EXHIBIT 10.17
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LOAN MODIFICATION AND EXTENSION AGREEMENT
by and between
SOUTHWEST MARKET LIMITED PARTNERSHIP
a District of Columbia limited partnership,
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
a natural person,
and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
a natural person,
and
THE SUMITOMO BANK, LIMITED,
a Japanese banking institution acting
through its NEW YORK BRANCH
FOR
ONE INDEPENDENCE SQUARE
Dated as of September 26, 1994
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TABLE OF CONTENTS
Page
ARTICLE I CERTAIN DEFINITIONS.............................................. 5
ARTICLE II EXTENSION AND RELATED MATTERS.................................... 7
Section 2.01 Extension of Maturity Date.................................. 7
Section 2.02 Reaffirmation of Liability.................................. 7
Section 2.03 Modification Fee............................................ 8
ARTICLE III AMENDMENT OF ORIGINAL LOAN AGREEMENT............................ 9
Section 3.01 Amendment of Original Loan Agreement........................ 9
Section 3.02 Amendment of Other Loan Documents........................... 13
Section 3.03 Reaffirmation of Certain Documents.......................... 14
Section 3.04 Ratification of Loan Documents.............................. 14
ARTICLE IV LENDER'S FIXED RATE OPTION...................................... 15
Section 4.01 Lender's Fixed Rate Option.................................. 15
Section 4.02 Exercise of Lender's Conversion Option...................... 16
Section 4.03 Implementation of Interest Rate Management Arrangement...... 18
Section 4.04 Recalculation of Trigger Rate............................... 23
ARTICLE V REPRESENTATIONS, WARRANTIES AND COVENANTS........................ 25
Section 5.01 Existence................................................... 25
Section 5.02 Authorization............................................... 26
Section 5.03 Conflicting Agreements...................................... 27
Section 5.04 Organizational Documents.................................... 28
Section 5.05 No Litigation............................................... 30
Section 5.06 Compliance with Applicable Laws............................. 31
Section 5.07 Information Delivered....................................... 32
Section 5.08 True Statement.............................................. 33
Section 5.09 No Event of Default........................................ 33
Section 5.10 Space Leases............................................... 33
Section 5.11 Financial Statements of Borrower........................... 34
Section 5.12 Financial Statements of Guarantor.......................... 35
Section 5.13 Taxes and Other Assessments................................ 35
Section 5.14 No Liens................................................... 36
Section 5.15 Trust Estate............................................... 36
Section 5.16 No Bankruptcy.............................................. 37
Section 5.17 Absence of Transfer........................................ 37
Section 5.18 Certificates............................................... 38
Section 5.19 Representations and Warranties in
Loan Documents............................................. 38
Section 5.20 Event of Default........................................... 39
ARTICLE VI EFFECTIVE DATE.................................................. 39
Section 6.01 Effective Date........................................... 39
Section 6.02 Termination.............................................. 43
ARTICLE VII MISCELLANEOUS.................................................. 43
Section 7.01 Entire Agreement; Exhibits and
Schedules................................................ 43
Section 7.02 Counterparts............................................. 44
Section 7.03 Governing Law............................................ 44
Section 7.04 Severability............................................. 44
Section 7.05 Successors and Assigns................................... 45
Section 7.06 Time of the Essence...................................... 45
Section 7.07 Headings................................................. 45
Section 7.08 Notices.................................................. 45
Section 7.09 Survival................................................. 45
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EXHIBITS
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Exhibit "A" Form of Allonge
Exhibit "B" Form of Third Amendment to Construction Loan Deed of Trust and
Security Agreement
Exhibit "C" Form of Second Amendment to Collateral Assignment of Leases,
Rents, Profits and Income and Pledge of Accounts
Exhibit "D" Form of First Modification to Collateral
Assignment of Project Documents
Exhibit "E-1" Form of Closing Certificate
Exhibit "E-2" Form of Closing Certificate
Exhibit "E-3" Form of Closing Certificate
Exhibit "E-4" Form of Closing Certificate
Exhibit "E-5" Form of Closing Certificate
Exhibit "F" Form of First Amendment to Consent and Certificate of Manager
Exhibit "G" Form of Extension of Side Letter regarding Development Fee
Exhibit "H" List of Space Leases
Exhibit "I" Certificate Confirming Effective Date
Exhibit "J" First Amendment to Interest Guaranty and Indemnity
SCHEDULES
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Schedule 1 Trigger Rates
Schedule 2 Methodology for Converting Pre-Tax Net Operating Income to
Trigger Rates
Schedule 3 Representatives of Borrower
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LOAN MODIFICATION AND EXTENSION AGREEMENT
THIS LOAN MODIFICATION AND EXTENSION AGREEMENT (this "Agreement") made
and entered into as of the 26th day of September, 1994, by and among SOUTHWEST
MARKET LIMITED PARTNERSHIP, a District of Columbia limited partnership
("Borrower"); MORTIMER B. ZUCKEAAAN who is a natural person ("▇▇▇▇▇▇▇▇▇"), and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, who is a natural person ("Linde") (▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ being
collectively referred to as the "Guarantors"); and THE SUMITOMO BANK, LIMITED, a
Japanese banking institution acting through its NEW YORK BRANCH ("Lender");
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Borrower and Lender are the parties to a certain Construction
Loan Agreement dated as of August 21, 1990 (the "Original Loan Agreement"),
pursuant to which Lender, in periodic advances, advanced to Borrower on the
terms and conditions set forth in the Original Loan Agreement the aggregate
principal amount of Eighty Million and No/100 Dollars ($80,000,000.00) (the
"Loan"); and
WHEREAS, all advances made by Lender to Borrower pursuant to the
Original Loan Agreement are evidenced by that certain Promissory Note dated
August 21, 1990, in the principal amount of $80,000,000, made by Borrower to the
order of Lender (the "original Note"); and
WHEREAS, the Original Note is secured by that certain Construction Loan
Deed of Trust and Security Agreement dated as of August 18, 1990 and effective
as of August 21, 1990, by and among Borrower, Lender and Trustee (as defined
therein) as recorded in the Land Records of the District of Columbia on August
21, 1990 as Instrument No. 46387 (the "Initial Deed of Trust"); and
WHEREAS, the Initial Deed of Trust was amended by that certain First
Amendment to Construction Loan Deed of Trust and Security Agreement (the "First
Amendment to Deed of Trust"), by and among Borrower, Lender and Trustee, dated
as of February 25, 1991 and effective as of August 21, 1990, which was recorded
in the Land Records of the District of Columbia on March 7, 1991 as Instrument
No. 12123; and
WHEREAS, the Initial Deed of Trust, as amended by the First Amendment to
Deed of Trust, was further amended by that certain Second Amendment to
Construction Loan Deed of Trust and Security Agreement (the "Second Amendment to
Deed of Trust"), by and among Borrower, Lender and Trustee, dated as of
September 9, 1994 and effective as of September 21, 1994, which was recorded in
the Land Records of District of Columbia on September 21, 1994 as Instrument No.
76267 (the Initial Deed of Trust as amended by the First Amendment to Deed
2
of Trust and as further amended by the Second Amendment to Deed of Trust shall
hereinafter be referred to as the "Original Deed of Trust"); and
WHEREAS, Borrower's obligations under the Original Loan Agreement and
Original Note are further secured by that certain Collateral Assignment of
Leases, Rents, profits and Income and Pledge of Accounts (the "Original
Assignment"), dated as of August 18, 1990 and effective as of August 21, 1990,
by Borrower to Lender, as amended by that certain First Amendment to Collateral
Assignment of Leases, Rents, Profits and Income and Pledge of Accounts (the
"First Amendment to Assignment"), bearing date of February 22, 1991 and
effective as of August 21, 1990, by Borrower to Lender (the Original Assignment
as amended by the First Amendment to Assignment shall hereinafter be referred to
as the "Assignment of Rents") and the Assignment of Project Documents (as
defined in the Original Loan Agreement); and
WHEREAS, pursuant to an Interest Guaranty and Indemnity dated as of
August 21, 1990, Guarantors jointly and severally guaranteed to Lender, on and
subject to the terms and conditions of the Interest Guaranty and Indemnity, the
payment of the Obligations (as defined in the Interest Guaranty); and
WHEREAS, pursuant to an Environmental Guaranty dated as of August 21,
1990, Guarantors jointly and severally guaranteed to Lender Borrower's
performance of certain
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obligations under the Initial Deed of Trust relating to Hazardous Material, as
such term is defined in the Initial Deed of Trust; and
WHEREAS, the Loan by its terms will mature on August 21, 1997 (the
"Original Maturity Date") and the principal balance and all other Indebtedness
owed by Borrower to Lender will become due and payable in full on such date; and
WHEREAS, Borrower and Lender desire to extend the Original Maturity Date
and modify certain other terms of the Loan, on and subject to the terms and
conditions set forth herein; and
WHEREAS, the extension of the maturity and the modification of certain
other terms of the Loan will provide economic benefits to Borrower and
Guarantors;
NOW, THEREFORE, for and in consideration of the mutual covenants and
promises contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and intending to
legally bind themselves, Borrower, Guarantors and Lender hereby agree as
follows:
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ARTICLE I
CERTAIN DEFINITIONS
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As used in this Agreement, the capitalized terms set forth below shall
have the meanings given them in this Article I. Capitalized terms used in this
Agreement but not defined in this Article I shall have the meanings set forth
elsewhere in this Agreement or, if not defined elsewhere in this Agreement, the
meanings given such terms in the Original Loan Agreement (as amended by this
Agreement).
Effective Date. As used herein, "Effective Date" shall have the meaning
--------------
given to such term in Section 6.01 hereinbelow.
Modification Documents. As used herein, the "Modification Documents"
----------------------
shall mean (a) an Allonge (the "Allonge") in the form attached hereto as Exhibit
"A"; (b) a Third Amendment to Construction Loan Deed of Trust and Security
Agreement in the form attached hereto as Exhibit "B" (the "Modification to Deed
of Trust"); (c) a Second Amendment to Collateral Assignment of Leases, Rents,
Profits and Income and Pledge of Accounts in the form attached hereto as Exhibit
"C" (the "Modification to Assignment of Rents"); (d) a First Modification to
Collateral Assignment of Project Documents in the form attached hereto as
Exhibit "D" (the "Modification to Assignment of Project Documents"); (e) Closing
Certificates in
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the forms attached hereto as Exhibits "E-1", "E-2", "E-3", "E4", and "E-5"; (f)
this Agreement; (g) a First Amendment to Consent and Certificate of Manager in
the form attached hereto as Exhibit "F"; (h) an Extension of Side Letter
regarding Development Fee in the form attached hereto as Exhibit "G"; (i) a
First Amendment to Interest Guaranty and Indemnity in the form attached hereto
as Exhibit "J"; and (j) such other documents and instruments amending,
modifying, restating, or extending any of the Loan Documents as Lender
reasonably may require.
Original Note. As used herein, "Original Note" shall have the meaning
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given to such term in the recitals to this Agreement and is the "Note" as
defined in the Original Loan Agreement prior to the amendments thereto effected
by this Agreement.
Trigger Rate. As used herein, "Trigger Rate" shall mean, for each
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calendar year falling in whole or in part within the Loan Term, the per annum
rate of interest set forth on Schedule 1 to this Agreement (which has been
calculated in accordance with Schedule 2 to this Agreement), as such rate may
from time to time be modified in accordance with Section 4.04 of this Agreement.
Trigger Rate Notice. As used herein, "Trigger Rate Notice" shall mean a
-------------------
telephonic notice (followed by prompt written confirmation thereof) by Lender to
Borrower, which
6
informs Borrower that the Weighted Average Rate (as hereinafter defined) has
reached or surpassed the Trigger Rate.
Weighted Average Rate. As used herein, "Weighted Average Rate" shall
---------------------
mean the weighted average of the rates of interest that are in effect under the
Note on the first day of each calendar month (applicable for the previous month)
falling within the Loan Term with respect to each of the Portions of Principal
that comprise the entire outstanding principal balance of the Loan.
ARTICLE II
EXTENSION AND RELATED MATTERS
-----------------------------
Section 2.01. Extension of Maturity Date. On the Effective Date, the
--------------------------
Maturity Date of the Loan shall be extended from the Original Maturity Date to
August 21, 2001 as provided in the Allonge.
Section 2.02. Reaffirmation of Liability.
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a. Borrower acknowledges and agrees, and shall forever be estopped
from controverting the fact that, as of the date hereof, Borrower is indebted to
Lender for the following items in the following amounts:
(i) The principal amount of the Loan of Eighty Million and
No/100 Dollars
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($80,000,000.00) together with any accrued but unpaid
interest at the rate or rates of interest in effect in
accordance with the terms of the Original Note; and
(ii) Lender's unpaid Out-of-Pocket Costs, including, without
limitation, legal fees incurred in connection with the
modification of the terms of the Loan to be effected
pursuant to this Agreement, in the aggregate amount of
Twenty-Five Thousand One Hundred Fifteen and 08/100
Dollars ($25,115.08).
b. On the Effective Date, Borrower shall pay to Lender in
immediately available funds all of Lender's unpaid Out-of-Pocket Costs incurred
as of the Effective Date.
Section 2.03. Modification Fee. On the Effective Date and in
----------------
consideration of Lender's extending the Original Maturity Date of the Loan and
modifying the terms of the Loan in the other respects set forth herein, Borrower
shall pay to Lender in immediately available funds a modification fee in the
amount of Two Hundred Forty Thousand and No/100 Dollars ($240,000.00).
8
ARTICLE III
AMENDMENT OF ORIGINAL LOAN AGREEMENT
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Section 3.01. Amendment of Original Loan Agreement. On the Effective
------------------------------------
Date, the Original Loan Agreement shall be deemed amended by Borrower and Lender
as follows:
a. Throughout the Original Loan Agreement, the term "Agreement"
shall be deemed to refer to the Original Loan Agreement as amended by this
Agreement, as such Loan Agreement from time to time may be further amended,
modified, supplemented, restated, or extended.
b. In Article I of the Original Loan Agreement, the following
definitions are amended as follows:
(i) The definition of "Assignment of Project Documents" is
amended by adding at the end thereof, immediately
preceding the period, the following language: ", as
amended by that certain First Modification to Collateral
Assignment of Project Documents dated as of September 26,
1994, as such Assignment of Project Documents may from
time to time be further amended, modified, supplemented,
restated, or extended.
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(ii) The definition of "Assignment of Rents" is amended by
adding at the end thereof, immediately preceding the
period, the following language: ", as amended by that
certain First Amendment to Collateral Assignment of
Leases, Rents, Profits and Income and Pledge of Accounts
dated as of February 22, 1991 and effective as of August
21, 1990, as further amended by that certain Second
Amendment to Collateral Assignment of Leases, Rents,
Profits and Income and Pledge of Accounts dated as of
September 23 , 1994 and effective as of September 26
1994, as such Assignment of Rents may from time to time
be further amended, modified, supplemented, restated or
extended".
(iii) The definition of "Environmental Guaranty" is amended by
adding at the end thereof, immediately proceeding the
period, the following language: ", as reaffirmed by that
certain Loan Modification and Extension Agreement dated
as of September 26, 1994, as such Environmental Guaranty
may from time to time be further
10
reaffirmed, amended, modified, supplemented, restated or
extended".
(iv) The definition of "Interest Guaranty" is amended by
adding at the end thereof, immediately preceding the
period, the following language: ", as reaffirmed by that
certain Loan Modification and Extension Agreement dated
as of September 26, 1994, as amended by that certain
First Amendment to Interest Guaranty and Indemnity dated
as of September 26, 1994 and as such Interest Guaranty
may from time to time be further reaffirmed, amended,
modified, supplemented, restated or extended".
(v) The definition of "Loan Documents" is amended by adding
at the end thereof, immediately preceding the period, the
following language: ", as such Loan Documents may from
time to time be amended, modified, supplemented,
restated, or extended".
(vi) The definition of "Note" is amended to read in its
entirety as follows:
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Note. As used herein, "Note" shall mean that certain
----
Promissory Note dated August 21, 1990, made by Borrower
to the order of Lender, in the principal amount of Eighty
Million and No/100 U.S. Dollars (U.S. $80,000,000.00), as
amended by that certain Allonge dated September 26, 1994,
as such Note may from time to time be further amended,
modified, supplemented, restated, or extended.
c. Sections 3.03(e)(i) and 3.03(e) (ii) of the Original Loan
Agreement are hereby amended to read in their entirety as follows:
(i) In exercising the Conversion Option, Borrower must
designate a single Interest Period that begins on the
Conversion Date and expires on the Maturity Date.
(ii) In exercising the Conversion Option, Borrower must
designate as the Portion of Principal to bear interest at
the Fixed Rate the entire principal balance of the Loan
outstanding at such time.
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d. Section 7.21 of the Original Loan Agreement is hereby amended
by adding the following new paragraph (h) at the end thereof:
(h) Notwithstanding anything in this Section 7.21 to
the contrary, if the Third Amendment to Deed of Trust is not recorded
in the Land Records of the District of Columbia at Borrower's
request, Borrower shall not further mortgage, encumber for debt or
pledge the Trust Estate, Revenues or any part thereof or any interest
therein (including, without limitation, air or development rights)
without Lender's express written consent.
Section 3.02. Amendment of Other Loan Documents.
---------------------------------
a. On the Effective Date, the Original Note shall be amended by
Borrower's execution and delivery to Lender of the Allonge in the form of
Exhibit "A" hereto and Lender's affixation of the Allonqe to the Original Note
and thereafter shall be effective and interpreted in accordance with its terms
and conditions as so amended.
b. On the Effective Date, the Original Deed of Trust, the
Assignment of Rents, the Assignment of Project Documents and the Interest
Guaranty shall be modified by, respectively, the Modification to Deed of Trust,
the Modification to Assignment of Rents, the Modification to
13
Assignment of Project Documents and the First Amendment to Interest Guaranty and
Indemnity, by Borrower's, Guarantors' and Lender's execution and delivery of
Exhibits "B", "C", "D" and "J" hereto, respectively, and thereafter shall be
effective and interpreted in accordance with their respective terms as so
modified.
Section 3.03. Reaffirmation of Certain Documents.
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Guarantors hereby absolutely, unconditionally and fully reaffirm all of
their guarantees, obligations and agreements under the Environmental Guaranty
and the Interest Guaranty according to the terms thereof.
Section 3.04. Ratification of Loan Documents. Except as expressly
------------------------------
amended, restated, modified, reaffirmed or extended by this Agreement and the
other Modification Documents, the Loan Documents shall remain in full force and
effect in accordance with their terms. Borrower and Guarantors, as to the Loan
Documents to which each is a party, acknowledge and agree that as of the date
hereof there exist no offsets, defenses, counterclaims, or abatements to the
obligations of Borrower or Guarantors thereunder and all obligations of Lender
thereunder have been fully performed.
Section 3.05 Termination of Completion Guaranty. Lender hereby confirms
----------------------------------
and acknowledges that the Completion
14
Guaranty, dated as of August 21, 1990, made by Guarantors to Lender has been
terminated according to the terms thereunder.
ARTICLE IV
LENDER'S FIXED RATE OPTION
--------------------------
Section 4.01. Lender's Fixed Rate Option. Lender shall calculate and
--------------------------
notify Borrower on or after the first Business Day of each calendar month (but
not later than the tenth (10th) Business Day of such month) of the Weighted
Average Rate as of the first day of such calendar month. If the Weighted Average
Rate as of the first day of such month is equal to or greater than the Trigger
Rate for the calendar year in which such month occurs, Lender shall have the
right, on and subject to the terms and conditions set forth in this Article IV
("Lender's Conversion Option"), to cause the floating interest rate or rates
then in effect pursuant to the terms of the Note on the Portions of Principal
comprising the entire then-outstanding principal balance of the Loan to be
converted from such floating rate or rates to the Fixed Rate for an Interest
Period equal to the remainder of the Loan Term. Lender shall have no liability
to Borrower by reason of Lender's failure to calculate or give Borrower notice
of the Weighted Average Rate and such failure shall not constitute a default by
Lender under the terms of this Agreement or any other Loan Document. The sole
consequence of Lender's failure to calculate or give Borrower notice of the
Weighted Average
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Rate and such failure shall not constitute a default by Lender under the terms
of this Agreement or any other Loan Document. The sole consequence of Lender's
failure to calculate or give Borrower notice of the Weighted Average Rate shall
be that Lender shall not have the right to exercise Lender's Conversion Option
in a calendar month in which, by the tenth (10th) Business Day of such month,
Lender has not calculated and given Borrower notice of the Weighted Average Rate
in effect as of the first day of such month.
Section 4.02. Exercise of Lender's Conversion Option.
--------------------------------------
(a) If (i) Borrower has not theretofore exercised Borrower's Conversion
Option and converted the interest rate or rates on the Loan to the Fixed Rate
pursuant to Article III of the Original Loan Agreement as amended by this
Agreement, (ii) the Weighted Average Rate as of the first day of the calendar
month in which Lender elects to exercise Lender's Conversion Option is equal to
or greater than the Trigger Rate for the calendar year in which such month
occurs, and (iii) Lender has calculated and given Borrower notice of the
Weighted Average Rate not later than the tenth (10th) Business Day of such
month, Lender may thereafter exercise Lender's Conversion Option on any Business
Day during such month by giving Borrower a Trigger Rate Notice.
(b) The representatives of Borrower identified on Schedule 3 to this
Agreement (i) are each individually authorized to transmit to Lender Borrower's
acceptance or rejection of the Fixed Rate obtainable by Lender and offered to
Borrower, as hereinafter provided, and (ii) will be
16
available to Lender by telephone from 9:00 a.m. New York time until 3:00 p.m.
New York time on each Business Day during the applicable Decision Period (as
defined in Section 4.02(c) below). Borrower may change the representatives
identified on Schedule 3 to this Agreement by delivering a written notice to
Lender identifying one or more representatives of Borrower (and the telephone
number of each such representative) for purposes of this Article IV. Borrower
may not change the representatives identified on Schedule 3 to this Agreement
during a Decision Period.
(c) A "Decision Period" shall mean a period commencing at 9:00 a.m. New
York time on the Business Day next following the date on which the Trigger Rate
Notice is given to Borrower and continuing through and including 3:00 p.m. New
York time on the fourth (4th) Business Day following the date on which the
Trigger Rate Notice is given to Borrower.
(d) Borrower's right to exercise Borrower's Conversion Option under
Article III of the Loan Agreement shall be suspended from the time Lender gives
a Trigger Rate Notice until the expiration of the ensuing Decision Period.
Section 4.03. Implementation of Interest Rate Management Arrangement.
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(a) Lender shall, not later than 3:00 p.m. on the fourth (4th)
Business Day following the date on which the
17
Trigger Rate Notice is given to Borrower, obtain one or more offers for an
Interest Rate Management Arrangement having a term equal to the remaining Loan
Term that, subject to Subsection 4.03(d) hereinbelow, will enable Lender to
convert the interest rate or rates on the entire principal balance of the Loan
outstanding at that time to a fixed rate of interest. Prior to accepting an
offer for an Interest Rate Management Arrangement, Lender shall telephonically
quote to Borrower the fixed per annum interest rate together with all Funding
Costs that will result from effectuating such an Interest Rate Management
Arrangement, which rate Borrower shall either accept or reject within three (3)
hours following Lender's telephonic quote to Borrower. The fixed rate offered by
Lender (i) if made applicable to the Loan prior to August 21, 1997 shall include
Lender's spread of seventy one hundredths of one percent (0.70%) and shall
increase on August 21, 1997 by ten one hundredths of one percent (0.10%), thus
increasing Lender's aggregate spread to eighty one hundredths of one percent
(0.80%) and on August 21, 2000 by an additional twenty one hundredths of one
percent (0.20%) , thus increasing Lender's aggregate spread to one percent
(1.00%); (ii) if made applicable to the Loan on or after August 21, 1997 but
prior to August 21, 2000, shall include Lender's spread of eighty one hundredths
of one percent (0.80%) and shall increase on August 21, 2000 by twenty
one hundredths of one percent (0.20%), thus increasing Lender's aggregate spread
to
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one percent (1.00%); and (iii) if made applicable to the Loan on or after August
21, 2000, shall include Lender's spread of one percent (1.00%).
(b) If Borrower accepts the fixed rate quoted by Lender, Lender shall
use all reasonable efforts to accept and enter into the offered Interest Rate
Management Arrangement. If Lender is able to enter into the offered Interest
Rate Management Arrangement then, commencing on the second (2nd) Business Day
after Lender enters into the offered Interest Rate Management Arrangement (the
"Lender Option Conversion Date") (subject to Section 4.03(d) below), the
interest rate on the entire principal balance of the Loan outstanding at that
time shall, without further notice to or action by Borrower or Lender, bear
interest at the fixed rate quoted by Lender for the remainder of the Loan term,
which shall include Lender's spread as set forth in Section 4.03(a) hereinabove
and shall increase as set forth in Section 4.03(a) hereinabove, which rate shall
constitute the Fixed Rate as defined in the Note. If Lender is unable to obtain
the fixed rate quote accepted by Borrower pursuant to this Section 4.03(b),
Lender shall, until 3:00 p.m. New York time on the
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final Business Day of the Decision Period, Lender shall have the right, in its
sole and absolute discretion, either (i) to accept and enter into an Interest
Rate Management Arrangement satisfactory to Lender in its sole and absolute
discretion in order to convert the interest rate or rates on the entire
principal balance of the Loan outstanding at that time to a fixed rate of
interest or (ii) not to enter into an Interest Rate Management Arrangement and
thereafter, subject to the same terms and conditions hereof, to give another
Trigger Rate Notice and, during the ensuing Decision Period, enter into an
Interest Rate Management Arrangement in the manner provided herein. If, under
clause (i) of the preceding sentence, Lender is able and so elects to enter into
an Interest Rate Management Arrangement then, commencing on the Lender Option
Conversion Date (subject to Section 4.03(d) hereinbelow), the interest rate on
the entire principal balance of the Loan outstanding at that time shall, without
further notice to or action by Borrower or Lender, bear interest for the
remainder of the Loan Term at a fixed per annum rate of interest equal to the
fixed rate provided for under the Interest Rate Management Arrangement accepted
by Lender plus Lender's spread as set forth in Section 4.03(a) hereinabove and
shall increase as set forth in Section 4.03(a) hereinabove, which rate shall
constitute the Fixed Rate as defined in the Note.
(c) If (i) Lender is able to contact Borrower and Borrower fails to
accept or reject the fixed rate quoted by
20
Lender pursuant to Section 4.03(a) hereinabove, or (ii) Borrower rejects the
fixed rate quoted by Lender pursuant to Section 4.03(a) hereinabove, or (iii)
Borrower fails by 5:00 p.m. New York time on the Business Day immediately
preceding the last day of the Decision Period to designate one or more
individuals authorized to accept an offered fixed rate, or (iv) Lender is unable
to contact Borrower to obtain Borrower's election as to a proposed fixed rate,
Lender shall not accept an offered Interest Rate Management Arrangement and
shall, until 3:00 p.m. New York time on the final Business Day of the Decision
Period, continue to seek an Interest Rate Management Arrangement that will
result in a Fixed Rate acceptable to Borrower. If Borrower fails to accept a
Fixed Rate offered by Lender by 3:00 p.m. New York time on the final Business
Day of the Decision Period, Lender shall have the right, in its sole and
absolute discretion, either (A) to accept and enter into an Interest Rate
Management Arrangement satisfactory to Lender in its sole and absolute
discretion in order to convert the interest rate or rates on the entire
principal balance of the Loan outstanding at that time to a fixed rate of
interest or (B) not to enter into an Interest Rate Management Arrangement and
thereafter, subject to the same terms and conditions hereof, to give another
Trigger Rate Notice and, during the ensuing Decision Period, enter into an
Interest Rate Management Arrangement in the manner provided herein. If, under
clause (A) of the preceding sentence,
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Lender is able and so elects to enter into an Interest Rate Management
Arrangement then, commencing on the Lender Option Conversion Date (subject to
Section 4.03(d) hereinbelow), the interest rate on the entire principal balance
of the Loan outstanding at that time shall, without further notice to or action
by Borrower or Lender, bear interest for the remainder of the Loan Term at a
fixed per annum rate of interest equal to the fixed rate provided for under the
Interest Rate Management Arrangement accepted by Lender plus Lender's spread as
set forth in Section 4.03(a) hereinabove and shall increase as set forth in
Section 4.03(a), which rate shall constitute the Fixed Rate as defined in the
Note.
(d) Notwithstanding anything to the contrary in this Section 4.03, if,
on the Lender Option Conversion Date, the applicable interest rate for one or
more Portions of Principal will be the Eurodollar Rate pursuant to Section 3 of
the Note, Lender shall enter into an Interest Rate Management Arrangement that
will become effective (i) for each such Portion of Principal upon the expiration
of the Interest Period associated with the Eurodollar Rate applicable to such
Portion of Principal and (ii) for all other Portions of Principal on the Lender
Option Conversion Date. In such event, the Fixed Rate shall apply to each such
Portion of Principal bearing interest at a Eurodollar Rate upon the expiration
of the Interest Period associated with such Eurodollar Rate.
22
(e) Borrower shall reimburse Lender for all Funding Costs and other
Out-of-Pocket Costs incurred by Lender in connection with Lender's entering into
an Interest Rate Management Arrangement under this Article IV.
Section 4.04. Recalculation of Trigger Rate.
-----------------------------
(a) Borrower and Lender acknowledge that the Trigger Rates set forth
on Schedule 1 to this Agreement were calculated using (i) the methodology
illustrated on Schedule 2 to this Agreement and (ii) the "Pre-Tax Net Operating
Income" of the Trust Estate as calculated and set forth by Leggat ▇▇▇▇▇▇ &
▇▇▇▇▇▇ Appraisal and Consulting Co., Inc. ("Leggat ▇▇▇▇▇▇") in that certain re-
examination dated July 11, 1994 (the "Reappraisal") of earlier appraisals
prepared by Leggat ▇▇▇▇▇▇ of the Trust Estate and Phase II.
(b) If Lender, in its reasonable discretion, determines at any time
during the Loan Term that the Pre-Tax Net Operating Income of the Trust Estate
has for any reason decreased since the date on which Trigger Rates were last
calculated by more than five percent (5%), Borrower shall, if Lender so requests
and at Borrower's sole cost and expense, but subject to Section 4.04(c)
hereinbelow, cause Leggat ▇▇▇▇▇▇ (or another appraisal firm acceptable to Lender
in its reasonable discretion if Leggat ▇▇▇▇▇▇ is not then in business or is
unable or unwilling to perform in a timely manner the work contemplated by this
Section 4.04(b)) within thirty (30)
23
days of Lender's request to determine the then-current Pre-Tax Net Operating
Income of the Trust Estate using the same methodology used by Leggat ▇▇▇▇▇▇ to
determine Pre-Tax Net Operating Income for purposes of the Reappraisal, provided
that in determining the then-current Pre-Tax Net Operating Income of the Trust
Estate, Borrower shall cause Leggat ▇▇▇▇▇▇ (or such other appraisal firm as
provided for above) to use only Revenues received under Qualifying Space Leases.
Lender shall then recalculate each annual Trigger Rate using (i) the then-
current Pre-Tax Net Operating Income as so redetermined and (ii) the methodology
set forth on Schedule 2 to this Agreement. Lender shall give Borrower notice of
the Trigger Rates as so recalculated by Lender and, from and after the date on
which such notice is given, the Trigger Rates shall for all purposes hereunder
be deemed amended to be the Trigger Rates as so recalculated.
(c) If the Pre-Tax Net Operating Income of the Trust Estate has
decreased by more than five percent (5%) by reason of Space Tenants that occupy
more than five percent (5%) of the rentable space in the Improvements
terminating their Space Leases, then Borrower shall not be required to cause the
Pre-Tax Net Operating Income of the Trust Estate to be redetermined in
accordance with Section 4.04(b) hereinabove until such time as Space Tenants
occupy at least ninety-five percent (95%) of the rentable space in the
Improvements under Qualifying Space Leases.
24
(d) Trigger Rates shall remain in effect until recalculated in
accordance with this Section 4.04.
ARTICLE V
REPRESENTATIONS, WARRANTIES AND COVENANTS
-----------------------------------------
Each of Zuckerman, Linde, and Borrower makes the representations,
warranties and covenants respectively pertaining to himself or itself set forth
in Section 5.01 through and including Section 5.19 hereinbelow as of the date
hereof and again on and as of the Effective Date, all of which shall survive the
execution and delivery of this Agreement.
Section 5.01. Existence. Borrower is and at all relevant times was a
---------
limited partnership duly organized, validly existing and in good standing under
the laws of the District of Columbia. Borrower has and at all relevant times had
the authority, rights and franchises to own its properties, to carry on its
business as now conducted, to perform its obligations under the Loan Documents,
this Agreement, and the other Modification Documents, to complete the Project in
accordance with the Plans, to own and operate the Project as a first-class
commercial office building, and has made all filings in each jurisdiction in
which the character of its business or nature of its properties makes such
filings necessary and where not filing could have a material adverse impact on
its business. Borrower conducts no
25
business, directly or indirectly, except for the ownership and operation of the
Project and of Phase II, and the ownership of Lot 872.
Section 5.02. Authorization. Enforceable Obligations. Each of
--------------------------------------
Guarantors and Borrower has the authority and legal right to execute, deliver
and perform this Agreement and the Modification Documents to which he or it is a
party and Borrower has taken all necessary partnership action to authorize the
execution, delivery and performance of this Agreement and the Modification
Documents to which it is a party. No consent, license, permit, approval or
authorization of, exemption by, notice or report to, or registration, filing or
declaration with any court, Governmental Authority, or third party which has not
been obtained is required for the execution, delivery, and performance by
Borrower or Guarantors of this Agreement or the Modification Documents to which
he or it is a party. This Agreement has been (and, on the Effective Date, each
of the Modification Documents will have been) executed and delivered by each of
Borrower and Guarantors if a party thereto and constitutes (and, on the
Effective Date, each of this Agreement and the Modification Documents will
constitute) the legal, valid and binding obligation of each of Borrower and
Guarantors if a party thereto, enforceable against such persons and entities in
accordance with its terms.
26
Section 5.03. Conflicting Agreements. Neither the execution nor
----------------------
delivery of any of this Agreement or the Modification Documents nor the
fulfillment of or compliance with the terms and provisions hereof or thereof or
of the Loan Documents, nor the consummation of the transactions contemplated
hereby or by any of the other documents referred to herein, will conflict with
or result in a breach of the terms, conditions or provisions of, or constitute a
default under, or result in any violation of, or result in the creation of any
Lien (other than the lien of the Loan Documents and the Modification Documents)
upon any of the properties or assets of either of Borrower or Guarantors
pursuant to its partnership agreement, any other contract, any award of any
arbitrator or any agreement, (including any agreement with Borrower's partners
and also including Project Documents), instrument, order, judgment, decree,
statute, law, ordinance, franchise, certificate, permit, rule, regulation or the
like to which any of Borrower or Guarantors is subject, or to or by which their
or its properties or their or its assets or the Trust Estate are bound or
affected.
Section 5.04. Organizational Documents. Borrower has furnished
------------------------
Lender with true, correct, and complete copies of the following documents:
27
(a) with respect to Independence Square, Inc., sole Managing General
Partner of the sole General Partner of Borrower:
(i) The certificate of incorporation of such corporation and all
amendments thereof, certified by the Secretary of State of
the state of such corporation's incorporation, together with
a certificate of said Secretary of State to the effect that
the corporation is in good standing therein;
(ii) A certificate from the Secretary of State or comparable
official of the jurisdiction in which the Premises are
located (if other than such corporation's state of
incorporation) to the effect that the corporation is in good
standing and qualified to do business therein;
(iii) Bylaws certified to Lender by the secretary of the
corporation; and
(iv) A certificate of the secretary of the corporation certifying
(A) resolutions
28
of the shareholders and directors of the corporation
authorizing the consummation of the transactions
contemplated by the Modification Documents to which such
corporation is a party or a signatory and the execution,
delivery, and performance of each of the Modification
Documents to which such corporation is a party or a
signatory and (B) the incumbency and signature of each of
the officers of the corporation to execute any Modification
Documents; and
(b) With respect to Boston Southwest Associates Limited Partnership,
sole General Partner of Borrower:
(i) A true, correct and complete copy of its partnership
agreement, together with all amendments thereto, as
currently in effect, certified by a Person satisfactory to
Lender in its sole discretion.
(ii) All certificates filed or required to be filed by the
partnership in the jurisdiction of its formation and the
jurisdiction where the Premises are
29
located in order for it to do business in those
jurisdictions; and
(iii) Such evidence as may be available from the Secretary of
State or comparable official of the jurisdiction of the
partnership's formation to the effect that the partnership
continues to exist and is in good standing.
Section 5.05. No Material Litigation. No litigation, investigation
----------------------
or administrative proceeding of or before any court, arbitrator, or Governmental
Authority is pending, or has been threatened in writing by potential claimants
or their counsel, against any of Borrower or Guarantors or any of their assets
or that would, if adversely determined, be likely to have a material adverse
effect on (a) Borrower's or either Guarantor's ability to perform its or his
obligations under this Agreement, the other Loan Documents, or the Modification
Documents; (b) the validity or enforceability of this Agreement, the other Loan
Documents, or the Modification Documents; or (c) Lender's security under this
Agreement, any other Loan Document, or the Modification Documents. No notice
has been received by Borrower of any proceeding to condemn, purchase, or
otherwise acquire the Trust Estate or any part thereof or interest therein, and,
to the best of Borrower's
30
knowledge, no such proceeding has been threatened by a duly authorized official
of a Governmental Authority acting in his official capacity.
Section 5.06. Compliance with Applicable Laws. Each of Borrower,
-------------------------------
Guarantors, the Project, and the Trust Estate is in compliance with the
requirements of all Laws, the failure to comply with which would materially and
adversely affect Borrower's or either Guarantor's ability to perform its or his
obligations under this Agreement, any of the other Loan Documents, or the
Modification Documents, and no written notice of non-compliance with any' of the
foregoing has been received by Borrower or either Guarantor from any
Governmental Authority. No consent, approval or authorization, or registration,
declaration or filing with any Governmental Authority or any other Person is
required for the valid execution, delivery and performance by Borrower and
Guarantors of this Agreement, the other Loan Documents, or the Modification
Documents, or the carrying out of the transactions contemplated of hereby or
thereby.
Section 5.07. Information Delivered. All facts, studies, reports,
---------------------
loan applications, financial statements, operating cost histories, and all other
documents and data, financial or otherwise, respecting Borrower and Guarantors,
or contracts, permits, licenses, or other matters affecting any part of the
Trust Estate or the operation thereof which
31
have been furnished to Lender or Lender's counsel by Borrower or Borrower's
counsel or Guarantors or Guarantors' counsel were, to the best of Borrower's and
Guarantors' knowledge, true, correct, and complete in all material respects when
made or delivered to Lender, or, if copies thereof have been so furnished, such
copies are, to the best of Borrower's and each Guarantor's knowledge, true,
correct and complete in all material respects, and neither Borrower nor any and
Guarantor has failed to disclose any data or documents necessary to make the
foregoing true, accurate, complete in all material respects and not materially
misleading.
Section 5.08. True Statement. Neither this Agreement, any other Loan
--------------
Document, the Modification Documents nor any other document delivered to Lender
in connection with the Loan contains, or will contain when made, any untrue
statement of a material fact by Borrower or Guarantors and by this reference all
representations and warranties made in any of the Loan Documents and the
Modification Documents are hereby made a part of this Agreement to the same
extent as if fully set forth herein.
Section 5.09. No Event of Default. There exists no Event of Default
-------------------
under any of the Loan Documents nor any fact or circumstance which, with the
passage of time, giving of notice or action by third parties could become an
32
Event of Default under any of the Loan Documents or the Modification Documents.
Section 5.10. Space Leases. Set forth on Exhibit "H" hereto is a true,
------------
correct, and complete list of all Space Leases now in effect with respect to the
Trust Estate. Except for such Space Leases and the Permitted Exceptions, there
are no leases, licenses, tenancy agreements, contracts, or understandings, oral
or written, pursuant to which any person or entity has or claims any right to
use or occupy any portion of the Trust Estate. Except as set forth on such
Exhibit "H", there are no amendments, modifications, supplements, or
understandings, oral or written, which affect any of the Space Leases. All other
information set forth on Exhibit "H" with respect to the Space Leases is true
and correct in all material respects. No notice of default has been given by any
party to any Space Lease which default remains uncured, there are no material
defaults under the provisions of any of the Space Leases, and all conditions to
the effectiveness and continuing effectiveness of each Space Lease required to
be satisfied as of the date hereof have been satisfied. The OCC has neither
exercised nor stated to Borrower orally or in writing an intention to exercise
the OCC's right to terminate the OCC Lease.
Section 5.11. Financial Statements of Borrower. Borrower has furnished
--------------------------------
to Lender the financial statements of
33
Borrower for its fiscal year ended December 31, 1993, consisting of balance
sheets and statements of income and retained earnings and changes in financial
position for the years then ended, certified by the chief financial officer of
Borrower's general partner as being true, complete, and correct; the foregoing
financial statements are true and correct and contain no material misstatement
or omission, and fairly present financial position, assets, and liabilities of
Borrower as of the respective dates thereof and the results of its operations
for the respective periods then ended; since the respective dates of the
foregoing financial statements, there has been no material adverse change in the
assets, liabilities, financial position, or results of operations of Borrower;
and Borrower has not incurred any obligation or liability which would materially
and adversely affect its business operations or its interest in the Trust
Estate.
Section 5.12. Financial Statements of Guarantors. Borrower has furnished
----------------------------------
or caused to be furnished to Lender the financial statements of each Guarantor
for the fiscal year ending December 31, 1993, certified by the respective
Guarantor (a) as being true, complete, and correct; (b) containing no material
misstatement or omission, and fairly presenting the financial position, assets,
and liabilities of Guarantor as of the date thereof; (c) since the date of the
foregoing financial statements, there has been no material adverse change in the
assets, liabilities, or
34
financial position of Guarantor; and (d) Guarantor not having incurred any
obligation or liability which would materially and adversely affect his
financial position.
Section 5.13. Taxes and Other Assessments. Each of Borrower and
---------------------------
Guarantors has filed all federal, state, and local tax returns and other reports
required by all laws to have been filed prior to the date hereof; has paid or
caused to be paid all taxes, assessments, and other governmental charges that
are due and payable prior to the date hereof; and has made adequate provision
for the payment of such taxes, assessments, or other charges accruing but not
yet payable. Neither Borrower nor any of Guarantors has knowledge of any
deficiency or additional assessment in a materially important amount in
connection with any taxes, assessments, or charges not provided for on its
respective books.
Section 5.14. No Liens. To the best of Borrower's knowledge, there are
--------
no liens or other impositions against the Trust Estate or any part thereof
except as may be included among the Permitted Exceptions. To the best of
Borrower's knowledge, there do not exist any unpaid conditional sales contracts,
chattel mortgages, security agreements, or financing statements in respect of
the Trust Estate, or any part thereof, except such as may be included among the
Permitted Exceptions. Without limiting the foregoing, the Trust Estate is, to
the best of Borrower's knowledge, free
35
from due and unpaid water charges, sewer rents, taxes, assessments, and other
similar liens and/or impositions, mechanics' and materialmen's liens (▇▇▇▇▇▇, or
inchoate), and any other Liens (other than liens arising with respect to
nondelinquent property taxes) whether or not disclosed in the Title Policies.
Section 5.15. Trust Estate. There has occurred no material damage to
------------
any part of the Trust Estate. No part of the Trust Estate has been taken in
condemnation or other like proceedings. Borrower has received no notice of any
(i) proceedings in eminent domain or any similar proceeding or transaction with
respect to any part of the Trust Estate; or (ii) material change in the zoning
of the Land or the use thereof as permitted by law and, to the best of
Borrower's knowledge, no such proceeding or change has been threatened by a duly
authorized official of a Governmental Authority acting in his official capacity.
Section 5.16. No Bankruptcy. As of the date hereof, there is no (a)
-------------
filing by or against Borrower or any of Guarantors of a voluntary or involuntary
case or petition in bankruptcy, insolvency, or reorganization under the Federal
Bankruptcy Code as now or hereafter constituted or under any other laws of
similar nature, which bankruptcy, insolvency, or reorganization in the case of
an involuntary filing has not been dismissed; (b) appointment of a receiver or
trustee for
36
Borrower, any of the foregoing persons or entities, or the Trust Estate, or any
part thereof; (c) making by Borrower or any of the foregoing persons or entities
of an assignment for the benefit of creditors; or (d) any similar act or
occurrence.
Section 5.17. Absence of Transfer. Since the date of the original
-------------------
funding of the Loan, there has not been any Transfer and there is not now in
existence any contract providing for or contemplating a Transfer.
Section 5.18. Certificates. Borrower has delivered to Lender all such
------------
permits, licenses, variances, approvals, consents, and other certificates or
documents with respect to the Trust Estate (collectively, the "Certificates") as
have been issued as of the date hereof by all relevant governmental authorities
of competent jurisdiction which to the best of Borrower's knowledge are
necessary to evidence the legal right and ability of Borrower to operate the
Trust Estate as it currently is operated. Borrower will deliver to Lender copies
of all other necessary Certificates as they are subsequently obtained.
Section 5.19. Representations and Warranties in Loan Documents. On
------------------------------------------------
the Effective Date, Borrower shall be deemed to represent and warrant to Lender
that all representations and warranties made by Borrower which are set forth in
the Original Loan Agreement, the Original Deed of
37
Trust and in the other Loan Documents are true, correct, and complete in all
material respects as of and as if made on the Effective Date, subject only to
the following qualifications:
a. The representations and warranties that are remade pursuant to
this Section 5.19 shall take into account the amendments to the Loan Documents
effected on the Effective Date by this Agreement and the Modification Documents.
b. The representations and warranties made in Sections 6.01, 6.05,
6.12, and 6.17 of the Original Loan Agreement shall not be deemed to be remade
as of the Effective Date; instead the representations and warranties set forth
in Sections 5.01 and 5.05 of this Agreement are substituted therefor and are
represented and warranted by Borrower as true and correct on the Effective Date.
Section 5.20. Event of Default. It shall constitute an Event of
----------------
Default under the Loan Agreement (as in effect after giving application to the
changes set forth in this Agreement) and other Loan Documents if any
representation or warranty set forth in, made, or remade pursuant to this
Article V shall prove to have been untrue, incorrect, incomplete, or misleading
in any material respect when made or remade.
38
ARTICLE VI
EFFECTIVE DATE
--------------
Section 6.01. Effective Date. The "Effective Date", as used in this
--------------
Agreement, shall be that date on which all of the conditions precedent set forth
in this Section 6.01 have been satisfied or, in Lender's absolute discretion,
waived by Lender. Upon the satisfaction of all of the conditions precedent set
forth in this Section 6.01 or the waiver thereof by Lender, in Lender's absolute
discretion, Borrower and Lender shall execute the certificate attached hereto as
Exhibit "I" confirming the Effective Date.
a. Lender shall have received a payment from Borrower of (i) the
modification fee due upon the Effective Date in the amount of Two Hundred and
Forty Thousand and No/100 Dollars ($240,000.00) and (ii) Lender's Out-of-Pocket
Costs.
b. There shall exist no Event of Default under any of the Loan
Documents nor any fact or circumstance which, with the passage of time, giving
of notice or action by third parties could become an Event of Default under any
of the Loan Documents and Lender shall have received a certificate executed and
delivered by Borrower and Guarantors, in form and substance satisfactory to
Lender, confirming such fact.
39
c. All representations and warranties set forth in this Agreement,
the Modification Documents and the other Loan Documents, as amended and remade
in accordance with the terms of this Agreement, shall be true, correct, and
complete in all material respects as if remade on and as of the Effective Date
and Lender shall have received a certificate executed and delivered by Borrower
and Guarantors, in form and substance satisfactory to Lender, confirming such
fact.
d. All covenants to be performed by Borrower and Guarantors on or
before the Effective Date shall have been performed and Lender shall have
received a certificate executed and delivered by Borrower and Guarantors in form
and substance satisfactory to Lender, confirming such fact.
e. The Modification Documents shall have been duly executed and
delivered by all parties thereto and shall be binding and enforceable upon the
parties thereto in accordance with their terms. Those of the Modification
Documents to be recorded or filed shall have been successfully recorded or
filed, as appropriate; provided, however, that failure to record the Third
Amendment to Deed of Trust shall not be deemed to prevent the occurrence of the
Effective Date.
f. Lender shall have received and approved such endorsement or
endorsements to the Title Policies (and all outstanding reinsurance agreements)
as Lender may deem necessary or appropriate to insure that as of the Effective
40
Date, the Original Deed of Trust as amended by the Modification to Deed of Trust
will be a valid first lien securing the full amount of the Loan, on a good and
indefeasible title to the Trust Estate, vested in Borrower, free and clear of
all encumbrances (including without limitation ▇▇▇▇▇▇ and inchoate mechanics'
and materialmen's liens, whether or not filed) except the Permitted Exceptions
(and that all reinsurance agreements remain in effect with respect to the Title
Policies as so endorsed).
g. Lender shall have received such opinions from counsel to Borrower
and Guarantors, in form and substance reasonably satisfactory to Lender, as
Lender may in its discretion require in respect of the Modification Documents,
this Agreement, the other Loan Documents, and any other documents, including,
without limitation, that the consummation of the transactions contemplated by
the Modification Documents and this Agreement, will not violate any law,
statute, rule regulation or order of any court or Governmental Authority
applicable to any of Borrower or Guarantors or to which any of the property of
any of such Persons may be subject.
h. There shall have been delivered to Lender with respect to each
general Partner of Borrower and each general Partner of a general Partner of
Borrower those
41
organizational documents required to be delivered pursuant to
Section 5.04 hereof.
i. Lender shall have received evidence satisfactory to Lender that
there are no conditional sales contracts, chattel mortgages, leases of
personalty, financing statements, or title retention agreements which affect the
Premises.
j. Lender shall have received and approved all financial information
reasonably requested by Lender concerning Borrower and Guarantors.
k. All instruments and agreements in connection with the
transactions contemplated by this Agreement and the Modification Documents shall
be satisfactory in form and substance to Lender in its sole but reasonable
discretion.
Section 6.02. Termination. If the Effective Date has not occurred by
-----------
then, in its absolute discretion, Lender may terminate this Agreement, in which
case (i) this Agreement shall, except where otherwise expressly provided, be
null, void, and of no further force or effect and (ii) all original Loan
Documents shall remain in effect in accordance with their terms.
42
ARTICLE VII
MISCELLANEOUS
-------------
Section 7.01. Entire Agreement; Exhibits and Schedules. This
----------------------------------------
Agreement, taken together with all of the other Loan Documents (as modified by
this Agreement), the Modification Documents and other documents delivered by
Borrower and Guarantors embodies the entire agreement with respect to the
subject matter hereof, and supersedes or incorporates all prior negotiations or
agreements written and oral. The Exhibits and Schedules attached to this
Agreement are incorporated herein by this reference and made a material part
hereof unless otherwise stated herein.
Section 7.02. Counterparts. This Agreement may be executed in any
------------
number of counterparts with the same effect as if the parties hereto had signed
the same document. All such counterparts shall constitute one instrument.
Section 7.03. Governing Law. This Agreement shall be governed by,
-------------
and construed in accordance with, the laws of the District of Columbia.
Section 7.04. Severability. If any of the terms and provisions
------------
specified herein is held by a court of law to be in violation of any applicable
local, state or federal ordinance, statute, law, administrative or judicial
decision, or public policy, and if such court should declare such term
43
or provision to be illegal, invalid, unlawful, void, voidable, or unenforceable
as written, then such provision shall be given full force and effect to the
fullest possible extent that it is legal, valid and enforceable, and the
remainder of the terms and provisions herein shall be construed as if such
illegal, invalid, unlawful, void, voidable or unenforceable term or provision
was not contained therein.
Section 7.05. Successors and Assigns. All covenants and agreements
----------------------
herein shall bind the respective successors and assigns of the parties hereto
(but this provision is not intended nor shall it be construed to permit Borrower
or any of Guarantors to transfer or assign its or their rights and obligations
hereunder or under the Loan Documents except as permitted by the provisions of
the Loan Documents), whether so expressed or not, and all such covenants shall
inure to the benefit of such respective nominees, successors and assigns,
whether so expressed or not.
Section 7.06. Time of the Essence. Time is of the essence with
-------------------
regard to the performance of the terms and provisions of this Agreement.
Section 7.07. Headings. The titles and headings of Articles and
--------
Sections of this Agreement are intended for convenience only, and shall not in
any way affect the meaning or construction of any provision of this Agreement.
44
Section 7.08. Notices. Any notice, request, demand, instruction or
-------
other communication given in connection with this Agreement shall be in writing
and shall be given in the manner provided in the Loan Agreement at the addresses
set forth in the Loan Agreement.
Section 7.09. Survival. The terms, covenants, representations, and
--------
warranties in this Agreement shall survive the consummation of the
transactions contemplated hereby.
IN WITNESS WHEREOF, the undersigned have executed this Loan
Modification and Extension Agreement as of the day and year first written above.
SOUTHWEST MARKET LIMITED PARTNERSHIP, a
District of Columbia limited partnership
By: Boston Southwest Associates Limited
partnership, a Massachusetts limited
partnership, General Partner
ATTEST: By: Independence Square, Inc., a
Delaware corporation, its Managing
General Partner
/s/ ▇▇▇▇▇ ▇. Tarrigi By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------- --------------------------
Name: Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
/s/ ▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇
45
WITNESS:
/s/ ▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------- --------------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (signing solely to
evidence those obligations and agreements of
Guarantor set forth herein)
WITNESS:
/s/ ▇▇▇▇▇ ▇. Tarrigi /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------- --------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (signing solely to evidence
those obligations and agreements of
Guarantor set forth herein)
THE SUMITOMO BANK, LIMITED,
a Japanese banking institution,
ATTEST: acting through its NEW YORK BRANCH
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
---------------------------- ----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Joint General Manager
46