Exhibit 10.33
CREDIT AGREEMENT
dated
December 19, 1996
between
RESOURCE COMMERCIAL MORTGAGES, INC.,
TUNLAW ASSOCIATES I, L.P. and
TUNLAW ASSOCIATES II, L.P.
Collectively, the Borrower
and
XXXXXX BROTHERS HOLDINGS INC.,
doing business as Xxxxxx Capital,
a division of Xxxxxx Brothers Holdings Inc.
Lender
TABLE OF CONTENTS
Page
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Article 1 Definitions. . . . . . . . . . . . . . . . . . . . 1
Section 1.1 Definitions. . . . . . . . . . . . . . . . . 1
Section 1.2 Gender, etc. . . . . . . . . . . . . . . . . 12
Section 1.3 Accounting Terms and Determinations. . . . . 12
Section 1.4 Other Defined Terms. . . . . . . . . . . . . 12
Article 2 The Loans. . . . . . . . . . . . . . . . . . . . . 13
Section 2.1 Commitment . . . . . . . . . . . . . . . . . 13
Article 3 The Note . . . . . . . . . . . . . . . . . . . . . 13
Section 3.1 Note . . . . . . . . . . . . . . . . . . . . 13
Section 3.2 Lost or Destroyed Note . . . . . . . . . . . 13
Article 4 Existing Mortgages/Debt Service Payment
Pursuant to Existing Debt Instruments. . . . . . . 14
Section 4.1 Existing Mortgages . . . . . . . . . . . . . 14
Section 4.2 Notices. . . . . . . . . . . . . . . . . . . 14
Article 5 Interest Rates . . . . . . . . . . . . . . . . . . 14
Section 5.1 Interest . . . . . . . . . . . . . . . . . . 14
Article 6 Payments and Prepayments . . . . . . . . . . . . . 15
Section 6.1 Type and Place of Payment. . . . . . . . . . 15
Section 6.2 Optional Prepayments . . . . . . . . . . . . 15
Section 6.3 Net Cash Flow Prepayments. . . . . . . . . . 15
Article 7 Additional Provisions Relating to Loan . . . . . . 15
Section 7.1 Indemnity. . . . . . . . . . . . . . . . . . 15
Section 7.2 Survival . . . . . . . . . . . . . . . . . . 16
Article 8 Representations and Warranties . . . . . . . . . . 16
Section 8.1 Authority. . . . . . . . . . . . . . . . . . 16
Section 8.2 Litigation . . . . . . . . . . . . . . . . . 18
Section 8.3 Indebtedness . . . . . . . . . . . . . . . . 18
Section 8.4 No Assignment. . . . . . . . . . . . . . . . 18
Section 8.5 Shareholders . . . . . . . . . . . . . . . . 18
Section 8.6 Organizational Documents . . . . . . . . . . 18
Section 8.7 Agreements Relating to the Premises. . . . . 18
Section 8.8 Shareholder Interests. . . . . . . . . . . . 19
Section 8.9 No Burdensome Restrictions . . . . . . . . . 19
Section 8.10 Taxes . . . . . . . . . . . . . . . . . . . 19
Section 8.11 ERISA . . . . . . . . . . . . . . . . . . . 19
Section 8.12 Collective Bargaining Agreements. . . . . . 19
Section 8.13 Judgments/Bankruptcy. . . . . . . . . . . . 20
Section 8.14 The Leases. . . . . . . . . . . . . . . . . 20
Section 8.15 Permits . . . . . . . . . . . . . . . . . . 20
Section 8.16 Documents . . . . . . . . . . . . . . . . . 20
Section 8.17 Due Diligence Reports . . . . . . . . . . . 21
Section 8.18 Federal Regulations . . . . . . . . . . . . 21
Article 9 Affirmative Covenants. . . . . . . . . . . . . . . 21
Section 9.1 Financial Statements and Reports. . . . . . 21
Section 9.2 Discussion and Further Financial
Information . . . . . . . . . . . . . . . . 22
Section 9.3 Maintenance of Records. . . . . . . . . . . 22
Section 9.4 Preservation of Assets. . . . . . . . . . . 22
Section 9.5 Taxes and Claims. . . . . . . . . . . . . . 22
Section 9.6 Utilities; Compliance with Applicable
Laws . . . . . . . . . . . . . . . . . . . 23
Section 9.7 Litigation. . . . . . . . . . . . . . . . . 23
Section 9.8 Insurance . . . . . . . . . . . . . . . . . 23
Section 9.9 Environmental Compliance. . . . . . . . . . 24
Section 9.10 Compliance with Contractual Obligations . . 24
Section 9.11 Notices . . . . . . . . . . . . . . . . . . 24
Section 9.12 Management Control. . . . . . . . . . . . . 25
Section 9.13 Tenant Estoppel Certificates. . . . . . . . 25
Section 9.14 Physical Condition of the Premises. . . . . 25
Section 9.15 Intentionally Omitted . . . . . . . . . . . 26
Section 9.16 Intentionally Omitted.. . . . . . . . . . . 26
Section 9.17 Insurance Coverage. . . . . . . . . . . . . 26
Section 9.18 Rents.. . . . . . . . . . . . . . . . . . . 26
Section 9.19 Leases. . . . . . . . . . . . . . . . . . . 26
Section 9.20 Inspections.. . . . . . . . . . . . . . . . 26
Section 9.21 Borrower as Owner.. . . . . . . . . . . . . 26
Article 10 Negative Covenants. . . . . . . . . . . . . . . . 27
Section 10.1 Same Line of Business. . . . . . . . . . . 27
Section 10.2 Merger and Consolidation . . . . . . . . . 27
Section 10.3 Corporation. . . . . . . . . . . . . . . . 27
Section 10.4 Transactions with Affiliates . . . . . . . 27
Section 10.5 Sale of Assets . . . . . . . . . . . . . . 28
Section 10.6 Debt . . . . . . . . . . . . . . . . . . . 28
Section 10.7 Liens. . . . . . . . . . . . . . . . . . . 28
Section 10.8 No Assignment. . . . . . . . . . . . . . . 28
Section 10.9 Compliance with ERISA. . . . . . . . . . . 29
Section 10.10 No Amendments/Termination. . . . . . . . . 29
Section 10.11 Intentionally Omitted. . . . . . . . . . . 29
Section 10.12 Tenant Improvements. . . . . . . . . . . . 29
Article 11 Conditions Precedent. . . . . . . . . . . . . . . 29
Section 11.1 Conditions Precedent to Purchase Loan . . . 29
Section 11.2 Conditions to the Loan. . . . . . . . . . . 32
Article 12 Events of Default . . . . . . . . . . . . . . . . 32
Section 12.1 Events of Default.. . . . . . . . . . . . . 32
Article 13 Miscellaneous 35 . . . . . . . . . . . . . . . . .35
Section 13.1 Successors and Assigns. . . . . . . . . . . 35
Section 13.2 Notices . . . . . . . . . . . . . . . . . . 36
Section 13.3 Amendment and Waiver. . . . . . . . . . . . 37
Section 13.4 Execution in Counterparts . . . . . . . . . 37
Section 13.5 Costs, Expenses, etc. . . . . . . . . . . . 37
Section 13.6 Commitment Letter . . . . . . . . . . . . . 38
Section 13.7 Usury Laws. . . . . . . . . . . . . . . . . 38
Section 13.8 Indemnity for Transfer and Gains
Taxes/Other Liabilities . . . . . . . . . . 38
Section 13.9 Limited Liability . . . . . . . . . . . . . 39
Section 13.10 Intentionally Omitted. . . . . . . . . . . 40
Section 13.11 No Reliance.. . . . . . . . . . . . . . . . 40
Section 13.12 Headings; Table of Contents.. . . . . . . . 40
Section 13.13 Severability. . . . . . . . . . . . . . . . 40
Section 13.14 Law Governing . . . . . . . . . . . . . . . 40
Section 13.15 Consent to Jurisdiction . . . . . . . . . . 40
Section 13.16 Waiver of Jury Trial. . . . . . . . . . . . 41
Section 13.17 Joint and Several Liability . . . . . . . . 41
Section 13.18 Securitization. . . . . . . . . . . . . . . 41
EXHIBITS
Exhibit A Form of Note
Exhibit B Collateral Assignment
Exhibit C Guarantee
Exhibit D Mortgage
Exhibit E Permitted Encumbrances
Exhibit F [Intentionally Omitted]
Exhibit G Existing Debt Instruments and
Other Documents
Exhibit H Assignment of Rents
Exhibit I Environmental Indemnity
Exhibit J Estoppel Certificate
Exhibit K Intentionally Omitted
Exhibit L Auction Lease Assignment
Exhibit M Auction Mortgage Assignment
Exhibit N Power of Attorney
Exhibit O Lockbox Agreement
Schedules
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Schedule I Existing Mortgages
Schedule II Material Agreements
Schedule III Violations
CREDIT AGREEMENT
This CREDIT AGREEMENT, dated as of December 19, 1996 between RESOURCE
COMMERCIAL MORTGAGES, INC. ("RCMI") a Delaware corporation, TUNLAW ASSOCIATES
I, L.P., a Pennsylvania limited partnership ("Tunlaw I") and TUNLAW ASSOCIATES
II, L.P., a Pennsylvania limited partnership ("Tunlaw II") (RCMI, RP28 and RP29,
individually and collectively referred to herein as the "Borrower") each having
an office at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000 and XXXXXX
BROTHERS HOLDINGS INC., doing business as Xxxxxx Capital, a division of Xxxxxx
Brothers Holdings Inc., a Delaware corporation (the "Lender") with an office at
0 Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to a Purchase and Sale Agreement ("Purchase
Agreement") dated as of November 6, 1996 by and among RCMI, Resources Properties
XXVIII ("RP28") and Resources Properties XXIX ("RP29") (collectively as buyer),
ALI Inc., ("ALI"), Walnut I Inc. and Walnut II Inc. (Walnut I Inc. and Walnut
II Inc., collectively "Walnut") ("Walnut" and "ALI", collectively the "Seller"),
the Seller agreed to sell and assign the Partnership Interests, the Existing
Debt and the Existing Debt Instruments to the Borrower; and
WHEREAS, the Borrower has requested that Lender fund a portion of the
purchase price to be paid by the Borrower under the Purchase Agreement; and
WHEREAS, Lender has agreed to fund a portion of the purchase price
pursuant to the terms of this Credit Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual covenants
hereinafter contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
Article 1
Definitions
-----------
Section 1.1 DEFINITIONS. Capitalized terms used herein shall have
the meanings set forth in this Credit Agreement and the following terms, as used
herein, shall have the following meanings:
"Affiliate" shall mean as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with such Person. For purposes of this definition, a Person shall be
deemed to be "controlled by" a Person if such Person possesses, directly or
indirectly, the power either to (a) vote 10% or more of the securities having
ordinary voting power for the election of directors of such Person or (b) to
direct or cause the direction of the management and policies of such Person
whether by contract or otherwise.
"Air Rights Parcel" shall have the meaning ascribed thereto in the
Collateral Assignment.
"Assignment of Rents" shall mean the Assignment of Rents and Leases
in the form of EXHIBIT H hereto to be executed and delivered by the RCMI and
recorded when required or permitted by the Loan Documents.
"Auction Lease Assignment" shall mean the Assignment of Sublessor's
Interest in Sublease in the form annexed hereto as EXHIBIT L to be executed and
delivered by RCMI when permitted or required by the Collateral Assignment.
"Auction Mortgage Assignment" shall mean the Assignment of Mortgagee's
Interests in the form annexed hereto as EXHIBIT M to be delivered by RCMI and
recorded when permitted or required by the Collateral Assignment.
"Business Day" shall mean any day other than a Saturday, Sunday or
other day on which banks in New York are authorized or required to be closed.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral Assignment" shall mean the Collateral Assignment of Loan
Documents in the form of EXHIBIT B hereto, to be executed and delivered by RCMI
to the Lender.
"Contingent Obligation" shall mean, as to any Person, any obligation
of such Person guaranteeing or in effect, directly or indirectly, guaranteeing
payment or collection of any indebtedness, lease, dividend or other obligation
(the "primary obligations") of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, including, without limitation, any
obligation of such Person, whether or not contingent (a) to purchase any such
primary obligation or any property constituting direct or indirect security
therefor, (b) to advance or supply funds (i) for the purchase or payment of any
such primary obligation or (ii) to maintain working capital or equity capital
of the primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor or to permit the primary obligor to meet financial covenants,
(c) to purchase property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the ability of the primary
obligor to make payment of such primary obligation or (d) otherwise to assure
or hold harmless the owner of any such primary obligation against loss in
respect thereof; provided, however, that the term Contingent Obligation shall
not include endorsements of instruments for deposit or collection in the
ordinary course of business. The amount of any Contingent Obligation shall be
deemed to be an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Contingent Obligation is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect
thereof as determined by the Lender in good faith.
"Contractual Obligation" shall mean, as to any Person, any provision
of any security issued by such Person or of any agreement, instrument or
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Credit Agreement" shall mean this Credit Agreement, as the same may
be amended, supplemented or otherwise modified from time to time.
"Default" shall mean any event or condition which with a giving of
notice and/or passage of time shall become an Event of Default.
"Designated Affiliate" shall mean any directly or indirectly wholly-
owned subsidiary, branch or agency of Lender.
"Dollar" and the sign "$" shall mean lawful money of the United States
of America.
"Easements and Appurtenances" shall having the meaning ascribed
thereto in the Collateral Assignment.
"Environmental Indemnity" shall mean the Environmental
Representations, Covenants and Indemnity in the form of EXHIBIT I hereto.
"Environmental Liabilities" shall mean any and all claims, demands,
penalties, fines, liabilities, settlements, damages, losses, costs and expenses
(including, without limitation, reasonable attorneys' and reasonable
consultants' fees and disbursements, remedial investigation and feasibility
study costs, clean-up costs and other response costs under the Environmental and
Safety Laws, currently in existence or which may be enacted in the future,
laboratory fees, court costs and litigation expenses) of whatever kind or
nature, known or unknown, contingent or otherwise, arising out of or in any way
related to (i) the presence, disposal or release of any Hazardous Materials
which are on, from or which affect the Premises or any part thereof, including,
without limitation, soil, water, vegetation, buildings, equipment, personal
property, or which affect Persons, animals or otherwise; (ii) any personal
injury (including wrongful death) or property damage (real or personal) arising
out of or related to such Hazardous Materials or damage to wetlands whether or
not relating to Hazardous Materials; (iii) any lawsuit brought or threatened,
settlement reached, or government order or directive relating to such Hazardous
Materials; and/or (iv) any violation of any Requirement of Law or requirements
or demands of any Governmental Authority, which are based upon or in any way
related to such Hazardous Materials and which are paid or incurred by the Lender
or any other Indemnified Party.
"Environmental and Safety Laws" shall mean all Requirements of Law
relating to the environment and workplace safety including, without limitation,
the Clean Air Act ("CAA"), the Clean Water Act ("CWA"), the Toxic Substances
Control Act ("TSCA"), the Hazardous Materials Transportation Act ("HMTA"), the
Resource Conservation and Recovery Act, as amended ("RCRA"), the Comprehensive
Environmental Response, Compensation and Liability Act ("CERCLA"), as modified
by the Superfund Amendments and Reauthorization Act of 1986 ("XXXX"), the
Emergency Planning and Community Right to Know Act ("EPCRA"), the Noise Control
Act ("NCA"), the Occupational Health and Safety Act ("OSHA"), the Safe Drinking
Water Act and the Federal Insecticide, Fungicide and Rodenticide Act, as any
such Requirements of Laws may be amended, supplemented or otherwise modified
from time to time.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" shall mean each trade or business (whether or not
incorporated) which together with the Borrower would be deemed to be a single
employer under Section 414 of the Code.
"Estoppel Certificate" shall mean (x) an Estoppel Certificate in
substantially the form of EXHIBIT J hereto or (y) if a tenant under a Major
Lease has its own form of estoppel certificate which it uses in the ordinary
course for such purposes, such tenant's form of estoppel certificate; in each
case as the same may be amended, supplemented or otherwise modified from time
to time.
"Event of Default" shall mean any one or more of the events set forth
in Section 12.1 hereof.
"Existing Debt" shall mean the indebtedness of Mutual Associates
and/or Walnut Associates evidenced by the Existing Notes together with all
accrued and unpaid interest thereon and other amounts payable with respect
thereto.
"Existing Debt Instruments" shall mean, collectively, the Existing
Mortgages, Existing Notes, and any other agreements or instruments delivered in
connection with or pursuant thereto as any of such mortgages, notes, agreements
or instruments may be amended, modified or supplemented from time to time.
"Existing Mortgages" shall mean, collectively the mortgages described
in the SCHEDULE "I" attached hereto, each, an "Existing Mortgage" as the same
may be amended, modified or supplemented from time to time.
"Existing Notes" shall mean collectively, the promissory notes secured
by the Existing Mortgages and each, an "Existing Note" as the same may be
amended, modified or supplemented from time to time.
"Final Date" shall mean the earlier of (i) January 1, 1999 or (ii) the
day on which any Person redeems the Premises following the foreclosure sale of
an Existing Mortgage.
"GAAP" shall mean generally accepted accounting principles in the
United States of America consistent with those utilized in preparing the audited
financial statements referred to in Section 9.1(a).
"Governmental Authority" shall mean any sovereign state or nation or
government, any state or district or other political subdivision thereof and any
entity exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Guarantee" shall mean a guarantee in the form of EXHIBIT C hereto,
to be delivered by the Guarantor to the Lender.
"Guarantor" shall mean Resource Properties, Inc., a Delaware
corporation.
"Hazardous Materials" shall mean, without limitation, any flammable
material, explosives, radioactive materials, gasoline, petroleum products,
asbestos, urea formaldehyde, polychlorinated biphenyls, hazardous materials,
hazardous wastes, hazardous or toxic substances, or related materials as defined
in the Environmental and Safety Laws.
"Improvements" shall have the meaning ascribed thereto in the
Collateral Assignment.
"Indemnified Party" shall mean the Lender, each Designated Affiliate
and each of their respective successors, assigns, officers, directors, agents
and employees.
"Indemnified Liabilities" shall have the meaning ascribed thereto in
Section 13.8(b).
"Interest Payment Date" shall mean the first day of each calendar
month commencing February 1, 1997 and the Final Date or such earlier date on
which demand for payment is made by the Lender in accordance herewith.
"Land" shall have the meaning ascribed thereto in the Collateral
Assignment.
"Leases" shall mean all leases and other agreements now in effect or
hereafter made affecting the use, enjoyment or occupancy of all or any part of
the Air Rights Parcel, the Land, Improvements or Easements and Appurtenances,
together with all extensions, renewals and/or modifications of, and
substitutions for, the same.
"LIBOR" shall mean for any date the rate quoted in the most recent
issue of THE WALL STREET JOURNAL as the one month London Interbank Offered Rate
in its "Money Rate" column, or if such newspaper ceases to publish such rate,
such other public source of LIBOR Rate quotes as the Lender shall select in its
reasonable judgment.
"Lien" shall mean any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), or preference,
priority or other security agreement or interest or preferential arrangement of
any kind or nature whatsoever (including, without limitation, any conditional
sale or other title retention agreement, any financing lease, and the filing of
any UCC financing statement (but only to the extent any such financing statement
purports to record the grant of a security interest and not including any
financing statements filed for notice purposes only) under the UCC or comparable
law of any jurisdiction in respect of any of the foregoing.)
"Loan" shall mean the indebtedness evidenced by the Note and secured
by the Loan Documents.
"Loan Documents" shall mean, collectively, the Credit Agreement, the
Note, the Security Instruments, the Guaranty, the Lockbox Agreement, the Power
of Attorney, the Stock Pledge Agreement and all other documents, instruments and
agreements delivered in connection herewith and therewith, as the same may from
time to time be amended, modified, supplemented or restated.
"Loan Servicer" shall mean Equitable Real Estate Investment Management
Inc. or such other Loan Servicer as Lender may select to service the Loan.
"Lockbox Agreement" shall mean the Lockbox, Pledge and Security
Agreement in the form annexed hereto as EXHIBIT O to be executed and delivered
by the Borrower to the Lender.
"Major Lease" shall mean a lease or leases of more than 5,000 square
feet of space in any portion of the Premises to any Person and/or such Person's
Affiliate(s) and whether or not such space is contiguous.
"Management Change Date" shall mean, with respect to each portion of
the Premises, the date the Borrower or its Affiliate takes title to the Premises
or exercise Management Control.
"Management Control" shall mean the possession, directly or
indirectly, of the power to direct or cause the direction, through contract or
otherwise, of the operation of any portion of the Premises, including, without
limitation, the discretion to, with respect to the Premises or any portion
thereof, (a) employ, pay, supervise and discharge employees and personnel; (b)
supervise and maintain books and records; (c) negotiate and enter into Leases,
subleases and licenses; (d) make or cause necessary repairs or replacements; (e)
negotiate and enter into service contracts; (f) pay and discharge in the
ordinary course costs and expenses incident to the operation of the Premises;
and (g) collect Rents; provided, however, that when used in the definition of
Management Change Date, Management Control shall not be deemed to exist unless
the Borrower has each of the powers set forth in clauses (a) through (g) above
(whether exercised directly or indirectly through delegation or a management or
other agreement).
"Mortgage" shall mean the Mortgage, Assignment of Rents and Security
Agreement substantially in the form of EXHIBIT D hereto to be executed and
delivered by RCMI and recorded when required or permitted by the Loan Documents.
"Multiemployer Plan" shall mean a Plan which is a multiemployer plan
as defined in Section 4001(a)(3) of ERISA.
"Mutual Associate" shall mean Mutual Associates LTD., a Pennsylvania
Limited Partnership with an address at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000.
"Net Cash Flow" for a given month shall mean the Revenues for such
month minus the Operating Expenses for such month.
"Note" shall mean the secured note in the form of EXHIBIT A hereto to
be executed and delivered by the Borrower to the Lender.
"Obligations" shall mean all of the obligations (monetary or
otherwise) of the Borrower to the Lender arising under or in connection with the
Loan Documents (whether denominated as principal, interest, fees or otherwise),
including, without limitation, the Borrower's obligations under the Note.
"Operating Expenses" for a given month shall mean (x) prior to a
Management Change Date, all amounts paid by the Borrower as protective advances
to preserve its rights under the Existing Mortgages and repayment of which is
secured by the lien of the Existing Mortgages and all required interest payments
on the Loan which are actually made by the Borrower and (y) after a Management
Change Date, the amount of all expenses paid during such month by the Borrower
in respect of the ownership, repair, maintenance and operation of the Premises,
determined on a cash basis, including, without limitation and without
duplication, (a) payroll expenses and taxes, (b) prorated real estate taxes, (c)
insurance premiums, (d) water, sewer and utility charges, (e) cost of leasing
or purchase of equipment (exclusive of costs which are excluded as capital
improvements under subparagraph "(4)", below), (f) reasonable management fees,
(g) costs of repairs and maintenance, (h) leasing expenses, (i) charges under
cleaning, security and other service contracts, (k) license and permit fees, (l)
cost of supplies, and (n) scheduled payments of interest on the Note provided,
however, that Operating Expenses shall not include (1) expenses paid for
repairing damage to the Premises to the extent of insurance proceeds actually
received or receivable by the Borrower in connection with such damage; (2)
depreciation, (3) interest on or amortization of indebtedness owed by the
Borrower with respect to indebtedness other than the Note; (4) the cost of
capital improvements, and (5) the cost to remove, encapsulate or otherwise
remediate asbestos, asbestos-containing materials and lead paint at any portion
of the Premises.
"Operating Statement" shall mean a monthly statement for the Premises,
which statement shall include, without limitation, (i) a Rent Roll which
includes tenancy arrearages; (ii) a statement of income and expenses on an
accrual basis for the Premises for the most recently ended fiscal year of the
Borrower; (iii) a cash budget for the fiscal period in which such Operating
Statement is delivered; (iv) copies of all new Leases and any modifications to
any existing Leases with respect to all or any part of the Improvements
certified by the Borrower as true, complete, and correct; and (v) such other
information about the operation of the Premises as the Lender may reasonably
request. Prior to a Management Change Date, all information in each Operating
Statement shall be to the best of Borrower's knowledge and, after a Management
Change Date, shall be certified as true and correct without qualification.
"Owner" shall mean each Person which has legal or beneficial title to
any portion of the Premises.
"Partnership Interests" shall mean the general partnership interest
in Mutual Associates owned by Walnut II Inc. and the limited partnership
interest in Walnut Associates owned by Walnut I Inc.
"Payment Office" shall have the meaning ascribed thereto in Section
6.1.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA, and any successor to PBGC.
"Permitted Encumbrances" shall mean those outstanding liens,
easements, restrictions, security interests and other matters affecting the
Premises identified on EXHIBIT E.
"Person" shall mean an individual, corporation, limited liability
company, business trust, partnership, joint tenant or tenant-in-common, trust,
unincorporated organization, or other entity, or a federal, state or local
government or any agency or political subdivision thereof.
"Plan" shall mean any employee benefit plan which is subject to ERISA
and which covers the employees or former employees of the Borrower or an ERISA
Affiliate, or under which the Borrower or an ERISA Affiliate has any obligations
or liability, or under which the Borrower or an ERISA Affiliate has made
contributions within the preceding five years.
"Power of Attorney" shall mean the power of attorney annexed hereto
in the form of EXHIBIT N to be delivered by the Borrower.
"Premises" shall have the meaning ascribed thereto in the Collateral
Assignment.
"Purchase Loan" has the meaning ascribed thereto in Section 2.1.
"Recourse Event" shall mean the occurrence of any of the following:
(i) if the Borrower or any Guarantor commences a case, proceeding or other
action (A) under any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to it, or
seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its his debts,
or (B) seeking appointment of a receiver, trustee, custodian or other similar
official for it or for all or any substantial part of its assets, or the
Borrower or any Guarantor shall make a general assignment for the benefit of its
creditors; (ii) if Borrower or Guarantor has filed against it an involuntary
petition (an "Involuntary Petition") for bankruptcy protection under the United
States Bankruptcy Code or involuntary becomes subject to any reorganization,
receivership, insolvency proceeding or other similar proceeding pursuant to any
other Federal or State law affecting debtor and creditor rights and, in the
event of an Involuntary Petition (except if such Involuntary Petition is brought
by Lender), such Involuntary Petition is not discharged within 90 days of
filing; (iii) any sale, assignment, transfer or other disposition of all or any
interest in the Existing debt, the Existing Debt Instruments, the Loan, the Loan
Documents or any direct or indirect ownership interest in Borrower, including,
without limitation, any transfer of a shareholder interest without Lender's
prior written consent; (iv) if the Borrower or any Guarantor contests the
validity or enforceability of this Credit Agreement, the Note or any of the
Security Instruments or Loan Documents (including, without limitation, the
Guaranty provided, however, nothing herein shall preclude Borrower or Guarantor
from challenging the wrongful acts of Lender or enforcing their respective
rights under the Loan Documents); (v) any amendment or modification of or
supplement to any of the Existing Debt Instruments or any waiver of the terms
thereof (or any agreement to forbear from exercising any rights thereunder shall
be given) shall be entered into voluntarily by the Borrower or become effective
with Borrower's consent without Lender's prior written consent in each instance;
(vi) Borrower, any Guarantor or any of their Affiliates (except with respect to
wrongful acts of Lender or enforcing their respective rights under the Loan
Documents) or any third party impairs Lender's rights under the Collateral
Assignment, Stock Pledge Agreement or any other Security Instrument or the
enforceability thereof or contests or challenges the validity of, or hinders
Lender's rights or remedies under any of the Loan Documents or Existing Debt
Instruments; (vii) Borrower shall fail, in any foreclosure proceeding/sale
relating to the Premises, to bid in the outstanding principal amount of the
Existing Notes and other amounts payable with respect thereto as required by
Section 3(b) of the Collateral Assignment; (viii) Borrower or any Guarantor or
any of their Affiliates takes title to the Premises or any part thereof and
fails to simultaneously mortgage such property to Lender as required by the
Credit Agreement or any other Loan Documents; (ix) Borrower, Guarantor or any
of their Affiliates fails to pay over to the Lender all proceeds of any
foreclosure or sale of the Premises as required by any of the Loan Documents
(the foregoing shall not be construed as a consent to any sale or other action
otherwise prohibited by the terms of any of the Loan Documents); (x) Borrower
shall interfere with on-site inspections or fail to deliver financial
information as required by the Loan Documents; (xi) any financial information
concerning the Borrower or any Guarantor is fraudulent in any respect, contains
any fraudulent information or misrepresents in any material respect the
financial condition of the Borrower or any Guarantor; (xii) Borrower shall fail
to obtain Lender's prior written consent to any subordinate financing; or (xiii)
Borrower or Guarantor commits, or it becomes known that either one of them has
committed, intentional willful misconduct, intentional physical waste (excluding
normal wear and tear) of the Premises or any intentional misappropriation of
funds, including but not limited to the following: (a) retention by Borrower,
Guarantor, or any affiliate of rents or other income arising with respect to the
Premises or any part thereof, which rents or other income are collected by
Borrower, Guarantor or any affiliate or property manager at the direction of the
Borrower, Guarantor or any affiliate after the Lender has given notice (in
accordance with the Loan Documents) that Borrower is in breach or default under
the Loan Documents; (b) the removal or disposition by Borrower, Guarantor any
affiliate or any property manager at the direction of the Borrower, Guarantor
or any affiliate of any equipment, fixtures or other property from the Premises,
in violation of the terms of the Loan Documents or a valid court order; (c) the
misapplication by Borrower, Guarantor, or any affiliate of any proceeds in
violation of the terms of the Loan Documents under any insurance policies or
awards resulting from condemnation or the exercise of the power of eminent
domain by reason of damage, loss or destruction of any portion of the Property
and the failure to pay any deductible amount (including but not limited to a
deductible for windstorm and related events) whether pursuant to any such
insurance policies or otherwise. If any of the foregoing events occur, in
addition to Guarantor's liability for all sums due and owing on the Note,
Guarantor shall be liable for all damages and reasonable attorney's fees
incurred by Noteholder resulting from such events, plus interest at the Default
Rate (as defined in the Note) on any such sums.
"Rent Roll" shall mean a rent roll certified by an officer of the
Borrower in a form reasonably satisfactory to the Lender as the same may be
amended, supplemented or otherwise modified from time to time and which shall
be delivered to the Lender at such dates as are required by the terms hereof and
which, in each case, shall be dated not more than thirty days before the date
of delivery thereof.
"Requirement of Law" shall mean as to any Person, the certificate of
incorporation and bylaws or other organizational or governing documents of such
Person, and any law (including, without limitation, any Environmental and Safety
Law), treaty, rule, regulation, code, directive, policy, order or requirement
or determination of an arbitrator or a court or other Governmental Authority
whether now or hereafter enacted or in effect, in each case applicable to or
binding upon such Person or any of its property or to which such Person or any
of its property is subject.
"Reportable Event" shall mean any of the events set forth in Section
4043(b) of ERISA or the regulations thereunder.
"Revenues" for any month shall mean (x) prior to a Management Change
Date, all payments received by or for the Borrower, or subject to application
by Borrower pursuant to, the Existing Debt Instruments less all amounts required
by the Existing Debt Instruments to be paid over to Mutual Associates or Walnut
Associates or any reserve account pursuant to the Existing Debt Instruments and
(y) after a Management Change Date, the gross rental income (including, without
limitation, base rentals, revenues from escalations, electric inclusion, tenant
service income (to the extent costs of providing such services are included in
Operating Expenses)) actually received from tenants in such month pursuant to
lease agreements for space in any of the Premises, as well as any payments by
any Affiliate of the Borrower to Borrower or any Affiliate of the Borrower under
any ground or other lease of, or any concession or similar agreement relating
to, any portion of the Premises.
"Security Instruments" shall mean, collectively, (i) the Collateral
Assignment; (ii) the UCC-1 Financing Statements to be delivered by the Borrower
to the Lender; (iii) the Assignment of Rents; (iv) the Mortgage; (v) Lockbox
Agreement; (vi) Auction Mortgage Assignment; (vii) Auction Lease Assignment;
(viii) the Guarantee and (ix) the Stock Pledge Agreement.
"Stock Pledge Agreement" shall mean individually and collectively:
those certain Partnership Pledge Agreements executed by the parties of Tunlaw
Associates I, L.P. and Tunlaw Associates II, L.P. in favor of Lender dated the
date hereof.
"UCC" shall mean the Uniform Commercial Code as from time to time in
effect in the State of New York.
"Walnut Associates" shall mean 1845 Walnut Associates, a Pennsylvania
general partnership with an address at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx,
Xxxxxxxxxxxx 00000.
Section 1.2 GENDER, ETC. As used in this Credit Agreement, words in
the neuter gender include the masculine and feminine genders, and VICE VERSA,
where the context so requires. Words defined in the singular when used in the
plural shall have the same meanings ascribed to them.
Section 1.3 ACCOUNTING TERMS AND DETERMINATIONS. Unless otherwise
defined or specified herein all accounting terms shall be construed herein and
all accounting determinations hereunder shall be made in accordance with
generally accepted accounting principles consistently applied. All financial
statements required to be delivered hereunder shall be prepared, and all
financial records shall be maintained in accordance with generally accepted
accounting principles consistently applied except as otherwise specified herein.
Section 1.4 OTHER DEFINED TERMS. Unless otherwise specified, the
words "hereof", "herein", and "hereunder" and words of similar import when used
in this Credit Agreement shall refer to this Credit Agreement as a whole and not
to any particular provision of this Credit Agreement, all references to any
Article or Section without reference to a particular agreement are to an Article
or Section of this Credit Agreement, and all references to any schedule, exhibit
and the like without reference to a particular agreement are to the schedules
and exhibits attached to this Credit Agreement.
Article 2
The Loans
---------
Section 2.1 COMMITMENT. (a) Subject to the terms and conditions of
this Credit Agreement, the Lender agrees to make a loan (the "Purchase Loan")
to the Borrower in an aggregate principal amount not exceeding $13,370,000 and
such funds shall be used to fund a portion of the cash purchase price to be paid
pursuant to the Purchase Agreement.
(b) Proceeds of the Loans shall not be used for any purpose or
to fund any payment except as provided in this Section 2.1.
(c) Principal amounts of the Loan which are prepaid or repaid
may not be reborrowed.
Article 3
The Note
--------
Section 3.1 NOTE.
(a) The principal amount of the Loan shall be evidenced by the
Note. The Note shall be dated the date hereof and shall bear interest as
provided in Section 5.1 hereof.
(b) The then outstanding principal amount of the Loan evidenced
by the Note shall be repaid in full on the Final Date.
(c) The Lender shall, and is hereby authorized by the Borrower
to, endorse on any schedule forming a part of a Note, appropriate notations
evidencing the outstanding principal amount of the Loan, the date and amount of
each payment or prepayment of principal made by the Borrower with respect
thereto, and the interest rate and the amount and the date to which interest has
been paid thereon. No failure to make or error in making any such notation
shall affect the obligations of the Borrower hereunder or under the Note to pay
the Obligations, which obligation to pay is absolute and unconditional.
Section 3.2 LOST OR DESTROYED NOTE. Upon the receipt of evidence
reasonably satisfactory to the Borrower of the loss, theft, destruction or
mutilation of the Note, and in the case of any loss, theft or destruction upon
delivery to the Borrower of a bond or indemnity or in the case any such
mutilation of a note, upon surrender to the Borrower of such note, the Borrower
will issue a new note, of like tenor and principal amount and dated as of the
date to which interest has been paid on the note so lost, stolen, destroyed or
mutilated, in lieu of or in exchange for such lost, stolen, destroyed or
mutilated note, but representing the same indebtedness evidenced by the lost,
stolen, destroyed or mutilated note.
Article 4
Existing Mortgages/Debt Service Payment
Pursuant to Existing Debt Instruments
-------------------------------------
Section 4.1 EXISTING MORTGAGES. RCMI shall execute the Lockbox
Agreement, which agreement directs RCMI to notify Mutual Associates and Walnut
Associates that all required payments under the Existing Debt Instruments shall
be made directly into a lockbox account established pursuant to the Lockbox
Agreement.
Section 4.2 NOTICES. The Borrower shall promptly send to Lender's
Loan Servicer copies of all notices received by the Borrower from Mutual
Associates and/or Walnut Associates, and any successor Owner.
Article 5
Interest Rates
--------------
Section 5.1 INTEREST.
(a) INTEREST RATE. Prior to maturity, the Loan shall bear
interest on the unpaid principal balance thereof for each successive thirty day
period at a rate per annum (based upon a year of 360 days for the actual number
of days elapsed) equal to the greater of (x) LIBOR plus three hundred fifty
(350) basis points and (y) 8.75% per annum.
(b) DEFAULT RATE. If all or a portion of the principal amount
of the Loan, interest accrued thereon or any other Obligations shall not be paid
when due (whether at stated maturity, by acceleration or otherwise), such
amounts shall bear interest at the rates set forth in the Note.
(c) INTEREST PAYABLE. Interest shall be payable at the times
and in the amounts set forth in the Note, prior to maturity, at maturity, and
after maturity, on demand.
(d) DETERMINATION OF INTEREST. Each determination of an
interest rate by the Lender pursuant to any provision of this Credit Agreement
or the Note shall be conclusive and binding on the Borrower in the absence of
manifest error.
Article 6
Payments and Prepayments
------------------------
Section 6.1 TYPE AND PLACE OF PAYMENT.
All payments (including prepayments) to be made by the Borrower on
account of principal, interest and fees shall be made without setoff, deduction
or counterclaim in Dollars and in immediately available funds on the date due
hereunder and shall be made to the Lender to its account at such address as
Lender shall give notice of in writing to the Borrower (the "Payment Office").
If any payment on the Loan becomes due and payable on a day other than a
Business Day, the maturity thereof shall be extended to the next succeeding
Business Day (and interest shall accrue for such extension of time) unless the
result of such extension would be to extend such payment into another calendar
month in which event such payment shall be made on the immediately preceding
Business Day.
Section 6.2 OPTIONAL PREPAYMENTS. The Borrower may, on any Interest
Payment Date, prepay the Loan in whole only (subject to application of Net Cash
Flow to reduce principal as set forth herein), without premium or penalty, upon
written notice to the Lender by the Borrower of at least 30 days, specifying the
date of prepayment. If any such notice is given, the Borrower shall make such
prepayment to the Lender at the Payment Office, and the payment amount specified
in such notice shall be due and payable on the date specified therein together
with accrued and unpaid interest thereon to such date.
Section 6.3 NET CASH FLOW PREPAYMENTS. Notwithstanding anything to
the contrary contained herein, the outstanding principal balance of the Note may
be prepaid in part, without premium or penalty, by the application of the
remaining Net Cash Flow to principal reduction after Borrower's permitted return
on equity in accordance with the following section.
Section 6.4 NET CASH FLOW APPLICATION. Borrower shall pay to Lender
monthly the amount of interest and any other charges then owing on the Note and
the Other Loan Document as designated by Lender in a notice or billing to
Borrower ("DEBT SERVICE"). If Net Cash Flow shall be insufficient to pay the
Debt Service, Borrower shall make payment of any shortfall amount to Lender by
payment to Lender on or prior to the date the same is due in accordance with the
Note and the other Loan Documents from sources other than the debt service
payments made by the Owner. After Debt Service is paid, provided no Event of
Default exists under any of the Loan Documents, any Net Cash Flow shall be
distributed as follows: (i) $47,750 representing the permitted return on cash
invested by Borrower ("Permitted Return") shall be retained by Borrower and (ii)
any remaining Net Cash Flow shall be paid to Lender with the Debt Service
payment and shall be used by Lender to amortize the Loan. Borrower shall
deliver to Lender monthly copies of the checks received from Owner representing
payments under the Existing Debt Instruments.
Article 7
Additional Provisions Relating to Loan
--------------------------------------
Section 7.1 INDEMNITY. The Borrower agrees to indemnify the Lender
and to hold the Lender harmless from any cost, damage, loss or expense
(including, without limitation, reasonable attorneys' fees and disbursements)
which the Lender may sustain or incur as a consequence of (a) default by the
Borrower in payment when due of the principal amount of or interest on the Loan,
(b) default by the Borrower in making any prepayment after the Borrower has
given a notice in accordance with Section 6.2 of a prepayment of the Loan
including, but not limited to, in each case, any loss, cost, damage or expense
arising from interest or fees payable by the Lender to lenders of funds obtained
by it in order to maintain the Loan hereunder or from fees payable to terminate
the deposits from which such funds were obtained. A certificate as to such
costs, losses, damages, and expenses setting forth the calculations therefor,
shall be submitted promptly by the Lender to the Borrower and shall be
conclusive and binding on the Borrower in the absence of manifest error.
Section 7.2 SURVIVAL. The covenants set forth in this Article 7
shall survive termination of this Credit Agreement and payment of the Note.
Article 8
Representations and Warranties
------------------------------
To induce the Lender to enter into this Credit Agreement and to extend
the Loan to the Borrower as contemplated herein, the Borrower makes the
following representations and warranties to the Lender:
Section 8.1 AUTHORITY.
(a) RCMI, Tunlaw I and Tunlaw II are each duly organized and
validly existing under the laws of the state of organization or incorporation.
The Borrower has the power to own and hold the properties it purports to own and
hold, and to carry on its business as now being conducted and proposed to be
conducted, and has the power to execute, deliver, and perform its obligations
under the Existing Debt Instruments, the Purchase Agreement, the Stock Pledge
Agreement and its Obligations under, this Credit Agreement, the Note, the
Security Instruments and the other Loan Documents to which it is a party.
(b) The execution, delivery and performance by the Borrower of
its obligations under this Credit Agreement, the Note, the Security Instruments,
the other Loan Documents to which the Borrower is a party and the Stock Pledge
Agreement and the performance by the Borrower of its obligations under the
Purchase Agreement, Stock Pledge Agreement and Existing Debt Instruments has
been authorized by all necessary action (including any necessary vote or consent
of the shareholders or partners of Borrower); the Credit Agreement, Note,
Security Instruments and the other Loan Documents and the Stock Pledge Agreement
have been duly executed and delivered by the Borrower for good and valuable
consideration; and the Loan Documents, the Purchase Agreement and the Existing
Debt Instruments constitute the legal, valid and binding obligations of the
Borrower, enforceable against the Borrower in accordance with their respective
terms subject, in each case, to applicable bankruptcy, insolvency,
reorganization and other laws affecting creditors' rights generally, to
moratorium laws from time to time in effect and to general principles of equity
(regardless of whether such enforceability is considered in an action or
proceeding in equity or at law).
(c) Neither the execution and delivery of this Credit Agreement
nor the execution and delivery of the Note, the Security Instruments, the other
Loan Documents to which the Borrower is a party or the Stock Pledge Agreement,
nor consummation by the Borrower of the transactions herein or therein
contemplated, nor compliance by the Borrower with the terms, conditions and
provisions of the Existing Debt Instruments, hereof and thereof will conflict
with or result in a breach of any of the terms, conditions or provisions of (i)
the respective organizational documents of the Borrower, (ii) any Contractual
Obligation to which the Borrower is now a party or the rights under which have
been assigned to the Borrower or the obligations under which have been assumed
by the Borrower or to which the property of the Borrower is subject or
constitute a default thereunder, or result thereunder in the creation or
imposition of any Lien upon any of the properties or assets of the Borrower,
(iii) any judgment or order, writ, injunction, decree or demand of any court,
or (iv) any applicable Requirement of Law. Borrower has all necessary licenses,
permits and other consents from Governmental Authorities necessary to the
performance of the Borrower's Obligations under the Security Instruments, the
other Loan Documents and its obligations under the Existing Debt Instruments.
(d) No action of, or filing with, any public body or
Governmental Authority or any other Person is required to authorize, or is
otherwise required in connection with, the execution, delivery and performance
of this Credit Agreement, the Note, the Security Instruments, the other Loan
Documents, the Purchase Agreement, or the Stock Pledge Agreement except for the
recordation of the Security Instruments and the filing of relevant UCC financing
statements.
Section 8.2 LITIGATION. There are no actions, suits or proceedings
pending or, to the actual knowledge of the Borrower, threatened by or against
or involving the Borrower at law or in equity or before or by any Governmental
Authority or before any arbitrator of any kind. To the best knowledge of the
Borrower, there is no pending or, to the actual knowledge of the Borrower,
threatened, investigation against or involving the Borrower, Mutual Associates
and/or Walnut Associates or the Premises, or any part thereof, by or before any
Governmental Authority. The Borrower is not in default with respect to any
judgment, order, writ, injunction, decree, rule or regulation of any arbitrator
or Governmental Authority which involves a reasonable possibility of a material
adverse change in the financial condition of the Borrower or its ability to
perform its Obligations under the Loan Documents or Assignment Agreement or
Borrower Assignment.
Section 8.3 INDEBTEDNESS. The Borrower has no indebtedness for
borrowed money or Contingent Obligations except the Obligations.
Section 8.4 NO ASSIGNMENT. The Borrower has not assigned, pledged,
sold, or otherwise disposed of or otherwise encumbered, and has not entered into
any agreement purporting, or obligating the Borrower, to assign, pledge, sell
or otherwise dispose of its interest in the Premises, any Existing Debt
Instrument, the Purchase Agreement, the Partnership Interests, or any part of
any thereof or interest therein, or the Leases or any interest in one or more
of the Leases except as set forth in the Credit Agreement. No unrecorded
assignments, mortgages or other security instruments exist with respect to the
Partnership Interests or, to the best knowledge of the Borrower, the
Premises, any Existing Debt Instrument, the Purchase Agreement, or the Leases.
Section 8.5 SHAREHOLDERS. As of the date hereof, the only partners
of (i) Tunlaw Associates I, L.P. are: RP28 (general partner) and Resource
Properties, Inc. (limited partner), (ii) Tunlaw Associates II, L.P. are: RP29
(general partner) and RPI Partnership (limited partner) and (iii) RP29 are:
RESOURCE PROPERTIES, INC.
Section 8.6 ORGANIZATIONAL DOCUMENTS. The Borrower has delivered to
the Lender certified copies of its articles of incorporation and by-laws
together with all amendments thereto up to and including the date hereof.
Section 8.7 AGREEMENTS RELATING TO THE PREMISES. Except for
agreements with any trade creditor entered into in the ordinary course of
operating the Premises (or any part thereof) with respect to which, in each
case, the agreement by its terms may either be terminated without penalty upon
(i) a transfer of Premises or (ii) the giving of no more than 30 days notice of
termination thereof (including any and all renewals thereof and any substitutes
therefor), the Existing Debt Instruments, Permitted Encumbrances, Leases and the
documents listed on SCHEDULE II hereto constitute, to the best of Borrower's
knowledge, all of the material agreements binding on the Borrower, Mutual
Associates or Walnut Associates or any of their Affiliates relating to the
Premises and there are, to the best of Borrower's knowledge, no amendments or
modifications thereof except as set forth on SCHEDULE II.
Section 8.8 SHAREHOLDER INTERESTS. No Shareholder in either RCMI,
RP28 or RP29 and no partner of Tunlaw Associates I, L.P. and Tunlaw Associates
II, L.P. has assigned, pledged, sold, or otherwise disposed of or otherwise
encumbered, and has not entered into any agreement purporting, or obligating
such shareholder or the Borrower, to assign, pledge, sell or otherwise dispose
of their shareholder or partnership interest in the Borrower, except that each
partner of Tunlaw I and Tunlaw II shareholder of RP28 and RP29 has pledged its
partnership interest (the "Pledged Partnership Interest") in the Borrower to
Lender.
Section 8.9 NO BURDENSOME RESTRICTIONS. No agreement containing
Contractual Obligations of the Borrower and no Requirement of Law, materially
adversely affects the business, operations, property or financial or other
condition of the Borrower or the Premises or any part thereof or the ability of
the Borrower to perform any of its Obligations under this Credit Agreement, the
Note, the other Loan Documents to which it is a party or any of its obligations
under any of the Existing Debt Instruments. It is agreed that the existence of
the Permitted Encumbrances do not constitute a breach of this representation.
Section 8.10 TAXES. The Borrower has filed or caused to be filed all
tax returns which to the knowledge of the Borrower would be delinquent if they
had not been filed on or before the date hereof and has paid all taxes shown to
be due and payable on or before the date hereof on said returns or on any
assessments made against it or any of its property and all other taxes, fees or
other charges imposed on it and any of its property by any Governmental
Authority; and no tax Liens have been filed and, to the knowledge of the
Borrower, no claims are being asserted with respect to any such taxes, fees or
other charges.
Section 8.11 ERISA. The Borrower has no Plans or any ERISA
Affiliates and makes no contributions to any Plans or any Multiemployer Plans.
Section 8.12 COLLECTIVE BARGAINING AGREEMENTS.
The Borrower is not a party to any collective bargaining agreements.
Section 8.13 JUDGMENTS/BANKRUPTCY.
(a) There are no judgments against the Borrower unsatisfied of
record or docketed in any court located in the United States of America and no
petition in bankruptcy has ever been filed by or against the Borrower and the
Borrower has never made any assignment for the benefit of creditors or taken
advantage of any insolvency act or any act for the benefit of debtors.
(b) No receiver, conservator, liquidating agent or similar
Person has been appointed, nor has anyone sought such a receiver, conservator,
liquidating agent or similar Person to be appointed, for all or a substantial
portion of the assets of the Borrower.
(c) The Borrower has not become, and is not presently,
financially insolvent nor will the Borrower be made insolvent by virtue of
execution of this Credit Agreement, the Note or any of the other Loan Documents,
or its obligations under the Purchase Agreement, Stock Pledge Agreement or the
Existing Debt Instruments within the meaning of the bankruptcy laws or the
insolvency laws of the United States of America or any other jurisdiction. To
the actual knowledge of the Borrower, neither Mutual Associates and/or Walnut
Associates nor any tenant of the Premises has filed or threatened to file a
petition in bankruptcy except as set forth on the Rent Roll.
Section 8.14 THE LEASES. The Borrower has made a review of each
Lease provided to the Borrower by the Seller, which relates to the Premises and,
to the best of its knowledge, there are no existing assignments of any Lease or
any portion of rents, additional rents, charges, issues or profits due and
payable, or to become due and payable, thereunder (the "Rents") which are
presently outstanding (other than in the Existing Debt Instruments and Loan
Documents).
Section 8.15 PERMITS. The Borrower has obtained all approvals or
licenses required for the performance of its Obligations under the Existing Debt
Instruments.
Section 8.16 DOCUMENTS. The Borrower has delivered to the Lender
true and complete copies of each Existing Debt Instrument, and each agreement
or instrument executed or to be executed and delivered in conjunction therewith
(other than the Loan Documents) and each such agreement is listed on EXHIBIT G
hereto.
Section 8.17 INTENTIONALLY OMITTED.
Section 8.18 FEDERAL REGULATIONS.
(a) The Borrower is not an "investment company," or a company
"controlled by an investment company," within the meaning of the Investment
Company Act of 1940, as amended.
(b) The Borrower is not a "holding company," or a "subsidiary
company of a holding company," or an "affiliate" of either a "holding company"
or a "subsidiary company of a holding company," as such terms are defined in the
Public Utility Holding Company Act of 1935, as amended.
Article 9
Affirmative Covenants
---------------------
From the date of this Credit Agreement and thereafter until all
Obligations have been paid in full:
Section 9.1 FINANCIAL STATEMENTS AND REPORTS. The Borrower will
deliver to the Lender:
(a) as soon as available, but in any event within 60 days after
the end of each fiscal year of the Borrower a copy of the balance sheet of the
Borrower as at the end of such year and the related statements of income and
retained earnings and of cash flows for such year, setting forth in each case
in comparative form the figures for the previous year, certified by an officer
of the Borrower;
(b) as soon as available, but in any event not later than 20
days after the end of each of the first three quarterly periods of each fiscal
year of the Borrower, the unaudited balance sheet of the Borrower as at the end
of such quarter and the related unaudited statements of income and retained
earnings and of cash flows of the Borrower for such quarter and the portion of
the fiscal year through the end of such quarter, setting forth in each case in
comparative form the figures for the previous year, certified by an officer of
the Borrower as being fairly stated in all material respects when considered in
relation to the financial statements of the Borrower (subject to normal year-end
audit adjustments); all such financial statements to be complete and correct in
all material respects and to be prepared in reasonable detail and in accordance
with GAAP applied consistently throughout the periods reflected therein and with
prior periods (except as approved by such officers, as the case may be, and
disclosed therein);
(c) from time to time, such other information concerning the
Borrower as the Lender may reasonably request.
Section 9.2 DISCUSSION AND FURTHER FINANCIAL INFORMATION. The
Borrower will make its financial officers, or other knowledgeable personnel,
available to discuss with the Lender, upon not more than two Business Day's
prior notice to the Borrower, the affairs, finances and accounts of the Borrower
all at such reasonable times and as often as the Lender may reasonably request.
Section 9.3 MAINTENANCE OF RECORDS. The Borrower will keep, at all
times, books of record and account in which full, true, and correct entries will
be made of all dealings or transactions in relation to its business and affairs,
and the Borrower will allow the Lender to inspect and make photocopies of such
books of record and account during business hours upon one Business Days' notice
by the Lender. The Borrower will provide adequate protection against loss or
damage to such books of record and account.
Section 9.4 PRESERVATION OF ASSETS. The Borrower will keep, or use
its best efforts to cause Mutual Associates and/or Walnut Associates (in
accordance with the Existing Debt Instruments) and any subsequent Owner to keep,
the Premises in good repair, working order and condition and from time to time,
will make or use its best efforts to cause Mutual Associates (in accordance with
the Existing Debt Instruments) and/or Walnut Associates, or any subsequent Owner
to make, all needed and proper repairs, renewals, replacements, extensions,
additions, betterments and improvements thereto.
Section 9.5 TAXES AND CLAIMS. The Borrower will pay or use its best
efforts to cause Mutual Associates and/or Walnut Associates (in accordance with
the Existing Debt Instruments) and any subsequent Owner to, pay and discharge
all taxes, assessments and governmental charges or levies imposed upon Mutual
Associates and/or Walnut Associates or such Owner or the Premises or upon Mutual
Associates' and/or Walnut Associates' or such Owner's income or profits, or upon
any property belonging to it, prior to the date on which penalties attach
thereto and which, in the case of Mutual Associates and/or Walnut Associates,
any subsequent Owner or the Premises could become a Lien on any portion of the
Premises; provided that, subject to any more restrictive provisions contained
in the Loan Documents, the Borrower shall not be required to pay or cause to be
paid any such tax, assessment, charge or levy the payment of which is being
contested in good faith and by proper proceedings and for which adequate
reserves are being maintained; provided, however, the Borrower shall immediately
pay and discharge or cause to be paid and discharged any such contested taxes,
assessments and governmental changes or levies upon the commencement of any
proceeding to foreclose, sell or otherwise execute on the Lien thereof. The
Borrower shall promptly (and in no event later than 90 days after the due date
of each installment of property tax) provide the Lender with copies of all
receipted tax bills as evidence of property tax payment of such installment made
in respect of the Premises.
Section 9.6 UTILITIES; COMPLIANCE WITH APPLICABLE LAWS. The Borrower
shall use its best efforts to cause Mutual Associates and/or Walnut Associates
(in accordance with the Existing Debt Instruments) and any subsequent Owner to
cause the Land and the Improvements to be served by adequate storm sewer,
sanitary sewer, telephone, gas, electricity and water service and other
necessary utility service. The Borrower shall comply and shall use its best
efforts to cause Mutual Associates and/or Walnut Associates (in accordance with
the Existing Debt Instruments) and any subsequent Owner to comply with all
Requirements of Law affecting the Land and the Improvements, and the use and
occupancy thereof. The Borrower shall indemnify and hold the Lender harmless
from any damages arising out of the Borrower's or Mutual Associates' and/or
Walnut Associates' or such Owner's non-compliance and the Borrower shall or
shall use its best efforts to cause Mutual Associates and/or Walnut
Associates (in accordance with the Existing Debt Instruments) or any subsequent
Owner to post a bond or otherwise provide all funds necessary to avoid the
imposition of a Lien against all or any part of the Premises or any equipment
thereon. The Borrower shall permit or shall use its best efforts to cause
Mutual Associates and/or Walnut Associates (in accordance with the Existing Debt
Instruments) or any subsequent Owner to permit the Lender to enter upon the
Improvements and inspect the Improvements at all reasonable hours and upon
reasonable notice (except in case of emergency, in which case such entry and
inspection may be had at any time and without notice to the extent permitted by
the Existing Debt Instruments) subject to the rights of tenants.
Section 9.7 LITIGATION. The Borrower will promptly give the Lender
notice in writing of all litigation of which it is aware (other than personal
injury claims which are adequately insured) and all proceedings of which it is
aware before any Governmental Authority or arbitrator affecting any part of the
Premises or which singly or in the aggregate involves a claim or claims against
the Borrower, Mutual Associates and/or Walnut Associates or any subsequent Owner
or any part of the Premises in excess of $25,000 or which seeks injunctive or
other equitable relief.
Section 9.8 INSURANCE. The Borrower shall maintain the insurance
coverage as required by the Security Instruments and shall use its best efforts
to cause Mutual Associates and/or Walnut Associates (in accordance with the
Existing Debt Instruments) or any subsequent Owner to maintain the insurance
coverage required by the Existing Debt Instruments.
Section 9.9 ENVIRONMENTAL COMPLIANCE.
(a) The Borrower agrees to exercise any Management Control it
may have under the Existing Debt Instruments to, or otherwise use its best
efforts to cause Mutual Associates and/or Walnut Associates (in accordance with
the Existing Debt Instruments) or any subsequent Owner to: (x) conduct and
complete all investigations, studies, sampling and testing and all remedial,
removal and other actions necessary to clean up and remove any Hazardous
Materials on, from, or affecting the Premises (i) in accordance with all
Requirements of Law, and (ii) in accordance with the orders and directives of
all Governmental Authorities having or claiming jurisdiction. The Borrower
shall and shall exercise any Management Control it may have under the Existing
Debt Instruments to, cause Mutual Associates and/or Walnut Associates or any
subsequent Owner to defend, indemnify and hold harmless the Lender and all
Indemnified Parties from and against any and all Environmental Liabilities.
(b) The provisions of this Section 9.9 shall be in addition to
any other obligation and liability the Borrower may have to the Lender, and
shall survive the transactions contemplated herein, the termination of this
Credit Agreement and the repayment of all Obligations. The Borrower shall not
cause or permit (or pursuant to its rights under the Existing Debt Instruments,
allow Mutual Associates and/or Walnut Associates or any subsequent Owner or any
tenant or subtenant to cause or permit) (i) the Premises, or any part thereof,
to be used to generate, manufacture, refine, transport, treat, store, handle,
dispose, transfer, produce or process Hazardous Materials, other than substances
in insignificant amounts used in the ordinary course of the business of
operating a commercial building, or (ii) any violation of the Environmental and
Safety Laws.
Section 9.10 COMPLIANCE WITH CONTRACTUAL OBLIGATIONS. The Borrower
will comply with all its Contractual Obligations except to the extent that
failure to comply therewith would not, in the aggregate, have a material adverse
effect on the Premises or any part thereof or on the business, operations,
financial or other condition of the Borrower or on the ability of the Borrower
to perform its Obligations under this Credit Agreement, the Note, the other Loan
Documents to which it is a party or the Existing Debt Instruments.
Section 9.11 NOTICES. The Borrower shall promptly give notice to the
Lender of:
(a) any litigation or proceeding affecting the Borrower, Mutual
Associates and/or Walnut Associates or any subsequent Owner or the Premises or
any part thereof of which the Borrower is aware, which, if adversely determined,
would have a material adverse effect on the Premises, or any part thereof, or
the business, operations, property or financial or other condition of the
Borrower, Mutual Associates and/or Walnut Associates or any subsequent Owner,
or which, if adversely determined, would (i) result in a judgment for monetary
damages in excess of $25,000 or (ii) if such litigation or proceeding were
aggregated with all other litigation or proceedings occurring after the date
hereof, result in judgments for monetary damages, in the aggregate, in excess
of $25,000 and in addition, will furnish to the Lender within ninety (90) days
after the end of each fiscal year of the Borrower a summary of all such
litigation;
(b) any change with respect to the Borrower, Mutual Associates
and/or Walnut Associates or any subsequent Owner or the Premises or any part
thereof of which the Borrower is aware which change could materially and
adversely affect the Premises or any part thereof; and
(c) the occurrence of any Event of Default.
Section 9.12 MANAGEMENT CONTROL. After termination of the Owner's
existing management agreement, the Borrower shall not cause or permit any Person
to exercise Management Control with respect to the Premises other than the
Borrower or any other managing agent reasonably acceptable to the Lender, in
each case (a) for management fees reasonably acceptable to the Lender and (b)
pursuant to a management agreement which shall provide that the payment of
management fees or other amounts to such managing agent shall be subordinate in
right of payment to payment of the Obligations and be terminable on not more
than 30 days prior notice and otherwise be in form and substance satisfactory
to the Lender. In the event a management company, any Affiliate of the Borrower
or any other Person becomes a managing agent, Borrower will enter into or cause
such managing agent to enter into a lockbox arrangement with respect to the
collection of all leases, rents and other proceeds of or relating to the
Premises in form and substance satisfactory to the Lender.
Section 9.13 TENANT ESTOPPEL CERTIFICATES. To the extent Borrower
may require delivery of the same pursuant to the Existing Debt Instruments, the
Borrower shall (upon the request of the Lender) demand that Mutual Associates
and/or Walnut Associates cause each tenant party to each Lease deliver an
estoppel certificate in the form of the Estoppel Certificate or other form
required by the respective Lease and use reasonable efforts to cause each tenant
to deliver same.
Section 9.14 PHYSICAL CONDITION OF THE PREMISES. The Borrower shall
remedy or use its best efforts to cause Mutual Associates and/or Walnut
Associates (in accordance with the Existing Debt Instruments) and any subsequent
Owner to remedy all of the violations set forth on Schedule III and relating to
any part of the Premises within 180 days from the date hereof. The Borrower
further agrees that, promptly after the curing of each violation, the Borrower
will diligently and expeditiously cause each such violation to be removed of
record.
Section 9.15 INTENTIONALLY OMITTED.
Section 9.16 INTENTIONALLY OMITTED.
Section 9.17 INSURANCE COVERAGE. The Borrower shall cause itself and
Lender to be named as loss payees on all insurance policies required to be
maintained by Mutual Associates and/or Walnut Associates or any subsequent Owner
pursuant to the Existing Debt Instruments (including, without limitation, all
business interruption insurance maintained by Mutual Associates and/or Walnut
Associates or any subsequent Owner). The Borrower shall maintain, or use its
best efforts to cause Mutual Associates and/or Walnut Associates (in accordance
with the Existing Debt Instruments) or any subsequent Owner to maintain, all
insurance policies required by the Existing Debt Instruments and shall promptly
furnish the Lender with true copies of such policies and evidence that all
premiums payable with respect thereto have been paid on or before the due date.
Section 9.18 RENTS. Upon a Management Change Date, the Borrower
agrees to join with the Lender in notices to all tenants at the Premises to,
effective on the next rent payment date, deposit all rents and sums payable
pursuant to such tenant's Leases at the Premises into an account established by
the Lender or its servicer (the "Lockbox Account") and Borrower shall pledge
such Lockbox Account as additional security for the Loan.
Section 9.19 LEASES. Upon a Management Change Date, Borrower will
cooperate with Lender in obtaining Subordination, Non-Disturbance and Attornment
Agreements for the benefit of the Lender from tenants at the Premises.
Section 9.20 INSPECTIONS. To the extent permitted by the Existing
Debt Instruments, the Borrower will permit the Lender's representatives to
accompany the Borrower's personnel on any inspection of the Premises or any part
thereof.
Section 9.21 BORROWER AS OWNER. In the event the Borrower becomes
an Owner and the Mortgage, Assignment of Rents, Lockbox Agreement and other Loan
Documents annexed hereto or to the Collateral Assignment have not otherwise been
executed, delivered and recorded pursuant to the Collateral Assignment, Lender
shall, and is hereby irrevocably authorized and directed by Borrower to,
complete the Mortgage, Assignment of Rents, Lockbox Agreement and other Loan
Documents annexed hereto or to the Collateral Assignment by, among other things,
dating the same; completing the description of the obligations secured thereby
by inserting a sum equal to (i) the then outstanding principal amount of the
Note; (ii) execute the same on behalf, and as the attorney in fact, of Borrower
and causing the same to be recorded in the appropriate public records. In
furtherance of such authorization and direction, Borrower hereby appoints Lender
its attorney-in-fact (with full power of substitution) to complete, execute,
deliver and record the Mortgage and all UCC-1 Financing Statements and UCC-3
Assignments and other documents contemplated thereby on behalf, and as the act
and deed, of Borrower; provided, however, Lender shall send to Borrower a copy
of any such document executed with the power of attorney; provided, further, the
failure to send such a copy to Borrower shall not result in any liability on the
part of the Lender in any manner whatsoever, nor result in any waiver or give
rise to any defense to any action taken by Lender pursuant to the terms of the
Credit Agreement. Said power of attorney, being coupled with an interest, is
irrevocable so long as any portion of the Obligations remain unpaid.
Article 10
Negative Covenants
------------------
From the date of this Credit Agreement and thereafter until all
Obligations have been paid in full:
Section 10.1 SAME LINE OF BUISNESS. The Borrower will not engage in
any other business or pursue any activity other than the ownership of the
Existing Debt Instruments or Partnership Interests, the enforcement thereof and
in the event the Borrower takes title to the Premises, the operation of the
Premises and, subject to the provisions of the Security Instruments and other
Loan Documents, the assumption of obligations in connection therewith.
Section 10.2 MERGER AND CONSOLIDATION. Except as otherwise permitted
by the Loan Documents, the Borrower will not enter into a transaction for the
termination, dissolution or winding up of the Borrower or to consolidate with
or merge into any other Person or permit any other Person to consolidate with
or merge into it.
Section 10.3 CORPORATION. The Borrower will not amend its articles
of incorporation or by-laws or its partnership agreements, respectively, grant
any management powers to any shareholder or other partner or permit any Person
to become a shareholder or partner of the Borrower without the prior written
consent of the Lender, except that (a) each shareholder may, with the prior
written consent of the Lender (which shall not be unreasonably withheld), sell,
assign or otherwise dispose of his shareholder interest to any of their
respective spouses or children or trust for such spouses or children and (b) a
limited partner of Tunlaw Associates I, L.P., or Tunlaw Associates II, L.P., may
transfer its limited partnership interest, provided in any such case such
transferee agrees to be bound by the provisions of this Section 10.3.
Section 10.4 TRANSACTIONS WITH AFFILIATES. Except as otherwise
permitted by this Credit Agreement or the other Loan Documents, the Borrower
will not enter into any transaction, including, without limitation, the
purchase, sale or exchange of property or the rendering of any service, with any
Affiliate except in the ordinary course of and pursuant to the reasonable
requirements of the Borrower's business (including, without limitation, a
related management company as contemplated by Section 9.12 pursuant to a
management agreement acceptable to the Lender).
Section 10.5 SALE OF ASSETS. Except as otherwise expressly permitted
by the Loan Documents, the Borrower will not sell, transfer or otherwise dispose
of the Premises or any part thereof or interest therein or any of its rights
under any of the Existing Debt Instruments.
Section 10.6 DEBT. The Borrower will not incur or permit to exist
any indebtedness of the Borrower for borrowed money or any Contingent Obligation
other than (i) the Loan and the other Obligations, (ii) any unsecured debt of
the Borrower to its Affiliates so long as the proceeds of such indebtedness are
used in connection with the Borrower's operation of the Premises, the making of
protective advances under, or funding Borrower's obligation, if any, to pay for
tenant improvements or other costs under, the Existing Debt Instruments or
payment of the Obligations and the repayment of such indebtedness is
subordinated, in writing (in form and substance satisfactory to Lender), to the
payment in full of the Obligations, or (iii) unsecured trade indebtedness
incurred in the normal course of business. Except for protective advances
(repayment of which is secured by the Existing Mortgages) and amounts required
to be advanced by the Borrower under the Existing Debt Instruments, if any, the
Borrower will not permit the principal amount of the Existing Debt to be
increased or otherwise modified or amounts repaid in respect of the Existing
Debt to be reborrowed.
Section 10.7 LIENS. The Borrower shall not, through the exercise of
Management Control or it rights under any Existing Debt Instrument, create or
permit to exist on behalf of Mutual Associates and/or Walnut Associates or any
Owner, or permit Mutual Associates and/or Walnut Associates or any Owner to
create or permit to exist any Lien or other encumbrance on any portion of the
Premises or Improvements except for (i) Liens granted in favor of the Lender
pursuant to the Security Instruments, (ii) the Existing Debt Instruments, and
(iii) Permitted Encumbrances.
Section 10.8 NO ASSIGNMENT. Except for Leases permitted by the
Existing Debt Instruments (provided that the Borrower will not consent to the
execution of any Major Lease without the Lender's prior written consent which
shall not be unreasonably withheld) or the Loan Documents, the Borrower will
not, in the exercise of Management Control or its rights under the Existing Debt
Instruments, and will not permit Mutual Associates and/or Walnut Associates or
any Owner to, sell, assign, transfer or otherwise dispose of or pledge or
encumber, nor will Borrower enter into or permit Mutual Associates and/or Walnut
Associates or any Owner to enter into any agreement purporting to, or obligating
the Borrower or Mutual Associates and/or Walnut Associates or any Owner to,
sell, assign, or otherwise dispose of the Leases, or the Rents (as defined in
the Security Instruments) or any of their respective rights, title or interest
under the Leases, the Rents or in the Premises or any part thereof, except with
the Lender's prior written consent.
Section 10.9 COMPLIANCE WITH ERISA. The Borrower will not, in the
exercise of Management Control or its rights under the Existing Debt
Instruments, and will not permit Mutual Associates and/or Walnut Associates or
any subsequent Owner to, establish any Plan or incur any liabilities with
respect to any Plan established by any other Person.
Section 10.10 NO AMENDMENTS/TERMINATION. The Borrower will not
amend, modify or waive performance of any provision of any Existing Debt
Instrument or terminate any Existing Debt Instrument or give notice of its
intent to do so. The Borrower shall enforce the obligations of each obligor
under the Existing Debt Instruments and shall, after a default by Mutual
Associates and/or Walnut Associates or any subsequent Owner in the performance
of any of Mutual Associates' and/or Walnut Associates' or such Owner's
obligations under the Existing Debt Instruments, immediately begin foreclosure
and other proceedings as are permitted by law or the Existing Debt Instruments
unless the Lender shall consent otherwise in its sole discretion.
Section 10.11 INTENTIONALLY OMITTED.
Section 10.12 TENANT IMPROVEMENTS. The Borrower will not agree to
fund (or consent to any action by Mutual Associates and/or Walnut Associates or
any subsequent Owner which consent will obligate the Borrower to fund) any
tenant improvements unless the Lender has given its prior written consent
thereto in each case (which consent may be based (among other criteria) upon the
Lender's reasonable satisfaction with the proposed work and the Borrower's
ability to fund the cost thereof).
Article 11
Conditions Precedent
--------------------
Section 11.1 CONDITIONS PREDEDENT TO PURCHASE LOAN. The obligation
of the Lender to make the Purchase Loan hereunder is subject to the satisfaction
of the following conditions precedent on or before the date hereof:
(a) The Borrower shall have executed and delivered to the Lender
the Note.
(b) The Lender shall have received duly executed copies of this
Credit Agreement, the Security Instruments, and the other Loan Documents and
such other documents as the Lender or its counsel may reasonably require.
(c) The Lender shall have received (i) certified copies of all
action taken by the Borrower to authorize the execution, delivery and
performance, in accordance with its terms, of the Credit Agreement and the other
Loan Documents, the Purchase Agreement, the Stock Pledge Agreement, the Existing
Debt Instruments and any other documents required or contemplated hereunder or
thereunder; (ii) a certificate of incumbency with respect to the representatives
of Borrower authorized and directed to execute and deliver the Loan Documents
and the Purchase Agreement; (iii) certified copies of the certificate of
incorporation and by-laws of the Borrower, in each case amended to the date
hereof together with a list of the members of the Board of Directors and
stockholders; and (iv) certificates of good standing for Borrower from the
appropriate authority in their jurisdictions of organization.
(d) The Lender shall have received opinions of counsel for the
Borrower and Guarantor, addressing such legal issues concerning the Borrower and
Guarantor, the Purchase Agreement, the Loan, the Premises, and the Loan
Documents, and the Existing Debt Instruments as the Lender may require,
including, without limitation, the organization of the Borrower and Guarantor,
due authorization of the execution and delivery of the Purchase Agreement, the
Loan Documents, the proper execution and delivery of the Loan Documents, the
enforceability of the Loan Documents and such other matters as the Lender may
reasonably request.
(e) The Lender shall have received the Guarantee duly executed
by the Guarantor.
(f) Prior to or concurrently with the execution of this Credit
Agreement, the Borrower, at its sole cost and expense, will obtain and deliver
to the Lender a title policy issued by an insurer acceptable to the Lender,
insuring the Lender's interests under the Loan Documents in a form acceptable
to the Lender and containing only such exceptions as shall be consented to by
the Lender.
(g) [Intentionally Omitted]
(h) The Lender shall have received evidence satisfactory to it
that the Premises are or will be served by adequate storm sewer, sanitary sewer,
telephone, gas, electricity and water service and other necessary utility
service. The Borrower shall also deliver to the Lender evidence that the
Premises are not in a wetlands district and are zoned in a classification which
will permit all current and contemplated use of the improvements for all
purposes intended. The foregoing evidence may take the form of a certificate
of occupancy.
(i) The Lender shall have received such Uniform Commercial Code,
bankruptcy, judgment, federal tax Lien, building code violation and other
searches of public records as the Lender may reasonably require with respect to
the Premises, Mutual Associates and/or Walnut Associates and the Borrower and
the results of such searches shall be satisfactory to Lender.
(j) The Lender shall have received evidence that none of the
Premises is located in an area designated by the Secretary of Housing and Urban
Development as a special flood hazard area. Such evidence may take the form of
a certification in satisfactory form contained on a survey of the Premises
previously delivered to the Lender.
(k) The Lender shall have received from the Borrower evidence
that the Land and the Improvements are benefited by such easements or other
rights and vehicular and pedestrian ingress and egress, the installation and
maintenance of utilities, and other site improvements as may be necessary for
the operation of the Improvements.
(l) The Lender shall have received such other materials,
documents and papers regarding the Premises, the Borrower, Mutual Associates
and/or Walnut Associates or the Loan as the Lender may reasonably require.
(m) The Borrower shall have paid all costs and expenses incurred
to date and required to be paid by it pursuant to Section 13.5 hereof. This
condition precedent does not derogate from the Borrower's continuing obligations
under Section 13.5 hereof.
(n) The Lender shall have received copies of valid and binding
satisfactions or waivers of any Liens (in recordable form) on the Premises other
than Permitted Encumbrances and Existing Mortgages or evidence satisfactory to
the Lender that the Borrower has made provision for the payment of the
indebtedness secured by such Liens.
(o) The Lender shall have received all UCC Financing Statements
and other evidence of the Liens granted in favor of the Lender pursuant to the
Security Instruments.
(p) The Lender shall have received originals of the currently
effective form of all Existing Debt Instruments (with the Existing Notes
endorsed to Lender).
(q) Each condition to the Borrower's obligations under the
Purchase Agreement shall have been satisfied and not waived or modified.
(r) Intentionally Omitted.
(s) Lender shall have received evidence satisfactory to it that
all notices to Mutual Associates and Walnut Associates contemplated by the
Lockbox Agreement have been delivered.
(t) Notice of the assignment of the Existing Debt Instruments
to Borrower shall have been given to Mutual Associates and/or Walnut Associates
and each guarantor of the Existing Debt.
(u) Intentionally Omitted.
(v) All documents and legal matters in connection with the
transactions contemplated by this Credit Agreement shall be reasonably
satisfactory in form and substance to the Lender.
Section 11.2 CONDITIONS TO THE LOAN. The obligation of the Lender
to make the Loan requested to be made on this date is subject to the
satisfaction of the following conditions precedent:
(a) Each of the representations and warranties made by the
Borrower or Guarantor in or pursuant to the Loan Documents shall be true and
correct in all material respects.
(b) Each of the representations and warranties made by the
Borrower in the Purchase Agreement shall be true and correct in all material
respects as of the date of the Credit Agreement.
Article 12
Events of Default
-----------------
Section 12.1 EVENTS OF DEFAULT. Upon the occurrence of any of the
following events:
(a) the failure of the Borrower to pay when due the principal
amount of the Loan or any installment of interest or legal, recording or other
fees hereunder or any of the other Loan Documents or any part thereof and any
such failure continues for more than 10 days after notice to the Borrower from
the Lender; or
(b) the failure of Borrower to pay when due any costs or other
amounts due hereunder other than the amounts set forth in Section 12.1(a) and
such default continues for more than 30 days; or
(c) any representation or warranty made or deemed made by the
Borrower herein or which is contained in any other Loan Document or exhibit,
schedule, certificate, document or financial or other statement furnished at any
time under or in connection with this Credit Agreement shall prove to have been
incorrect in any material respect on or as of the date made or deemed made; or
(d) The Borrower shall default in the observance or performance
of any agreement contained in Sections 10.1, 10.2, 10.3, 10.5, 10.7, 10.8, 10.10
or 10.11 hereof or any other provision hereof or the other Loan Documents if
such default constitutes a Recourse Event; or
(e) the Borrower shall default in the observance or performance
of any agreement (other than as set forth in Sections 12.1 (a), (b), (c) and (d)
above) contained in this Credit Agreement or any of the other Loan Documents to
which such Person is a party and such default continues for more than 30 days;
or
(f) the Borrower shall default in the payment of any
indebtedness for borrowed money (other than the Note) or in the payment of any
Contingent Obligation beyond the period of grace, if any, provided in the
instrument or agreement under which such indebtedness for borrowed money or
Contingent Obligation was created, or a default shall occur in the
observance or performance of any other agreement or condition relating to any
indebtedness described above in this subsection (f) or Contingent Obligation or
contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event shall occur or condition exist, the effect of which
default or other event or condition is to cause, or to permit the holder or
holders of such indebtedness for borrowed money or beneficiary or beneficiaries
of such Contingent Obligation (or a trustee, agent or other Person acting on
behalf of such holder or holders or beneficiary or beneficiaries) to cause, with
the giving of notice if required, such indebtedness for borrowed money to become
due prior to its stated maturity or such Contingent Obligation to become
payable; or
(g) (i) the Borrower or Guarantor shall commence a case,
proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered
with respect to such Person, or seeking to adjudicate such Person a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect to such
Person or such Person's debts, or (B) seeking appointment of a receiver,
trustee, custodian or other similar official for such Person or for all or any
substantial part of such Person's assets, or the Borrower or Guarantor shall
make a general assignment for the benefit of such Person's creditors; or (ii)
there shall be commenced against the Borrower or Guarantor any case, proceeding
or other action of a nature referred to in clause (i) above which (A) results
in the entry of an order for relief or any such adjudication or appointment or
(B) remains undismissed or undischarged for a period of 90 days or (iii) there
shall be commenced against the Borrower or Guarantor any case, proceeding or
other action seeking issuance of a warrant of attachment, execution, distraint
or similar process against all or any substantial part of such Person's assets,
as the case may be, which results in the entry of an order for any such relief
which shall not have been vacated, discharged or stayed pending appeal within
90 days from the entry thereof; or (iv) the Borrower or Guarantor shall take any
action in furtherance of, or indicating such Person's consent to, approval of,
or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii)
above; or (v) the Borrower or Guarantor shall generally not, or shall be unable
to, or shall admit in writing such Person's inability to, pay such Person's
debts, as the case may be, as they become due; or
(h) (i) if Borrower or Guarantor or any ERISA Affiliate shall
engage in any "prohibited transaction" (as defined in Section 406 of ERISA or
Section 4975 of the Code) involving any Plan, (ii) any "accumulated funding
deficiency" (as defined in Section 302 of ERISA), whether or not waived, shall
exist with respect to any Plan, or (iii) a Reportable Event shall occur with
respect to, or proceedings shall commence to have a trustee appointed, or a
trustee shall be appointed, to administer or to terminate, any Plan, which
Reportable Event or institution of proceedings or appointment of a trustee is
likely to result in the termination of such Plan for purposes of Title IV of
ERISA, and, in the case of a Reportable Event, the continuance of such
Reportable Event unremedied for ten days after notice of such Reportable Event
pursuant to Section 4043(a), (c) or (d) of ERISA is given and, in the case of
the institution of proceedings, the continuance of such proceedings for ten days
after commencement thereof, (iv) any Plan shall terminate for purposes of Title
IV of ERISA, (v) any one or more of the Owners or Borrower or any ERISA
Affiliate incur a partial or complete withdrawal from a Multiemployer Plan or
(vi) any other event or condition shall occur or exist, with respect to a Plan;
and in each case in clauses (i) through (vi) above, such event or condition,
together with all other such events or conditions, if any, could subject
Borrower or Guarantor to any tax, penalty or other liabilities in the aggregate,
which is material in relation to the business, operations, property or financial
or other condition of the Borrower or Guarantor; or
PER one or more judgments, decrees, arbitration awards or
rulings shall be entered against the Borrower involving in the aggregate a
liability (not paid or fully covered by insurance) of $25,000 or more and all
such judgments, decrees, awards and rulings shall not have been vacated, paid,
discharged, stayed or bonded pending appeal within 60 days from the entry
thereof; or
(j) the Borrower or Guarantor shall breach any of their
respective covenants or agreements contained in the other Loan Documents or
Existing Debt Instruments or an Event of Default or similar event occurs under
(and as defined in) any of the other Loan Documents; or
(k) any Recourse Event occurs; or
(l) if any of the outstanding stock of Borrower is transferred
or sold in violation of this Agreement; or
(m) if the Borrower shall change the account or depositary
established pursuant to Section 11.1(s) without the Lender's prior written
consent; or
(n) if the Certificate of Incorporation or by-laws of the
Borrower shall be amended without the Lender's prior written consent;
then, and in any such event, (A) if such event is an Event of Default specified
in subsection (g) above, automatically the Loans (with accrued interest thereon)
and all other amounts owing under this Credit Agreement, the Note and the other
Loan Documents shall immediately become and be due and payable without the
giving of any notice of any kind and (B) if such event is any other Event of
Default, the Lender may, by notice to the Borrower, declare the Loans hereunder
(with accrued interest thereon) and all other amounts owing under this Credit
Agreement, the Note and the other Loan Documents to be due and payable
forthwith, whereupon the same shall immediately become and be due and payable.
Except as expressly provided above in this Article 12, presentment, demand,
protest and all other notices of any kind are hereby expressly waived by the
Borrower.
Article 13
Miscellaneous
-------------
Section 13.1 SUCCESSORS AND ASSIGNS.
(a) All covenants, agreements, representations and warranties
made herein or in certificates delivered in connection herewith by or on behalf
of the Borrower shall survive the issuance and delivery of the Note to the
Lender and shall continue in full force and effect so long as the Note is
outstanding and unpaid or any amounts due to the Lender under this Credit
Agreement or the other Loan Documents have not been paid, and shall bind and
inure to the benefit of the successors and permitted assigns of the Borrower,
whether so expressed or not, and all such covenants, agreements, representations
and warranties shall inure to the benefit of the Lender's successors and
assigns. Except as set forth in this Credit Agreement, no right or privilege
is extended to any third party by the provisions hereof.
(b) The Borrower may not assign its rights or delegate its
obligations hereunder without the prior written consent of the Lender.
Section 13.2 NOTICES. Unless otherwise specified herein, all
notices, requests, consents, approvals, demands or other communications to or
from the parties hereto shall be in writing and shall be delivered by hand or
sent by Federal Express or other nationally recognized courier, expenses prepaid
or charged to the sender. All such communications shall be deemed delivered
when received. Any such notice, request, demand or other communication shall
be delivered or addressed as follows: (i) if to the Borrower to it at 0000
Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: Xxxxx X. Xxxxxxxxx,
with copies to: (a) Xxxxxxx X. Xxxxxxx, Esq., at Ledgewood Law Firm, 0000 Xxxxxx
Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, and (b) RESOURCE PROPERTIES, INC.,
0000 Xxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: Xxxxx X.
Xxxxxxxxx, (ii) if to the Lender to its office located at 3 World Financial
Center, New York, New York 10285, Attn: Xx. Xxxxxxxxxx Xxxxxx, with copies to
Equitable Real Estate Investment Management Inc. ("Equitable"), 0000 Xxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, Attn: Xxxxx Xxxxxxxxx,
or at such other address as either party hereto may designate by written notice
to the other party hereto. Until receipt of written notice to the Borrower from
the Lender confirming the termination of Equitable's authority to act on
Lender's behalf, Borrower may rely on all consents, approvals and notices given
by Equitable under the Loan Documents in addition to consents, approvals and
notices given by the Lender.
Section 13.3 AMENDMENT AND WAIVER. No provision of this Credit
Agreement, the Note, or the other Loan Documents may be waived, changed or
modified, or the discharge thereof acknowledged orally, but only by an agreement
in writing signed by the party against whom the enforcement of any waiver,
change, modification or discharge is sought and then such waiver, change,
modification or discharge shall be effective only in the specific instance and
for the specific purpose for which it was given.
Section 13.4 EXECUTION IN COUNTERPARTS. This Credit Agreement may
be executed in any number of counterparts, each of which when so executed shall
be deemed to be an original and all of which taken together shall constitute one
and the same agreement.
Section 13.5 COSTS, EXPENSES, ETC. The Borrower agrees to pay upon
demand all reasonable costs and expenses incurred by the Lender in connection
with the preparation, execution, delivery, amendment, proposed amendment, and
enforcement of this Credit Agreement, the Note, all other Loan Documents and the
other documents to be delivered hereunder or otherwise in connection with the
transactions contemplated hereby or thereby, including, without limitation, the
reasonable fees and out-of-pocket expenses of counsel for the Lender with
respect thereto and with respect to advising the Lender as to its rights and
responsibilities hereunder and thereunder and all recording, filing and
registration fees, title insurance charges of the title insurer, all appraisal
fees, the Lender's costs and fees, survey fees and charges, all insurance
premiums and if the Loans, Note or any portion thereof is not paid in full when
and as due, all costs and expenses of the Lender (including, without limitation,
court costs and reasonable counsels' fees and disbursements) incurred in
attempting to enforce payment of the Loans and all costs and expenses of the
Lender incurred (including, without limitation, court costs and reasonable
counsels' fees and disbursements) in attempting to realize on any security
(including, without limitation, the Collateral Assignment) or incurred in
connection with the sale or disposition (or preparation for sale or disposition)
of any security; provided, however, the Borrower is not liable for Seller's
costs or expenses in connection with the sale of the Existing Debt Instruments
to the Purchaser. The Borrower agrees to pay all brokerage, finder or similar
fees or commissions payable in connection with the transactions contemplated
hereby and shall indemnify and hold the Lender harmless against all claims,
liabilities, costs and expenses (including, without limitation, reasonable
attorneys' fees and expenses and court costs) arising out of or relating to any
claim by any broker, finder or similar person. The Borrower agrees that all of
its Obligations under this Section 13.5 shall survive the termination of this
Credit Agreement and the other Loan Documents and the repayment of the
Obligations.
Section 13.6 COMMITMENT LETTER. This Credit Agreement supersedes any
term sheet delivered to the Borrower or any Person acting on behalf of the
Borrower and any such term sheet is hereby merged into this Credit Agreement.
Section 13.7 USURY LAWS. This Credit Agreement and the other Loan
Documents are each subject to the express condition that at no time shall the
Borrower be obligated or required to pay interest on the principal balance due
under any of the Loan Documents at a rate which could subject the obligee under
any Loan Documents to either civil or criminal liability as a result of being
in excess of the maximum interest rate which the Borrower is permitted by the
law of the jurisdiction stated to govern such Contractual Obligation to contract
or agree to pay. If by the terms of this Credit Agreement or any of the Loan
Documents, the Borrower is at any time required or obligated to pay interest on
any amounts due on any of the Loan Documents at a rate in excess of such maximum
rate, the rate of interest under such Loan Document shall be deemed to be
immediately reduced to such maximum rate and the interest payable shall be
computed at such maximum rate (provided, however, that the total amount of such
interest shall be amortized, prorated and allocated over the period commencing
from the date hereof until payment in full of all of the Obligations).
Notwithstanding the foregoing, it is agreed the fees and interest to be paid
pursuant hereto were set with reference to New York General Obligations Law
Section 5-501.6.b.
Section 13.8 INDEMNITY FOR TRANSFER TAXES/OTHER LIABILITIES.
(a) In the event any real property transfer tax ("RPT Tax"), any
transfer tax ("Transfer Tax") or any similar or successor tax is assessed
against the Lender or any part of the Premises as a result of (x) the
consummation of the transactions contemplated hereunder and under the other Loan
Documents (including, without limitation, the Security Instruments) or (y) the
exercise by the Lender of any of its rights, powers or remedies under this
Credit Agreement, the Security Instruments or any of the other Loan Documents,
the Borrower shall be liable to pay such assessments and shall indemnify, defend
and hold the Lender harmless from and against any and all RPT Tax and Transfer
Tax or any similar or successor tax levied, assessed or payable, together with
any interest or penalty thereon with respect thereto.
(b) In consideration of the execution and delivery of this
Credit Agreement by the Lender, the Borrower hereby indemnifies, exonerates and
holds the Lender and each of the other Indemnified Parties free and harmless
from and against any and all actions, causes of action, suits, losses, costs
(including, without limitation, reasonable attorneys' fees and disbursements and
allocated costs of staff counsel), liabilities and damages, and expenses
actually incurred in connection with this Credit Agreement and the other Loan
Documents (irrespective of whether such Indemnified Party is a party to the
action for which indemnification hereunder is sought) (collectively, the
"Indemnified Liabilities"), including, without limitation, any Indemnified
Liabilities incurred by the Indemnified Parties or any of them as a result of,
or arising out of, or relating to any suits commenced by Borrower or Guarantor
against the Lender or by Mutual Associates and/or Walnut Associates or any
subsequent Owner or any other Person in connection with the agreements made
hereunder and under the other Loan Documents, or the transactions contemplated
hereunder and under the other Loan Documents and if and to the extent that the
foregoing undertaking may be unenforceable for any reason, the Borrower hereby
agrees to make the maximum contribution to the payment and satisfaction of each
of the Indemnified Liabilities which is permissible under applicable law.
(c) The indemnities and agreements set forth in this Section
13.8 shall survive the termination of this Credit Agreement and the other Loan
Documents and the repayment of the Obligations and shall, notwithstanding any
other provision hereof, be full recourse, personal obligations of the Borrower.
Section 13.9 LIMITED LIABILITY.
Notwithstanding anything herein to the contrary, except as set forth
in Section 13.5, 13.8 and this Section 13.9, the Borrower shall have no personal
liability for the Obligations hereunder or under any other Loan Documents.
Except as otherwise specifically provided for herein, no deficiency or other
money judgement will be sought, obtained or enforced hereunder or under the
other Loan Documents or other instrument securing the Obligations against the
Borrower in any action to recover any sums not paid by the Borrower to the
Lender or not recovered by the Lender from the proceeds of the sale of
collateral.
Nothing contained herein shall (i) release or impair the validity of
the principal indebtedness, (ii) in any way affect or impair any Lien granted
pursuant to the Security Instruments, or any other Loan Documents or (iii) in
any way affect or impair the right of the Lender to foreclose the Security
Instruments, or enforce any other Loan Documents pursuant to the terms thereof.
Notwithstanding anything contained herein to the contrary, the
Borrower shall be fully personally liable to the Lender for all of the
Obligations if any Recourse Event shall occur.
Section 13.10 INTENTIONALLY OMITTED.
Section 13.11 NO RELIANCE. Borrower represents and acknowledges to
the Lender that it has, independently of the Lender, and based on the Existing
Debt Instruments and such other documents, information and investigations as it
has deemed appropriate, made its own credit decision to enter into the Borrower
Assignment, this Agreement and to purchase the Existing Debt.
Section 13.12 HEADINGS; TABLE OF CONTENTS. The Sections and other
headings contained in this Credit Agreement and the Table of Contents which
precedes this Credit Agreement are for reference purposes only and shall not
control or affect the construction of this Credit Agreement or the
interpretation hereof in any respect.
Section 13.13 SEVERABILITY. Any provision of this Credit Agreement
which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
Section 13.14 LAW GOVERNING. THIS CREDIT AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
THIS CHOICE OF LAW IS MADE PURSUANT TO GENERAL OBLIGATIONS LAW SECTION 5-1401.
Section 13.15 CONSENT TO JURISDICTION. The Borrower hereby
irrevocably submits to the jurisdiction of any court of the State of New York
or federal court sitting in the State of New York in any action or proceeding
arising out of or relating to this Credit Agreement or any other Loan Document.
The undersigned hereby irrevocably agrees that all claims in respect of such
action or proceeding may be heard and determined in such court of the State of
New York or, to the extent permitted by law, in such federal court. The
undersigned hereby irrevocably waives, to the fullest extent they may
effectively do so, the defense of an inconvenient forum to the maintenance of
such action or proceeding. To the extent permitted by law, the undersigned also
irrevocably consents to the service of any and all process in any such action
or proceeding arising out of or in connection with this Credit Agreement or any
other Loan Document by the mailing (certified mail, return receipt requested and
postage prepaid) of copies of such process to the undersigned at the address set
forth in Section 13.2 hereof. The undersigned agrees that a final and non-
appealable judgment (or a judgment whose time to appeal has expired) in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
This consent to jurisdiction is made pursuant to General Obligations Law Section
5-1402.
Section 13.16 WAIVER OF JURY TRIAL. THE BORROWER AND THE LENDER
HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM,
WHETHER IN CONTRACT OR TORT, AT LAW OR IN EQUITY, WITH RESPECT TO, IN CONNECTION
WITH OR ARISING OUT OF OR IN ANY WAY RELATED TO THIS CREDIT AGREEMENT OR THE
OTHER LOAN DOCUMENTS OR THE VALIDITY, PROTECTION, INTERPRETATION,
ADMINISTRATION, COLLECTION OR ENFORCEMENT HEREOF OR THEREOF, OR ANY CLAIM OR
DISPUTE HEREUNDER OR THEREUNDER.
Section 13.17 JOINT AND SEVERAL LIABILITY. In the event that this
Agreement is executed by more than one party as Borrower, the liability and
Obligations of such parties under the Loan Documents are joint and several.
Section 13.18 SECURITIZATION. The Note may, at the option of the
Lender, at any time until the same shall be fully paid and satisfied, be split
or divided into two or more notes. To that end, Borrower, upon written request
of Lender, shall execute and deliver to Lender and/or its designee or designees
substitute notes in such principal amounts, aggregating not more than unpaid
principal amount of the Note and containing terms, provisions and clauses
similar to those contained therein and such other documents and instruments as
may be required by Lender. Borrower acknowledges that Lender may securitize the
Note or any replacement notes, or otherwise sell, assign, transfer or convey,
by pledge or otherwise, the Note or any replacement notes and all or any portion
of its interest therein or in the Loan to third parties. In such event, in
order to maximize the proceeds of such securitization or other sale, assignment,
transfer or conveyance, Borrower shall fully cooperate with Lender.
IN WITNESS WHEREOF, the parties hereto have duly executed this Credit
Agreement as of the date first above written.
RESOURCE COMMERCIAL MORTGAGES, INC.
a Delaware corporation
By: /S/ Xxxxx Xxxxxxxxx
----------------------------
Name: Xxxxx Xxxxxxxxx
Title: President
TUNLAW ASSOCIATES I, L.P.,
a Pennsylvania limited partnership
By: RESOURCE PROPERTIES XXVIII,
General Partner
By: /s/ Xxxxx Xxxxxxxxx
------------------------------
Name: Xxxxx Xxxxxxxxx
Title: President
TUNLAW ASSOCIATES II, L.P.,
a Pennsylvania limited partnership
By: RESOURCE PROPERTIES XXIX
General Partner
By: /s/ Xxxxx Xxxxxxxxx
------------------------------
Name: Xxxxx Xxxxxxxxx
Title: President
XXXXXX BROTHERS HOLDINGS INC., doing
business as Xxxxxx Capital, a division
of Xxxxxx Brothers Holdings Inc.
By: /s/ Xxxxxxxxxx Xxxxxx
------------------------------
Xxxxxxxxxx Xxxxxx
------------------------------
Authorized Signatory
STATE OF Pennsylvania
------------ :
: ss.:
COUNTY OF Philadelphia
------------ :
On this 19th day of December 1996, before me personally came
Xxxxx Xxxxxxxxx, to me known to be the person who executed the foregoing
instrument, and who, being by me duly sworn, did depose and say that (s)he is
the President of RESOURCE COMMERCIAL MORTGAGES, INC., the corporation
described in and who executed the foregoing instrument; and that (s)he signed
his/her name thereto by order of the Board of Directors of said
corporation.
WITNESS MY HAND AND OFFICIAL SEAL.
Xxxx X. Xxxxxxx
______________________
Notary Public
STATE OF Pennsylvania
____________ :
: ss.:
COUNTY OF Philadelphia
_____________ :
On this 19th day of December 1996, before me personally came
Xxxxx Xxxxxxxxx, to me known to be the person who executed the foregoing
instrument, and who, being by me duly sworn, did depose and say that (s)he is
the President of the G.P. of TUNLAW ASSOCIATES I, L.P., the corporation
described in and who executed the foregoing instrument; and that (s)he signed
his/her name thereto by order of the Board of Directors of said corporation.
WITNESS MY HAND AND OFFICIAL SEAL.
Xxxx X. Xxxxxxx
______________________
Notary Public
STATE OF Pennsylvania
__________ :
: ss.:
COUNTY OF Philadelphia
_____________ :
On this 19th day of December 1996, before me personally came
Xxxxx Xxxxxxxxx, to me known to be the person who executed the foregoing
instrument, and who, being by me duly sworn, did depose and say that (s)he is
the President of the G.P. of TUNLAW ASSOCIATES II, L.P., the corporation
described in and who executed the foregoing instrument; and that (s)he signed
his/her name thereto by order of the Board of Directors of said corporation.
WITNESS MY HAND AND OFFICIAL SEAL.
Xxxx X. Xxxxxxx
______________________
Notary Public
STATE OF NEW YORK :
: ss.:
COUNTY OF NEW YORK :
On this 18th day of December 1996, before me personally came
Xxxxxxxxxx X. Xxxxxx, to me known to be the person who executed the foregoing
instrument, and who, being by me duly sworn, did depose and say that (s)he is
an authorized signatory of Xxxxxx Brothers Holdings Inc., the corporation
described in and who executed the foregoing instrument; and that (s)he signed
his/her name thereto by order of the Board of Directors of said corporation.
WITNESS MY HAND AND OFFICIAL SEAL.
Xxxx X. Xxxxxxxx
______________________
Notary Public
Schedule I
Existing Mortgages
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Schedule II
Material Agreements
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Schedule III
Violations
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