that no contractual relationship, either expressed
or implied, exists between Lender and any materialmen, subcontractors,
craftsmen, laborers, or any other person supplying any work, labor, or materials
for any Property. Borrower, at all times consistent with the terms and
provisions of this Loan Agreement and the other Loan Documents, shall be free to
determine and follow its own policies and practices in the conduct of its
business.
8.5 Participation. Borrower acknowledges and agrees that Lender may, at
-------------
its option, sell participation interests in the Loan to other participating
lenders, provided, however, that Borrower shall continue to be entitled to deal
with Lender as though no such participations had been sold. Borrower agrees
with all present and future such participants that if an Event of Default
occurs, each participant shall have all of the rights and remedies of Lender
with respect to any deposit due from any participant to Borrower, including,
without limitation, the right to set off such deposits against Borrower's
obligations hereunder. The execution by a participant of a participation
agreement with Lender and the execution by Borrower of this Loan Agreement,
regardless of the order of execution, with a copy to Borrower, shall evidence an
agreement between Borrower and such participant in accordance with the terms
hereof.
ARTICLE NINE - DOCUMENT PROTOCOLS
This Loan Agreement and each of the other Loan Documents shall be governed
by the following protocols (the "Document Protocols"), unless any Loan Document
expressly states that the Document Protocols shall not apply to such Loan
Document in whole or in part:
9.1 General Rules of Usage. These Document Protocols shall apply to such
----------------------
Loan Document as from time to time amended, modified, replaced, restated,
extended or supplemented, including by waiver or consent, and to all attachments
thereto and all other documents or instruments incorporated therein. When used
in any Loan Document governed by these Document Protocols, (i) references to a
Person are, unless the context otherwise requires, also to its heirs, executors,
legal representatives, successors, and assigns, as applicable, (ii) "hereof,"
"herein," "hereunder" and comparable terms refer to the entire Loan Document in
which such terms are used and not to any particular article, section, or other
subdivision thereof or attachment thereto, (iii) references to any gender
include, unless the context otherwise requires, references to all genders, and
references to the singular include, unless the context otherwise requires,
references to the plural, and vice versa, (iv) "shall" and "will" have equal
force and effect, (v) references in a Loan Document to "Article," "Section,"
"paragraph" or another subdivision or to an attachment are, unless the context
otherwise requires, to an article, section, paragraph, or subdivision of or an
attachment to such Loan Document, (vi) all accounting terms not otherwise
defined therein have the meanings assigned to them in accordance with GAAP, and
(vii) "include," "includes" and "including" shall be deemed to be followed by
"without limitation" whether or not they are in fact followed by such words or
words of like import.
9.2 Notices. All notices, consents, approvals, statements, requests,
-------
reports, demands, instruments or other communications to be made, given or
furnished pursuant to, under or by virtue of such Loan Document (a "notice")
shall be in writing and shall be deemed given or furnished if addressed to the
party intended to receive the same at the address of such party as set forth
below (i) upon receipt when personally delivered at such address, (ii) three (3)
Business Days after the same is deposited in the United States mail as first
class registered or certified mail, return receipt requested, postage prepaid,
or (iii) one Business Day after the date of delivery of such notice to a
nationwide, reputable commercial courier service:
Lender: SouthTrust Bank, National Association
000 Xxxxx Xxxxxxxxx Xxxxxx
SouthTrust Tower - 00xx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Commercial Real Estate Loan Dept.
with copy to (which alone shall not constitute
notice):
Xxxx X. Xxxxxx, Esq.
Xxxx & Xxxxxx LLP
One Georgia Center, Suite 1200
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Borrower: Xxxxx Operating Partnership, L.P.
0000 Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxx X. Xxxxx, III
Guarantor: Xxxxx Real Estate Investment Trust, Inc.
0000 Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxx X. Xxxxx, III
Any party may change the address to which any notice is to be delivered to any
other address within the United States of America by furnishing written notice
of such change at least fifteen (15) days prior to the effective date of such
change to the other parties in the manner set forth above, but no such notice of
change shall be effective unless and until received by such other parties.
Rejection or refusal to accept, or inability to deliver because of changed
address or because no notice of changed address was given, shall be deemed to be
receipt of any such notice. Any notice to an entity shall be deemed to be given
on the date specified in this Section without regard to when such notice is
delivered by the entity to the individual to whose attention it is directed and
without regard to the fact that proper delivery may be refused by someone other
than the individual
to whose attention it is directed. If a notice is received by an entity, the
fact that the individual to whose attention it is directed is no longer at such
address or associated with such entity shall not affect the effectiveness of
such notice. Notices may be given on behalf of any party by such party's
attorneys.
9.3 Severability. Whenever possible, each provision of such Loan Document
------------
shall be interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of such Loan Document shall be prohibited
by or invalid or unenforceable under the applicable law of any jurisdiction with
respect to any Person or circumstance, such provision shall be ineffective to
the extent of such prohibition, invalidity or unenforceability, without
invalidating the remaining provisions of such Loan Document or affecting the
validity or enforceability of such provisions in any other jurisdiction or with
respect to other Persons or circumstances. To the extent permitted by
applicable law, the parties to such Loan Document thereby waive any provision of
law that renders any provision thereof prohibited, invalid or unenforceable in
any respect.
9.4 Remedies Not Exclusive. No remedy therein conferred upon or reserved
----------------------
to Lender is intended to be exclusive of any other remedy or remedies available
to Lender under such Loan Document, at law, in equity or by statute, and each
and every such remedy shall be cumulative and in addition to every other remedy
given thereunder or now or hereafter existing at law, in equity or by statute.
9.5 Liability. If Borrower or Guarantor consists of more than one Person,
---------
the obligations and liabilities of each such Person under such Loan Document
shall be joint and several, except as expressly provided to the contrary in such
Loan Document.
9.6 Binding Obligations; Covenants Run with the Land. Such Loan Document
------------------------------------------------
shall be binding upon Borrower or Guarantor, as the case may be, and the
successors, assigns, heirs and personal representatives of Borrower or
Guarantor, as the case may be, and shall inure to the benefit of Lender and all
subsequent holders of such Loan Document and their respective officers,
directors, employees, shareholders, agents, successors and assigns. Nothing in
such Loan Document, whether express or implied, shall be construed to give any
Person (other than the parties thereto and their permitted successors and
assigns and as expressly provided therein) any legal or equitable right, remedy
or claim under or in respect of such Loan Document or any covenants, conditions
or provisions contained therein. If such Loan Document is to be recorded, all
of the grants, covenants, terms, provisions, covenants and conditions of such
Loan Document shall run with the land.
9.7 No Oral Modifications. Such Loan Document, and any of the provisions
---------------------
thereof, cannot be altered, modified, amended, waived, extended, changed,
discharged or terminated orally or by any act on the part of Borrower,
Guarantor, or Lender, but only by an agreement in writing signed by the party
against whom enforcement of any alteration, modification, amendment, waiver,
extension, change, discharge or termination is sought. Without limiting the
generality of the foregoing, any payment made by Lender for insurance premiums,
impositions or any other charges affecting any Property shall not constitute a
waiver of Borrower's or any Guarantor's default in making such payments and
shall not obligate Lender to make any further payments.
9.8 Entire Agreement. Such Loan Document, together with the other
----------------
applicable Loan Documents and this Rider, constitutes the entire agreement of
the parties thereto with respect to the subject matter thereof and supersedes
all prior written and oral agreements and understandings with respect to such
subject matter.
9.9 Waiver of Acceptance. Borrower and Guarantor hereby waive any
--------------------
acceptance of such Loan Document by Lender in writing, and such Loan Document
shall immediately be binding upon Borrower or Guarantor, as the case may be.
9.10 Jurisdiction, Court Proceedings. Each of Lender, Borrower, and
-------------------------------
Guarantor, to the fullest extent permitted by law, hereby knowingly,
intentionally, and voluntarily, with and upon the advice of competent counsel,
(i) submits to personal, nonexclusive jurisdiction in the State of Georgia with
respect to any suit, action, or proceeding by any person arising from, relating
to, or in connection with such Loan Document or the Loan, (ii) agrees that any
such suit, action, or proceeding may be brought in any state or federal court of
competent jurisdiction sitting in the State of Georgia, and (iii) submits to the
jurisdiction of such courts. Each of Borrower and Guarantor, to the fullest
extent permitted by law, hereby knowingly, intentionally, and voluntarily, with
and upon the advice of competent counsel, further agrees that it shall not bring
any action, suit, or proceeding in any forum other than in the state or federal
courts of the State of Georgia (but nothing herein shall affect the right of
Lender to bring any action, suit, or proceeding in any other forum), and
irrevocably agrees not to assert any objection which it may ever have to the
laying of venue of any such suit, action, or proceeding in any federal or state
court located in Georgia and any claim that any such action, suit, or proceeding
brought in any such court has been brought in an inconvenient forum.
9.11 Waiver of Counterclaim. Borrower and Guarantor each hereby knowingly
----------------------
waives the right to assert any counterclaim, other than a compulsory or
mandatory counterclaim, in any action or proceeding brought against either of
them by Lender.
9.12 Waiver of Jury Trial. Borrower, Guarantor, and Lender, to the full
--------------------
extent permitted by law, each hereby knowingly, intentionally, and voluntarily,
with and upon the advice of competent counsel, waives, relinquishes, and forever
forgoes hereby the right to a trial by jury in any action or proceeding,
including, without limitation, any tort action, brought by any of them against
the other based upon, arising out of, or in any way relating to or in connection
with such Loan Document, the Loan, or any course of conduct, act, omission,
course of dealing, statements (whether verbal or written) or actions of any
Person (including, without limitation, such Person's directors, officers,
partners, members, employees, agents or attorneys, or any other Persons
affiliated with such Person), in connection with the Loan or such Loan Document,
including, without limitation, in any counterclaim which Borrower or Guarantor
may be permitted to assert thereunder or which may be asserted by Lender against
Borrower or Guarantor, whether sounding in contract, tort, or otherwise. This
waiver by Borrower and Guarantor of their right to a jury trial is a material
inducement for Lender to make the Loan.
9.13 No Waivers by Lender. No delay or omission of Lender in exercising
--------------------
any right or power accruing upon any default under such Loan Document shall
impair any such right or power or shall be construed to be a waiver of any
default under such Loan Document or any acquiescence therein, nor shall any
single or partial exercise of any such right or power or any abandonment or
discontinuance of steps to enforce such right or power, preclude any other or
further exercise thereof or the exercise of any other right or power.
Acceptance of any payment after the occurrence of a default under such Loan
Document shall not be deemed to waive or cure such default under such Loan
Document; and every power and remedy given by such Loan Document to Lender may
be exercised from time to time as often as may be deemed expedient by Lender.
Borrower and Guarantor hereby waive any right to require Lender at any time to
pursue any remedy in Lender's power whatsoever.
9.14 Waiver of Notice. Neither Borrower nor Guarantor shall be entitled
----------------
to any notices of any nature whatsoever from Lender except with respect to
matters for which such Loan Document specifically and expressly provides for the
giving of notice by Lender to Borrower or Guarantor, as the case may be, and
except with respect to matters for which Borrower or Guarantor, as the case may
be, is not, pursuant to applicable legal requirements, permitted to waive the
giving of notice. Each of Borrower and Guarantor hereby expressly waives the
right to receive any notice from Lender with respect to any matter for which
such Loan Document does not specifically and expressly provide for the giving of
notice by Lender to Borrower or Guarantor, as the case may be. Any provision of
such Loan Document which expressly provides for the giving of notice by Lender
to Borrower or Guarantor shall be deemed eliminated ab initio if Lender is
prevented from giving such notice by bankruptcy or other applicable law.
9.15 Offsets, Counterclaims and Defenses. Any assignee of such Loan
-----------------------------------
Document from Lender or any successor or assignee of Lender shall take the same
free and clear of all offsets, counterclaims, or defenses that are unrelated to
such Loan Document which Borrower or Guarantor may otherwise have against any
assignor of such Loan Document, and no such unrelated counterclaim or defense
shall be interposed or asserted by Borrower or Guarantor in any action or
proceeding brought by any such assignee upon such Loan Document, and any such
right to interpose or assert any such unrelated offset, counterclaim or defense
in any such action or proceeding is hereby expressly waived by Borrower and
Guarantor.
9.16 Time of the Essence. Time shall be of the essence in the performance
-------------------
of all obligations of Borrower and Guarantor under such Loan Document.
9.17 Governing Law. Such Loan Document shall be governed by, and
-------------
construed in accordance with, the laws of the State of Georgia.
9.18 Sole Discretion of Lender. Wherever pursuant to such Loan Document,
-------------------------
Lender exercises any right given to it to approve or disapprove, or any
arrangement or term is to be satisfactory to Lender, the decision of Lender to
approve or disapprove or to decide that arrangements or terms are satisfactory
or not satisfactory shall be in the sole discretion of Lender exercised in
subjective good faith and shall be final and conclusive, except as may be
otherwise specifically provided therein. In addition, Lender shall have the
right to refuse to grant its consent, approval or acceptance or to indicate its
satisfaction whenever such consent, approval, acceptance
or satisfaction shall be required under such Loan Document, subject to the
applicable standard of discretion.
9.19 Counterparts. Such Loan Document may be executed in any number of
------------
separate counterparts, each of which, when so executed and delivered, shall be
deemed an original, but all of which, collectively and separately, shall
constitute one and the same Loan Document. All signatures need not be on the
same counterpart. The failure of any party thereto to execute such Loan
Document, or any counterpart hereof, shall not relieve the other signatories
from their obligations hereunder.
9.20 Exhibits Incorporated; Headings. The information set forth on the
-------------------------------
cover of such Loan Document, the table of contents, the headings, and the
exhibits annexed thereto, if any, shall be deemed to be incorporated therein as
a part thereof with the same effect as if set forth in the body thereof. The
headings and captions of the various articles, sections, and paragraphs of such
Loan Document are for convenience of reference only and shall not be construed
as modifying, defining, or limiting, in any way, the scope or intent of the
provisions thereof.
9.21 Interpretation. No provision of such Loan Document shall be
--------------
construed against or interpreted to the disadvantage of any party thereto by any
court or other governmental or judicial authority by reason of such party's
having or being deemed to have structured or dictated such provision.
9.22 Remedies of Borrower and Guarantor. If Borrower or Guarantor, as the
----------------------------------
case may be, shall seek the approval or consent of Lender under such Loan
Document, which Loan Document expressly provides that Lender's approval shall
not be unreasonably withheld, and Lender shall fail or refuse to give such
consent or approval, the burden of proof as to whether or not Lender acted
unreasonably shall be upon Borrower or Guarantor, as the case may be, provided
Lender has given Borrower a written explanation for the disapproval or lack of
consent.
9.23 Release of any Party or Collateral. Lender may at any time, without
----------------------------------
releasing or impairing the liability of any Person liable upon or in respect of
such Loan Document, release, surrender, substitute, or exchange any Collateral
securing this Note and may at any time release any other Person primarily or
secondarily liable for the Obligations.
9.24 Attorneys' Fees. Wherever it is provided in such Loan Document that
---------------
Borrower or Guarantor pay any costs and expenses, such costs and expenses shall
include, without limitation, all reasonable attorneys', paralegal and law clerk
fees and disbursements, including, without limitation, fees and disbursements at
the pre-trial, trial and appellate levels, which are actually incurred or paid
by Lender at standard billable rates; provided that the foregoing reference to
"reasonable" fees and disbursements (and any other such references in such Loan
Document) shall be deemed to include only such fees and disbursement actually
incurred at normal billing rates.
9.25 Method of Payment. All amounts required to be paid by any party to
-----------------
such Loan Document to any other party shall be paid in such freely transferable
coin or currency of the United
States of America as at the time of payment shall be legal tender for the
payment of public and private debts.
9.26 True Copy. By executing such Loan Document, Borrower or Guarantor,
---------
as the case may be, acknowledges that it has received a true copy of such Loan
Document.
[THE REMAINDER OF THIS PAGE WAS LEFT BLANK INTENTIONALLY]
IN WITNESS WHEREOF, Borrower and Lender have caused this Loan Agreement to
be executed by their duly authorized representatives under seal as of the date
first set forth above, with the intention that this instrument take effect as an
instrument under seal.
XXXXX OPERATING PARTNERSHIP, L.P.,
a Delaware limited partnership
By: Xxxxx Real Estate Investment Trust, Inc.,
a Maryland corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxx
--------------------------
Title: EX VP
-------------------------
[Affix seal]
[EXECUTIONS CONTINUED ON NEXT PAGE]
SOUTHTRUST BANK, NATIONAL ASSOCIATION,
a national banking association
By: /s/ Xxxxx X. Xxxxxx
----------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
[END OF EXECUTIONS]
EXHIBIT A
List of Properties
--------------------------------------------------------------------------------
Name and Location Leases and Area
--------------------------------------------------------------------------------
Cinemark Office Building Cinemark USA, Inc. (65,855 sf)
0000 Xxxxxx Xxxxxxx The Coca-Cola Company (52,084 sf)
Plano, Collin County, Texas
--------------------------------------------------------------------------------
The Dial Corporation Office Building The Dial Corporation (129,689 sf)
00000 Xxxxx Xxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxxx Xxxxxx, Xxxxxxx
--------------------------------------------------------------------------------
ASM Lithography Office Building ASM Lithography, Inc. (95,133 sf)
0000 Xxxxx Xxxxx Xxxxxxx Xxxx Companies US, Inc. (Subground
Tempe, Maricopa County, Arizona Lease)
Xxxxx-Xxxxxxx Research Park, Inc.
(Ground Lease)
--------------------------------------------------------------------------------
ABB Power Generation Office Building ABB Power Generation, Inc. (99,057 sf)
Waterford Lake Drive,
Midlothian, Chesterfield County, Virginia
--------------------------------------------------------------------------------
EXHIBIT B
FORM OF OFFICER'S CERTIFICATE
SouthTrust Bank, National Association
000 Xxxxx 00xx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Commercial Real Estate Department
Date of Certificate:
The undersigned, as __________ of Xxxxx Real Estate Investment Trust, Inc.,
a Maryland corporation, as the sole general partner of Xxxxx Operating
Partnership, L.P., a Delaware limited partnership ("Borrower"), does hereby
certify to you as follows:
(1) We have reviewed the provisions of the Revolving Loan Agreement between
Borrower and you, dated as of _______________, 2000 (the "Loan Agreement"), and
we have caused to be made under our supervision a review of the activities of
Borrower during the above-referenced period with a view toward determining
whether Borrower has kept, observed, performed, and fulfilled all of its
obligations under the Loan Agreement. Capitalized terms used herein but not
otherwise defined herein shall have the meanings set forth in the Loan
Agreement.
(2) To the best of our knowledge, Borrower has kept, observed, performed,
and fulfilled each and every undertaking contained in the Loan Agreement and is
not at this time in default in the observance or performance of any of the terms
or conditions of the Loan Agreement, and no Default or Event of Default has
occurred and is continuing, except as follows:
(3) We further certify to you that no material adverse change has occurred
in the financial condition or the business of Borrower or Xxxxx REIT since the
date of the Loan Agreement and that all representations and warranties set forth
within the Loan Agreement are true and complete as of the date hereof.
Executed this ____ day of __________________, 20___.
_______________________________________
Name:__________________________________
Title:_________________________________
