EXHIBIT 10.19
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LOAN AGREEMENT
Dated as of March 14, 2005
Between
TELC (NJ) QRS 16-30, INC.,
as Borrower
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MORTGAGE CAPITAL INC.,
as Lender
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TABLE OF CONTENTS
Page
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I. DEFINITIONS; PRINCIPLES OF CONSTRUCTION ................. 1
Section 1.1 Definitions ............................. 1
Section 1.2 Principles of Construction .............. 15
II. THE LOAN................................................. 15
Section 2.1 The Loan ...... ......................... 15
Section 2.2 Interest Rate ........................... 15
Section 2.3 Loan Payments ........................... 16
Section 2.4 Prepayments ............................. 18
Section 2.5 Defeasance .............................. 18
III. REPRESENTATIONS AND WARRANTIES .......................... 25
Section 3.1 Borrower Representations ................ 25
Section 3.2 Survival of Representations ............. 37
IV. BORROWER COVENANTS ...................................... 37
Section 4.1 Borrower Affirmative Covenants .......... 37
Section 4.2 Borrower Negative Covenants ............. 44
V. INSURANCE, CASUALTY AND CONDEMNATION .................... 47
Section 5.1 Insurance ............................... 47
Section 5.2 Casualty and Condemnation ............... 51
Section 5.3 Delivery of Net Proceeds ................ 53
VI. RESERVE FUNDS ........................................... 56
Section 6.1 Required Repair Funds ................... 56
Section 6.2 Tax Funds ............................... 57
Section 6.3 Insurance Funds ......................... 57
Section 6.4 Capital Expenditure Funds ............... 58
Section 6.5 Rollover Funds .......................... 59
Section 6.6 Intentionally omitted ................... 60
Section 6.7 Application of Reserve Funds ............ 61
Section 6.8 Security Interest in Reserve Funds....... 61
VII. PROPERTY MANAGEMENT ..................................... 63
VIII. TRANSFERS
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IX. SALE AND SECURITIZATION OF MORTGAGE ........................ 65
Section 9.1 Sale of Mortgage and Securitization......... 65
Section 9.2 Securitization Indemnification ............ 67
Section 9.3 Rating Surveillance ........................ 69
X. DEFAULTS.................................................... 70
Section 10.1 Event of Default ........................... 70
Section 10.2 Remedies ................................... 72
Section 10.3 Right to Cure Defaults ..................... 73
Section 10.4 Remedies Cumulative ........................ 74
XI. MISCELLANEOUS .............................................. 74
Section 11.1 Successors and Assigns ..................... 74
Section 11.2 Lender's Discretion ........................ 74
Section 11.3 Governing Law .............................. 74
Section 11.4 Modification, Waiver in Writing ............ 76
Section 11.5 Delay Not a Waiver ......................... 76
Section 11.6 Notices..................................... 76
Section 11.7 Trial by Jury............................... 77
Section 11.8 Headings ................................... 77
Section 11.9 Severability ............................... 78
Section 11.10 Preferences ................................ 78
Section 11.11 Waiver of Notice ........................... 78
Section 11.12 Remedies of Borrower ....................... 78
Section 11.13 Expenses; Indemnity ........................ 78
Section 11.14 Schedules Incorporated ..................... 79
Section 11.15 Offsets, Counterclaims and Defenses ........ 80
Section 11.16 No Joint Venture or Partnership;
No Third Party Beneficiaries ............. 80
Section 11.17 Publicity .................................. 80
Section 11.18 Waiver of Marshalling of Assets ............ 80
Section 11.19 Waiver of Offsets/Defenses/Counterclaims.... 81
Section 11.20 Conflict; Construction of Documents;
Reliance.................................. 81
Section 11.21 Brokers and Financial Advisors ............. 81
Section 11.22 Exculpation ................................ 81
Section 11.23 Prior Agreements ........................... 84
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Section 11.24 Servicer ................................ 84
Section 11.25 Joint and Several Liability ............. 85
Section 11.26 Creation of Security Interest ........... 85
Section 11.27 Assignments and Participations .......... 85
Section 11.28 Set-Off. ................................ 85
Section 11.29 Partial Release - Expansion ............. 86
Section 11.30 Component Notes ......................... 91
SCHEDULES
Schedule I - Rent Roll
Schedule II - Required Repairs
Schedule III - Organizational Chart
Schedule IV - Form of Subordination, Non-Disturbance and Attornment Agreement
Schedule V - Ground Lease Parcel
Schedule VI-A- Monthly Operating Statement
Schedule VI-B- Quarterly Operating Statement
Schedule VI-B- Annual Operating Statement
Schedule VII - Balance Sheet
Schedule VIII- Expansion Parcel
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LOAN AGREEMENT
THIS LOAN AGREEMENT, dated as of March 14, 2005 (as amended, restated,
replaced, supplemented or otherwise modified from time to time, this
"Agreement"), between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MORTGAGE CAPITAL INC., a New York
corporation, having an address at c/o ARCap Servicing, Inc., ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇ 26, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ("Lender") and TELC (NJ) QRS
16-30, INC., a Delaware corporation, having an address at c/o W.P. ▇▇▇▇▇ & Co.
LLC, ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Borrower").
All capitalized terms used herein shall have the respective meanings set
forth in Article I hereof.
WITNESSETH:
WHEREAS, Borrower desires to obtain the Loan from Lender; and
WHEREAS, Lender is willing to make the Loan to Borrower, subject to and in
accordance with the conditions and terms of this Agreement and the other Loan
Documents.
NOW, THEREFORE, in consideration of the covenants set forth in this
Agreement, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree,
represent and warrant as follows:
I. DEFINITIONS; PRINCIPLES OF CONSTRUCTION
SECTION 1.1 DEFINITIONS.
For all purposes of this Agreement, except as otherwise expressly
provided:
"ACCRUED INTEREST" shall have the meaning set forth in Section 2.3.2.
"ACQUIRED PROPERTY STATEMENTS" shall have the meaning set forth in Section
9.1(c).
"AFFILIATE" shall mean, as to any Person, any other Person that, directly
or indirectly, owns more than forty percent (40%) of, is in control of, is
controlled by or is under common ownership or control with such Person or is a
director or officer of such Person or of an Affiliate of such Person. As used in
this definition, the term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management,
policies or activities of a Person, whether through ownership of voting
securities, by contract or otherwise.
"AGENT" shall mean ▇▇▇▇▇ Fargo Bank, N.A. and any successor Eligible
Institution thereto.
"ALTA" shall mean American Land Title Association, or any successor
thereto.
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"ALTERATION THRESHOLD" shall mean $3,000,000 with respect to any single
alteration and $5,700,000 with respect to a series of related alterations.
"ANNUAL BUDGET" shall have the meaning set forth in Section 4.1.6(a)(V).
"APPLICABLE INTEREST RATE" shall mean the Initial Interest Rate or the
Default Rate, as applicable.
"ASSIGNMENT OF LEASES" shall mean that certain first priority Assignment
of Leases and Rents, dated as of the date hereof, from Borrower, as assignor, to
Lender, as assignee, as the same may be amended, restated, replaced,
supplemented or otherwise modified from time to time.
"AWARD" shall mean any compensation paid by any Governmental Authority in
connection with a Condemnation in respect of all or any part of the Property.
"BANKRUPTCY CODE" shall mean Title 11 of the United States Code entitled
"Bankruptcy", as amended from time to time, and any successor statute or
statutes and all rules and regulations from time to time promulgated thereunder,
and any comparable foreign laws relating to bankruptcy, insolvency or creditors'
rights.
"BASIC CARRYING COSTS" shall mean the sum of the following costs
associated with the Property for the relevant Fiscal Year or payment period: (i)
Taxes and (ii) Insurance Premiums.
"BORROWER" shall mean TELC (NJ) QRS 16-30, INC., a Delaware corporation,
together with its permitted successors and permitted assigns.
"BUSINESS DAY" shall mean any day other than a Saturday, a Sunday or a
legal holiday on which national banks are not open for general business in (i)
the State of New York, (ii) the state where the corporate trust office of the
Trustee is located, or (iii) the state where the servicing offices of the
Servicer are located.
"CAPITAL EXPENDITURES" for any period shall mean amounts expended for
replacements and alterations to the Property and required to be capitalized
according to GAAP.
"CAPITAL EXPENDITURE FUNDS" shall have the meaning set forth in Section
6.4.1.
"CAPITAL EXPENDITURES WORK" shall mean any labor performed or materials
installed in connection with any Capital Expenditure.
"CASH MANAGEMENT AGREEMENT" shall mean that certain Cash Management
Agreement of even date herewith among Lender, Borrower and Agent.
"CASUALTY" shall mean the occurrence of any casualty, damage or injury, by
fire or otherwise, to the Property or any part thereof.
"CASUALTY CONSULTANT" shall have the meaning set forth in Section
5.3.2(c).
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"CLOSING DATE" shall mean the date of funding the Loan.
"CODE" shall mean the Internal Revenue Code of 1986, as amended, and as it
may be further amended from time to time, any successor statutes thereto, and
applicable U.S. Department of Treasury regulations issued pursuant thereto in
temporary or final form.
"CONDEMNATION" shall mean a temporary or permanent taking by any
Governmental Authority as the result or in lieu or in anticipation of the
exercise of the right of condemnation or eminent domain, of all or any part of
the Property, or any interest therein or right accruing thereto, including any
right of access thereto or any change of grade affecting the Property or any
part thereof.
"DEBT" shall mean the outstanding principal amount of the Loan together
with all interest accrued and unpaid thereon and all other sums (including the
Yield Maintenance Premium) due to Lender in respect of the Loan under the Note,
this Agreement, the Mortgage, the Environmental Indemnity or any other Loan
Document.
"DEBT SERVICE" shall mean, with respect to any particular period of time,
scheduled principal and interest payments under the Note.
"DEBT SERVICE COVERAGE RATIO" shall mean the ratio of (i) Underwritable
Cash Flow for the twelve (12) calendar month period immediately preceding the
date of calculation to (ii) the projected Debt Service that would be due for the
twelve (12) calendar month period immediately following such calculation.
"DEFAULT"shall mean the occurrence of any event hereunder or under any
other Loan Document which, but for the giving of notice or passage of time, or
both, would be an Event of Default.
"DEFAULT RATE" shall mean, with respect to the Loan, a rate per annum
equal to the lesser of (i) the maximum rate permitted by applicable law, or (ii)
five percent (5%) above the Initial Interest Rate.
"DEFEASANCE COLLATERAL" shall mean U.S. Obligations, which provide
payments (i) on or prior to, but as close as possible to, the Business Day
immediately preceding all Monthly Payment Dates and other scheduled payment
dates, if any, under the Note after the Defeasance Date and up to and including
the Maturity Date, and (ii) in amounts equal to or greater than the Scheduled
Defeasance Payments relating to such Monthly Payment Dates and other scheduled
payment dates.
"DEFEASANCE COLLATERAL ACCOUNT" shall have the meaning set forth in
Section 2.5.3.
"DEFEASANCE DATE" shall have the meaning set forth in Section 2.5.1(a)(i).
"DEFEASANCE EVENT" shall have the meaning set forth in Section 2.5.1(a).
"DISCLOSURE DOCUMENT" shall have the meaning set forth in Section 9.2(a).
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"DISCLOSURE DOCUMENT DATE" shall have the meaning set forth in Section
9.1(c)(iv).
"ELIGIBLE ACCOUNT" shall mean a separate and identifiable account from all
other funds held by the holding institution that is either (i) an account or
accounts maintained with a federal or state-chartered depository institution or
trust company which complies with the definition of Eligible Institution or (ii)
a segregated trust account or accounts maintained with the corporate trust
department of a federal or state chartered depository institution or trust
company acting in its fiduciary capacity which, in the case of a state chartered
depository institution or trust company is subject to regulations substantially
similar to 12 C.F.R. Section 9.10(b), having in either case a combined capital
and surplus of at least $50,000,000 and subject to supervision or examination by
federal and state authority. An Eligible Account will not be evidenced by a
certificate of deposit, passbook or other instrument.
"ELIGIBLE INSTITUTION" shall mean a depository institution or trust
company insured by the Federal Deposit Insurance Corporation the short term
unsecured debt obligations or commercial paper of which are rated at least A-l
by S&P, P-l by Moody's and F-1+ by Fitch in the case of accounts in which funds
are held for thirty (30) days or less or, in the case of Letters of Credit or
accounts in which funds are held for more than thirty (30) days, the long term
unsecured debt obligations of which are rated at least "AA" by Fitch and S&P and
"Aa2" by Moody's.
"ENVIRONMENTAL INDEMNITY" shall mean that certain Environmental Indemnity
Agreement dated as of the date hereof executed by Borrower and Guarantor in
connection with the Loan for the benefit of Lender.
"EQUIPMENT" shall have the meaning set forth in the granting clause of the
Mortgage.
"ERISA" shall have the meaning set forth in Section 4.2.11.
"EVENT OF DEFAULT" shall have the meaning set forth in Section 10.1.
"EXCHANGE ACT" shall have the meaning set forth in Section 9.2(a).
"EXCHANGE ACT FILING" shall have the meaning set forth in Section
9.1(c)(vi).
"EXPANSION DATE" shall have the meaning set forth in Section 11.29(a)(i).
"EXPANSION PARCELS" shall mean, individually or collectively, the area of
the Property cross-hatched on Schedule VIII hereto and marked as "Release Parcel
A" and the area of the Property cross-hatched on Schedule VIII hereto and marked
as "Release Parcel B" (or such lesser area within such cross-hatched area
necessary to construct the proposed improvements described in Section 11.29
hereof and to provide parking adjacent to such improvements necessary for the
use and operation of such improvements).
"EXTRAORDINARY EXPENSE" shall have the meaning set forth in Section
4.1.6(e).
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"FISCAL YEAR" shall mean each twelve month period commencing on January 1
and ending on December 31 during each year of the term of the Loan.
"FITCH" shall mean Fitch, Inc.
"GAAP" shall mean generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board and the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the accounting
profession), or in such other statements by such entity as may be in general use
by significant segments of the U.S. accounting profession.
"GOVERNMENTAL AUTHORITY" shall mean any court, board, agency, commission,
office or authority of any nature whatsoever or any governmental ▇▇▇▇ (▇▇▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ or otherwise) whether now or hereafter
in existence.
"GROSS REVENUE" shall mean all revenue, derived from the ownership and
operation of the Property from whatever source, including, but not limited to,
Rents, but excluding sales, use and occupancy or other taxes on receipts
required to be accounted for by Borrower to any Governmental Authority,
non-recurring revenues as reasonably determined by Lender, proceeds from the
sale or refinancing of the Property, security deposits (except to the extent
determined by Lender to be properly utilized to offset a loss of Rent), refunds
and uncollectible accounts, proceeds of casualty insurance and Awards (other
than business interruption or other loss of income insurance related to business
interruption or loss of income for the period in question), and any
disbursements to Borrower from the Reserve Funds or any other fund established
by the Loan Documents.
"GROUND LEASE PARCEL" shall mean an area of the Property cross-hatched on
Schedule VI hereto and marked as "Ground Lease Parcel" (or such lesser area
within such cross-hatched area necessary to construct the proposed improvements
described in Section 11.29 hereof and to provide parking adjacent to such
improvements necessary for the use and operation of such improvements).
"GUARANTOR" shall mean CORPORATE PROPERTY ASSOCIATES 16-GLOBAL
INCORPORATED, a Maryland corporation.
"GUARANTY" shall mean that certain Guaranty of even date herewith from
Guarantor for the benefit of Lender.
"IMPROVEMENTS" shall have the meaning set forth in the granting clause of
the Mortgage.
"INDEBTEDNESS" shall mean, for any Person, without duplication: (i) all
indebtedness of such Person for borrowed money, for amounts drawn under a letter
of credit, or for the deferred purchase price of property for which such Person
or its assets is liable, (ii) all unfunded amounts under a loan agreement,
letter of credit, or other credit facility for which such Person would be liable
if such amounts were advanced thereunder, (iii) all amounts required to be paid
by such Person as a guaranteed payment to partners or a preferred or special
dividend,
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including any mandatory redemption of shares or interests, (iv) all indebtedness
guaranteed by such Person, directly or indirectly, (v) all obligations under
leases that constitute capital leases for which such Person is liable, and (vi)
all obligations of such Person under interest rate swaps, caps, floors, collars
and other interest hedge agreements, in each case whether such Person is liable
contingently or otherwise, as obligor, guarantor or otherwise, or in respect of
which obligations such Person otherwise assures a creditor against loss.
"INDEMNIFIED LIABILITIES" shall have the meaning set forth in Section
11.13(b).
"INDEPENDENT DIRECTOR" shall have the meaning set forth in Section
3.1.24(p).
"INITIAL INTEREST RATE" shall mean a rate per annum equal to Five and
Forty-Nine Hundredths Percent (5.49%).
"INSOLVENCY OPINION" shall mean that certain bankruptcy nonconsolidation
opinion letter dated the date hereof delivered by ▇▇▇▇ ▇▇▇▇▇ LLP in connection
with the Loan.
"INSURANCE FUNDS" shall have the meaning set forth in Section 6.3.1.
"INSURANCE PREMIUMS" shall have the meaning set forth in Section 5.1.1(b).
"LEASE" shall mean any lease, sublease or subsublease, letting, license,
concession or other agreement (whether written or oral and whether now or
hereafter in effect) pursuant to which any Person is granted a possessory
interest in, or right to use or occupy all or any portion of any space in the
Property, and every modification, amendment or other agreement relating to such
lease, sublease, subsublease, or other agreement entered into in connection with
such lease, sublease, subsublease, or other agreement and every guarantee of the
performance and observance of the covenants, conditions and agreements to be
performed and observed by the other party thereto.
"LEGAL REQUIREMENTS" shall mean all federal, state, county, municipal and
other governmental statutes, laws, rules, orders, regulations, ordinances,
judgments, decrees and injunctions of Governmental Authorities affecting
Borrower or the Property or any part thereof or the construction, use,
alteration or operation thereof, or any part thereof, whether now or hereafter
enacted and in force, including, without limitation, the Americans with
Disabilities Act of 1990, and all permits, licenses and authorizations and
regulations relating thereto, and all covenants, agreements, restrictions and
encumbrances contained in any instruments, either of record or known to
Borrower, at any time in force affecting the Property or any part thereof,
including, without limitation, any which may (i) require repairs, modifications
or alterations in or to the Property or any part thereof, or (ii) in any way
limit the use and enjoyment thereof.
"LENDER" shall mean ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MORTGAGE CAPITAL INC., a New York
corporation, together with its successors and assigns.
"LENDER INDEMNITEES" shall have the meaning set forth in Section 11.13(b).
"LETTER OF CREDIT" shall mean an irrevocable, unconditional, transferable,
clean sight draft letter of credit acceptable to Lender and the Rating Agencies
(either an evergreen
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letter of credit or one which does not expire until at least thirty (30)
Business Days after the Maturity Date) in favor of Lender and entitling Lender
to draw, (in full or partially) thereon in New York, New York, issued by a
domestic Eligible Institution or the U.S. agency or branch of a foreign Eligible
Institution. If at any time the bank issuing any such Letter of Credit shall
cease to be an Eligible Institution, Lender shall have the right immediately to
draw down the same in full and hold the proceeds of such draw in accordance with
the applicable provisions hereof.
"LIABILITIES" shall have the meaning set forth in Section 9.2(b).
"LIEN" shall mean any mortgage, deed of trust, lien, pledge,
hypothecation, assignment, security interest, or any other encumbrance, charge
or transfer of, on or affecting the Property or any portion thereof or Borrower,
or any interest therein, including, without limitation, any conditional sale or
other title retention agreement, any financing lease having substantially the
same economic effect as any of the foregoing, the filing of any financing
statement, and mechanic's, materialmen's and other similar liens and
encumbrances.
"LOAN" shall mean the loan in the original principal amount of
SEVENTY-NINE MILLION SIX HUNDRED EIGHTY-SIX THOUSAND AND NO/100 DOLLARS
($79,686,000) made by Lender to Borrower pursuant to this Agreement.
"LOAN DOCUMENTS" shall mean, collectively, this Agreement, the Note, the
Mortgage, the Assignment of Leases, the Cash Management Agreement, the
Environmental Indemnity, the Guaranty and any other document pertaining to the
Property as well as all other documents now or hereafter executed and/or
delivered in connection with the Loan.
"MATERIAL AGREEMENTS" means each contract and agreement relating to the
ownership, management, development, use, operation, leasing, maintenance, repair
or improvement of the Property, other than the Leases, under which there is an
obligation of Borrower to pay more than $1,000,000 per annum.
"MATURITY DATE" shall mean April 1, 2015 or such other date on which the
final payment of principal of the Note becomes due and payable as therein or
herein provided, whether at such stated maturity date, by declaration of
acceleration, or otherwise.
"MAXIMUM LEGAL RATE" shall mean the maximum nonusurious interest rate, if
any, that at any time or from time to time may be contracted for, taken,
reserved, charged or received on the indebtedness evidenced by the Note and as
provided for herein or the other Loan Documents, under the laws of such state or
states whose laws are held by any court of competent jurisdiction to govern the
interest rate provisions of the Loan.
"MINIMUM DISBURSEMENT AMOUNT" shall mean Twenty-Five Thousand and No/100
Dollars ($25,000).
"MONTHLY DEBT SERVICE PAYMENT AMOUNT" shall mean a constant monthly
payment of Four Hundred Sixty Four Thousand Eight Hundred Forty Eight Dollars
and 57/100 ($464,848.57).
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"MONTHLY PAYMENT DATE" shall mean the first (1st) day of every calendar
month occurring during the term of the Loan.
"MOODY'S" shall mean ▇▇▇▇▇'▇ Investors Service, Inc.
"▇▇▇▇▇▇ ▇▇▇▇▇▇▇" shall have the meaning set forth in Section 9.2(b).
"▇▇▇▇▇▇ ▇▇▇▇▇▇▇ GROUP" shall have the meaning set forth in Section 9.2(b).
"MORTGAGE" shall mean that certain first priority Mortgage, Assignment of
Leases and Rents and Security Agreement, dated the date hereof, executed and
delivered by Borrower as security for the Loan and encumbering the Property, as
the same may be amended, restated, replaced, supplemented or otherwise modified
from time to time.
"NET PROCEEDS" shall mean: (i) the net amount of all insurance proceeds
payable as a result of a Casualty to the Property, after deduction of reasonable
costs and expenses (including, but not limited to, reasonable attorneys' fees),
if any, in collecting such insurance proceeds, or (ii) the net amount of the
Award, after deduction of reasonable costs and expenses (including, but not
limited to, reasonable attorneys' fees), if any, in collecting such Award.
"NET PROCEEDS DEFICIENCY" shall have the meaning set forth in Section
5.3.2(f).
"NOTE" shall have the meaning set forth in Section 2.1.3.
"NOTICE" shall have the meaning set forth in Section 11.6.
"OFFICER'S CERTIFICATE" shall mean a certificate delivered to Lender by
Borrower which is signed by an authorized senior officer of Borrower.
"OPERATING AGREEMENTS" shall mean any reciprocal easement agreement and
any other covenants, restrictions or agreements of record relating to the
construction, operation or use of the Property.
"OPERATING EXPENSES" shall mean all costs and expenses relating to the
operation, maintenance and management of the Property, including, without
limitation, utilities, repairs and maintenance, insurance, property taxes and
assessments, advertising expenses, payroll and related taxes, equipment lease
payments, but excluding actual Capital Expenditures, depreciation, amortization
and deposits required to be made to the Reserve Funds; provided, however such
costs and expenses shall be subject to adjustment by Lender to normalize such
costs and expenses.
"OTHER CHARGES" shall mean all ground rents, maintenance charges,
impositions other than Taxes, and any other charges, including, without
limitation, vault charges and license fees for the use of vaults, chutes and
similar areas adjoining the Property, now or hereafter levied or assessed or
imposed against the Property or any part thereof.
"OTHERWISE RATED INSURER" shall have the meaning set forth in Section
5.1.2.
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"PERMITTED ENCUMBRANCES" shall mean, collectively, (i) the Liens and
security interests created by the Loan Documents, (ii) all Liens, encumbrances
and other matters disclosed in the Title Insurance Policy, (iii) Liens, if any,
for Taxes imposed by any Governmental Authority not yet due or delinquent, and
(iv) such other title and survey exceptions as Lender has approved or may
approve in writing in Lender's sole discretion.
"PERMITTED INVESTMENTS" shall have the meaning set forth in the Cash
Management Agreement.
"PERMITTED PREPAYMENT DATE" shall mean any day during the 90 day period
prior to the Maturity Date.
"PERSON" shall mean any individual, corporation, partnership, limited
liability company, joint venture, estate, trust, unincorporated association, any
other entity, any federal, state, county or municipal government or any bureau,
department or agency thereof and any fiduciary acting in such capacity on behalf
of any of the foregoing.
"POLICIES" shall have the meaning specified in Section 5.1.1(b).
"PRELIMINARY EXPANSION DOCUMENTS" shall have the meaning set forth in
Section 11.29(e).
"PREPAYMENT DATE" shall mean the date on which the Loan is prepaid in
accordance with the terms hereof.
"PRESCRIBED LAWS" shall mean, collectively (a) the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001 (Public Law 107-56) (The USA PATRIOT Act), (b)
Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001,
and relating to Blocking Property and Prohibiting Transactions With Persons Who
Commit, Threaten to Commit, or Support Terrorism, (c) the International
Emergency Economic Power Act, 50 U.S.C. Section 1701 et seq. and (d) all other
Legal Requirements relating to terrorism.
"PROPERTY" shall mean the parcel of real property, the Improvements
thereon and all personal property owned by Borrower and encumbered by the
Mortgage, together with all rights pertaining to such property and Improvements,
all as more particularly described in the Granting Clauses of the Mortgage.
"RATING AGENCIES" shall mean, prior to the final Securitization of the
Loan, each of S&P, ▇▇▇▇▇'▇ and Fitch, or any other nationally-recognized
statistical rating agency which has been designated by Lender and, after the
final Securitization of the Loan, shall mean any of the foregoing that have
rated any of the Securities.
"RATING AGENCY CONFIRMATION" shall mean a written affirmation from each of
the Rating Agencies that the credit rating of the Securities by such Rating
Agency immediately prior to the occurrence of the event with respect to which
such Rating Agency Confirmation is sought will not be qualified, downgraded or
withdrawn as a result of the occurrence of such
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event, which affirmation may be granted or withheld in such Rating Agency's sole
and absolute discretion.
"RATING SURVEILLANCE CHARGE" shall have the meaning set forth in Section
9.3.
"REGISTRATION STATEMENT" shall have the meaning set forth in Section
9.2(b).
"RELEASE DATE" shall mean the earlier to occur of (i) the third
anniversary of the Closing Date and (ii) the date that is two (2) years from the
"startup day" (within the meaning of Section 860G(a)(9) of the Code) of the
REMIC Trust established in connection with the last Securitization involving any
portion of this Loan.
"REMIC TRUST" shall mean a "real estate mortgage investment conduit"
within the meaning of Section 860D of the Code that holds the Note.
"RENTS" shall mean all rents, moneys payable as damages or in lieu of
rent, revenues, deposits (including, without limitation, security, utility and
other deposits), accounts, cash, issues, profits, charges for services rendered,
and other consideration of whatever form or nature received by or paid to or for
the account of or benefit of Borrower or its agents or employees from any and
all sources arising from or attributable to the Property.
"REQUIRED REPAIR FUNDS" shall have the meaning set forth in Section 6.1.1.
"REQUIRED REPAIRS" shall have the meaning set forth in Section 6.1.1.
"RESERVE FUNDS" shall mean, collectively, Capital Expenditure Funds, the
Insurance Funds, the Tax Funds, the Required Repair Funds and the Rollover
Funds.
"RESTORATION" shall have the meaning set forth in Section 5.3(a).
"RESTORATION THRESHOLD" shall mean $4,000,000.
"ROLLOVER FUNDS" shall have the meaning set forth in Section 6.5.1.
"S&P" shall mean Standard & Poor's Ratings Services, a division of the
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"SCHEDULED DEFEASANCE PAYMENTS" shall mean scheduled payments of interest
and principal under the Note for all Monthly Payment Dates occurring after the
Defeasance Date and up to and including the Maturity Date (including the
outstanding principal balance on the Note as of the Maturity Date), and all
payments required after the Defeasance Date, if any, under the Loan Documents
for servicing fees, Rating Surveillance Charges and other similar charges.
"SECONDARY MARKET TRANSACTION" shall have the meaning set forth in Section
9.1(a).
"SECURITIES" shall have the meaning set forth in Section 9.1 (a).
"SECURITIES ACT" shall have the meaning set forth in Section 9.2(a).
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"SECURITIZATION" shall have the meaning set forth in Section 9.1(a).
"SECURITY AGREEMENT" shall mean a security agreement in form and substance
that would be satisfactory to a prudent lender pursuant to which Borrower grants
Lender a perfected, first priority security interest in the Defeasance
Collateral Account and the Defeasance Collateral.
"SERVICER" shall have the meaning set forth in Section 11.24.
"SERVICING AGREEMENT" shall have the meaning set forth in Section 11.24.
"SEVERED LOAN DOCUMENTS" shall have the meaning set forth in Section
10.2(c).
"STANDARD STATEMENT" shall have the meaning set forth in Section 9.1(c).
"STATE" shall mean the State or Commonwealth in which the Property or any
part thereof is located.
"SUCCESSOR BORROWER" shall have the meaning set forth in Section 2.5.3.
"SURVEY" shall mean a survey of the Property prepared by a surveyor
licensed in the State and satisfactory to Lender and the company or companies
issuing the Title Insurance Policy, and containing a certification of such
surveyor satisfactory to Lender.
"TAX FUNDS" shall have the meaning set forth in Section 6.2.1.
"TAXES" shall mean all real estate and personal property taxes,
assessments, water rates or sewer rents, now or hereafter levied or assessed or
imposed against the Property or part thereof, together with all interest and
penalties thereon.
"TENANT" shall mean any Person obligated by contract or otherwise to pay
monies (including a percentage of gross income, revenue or profits) under any
Lease now or hereafter affecting all or any part of the Property.
"TITLE INSURANCE POLICY" shall mean the ALTA mortgagee title insurance
policy issued in connection with the closing of the loan and insuring the lien
of the Mortgage on the Property.
"TRUSTEE" shall mean any trustee holding the Loan in a Securitization.
"UCC" or "UNIFORM COMMERCIAL CODE" shall mean the Uniform Commercial Code
as in effect in the State.
"UNDERWRITABLE CASH FLOW" shall mean the excess of Gross Revenue over
Operating Expenses. Lender's calculation of Underwritable Cash Flow (including
determination of items that do not qualify as Gross Revenue or Operating
Expenses) shall be calculated by Lender based upon Lender's determination of
Rating Agency criteria and shall be final absent manifest error.
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"UNDERWRITER GROUP" shall have the meaning set forth in Section 9.2(b).
"U.S. OBLIGATIONS" shall mean direct full faith and credit obligations of
the United States of America that are not subject to prepayment, call or early
redemption.
"YIELD MAINTENANCE PREMIUM" shall mean an amount equal to the greater of:
(i) one percent (1%) of the principal amount of the Loan being prepaid or (ii)
the present value as of the Prepayment Date of the Calculated Payments from the
Prepayment Date through the Maturity Date determined by discounting such
payments at the Discount Rate. As used in this definition, the term "Prepayment
Date" shall mean the date on which prepayment is made. As used in this
definition, the term "Calculated Payments" shall mean the monthly payments of
interest only which would be due based on the principal amount of the Loan being
prepaid on the Prepayment Date and assuming an interest rate per annum equal to
the difference (if such difference is greater than zero) between (y) the Initial
Merest Rate and (z) the Yield Maintenance Treasury Rate. As used in this
definition, the term "Discount Rate" shall mean the rate which, when compounded
monthly, is equivalent to the Yield Maintenance Treasury Rate, when compounded
semi-annually. As used in this definition, the term "Yield Maintenance Treasury
Rate" shall mean the yield calculated by Lender by the linear interpolation of
the yields, as reported in the Federal Reserve Statistical Release H.15-Selected
Interest Rates under the heading U.S. Government Securities/Treasury Constant
Maturities for the week ending prior to the Prepayment Date, of U.S. Treasury
Constant Maturities with maturity dates (one longer or one shorter) most nearly
approximating the Maturity Date. In the event Release H.15 is no longer
published, Lender shall select a comparable publication to determine the Yield
Maintenance Treasury Rate. In no event, however, shall Lender be required to
reinvest any prepayment proceeds in U.S. Treasury obligations or otherwise.
SECTION 1.2 PRINCIPLES OF CONSTRUCTION.
All references to sections and schedules are to sections and schedules in
or to this Agreement unless otherwise specified. Unless otherwise specified, the
words "hereof," "herein" and "hereunder" and words of similar import when used
in this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement. Unless otherwise specified, all meanings
attributed to defined terms herein shall be equally applicable to both the
singular and plural forms of the terms so defined.
II. THE LOAN
SECTION 2.1 THE LOAN.
2.1.1 AGREEMENT TO LEND AND BORROW. Subject to and upon the terms and
conditions set forth herein, Lender shall make the Loan to Borrower and Borrower
shall accept the Loan from Lender on the Closing Date.
2.1.2 SINGLE DISBURSEMENT TO BORROWER. Borrower shall receive only one
borrowing hereunder in respect of the Loan and any amount borrowed and repaid
hereunder in respect of the Loan may not be reborrowed.
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2.1.3 THE NOTE. The Loan shall be evidenced by that certain Promissory
Note of even date herewith, in the stated principal amount of SEVENTY-NINE
MILLION SIX HUNDRED EIGHTY-SIX THOUSAND AND NO/100 DOLLARS ($79,686,000.00)
executed by Borrower and payable to the order of Lender in evidence of the Loan
(as the same may hereafter be amended, supplemented, restated, increased,
extended or consolidated from time to time (the "Note") and shall be repaid in
accordance with the terms of this Agreement and the Note.
2.1.4 USE OF PROCEEDS. Borrower shall use proceeds of the Loan to (i) pay
and discharge any existing loans relating to the Property, (ii) pay all past-due
Basic Carrying Costs, if any, in respect of the Property, (iii) deposit the
Reserve Funds, (iv) pay costs and expenses incurred in connection with the
closing of the Loan, (v) fund any working capital requirements of the Property,
as approved by Lender and (vi) retain the balance, if any.
SECTION 2.2 INTEREST RATE.
2.2.1 APPLICABLE INTEREST RATE. Except as herein provided with respect to
interest accruing at the Default Rate, interest on the principal balance of the
Loan outstanding from time to time shall accrue from the Closing Date up to but
excluding the Maturity Date at the Initial Interest Rate.
2.2.2 DEFAULT RATE. In the event that, and for so long as, any Event of
Default shall have occurred and be continuing, the outstanding principal balance
of the Loan and, to the extent permitted by law, overdue interest in respect of
the Loan, shall accrue interest at the Default Rate, calculated from the date
such payment was due without regard to any grace or cure periods contained
herein.
2.2.3 INTENTIONALLY OMITTED.
2.2.4 INTEREST CALCULATION. Interest on the outstanding principal balance
of the Loan shall be calculated by multiplying (a) the actual number of days
elapsed in the period for which the calculation is being made by (b) a daily
rate based on a three hundred sixty (360) day year (that is, the Applicable
Interest Rate or the Default Rate, as then applicable, expressed as an annual
rate divided by 360) by (c) the outstanding principal balance. The accrual
period for calculating interest due on each Monthly Payment Date shall be the
calendar month immediately prior to such Monthly Payment Date.
2.2.5 USURY SAVINGS. This Agreement and the other Loan Documents are
subject to the express condition that at no time shall Borrower be required to
pay interest on the principal balance of the Loan at a rate which could subject
Lender to either civil or criminal liability as a result of being in excess of
the Maximum Legal Rate. If by the terms of this Agreement or the other Loan
Documents, Borrower is at any time required or obligated to pay interest on the
principal balance due hereunder at a rate in excess of the Maximum Legal Rate,
the Applicable Interest Rate or the Default Rate, as the case may be, shall be
deemed to be immediately reduced to the Maximum Legal Rate and all previous
payments in excess of the Maximum Legal Rate shall be deemed to have been
payments in reduction of principal without prepayment premium or penalty and not
on account of the interest due hereunder. All sums paid
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or agreed to be paid to Lender for the use, forbearance, or detention of the
sums due under the Loan, shall, to the extent permitted by applicable law, be
amortized, prorated, allocated, and spread throughout the full stated term of
the Loan until payment in full so that the rate or amount of interest on account
of the Loan does not exceed the Maximum Legal Rate from time to time in effect
and applicable to the Loan for so long as the Loan is outstanding.
SECTION 2.3 LOAN PAYMENTS.
2.3.1 PAYMENT BEFORE MATURITY DATE. Borrower shall make a payment to
Lender of interest only on the Closing Date for the period from the Closing Date
through the last day of the month in which the Closing Date occurs (unless the
Closing Date is the first day of a calendar month, in which case no such
separate payment of interest shall be due) and a payment of interest only on
each Monthly Payment Date from May 1, 2005 until April 1, 2007. Borrower shall
make a payment to Lender of principal and interest in the amount of the Monthly
Debt Service Payment Amount on the Monthly Payment Date occurring in May, 2007
and on each Monthly Payment Date thereafter to and including the Maturity Date.
Each payment shall be applied first to accrued and unpaid interest and the
balance to principal. The Monthly Debt Service Payment Amount required hereunder
is based upon a twenty eight (28) year amortization schedule.
2.3.2 PAYMENT ON MATURITY DATE. Borrower shall pay to Lender on the
Maturity Date the outstanding principal balance of the Loan, all accrued and
unpaid interest and all other amounts due hereunder and under the Note, the
Mortgage and the other Loan Documents. Lender shall have the right, at any time
prior to a Securitization, without charge to Borrower and without changing the
Permitted Prepayment Date, to change the Maturity Date from the Maturity Date
stated herein to a later date which coincides with a date important to the
Securitization upon notice to Borrower (in which event such change shall then be
deemed effective. If requested by Lender, Borrower shall promptly at no cost or
expense to Borrower execute an amendment to this Agreement and any other Loan
Documents to evidence such change.
2.3.3 INTEREST RATE AND PAYMENT AFTER DEFAULT. In the event that, and for
so long as, any Event of Default shall have occurred and be continuing, the
outstanding principal balance of the Loan shall accrue interest at the Default
Rate, calculated from the date the Default occurred which led to such an Event
of Default without regard to any grace or cure periods contained herein. If all
or any part of the principal amount of the Loan is prepaid upon acceleration of
the Loan following the occurrence of an Event of Default, Borrower shall be
required to pay (i) to Lender, in addition to all other amounts then payable
hereunder (including, without limitation, (i) in the event that such prepayment
is received on a Monthly Payment Date, interest accruing on such amount
calculated through and including the end of the Interest Period in which such
Monthly Payment Date occurs, or (ii) in the event that such prepayment is
received on a date other than a Monthly Payment Date, interest accruing on such
amount calculated through and including the end of the Interest Period in which
the next Monthly Payment Date occurs), a prepayment fee equal to 1% of the
amount of principal being repaid, together with a Yield Maintenance Premium
calculated with respect to the amount of principal being repaid and (ii) to
Lender, the Yield Maintenance Premium.
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2.3.4 LATE PAYMENT CHARGE. If any principal, interest or any other sum due
under the Loan Documents, other than the payment of principal due on the
Maturity Date, is not paid by Borrower within five (5) days of the date on which
it is due, Borrower shall pay to Lender upon demand an amount equal to the
lesser of five percent (5%) of such unpaid sum or the maximum amount permitted
by applicable law in order to defray the expense incurred by Lender in handling
and processing such delinquent payment and to compensate Lender for the loss of
the use of such delinquent payment. Any such amount shall be secured by the
Mortgage and the other Loan Documents.
2.3.5 METHOD AND PLACE OF PAYMENT. (a) Except as otherwise specifically
provided herein, all payments and prepayments under this Agreement and the Note
shall be made to Lender not later than 1:00 P.M., New York City time, on the
date when due and shall be made in lawful money of the United States of America
in immediately available funds at Lender's office, and any funds received by
Lender after such time shall, for all purposes hereof, be deemed to have been
paid on the next succeeding Business Day.
(b) Whenever any payment to be made hereunder or under any other Loan
Document shall be stated to be due on a day which is not a Business Day, the due
date thereof shall be extended to the next succeeding Business Day and, with
respect to payments of principal due on the Maturity Date, interest shall be
payable at the Applicable Interest Rate or the Default Rate, as the case may be,
during such extension.
(c) All payments required to be made by Borrower hereunder or under the
Note or the other Loan Documents shall be made irrespective of, and without
deduction for, any setoff, claim or counterclaim and shall be made irrespective
of any defense thereto.
SECTION 2.4 PREPAYMENTS.
2.4.1 VOLUNTARY PREPAYMENTS. Except as otherwise provided herein, Borrower
shall not have the right to prepay the Loan in whole or in part. At any time on
or after the Permitted Prepayment Date, Borrower may, provided no Event of
Default has occurred and is continuing, at its option and upon thirty (30) days
prior notice to Lender (or such shorter time period as may be permitted by
Lender), prepay the Debt in whole, but not in part, on any date without payment
of the Yield Maintenance Premium or any other prepayment premium or penalty.
2.4.2 MANDATORY PREPAYMENTS. On each date on which Lender actually
receives a distribution of Net Proceeds, and if Lender does not make such Net
Proceeds available to Borrower for a Restoration, Borrower shall prepay the
outstanding principal balance of the Note in an amount equal to one hundred
percent (100%) of such Net Proceeds together with interest that would have
accrued on such amounts through the next Monthly Payment Date. No Yield
Maintenance Premium or any other prepayment premium or penalty shall be due in
connection with any prepayment made pursuant to this Section 2.4.2. Any
prepayment received by Lender pursuant to this Section 2.4.2 on a date other
than a Monthly Payment Date shall be held by Lender as collateral security for
the Loan in an interest bearing account, with such interest accruing to the
benefit of Borrower, and shall be applied by Lender on the next Monthly Payment
Date.
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2.4.3 PREPAYMENTS AFTER DEFAULT. If after an Event of Default, payment of
all or any part of the principal of the Loan is tendered by Borrower, a
purchaser at foreclosure or any other Person, such tender shall be deemed an
attempt to circumvent the prohibition against prepayment set forth in Section
2.4.1 and Borrower, such purchaser at foreclosure or other Person shall pay to
Lender the Yield Maintenance Premium, in addition to the outstanding principal
balance, all accrued and unpaid interest and other amounts payable under the
Loan Documents.
SECTION 2.5 DEFEASANCE.
2.5.1 TOTAL DEFEASANCE. (a) Provided no Event of Default shall have
occurred and remain uncured, Borrower shall have the right at any time after the
Release Date and prior to the Maturity Date to voluntarily defease the entire
Loan and obtain a release of the lien of the Mortgage by providing Lender with
the Defeasance Collateral (hereinafter, a "Defeasance Event"), subject to the
satisfaction of the following conditions precedent:
(i) Borrower shall provide Lender not less than thirty (30) days notice
(or such shorter period of time if permitted by Lender in its sole discretion)
specifying a date (the "Defeasance Date") on which the Defeasance Event is to
occur;
(ii) Borrower shall pay to Lender (A) all payments of principal and
interest due on the Loan to and including the Defeasance Date and (B) all other
sums, then due under the Note, this Agreement, the Mortgage and the other Loan
Documents;
(iii) Borrower shall deposit the Defeasance Collateral into the Defeasance
Collateral Account and otherwise comply with the provisions of Sections 2.5.2
and 2.5.3 hereof;
(iv) Borrower shall execute and deliver to Lender a Security Agreement in
respect of the Defeasance Collateral Account and the Defeasance Collateral;
(v) Borrower shall deliver to Lender an opinion of counsel for Borrower
that is standard in commercial lending transactions and subject only to
customary qualifications, assumptions and exceptions opining, among other
things, that (A) Lender has a legal and valid perfected first priority security
interest in the Defeasance Collateral Account and the Defeasance Collateral, (B)
if a Securitization has occurred, the REMIC Trust formed pursuant to such
Securitization will not fail to maintain its status as a "real estate mortgage
investment conduit" within the meaning of Section 860D of the Code as a result
of a Defeasance Event pursuant to this Section 2.5, (C) the Defeasance Event
will not result in a deemed exchange for purposes of the Code and will not
adversely affect the status of the Note as indebtedness for federal income tax
purposes, (D) delivery of the Defeasance Collateral and the grant of a security
interest therein to Lender shall not constitute an avoidable preference under
Section 547 of the Bankruptcy Code or applicable state law and (E) a
non-consolidation opinion with respect to the Successor Borrower, subject to
customary qualifications, assumptions and exceptions, including the application
of equitable principles, whether such enforcement is sought by proceedings in
equity or at law;
(vi) Borrower shall deliver to Lender a Rating Agency Confirmation as to
the Defeasance Event;
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(vii) Borrower shall deliver an Officer's Certificate certifying that the
requirements set forth in this Section 2.5 have been satisfied;
(viii) Borrower shall deliver a certificate of a "big four" or other
nationally recognized public accounting firm reasonably acceptable to Lender
certifying that the Defeasance Collateral will generate monthly amounts equal to
or greater than the Scheduled Defeasance Payments;
(ix) Borrower shall deliver such other certificates, opinions, documents
and instruments as Lender may reasonably request; and
(x) Borrower shall pay all out of pocket costs and expenses of Lender
incurred in connection with the Defeasance Event, including Lender's reasonable
attorneys' fees and expenses and Rating Agency fees and expenses.
(b) If Borrower has elected to defease the entire Note and the
requirements of this Section 2.5 have been satisfied, the Property shall be
released from the lien of the Mortgage and the Defeasance Collateral pledged
pursuant to the Security Agreement shall be the sole source of collateral
securing the Note. In connection with the release of the Lien, Borrower shall
submit to Lender, not less than thirty (30) days prior to the Defeasance Date
(or such shorter time as is acceptable to Lender in its sole discretion), a
release of Lien (and related Loan Documents) for execution by Lender. Such
release shall be in a form appropriate in the jurisdiction in which the Property
is located and that is reasonably acceptable to Lender. In addition, Borrower
shall provide all other documentation Lender reasonably requires to be delivered
by Borrower in connection with such release, together with an Officer's
Certificate certifying that such documentation (i) is in compliance with all
Legal Requirements, and (ii) will effect such release in accordance with the
terms of this Agreement. Borrower shall pay all costs, taxes and expenses
associated with the release of the lien of the Mortgage, including Lender's
reasonable attorneys' fees. Except as set forth in this Agreement, no repayment,
prepayment or defeasance of all or any portion of the Note shall cause, give
rise to a right to require, or otherwise result in, the release of the lien of
the Mortgage and this Agreement on the Property.
2.5.2 DEFEASANCE COLLATERAL ACCOUNT. On or before the date on which
Borrower delivers the Defeasance Collateral, Borrower shall open at any Eligible
Institution the defeasance collateral account (the "Defeasance Collateral
Account") which shall at all times be an Eligible Account. The Defeasance
Collateral Account shall contain only (i) Defeasance Collateral, and (ii) cash
from interest and principal paid on the Defeasance Collateral. All cash from
interest and principal payments paid on the Defeasance Collateral shall be paid
over to Lender on each Monthly Payment Date and applied first to accrued and
unpaid interest and then to principal. Any cash from interest and principal paid
on the Defeasance Collateral not needed to pay accrued and unpaid interest or
principal shall be retained in the Defeasance Collateral Account as additional
collateral for the Loan. Borrower shall cause the Eligible Institution at which
the Defeasance Collateral is deposited to enter an agreement with Borrower and
Lender, satisfactory to Lender in its reasonable discretion, pursuant to which
such Eligible Institution shall agree to hold and distribute the Defeasance
Collateral in accordance with this Agreement. The Borrower or Successor
Borrower, as applicable, shall be the owner of the Defeasance Collateral Account
and shall report all income accrued on Defeasance Collateral for federal, state
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and local income tax purposes in its income tax return. Borrower shall prepay
all cost and expenses associated with opening and maintaining the Defeasance
Collateral Account. Lender shall not in any way be liable by reason of any
insufficiency in the Defeasance Collateral Account. Any portion of the
Defeasance Collateral remaining after Lender has been paid in full shall be paid
to Borrower.
2.5.3 SUCCESSOR BORROWER. In connection with a Defeasance Event under this
Section 2.5, Borrower shall, if required by the Rating Agencies or if Borrower
elects to do so, establish or designate a successor entity (the "Successor
Borrower") which shall be a single purpose bankruptcy remote entity and which
shall be approved by the Rating Agencies. Any such Successor Borrower may, at
Borrower's option, be an Affiliate of Borrower unless the Rating Agencies shall
require otherwise. Borrower shall transfer and assign all obligations, rights
and duties under and to the Note, together with the Defeasance Collateral to
such Successor Borrower. Such Successor Borrower shall assume the obligations
under the Note and the Security Agreement and Borrower shall be relieved of its
obligations under such documents. Borrower shall pay a minimum of $1,000 to any
such Successor Borrower as consideration for assuming the obligations under the
Note and the Security Agreement. Borrower shall pay all out of pocket costs and
expenses actually incurred by Lender, including Lender's reasonable attorney's
fees and expenses, incurred in connection therewith.
III. REPRESENTATIONS AND WARRANTIES
SECTION 3.1 BORROWER REPRESENTATIONS.
Borrower represents and warrants that:
3.1.1 ORGANIZATION. (a) Borrower is duly organized, validly existing and
in good standing with full power and authority to own its assets and conduct its
business, and is duly qualified in all jurisdictions in which the ownership or
lease of its property or the conduct of its business requires such
qualification, except where the failure to be so qualified would not have a
material adverse effect on its ability to perform its obligations hereunder, and
Borrower has taken all necessary action to authorize the execution, delivery and
performance of this Agreement and the other Loan Documents by it, and has the
power and authority to execute, deliver and perform under this Agreement, the
other Loan Documents and all the transactions contemplated hereby.
(b) Borrower's exact legal name is correctly set forth in the first
paragraph of this Agreement. Borrower is an organization of the type specified
in the first paragraph of this Agreement. Borrower is incorporated or organized
under the laws of the state specified in the first paragraph of this Agreement.
Borrower's principal place of business and chief executive office, and the place
where Borrower keeps its books and records, including recorded data of any kind
or nature, regardless of the medium of recording, including software, writings,
plans, specifications and schematics, has been for the preceding four (4) months
(or, if less than four (4) months, the entire period of the existence of
Borrower) and will continue to be the address of Borrower set forth in the first
paragraph of this Agreement (unless Borrower notifies Lender in writing at least
thirty (30) days prior to the date of such change). Borrower's organizational
identification number, if any, assigned by the state of its incorporation or
organization is
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3905446. Borrower's federal tax identification number is ▇▇-▇▇▇▇▇▇▇. Borrower is
not subject to back-up withholding taxes.
3.1.2 PROCEEDINGS. This Agreement and the other Loan Documents have been
duly authorized, executed and delivered by Borrower and constitute a legal,
valid and binding obligation of Borrower, enforceable against Borrower in
accordance with their respective terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally, and by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
3.1.3 NO CONFLICTS. The execution and delivery of this Agreement and the
other Loan Documents by Borrower and the performance of its obligations
hereunder and thereunder will not conflict with any provision of any law or
regulation to which Borrower is subject, or conflict with, result in a breach
of, or constitute a default under, any of the terms, conditions or provisions of
any of Borrower's organizational documents or any agreement or instrument to
which Borrower is a party or by which it is bound, or any order or decree
applicable to Borrower, or result in the creation or imposition of any lien on
any of Borrower's assets or property (other than pursuant to the Loan
Documents).
3.1.4 LITIGATION. There is no action, suit, proceeding or investigation
pending or, to Borrower's knowledge, threatened against Borrower in any court or
by or before any other Governmental Authority which would materially and
adversely affect the ability of Borrower to carry out the transactions
contemplated by this Agreement that has not been fully disclosed to Lender in
writing prior to the Closing Date.
3.1.5 AGREEMENTS. Borrower is not in default with respect to any order or
decree of any court or any order, regulation or demand of any Governmental
Authority, which default is reasonably likely to have consequences that would
materially and adversely affect the condition (financial or other) or operations
of Borrower or its properties or is reasonably likely to have consequences that
would adversely affect its performance hereunder.
3.1.6 CONSENTS. No consent, approval, authorization or order of any court
or Governmental Authority is required for the execution, delivery and
performance by Borrower of, or compliance by Borrower with, this Agreement or
the consummation of the transactions contemplated hereby, other than those which
have been obtained by Borrower.
3.1.7 TITLE. Borrower has good, marketable and insurable fee simple title
to the real property comprising part of the Property and good title to the
balance of the Property owned by it, free and clear of all Liens whatsoever
except the Permitted Encumbrances. The Mortgage, when properly recorded in the
appropriate records, together with any Uniform Commercial Code financing
statements required to be filed in connection therewith, will create (i) a
valid, first priority, perfected lien on the Property, subject only to Permitted
Encumbrances and (ii) perfected security interests in and to, and perfected
collateral assignments of, all personalty (including the Leases), all in
accordance with the terms thereof, in each case subject only to any Permitted
Encumbrances. There are no mechanics', materialman's or other similar liens or
claims which have been filed for work, labor or materials affecting the Property
which are or
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may be liens prior to, or equal or coordinate with, the lien of the Mortgage.
None of the Permitted Encumbrances, individually or in the aggregate, materially
interfere with the benefits of the security intended to be provided by the
Mortgage and this Loan Agreement, materially and adversely affect the value of
the Property, impair the use or operations of the Property or impair Borrower's
ability to pay its obligations in a timely manner.
3.1.8 NO PLAN ASSETS. As of the date hereof and throughout the term of the
Loan (a) Borrower is not and will not be an "employee benefit plan," as defined
in Section 3(3) of ERISA, subject to Title I of ERISA, (b) none of the assets of
Borrower constitutes or will constitute "plan assets" of one or more such plans
within the meaning of 29 C.F.R. Section 2510.3-101, (c) Borrower is not and will
not be a "governmental plan" within the meaning of Section 3(32) of ERISA, and
(d) transactions by or with Borrower are not and will not be subject to any
state statute regulating investments of, or fiduciary obligations with respect
to, governmental plans.
3.1.9 COMPLIANCE. Borrower and the Property and the use thereof comply in
all material respects with all applicable Legal Requirements, including, without
limitation, building and zoning ordinances and codes and Prescribed Laws.
Borrower is not in default or violation of any order, writ, injunction, decree
or demand of any Governmental Authority, the violation of which is reasonably
likely to materially adversely affect the condition (financial or otherwise) or
business of Borrower except as specifically disclosed to Lender pursuant to the
Zoning Info, Inc. reports (the "Zoning Reports") delivered to Lender on or
before the Closing Date. Borrower has not committed any act which is reasonably
likely to give any Governmental Authority the right to cause Borrower to forfeit
the Property or any part thereof or any monies paid in performance of Borrower's
obligations under any of the Loan Documents.
3.1.10 FINANCIAL INFORMATION. All financial data with respect to Borrower,
Guarantor or, to Borrower's knowledge, the Property, including, without
limitation, the statements of cash flow and income and operating expense, that
have been delivered to Lender by or on behalf of Borrower (i) are true, complete
and correct in all material respects, (ii) accurately represent the financial
condition of the Property as of the date of such reports, and (iii) have been
prepared in accordance with GAAP throughout the periods covered, except as
disclosed therein. Borrower does not have any contingent liabilities,
liabilities for taxes, unusual forward or long-term commitments or unrealized or
anticipated losses from any unfavorable commitments that are known to Borrower
and reasonably likely to have a materially adverse effect on the Property or the
operation thereof, except as referred to or reflected in said financial
statements. Since the date of the financial statements, there has been no
material adverse change in the financial condition, operations or business of
Borrower or, to Borrower's knowledge, the Property from that set forth in said
financial statements.
3.1.11 CONDEMNATION. Borrower has not received written notice that any,
and to Borrower's knowledge, no Condemnation or other proceeding has been
commenced or, to Borrower's best knowledge, is contemplated with respect to all
or any portion of the Property or for the relocation of roadways providing
access to the Property, except as disclosed in the Zoning Reports.
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3.1.12 UTILITIES AND PUBLIC ACCESS. To the best of Borrower's knowledge,
the Property has rights of access to public ways and is served by water, sewer,
sanitary sewer and storm drain facilities adequate to service the Property for
its intended uses.
3.1.13 SEPARATE LOTS. The Property is comprised of one (1) or more parcels
which constitute separate tax lots and do not constitute a portion of any other
tax lot not a part of the Property.
3.1.14 ASSESSMENTS. To the best of Borrower's knowledge, there are no
pending or proposed special or other assessments for public improvements or
otherwise affecting the Property, nor, to Borrower's knowledge, are there any
contemplated improvements to the Property that may result in such special or
other assessments.
3.1.15 ENFORCEABILITY. The Loan Documents are not subject to any right of
rescission, set-off, counterclaim or defense by Borrower, including the defense
of usury, nor would the operation of any of the terms of the Loan Documents, or
the exercise of any right thereunder, render the Loan Documents unenforceable,
and Borrower has not asserted any right of rescission, set-off, counterclaim or
defense with respect thereto.
3.1.16 ASSIGNMENT OF LEASES. The Assignment of Leases creates a valid
assignment of, or a valid security interest in, certain rights under the Leases,
subject only to a license granted to Borrower to exercise certain rights and to
perform certain obligations of the lessor under the Leases, including the right
to operate the Property. No Person other than Lender has any interest in or
assignment of any portion of Borrower's interest in the Leases or any portion of
Borrower's interest in the Rents due and payable or to become due and payable
thereunder.
3.1.17 INSURANCE. Borrower has obtained and has delivered to Lender
original or certified copies of all of the Policies, with all premiums prepaid
thereunder, reflecting the insurance coverages, amounts and other requirements
set forth in this Agreement. To the best of Borrower's knowledge, no claims have
been made under any of the Policies, and no Person, including Borrower, has
done, by act or omission, anything which would impair the coverage of any of the
Policies.
3.1.18 LICENSES. To the best of Borrower's knowledge, all material permits
and approvals, including without limitation, certificates of occupancy required
by any Governmental Authority for the use, occupancy and operation of the
Property (in any material respect) in the manner in which the Property is
currently being used, occupied and operated have been obtained and are in full
force and effect.
3.1.19 FLOOD ZONE. Except as shown on the Survey, none of the Improvements
on the Property is located in an area identified by the Federal Emergency
Management Agency as a special flood hazard area.
3.1.20 PHYSICAL CONDITION. To the best of Borrower's knowledge and except
as disclosed in the property condition reports and other written reports
delivered to Lender prior to the Closing Date, the Property, including, without
limitation, all buildings, improvements, parking facilities, sidewalks, storm
drainage systems, roofs, plumbing systems, HVAC systems,
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fire protection systems, electrical systems, equipment, elevators, exterior
sidings and doors, landscaping, irrigation systems and all structural
components, are in good condition, order and repair in all material respects; to
the best of Borrower's knowledge there exists no structural or other material
defects or damages in the Property, whether latent or otherwise, and Borrower
has not received notice from any insurance company or bonding company of any
defects or inadequacies in the Property, or any part thereof, which would
adversely affect the insurability of the same or cause the imposition of
extraordinary premiums or charges thereon or of any termination or threatened
termination of any policy of insurance or bond.
3.1.21 BOUNDARIES. Except as shown on the Survey, all of the improvements
which were included in determining the appraised value of the Property lie
wholly within the boundaries and building restriction lines of the Property, and
no improvements on adjoining properties encroach upon the Property, and no
easements or other encumbrances affecting the Property encroach upon any of the
improvements, so as to affect the value or marketability of the Property in any
material respect except those which are insured against by title insurance.
3.1.22 LEASES.
(a) The lease between Borrower, as landlord, and Telcordia Technologies,
Inc., a Delaware corporation ("Telcordia") dated March___, 2005, as amended by
that certain Landlord's Agreement dated March___, 2005, and as may be further
amended with Lender's consent except as otherwise specifically permitted
pursuant to Section 4.1.12 hereof, (the "Telcordia Lease") is the only Lease for
the Property to which Borrower is a party. Lender acknowledges that Borrower may
enter into a "triple net" lease for the entire Property acceptable to Lender in
its reasonable discretion (an "Acceptable Replacement Lease") with another
single-user tenant acceptable to Lender in its reasonable discretion (an
"Acceptable Replacement Tenant"). Lender agrees that it will not unreasonably
withhold, condition or delay its consent or approval of any amendments to the
Telcordia Lease proposed by Borrower which are intended to preserve the
treatment of the Telcordia Lease as an operating lease under generally accepted
accounting principals.
(b) Except as disclosed in the rent roll for Property delivered to and
approved by Lender in writing prior to the date hereof, (i) Borrower is the sole
owner of the entire lessor's interest in the Telcordia Lease; (ii) the Telcordia
Lease is valid and enforceable and in full force and effect; (iii) the Telcordia
Lease is an arms-length agreement with bona fide, independent third parties;
(iv) no party under the Telcordia Lease is in default; (v) all Rents due and
payable have been paid in full; (vi) the terms of all alterations, modifications
and amendments to the Telcordia Lease are reflected in the estoppel certificate
delivered to and approved by Lender; (vii) none of the Rents reserved in the
Leases to which Borrower is a party have been assigned or otherwise pledged or
hypothecated except to Lender; (viii) none of the Rents have been collected for
more than one (1) calendar quarter in advance (except a security deposit shall
not be deemed rent collected in advance; (ix) the premises demised under the
Telcordia Lease have been completed and the tenant under the Telcordia Lease has
accepted the same and has taken possession of the same on a rent-paying basis;
(x) there exist no offsets or defenses to the payment of any portion of the
Rents and Borrower has no monetary obligation to any tenant under the Telcordia
Lease; (xi) Borrower has received no notice from any tenant challenging the
validity or enforceability of the Telcordia Lease; (xii) there are no binding
agreements between
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Borrower and Telcordia other than expressly set forth in the Telcordia Lease or
disclosed to Lender in writing; (xiii) other than subtenants and licensees
disclosed in writing to Lender prior to the Closing Date, no person or entity
has any possessory interest in, or right to occupy, the Property except under
and pursuant to the Telcordia Lease; (xiv) the Telcordia Lease is subordinate to
the applicable Mortgage, either pursuant to its terms or a recordable
subordination agreement; (xv) all security deposits relating to the Telcordia
Lease are reflected on the certified rent roll delivered to Lender have been
collected by Borrower; and (xvi) no brokerage commissions or finders fees are
due and payable regarding any the Telcordia Lease that have not been paid in
full.
(c) Notwithstanding anything contained herein to the contrary, Borrower
shall not willfully withhold from Lender any information known to Borrower
regarding renewal, extension, amendment, modification, waiver of provisions of,
termination, rental reduction of, surrender of space of, or shortening of the
term of, any Lease during the term of the Loan.
3.1.23 FILING AND RECORDING TAXES. All transfer taxes, deed stamps,
intangible taxes or other amounts in the nature of transfer taxes required to be
paid under applicable Legal Requirements in connection with the transfer of the
Property to Borrower have been paid or are being paid simultaneously herewith.
All mortgage, mortgage recording, stamp, intangible or other similar tax
required to be paid under applicable Legal Requirements in connection with the
execution, delivery, recordation, filing, registration, perfection or
enforcement of any of the Loan Documents, including, without limitation, the
Mortgage, have been paid or are being paid simultaneously herewith. All taxes
and governmental assessments due and owing in respect of the Property have been
paid, or an escrow of funds in an amount sufficient to cover such payments has
been established hereunder or are insured against by the title insurance policy
to be issued in connection with the Mortgage.
3.1.24 SINGLE PURPOSE. Borrower hereby represents and warrants to, and
covenants with, Lender that as of the date hereof and until such time as the
Debt shall be paid in full:
(a) Borrower does not own and will not own any asset or property other
than (i) the Property, and (ii) incidental personal property necessary for the
ownership or operation of the Property.
(b) Borrower will not engage in any business other than the ownership,
development, repair, maintenance, management and operation of the Property and
Borrower will conduct and operate its business as presently conducted and
operated.
(c) Borrower will not enter into any contract or agreement with any
Affiliate of Borrower, any constituent party of Borrower or any Affiliate of any
constituent party, except upon terms and conditions that are commercially
reasonable and substantially similar to those that would be available on an
arms-length basis with third parties other than any such party.
(d) Borrower has not incurred and will not incur any Indebtedness other
than (i) the Debt, (ii) unsecured trade payables and operational debt not
evidenced by a note and in an aggregate amount not exceeding $500,000 at any one
time and (iii) Indebtedness incurred in the
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financing of equipment and other personal property used on the Property with
annual payments not exceeding $500,000 in the aggregate; provided that any
Indebtedness incurred pursuant to subclauses (ii) and (iii) shall (x) not be
outstanding more than thirty (30) days past the due date thereof and (y) be
incurred in the ordinary course of business. No Indebtedness other than the Debt
may be secured (subordinate or pari passu) by the Property.
(e) Borrower has not made and will not make any loans or advances to
any third party (including any Affiliate or constituent party), and shall not
acquire obligations or securities of its Affiliates.
(f) Borrower is and will remain solvent and Borrower will pay its debts
and liabilities (including, as applicable, shared personnel and overhead
expenses) from its assets as the same shall become due.
(g) Borrower has done or caused to be done and will do all things
necessary to observe organizational formalities applicable to Borrower and
preserve its existence, and Borrower will not, nor will Borrower permit any
constituent party to amend, modify or otherwise change the partnership
certificate, partnership agreement, articles of incorporation and bylaws,
operating agreement, trust or other organizational documents of Borrower or such
constituent party without the prior consent of Lender in any manner that (i)
violates the single purpose covenants set forth in this Section 3.1.24, or (ii)
amends, modifies or otherwise changes any provision thereof that by its terms
cannot be modified at any time when the Loan is outstanding or by its terms
cannot be modified without Lender's consent.
(h) Borrower will maintain all of its books, records, financial
statements and bank accounts separate from those of any other person or entity.
Borrower's assets will not be listed as assets on the financial statement of any
other Person, provided, however, that Borrower's assets may be included in a
consolidated financial statement of its Affiliates provided that (i) appropriate
notation shall be made on such consolidated financial statements to indicate the
separateness of Borrower and such Affiliates and to indicate that Borrower's
assets and credit are not available to satisfy the debts and other obligations
of such Affiliates or any other Person and (ii) such assets shall be listed on
Borrower's own separate balance sheet.
(i) Borrower will be, and at all times will hold itself out to the
public as, a legal entity separate and distinct from any other entity (including
any Affiliate of Borrower or any constituent party of Borrower), shall correct
any known misunderstanding regarding its status as a separate entity, shall
conduct business in its own name, shall not identify itself or any of its
Affiliates as a division or part of the other and shall maintain and utilize
separate stationery, invoices and checks bearing its own name.
(j) Borrower will maintain adequate capital for the normal obligations
reasonably foreseeable in a business of its size and character and in light of
its contemplated business operations.
(k) Neither Borrower nor any constituent party will seek or effect the
liquidation, dissolution, winding up, liquidation, consolidation or merger, in
whole or in part, of Borrower.
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(l) Borrower will not commingle the funds and other assets of Borrower
with those of any Affiliate or any other Person, and will hold all of its assets
in its own name.
(m) Borrower has and will maintain its assets in such a manner that it
will not be costly or difficult to segregate, ascertain or identify its
individual assets from those of any Affiliate or constituent party or any other
Person.
(n) Borrower will not guarantee or become obligated for the debts of
any other Person and does not and will not hold itself out to be responsible for
or have its credit available to satisfy the debts or obligations of any other
Person.
(o) Intentionally omitted.
(p) If Borrower is a corporation, a limited partnership or a limited
liability company (other than a single member limited liability company),
Borrower shall at all times cause there to be at least two duly appointed
members of the board of directors of Borrower reasonably satisfactory to Lender
(each, an "Independent Director") who shall not have been at the time of such
individual's appointment or at any time while serving as a director of Borrower,
and may not have been at any time during the preceding five years (i) a
stockholder, director (other than as an Independent Director), officer,
employee, partner, attorney or counsel of Borrower or any Affiliate of Borrower,
(ii) a customer, supplier or other Person who derives any of its purchases or
revenues from its activities with Borrower or any Affiliate of Borrower, (iii) a
Person or other entity controlling or under common control with any such
stockholder, partner, customer, supplier or other Person, or (iv) a member of
the immediate family of any such stockholder, director, officer, employee,
partner, customer, supplier or other Person. As used in this definition, the
term "control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management, policies or activities of a
Person, whether through ownership of voting securities, by contract or
otherwise. A natural person who otherwise satisfies the foregoing definition of
Independent Director except for being an analogous independent director,
independent manager or springing member of a "special purpose entity" affiliated
with the Borrower shall not be disqualified from serving as an Independent
Director if such "special purpose entity" does not own a direct or indirect
equity interest in the Borrower and if such individual is an independent
director supplied by a nationally-recognized company, or such other reputable
company reasonably acceptable to Lender, that provides professional independent
directors.
(q) Borrower shall not cause or permit the board of directors of
Borrower to take any action which, under the terms of any certificate of
incorporation, by-laws or any voting trust agreement with respect to any common
stock or under any organizational document of Borrower, requires a vote of the
board of directors of Borrower unless at the time of such action there shall be
at least two members who are each an Independent Director.
(r) Intentionally omitted.
(s) If Borrower is a corporation, a limited partnership or a limited
liability company (other than a single member limited liability company),
Borrower shall conduct its business so that the factual assumptions made with
respect to Borrower in the Insolvency
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Opinion shall be true and correct in all respects. In connection with the
foregoing, Borrower hereby covenants and agrees that it will comply with or
cause the compliance with, (i) all of the facts and factual assumptions
(regarding Borrower, Guarantor or any Affiliate of Borrower or Guarantor) set
forth in the Insolvency Opinion, (ii) all the representations, warranties and
covenants in this Section 3.1.24, and (iii) all the organizational documents of
Borrower.
(t) Intentionally omitted,
(u) Intentionally omitted.
(v) Borrower shall pay the salaries of its own employees (if any) from
its own funds and maintain a sufficient number of employees (if any) in light of
its contemplated business operations.
(w) Borrower shall compensate each of its consultants and agents from
its funds for services provided to it and pay from its own assets all
obligations of any kind incurred.
3.1.25 TAX FILINGS. To the extent required, Borrower has filed (or has
obtained effective extensions for filing) all federal, state and local tax
returns required to be filed and have paid or made adequate provision for the
payment of all federal, state and local taxes, charges and assessments payable
by Borrower. Borrower believes that its tax returns (if any) properly reflect
the income and taxes of Borrower for the periods covered thereby, subject only
to reasonable adjustments required by the Internal Revenue Service or other
applicable tax authority upon audit.
3.1.26 SOLVENCY. Borrower (a) has not entered into the transaction or
any Loan Document with the actual intent to hinder, delay, or defraud any
creditor and (b) received reasonably equivalent value in exchange for its
obligations under the Loan Documents. Giving effect to the Loan, the fair
saleable value of Borrower's assets exceeds and will, immediately following the
making of the Loan, exceed Borrower's total liabilities, including, without
limitation, subordinated, unliquidated, disputed and contingent liabilities. The
fair saleable value of Borrower's assets is and will, immediately following the
making of the Loan, be greater than Borrower's probable liabilities, including
the maximum amount of its contingent liabilities on its debts as such debts
become absolute and matured. Borrower's assets do not and, immediately following
the making of the Loan will not, to Borrower's knowledge, constitute
unreasonably small capital to carry out its business as conducted or as proposed
to be conducted. Borrower does not intend to, and does not believe that it will,
incur Indebtedness and liabilities (including contingent liabilities and other
commitments) beyond its ability to pay such Indebtedness and liabilities as they
mature (taking into account the timing and amounts of cash to be received by
Borrower and the amounts to be payable on or in respect of obligations of
Borrower).
3.1.27 FEDERAL RESERVE REGULATIONS. No part of the proceeds of the Loan
will be used for the purpose of purchasing or acquiring any "margin stock"
within the meaning of Regulation U of the Board of Governors of the Federal
Reserve System or for any other purpose which would be inconsistent with such
Regulation U or any other Regulations of such Board of Governors, or for any
purposes prohibited by Legal Requirements or by the terms and conditions of this
Agreement or the other Loan Documents.
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3.1.28 ORGANIZATIONAL CHART. The organizational chart attached as
Schedule III hereto, relating to Borrower and certain Affiliates and other
parties, is true, complete and correct in all material respects on and as of the
date hereof.
3.1.29 BANK HOLDING COMPANY. Borrower is not a "bank holding company"
or a direct or indirect subsidiary of a "bank holding company" as defined in the
Bank Holding Company Act of 1956, as amended, and Regulation Y thereunder of the
Board of Governors of the Federal Reserve System.
3.1.30 NO OTHER DEBT. Borrower has not borrowed or received debt
financing (other than permitted pursuant to this Agreement) that has not been
heretofore repaid in full.
3.1.31 INVESTMENT COMPANY ACT. Borrower is not (1) an "investment
company" or a company "controlled" by an "investment company," within the
meaning of the Investment Company Act of 1940, as amended; (2) a "holding
company" or a "subsidiary company" of a "holding company" or an "affiliate" of
either a "holding company" or a "subsidiary company" within the meaning of the
Public Utility Holding Company Act of 1935, as amended; or (3) subject to any
other federal or state law or regulation which purports to restrict or regulate
its ability to borrow money.
3.1.32 ACCESS/UTILITIES. To the best of Borrower's knowledge, all
public utilities necessary to the continued use and enjoyment of the Property as
presently used and enjoyed are located in the public right-of-way abutting the
Property or within an easement benefiting the Property. To the best of
Borrower's knowledge, all roads necessary for the utilization of the Property
consistent in all material respects with its current purpose have been completed
and dedicated to public use and accepted by all governmental authorities or are
the subject of access easements for the benefit of the Property.
3.1.33 NO BANKRUPTCY FILING. Borrower is not contemplating either the
filing of a petition by it under any state or federal bankruptcy or insolvency
laws or the liquidation of its assets or property, and Borrower does not have
any actual knowledge of any Person contemplating the filing of any such petition
against it.
3.1.34 FULL AND ACCURATE DISCLOSURE. To the best of Borrower's
knowledge, no information contained in this Agreement, the other Loan Documents,
or any written statement furnished by or on behalf of Borrower pursuant to the
terms of this Agreement contains any untrue statement of a material fact or
omits to state a material fact necessary to make the statements contained herein
or therein not misleading in light of the circumstances under which they were
made. There is no fact or circumstance presently known to Borrower which has not
been disclosed to Lender and which materially adversely affects, or is
reasonably likely to materially adversely affect, the Property, Borrower or its
business, operations or condition (financial or otherwise).
3.1.35 FOREIGN PERSON. Borrower is not a "foreign person" within the
meaning of Section 1445(f)(3) of the Code.
3.1.36 FRAUDULENT TRANSFER Borrower (a) has not entered into the Loan
or any Loan Document with the actual intent to hinder, delay, or defraud any
creditor and (b) has
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received reasonably equivalent value in exchange for its obligations under the
Loan Documents. The assets of Borrower do not and, immediately following the
execution and delivery of the Loan Documents will not, to Borrower's knowledge
constitute unreasonably small capital to carry out its business as conducted or
as proposed to be conducted. Borrower does not intend to, and does not believe
that it will, incur debts and liabilities (including contingent liabilities and
other commitments) beyond its ability to pay such debts as they mature (taking
into account the timing and amounts reasonably expected to be payable on or in
respect of its obligations).
3.1.37 NO CHANGE IN FACTS OR CIRCUMSTANCES; DISCLOSURE. To the best of
Borrower's knowledge, there has been no material adverse change in any
condition, fact, circumstance or event that would make the financial statements,
rent rolls, reports, certificates or other documents submitted in connection
with the Loan inaccurate, incomplete or otherwise misleading in any material
respect or that otherwise materially and adversely affects the business
operations or the financial condition of Borrower or the Property.
3.1.38 INTENTIONALLY OMITTED.
3.1.39 PERFECTION OF ACCOUNTS. Borrower hereby represents and warrants
to Lender that:
(a) This Agreement, together with the other Loan Documents, create a
valid and continuing security interest (as defined in the Uniform Commercial
Code) in the Accounts (as defined in the Cash Management Agreement) in favor of
Lender, which security interest is prior to all other Liens, other than
Permitted Encumbrances, and is enforceable as such against creditors of and
purchasers from Borrower. Other than in connection with the Loan Documents and
except for Permitted Encumbrances, Borrower has not sold or otherwise conveyed
the Accounts;
(b) The Accounts constitute "deposit accounts" or "securities accounts"
within the meaning of the Uniform Commercial Code, as set forth in the Cash
Management Agreement;
(c) Pursuant and subject to the terms hereof, Agent has agreed to
comply with all instructions originated by Lender, without further consent by
Borrower, directing disposition of the Accounts and all sums at any time held,
deposited or invested therein, together with any interest or other earnings
thereon, and all proceeds thereof (including proceeds of sales and other
dispositions), whether accounts, general intangibles, chattel paper, deposit
accounts, instruments, documents or securities; and
(d) The Accounts are not in the name of any Person other than Borrower,
as pledgor, or Lender, as pledgee. Borrower has not consented to Agent's
complying with instructions with respect to the Accounts from any Person other
than Lender.
3.1.40 NO BREACH OF FIDUCIARY DUTY. To Borrower's knowledge, no Person
currently owning a direct or indirect membership or partnership interest in
Borrower (nor any past or current affiliate of such Person), has breached any
fiduciary duty owed by such Person to any other Person now or previously owning
a direct or indirect membership or partnership interest in Borrower or any prior
owner of the Property.
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SECTION 3.2 SURVIVAL OF REPRESENTATIONS.
The representations and warranties set forth in Section 3.1 shall
survive for so long as any amount remains payable to Lender under this Agreement
or any of the other Loan Documents.
IV. BORROWER COVENANTS
SECTION 4.1 BORROWER AFFIRMATIVE COVENANTS.
Borrower hereby covenants and agrees with Lender that:
4.1.1 EXISTENCE; COMPLIANCE WITH LEGAL REQUIREMENTS. Borrower shall do
or cause to be done all things necessary to preserve, renew and keep in full
force and effect its existence, and all material rights, licenses, permits and
franchises and shall comply in all material respects with all Legal Requirements
applicable to it and the Property, including, without limitation, Prescribed
Laws; provided Borrower shall have the right to contest such Legal Requirements
as provided in this Agreement.
4.1.2 TAXES AND OTHER CHARGES. Borrower shall pay or cause to be paid
all Taxes and Other Charges now or hereafter levied or assessed or imposed
against the Property or any part thereof as the same become due and payable;
provided, however, Borrower's obligation to directly pay Taxes shall be
suspended to the extent Borrower has deposited Tax Funds sufficient to pay such
Taxes. Borrower shall furnish to Lender receipts for the payment of the Taxes
and the Other Charges prior to the date the same shall become delinquent;
provided, however, that Borrower is not required to furnish such receipts for
payment of Taxes in the event that such Taxes have been paid by Lender pursuant
to Section 6.2 hereof. Borrower shall not permit or suffer and shall promptly
discharge any lien or charge against the Property. After prior written notice to
Lender, Borrower or, if the Telcordia Lease or an Acceptable Replacement Lease
is in full force and effect, Telcordia or an Acceptable Replacement Tenant, as
applicable, at its own expense, may contest by appropriate legal proceeding,
initiated within a reasonable period of time and conducted in good faith and
with due diligence, the amount or validity or application in whole or in part of
any of the Taxes, provided that (i) no Event of Default has occurred and remains
uncured; (ii) such proceeding shall be permitted under and be conducted in
accordance with all applicable statutes, laws and ordinances; (iii) neither the
Property nor any part thereof or interest therein will be in danger of being
sold, forfeited, terminated, canceled or lost as a result of such contest or
underlying lien; (iv) Borrower shall promptly upon final determination thereof
pay the amount of any such Taxes or Other Charges, together with all costs,
interest and penalties which may be payable in connection therewith; (v) such
proceeding shall suspend the collection of Taxes or Other Charges from the
Property; and (vi) or Borrower or Telcordia or an Acceptable Replacement Tenant
shall have furnished the security as may be required in the proceeding, or as
may be reasonably requested by Lender to insure the payment of any contested
Taxes, together with all interest and penalties thereon, taking into
consideration any Tax Funds available for payment of Taxes. Lender may pay over
any such cash or other security held by Lender to the claimant entitled thereto
at any time when, in the reasonable judgment of Lender, the Property or any part
thereof or interest therein is in danger of being sold, forfeited, terminated
cancelled or lost.
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4.1.3 LITIGATION. Borrower shall give prompt notice to Lender of any
litigation or governmental proceedings pending or threatened against Borrower,
of which Borrower has knowledge, which might materially adversely affect the
Property or Borrower's ability to perform its obligations hereunder or under the
other Loan Documents.
4.1.4 ACCESS TO PROPERTY. Subject to the rights of the tenants under
all Leases, and without unreasonable material interference with the operation of
the Property, Borrower shall permit agents, representatives and employees of
Lender to inspect the Property or any part thereof at reasonable hours upon
reasonable advance notice.
4.1.5 FURTHER ASSURANCES; SUPPLEMENTAL MORTGAGE AFFIDAVITS. Borrower
shall, at Borrower's sole cost and expense:
(a) execute and deliver to Lender such documents, instruments,
certificates, assignments and other writings, and do such other acts reasonably
necessary or desirable, to evidence, preserve and/or protect the collateral at
any time securing or intended to secure the obligations of Borrower under the
Loan Documents, as Lender may reasonably require; and
(b) do and execute all and such further lawful and reasonable acts,
conveyances and assurances for the better and more effective carrying out of the
intents and purposes of this Agreement and the other Loan Documents, as Lender
shall reasonably require from time to time.
4.1.6 FINANCIAL REPORTING.
(a) Borrower and any Guarantors shall keep adequate books and records
of account in accordance with GAAP, or in accordance with other methods
acceptable to Lender in its reasonable discretion, consistently applied and
furnish to Lender:
(i) monthly, or if the Loan has been securitized or sold by Lender,
quarterly and annual certified rent rolls in the form attached hereto as
Schedule I signed and dated by Borrower, detailing the names of all tenants of
the Improvements under Leases to which Borrower is a party, the portion of
Improvements occupied by each tenant, the base rent and any other charges
payable under each Lease and the term of each Lease, including the expiration
date, the extent to which any tenant is in default under any Lease, and any
other information as is reasonably required by Lender, within thirty (30) days
after the end of each calendar month, thirty (30) days after the end of each
fiscal quarter or sixty (60) days after the close of each fiscal year of
Borrower, as applicable;
(ii) on a monthly basis, operating statements of the Property in the
form attached as Schedule VI for the immediately preceding month (and for
previous periods if required by Lender), or if the Loan has been securitized or
sold as a whole loan by Lender, annual and, if requested by Lender, quarterly
operating statements of the Property in the form attached hereto as Schedule VI,
all of which shall be prepared and certified by Borrower in the form required by
Lender, detailing the revenues received, the expenses incurred and the net
operating income before and after debt service (principal and interest) and
major capital improvements completed by Borrower for each month and containing
appropriate year to date information, within twenty (20) days after the end of
each calendar month, thirty (30) days after
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the end of each fiscal quarter or sixty (60) days after the close of each fiscal
year of Borrower, as applicable;
(iii) an annual operating statement of the Property in the form
attached hereto as Schedule VI detailing the total revenues received, total
expenses incurred, total cost of all capital improvements, total debt service
and total cash flow, to be prepared and certified by Borrower in the form
required by Lender within sixty (60) days after the close of each fiscal year of
Borrower;
(iv) quarterly and annual balance sheet in the form attached hereto as
Schedule VII and profit and loss statements of Borrower, any Guarantors in a
form reasonably acceptable to Lender, prepared and certified by the respective
Borrower and/or Guarantors within sixty (60) days after the end of each fiscal
quarter and within sixty (60) days after the end of each fiscal year, with
respect to Borrower, and within ninety (90) days (or, at any time after the Loan
is securitized, ninety (90) days) after the end of each fiscal quarter with
respect to any Guarantors; and audited financial statements prepared by an
independent certified public accountant acceptable to Lender, within one hundred
twenty (120) days after the close of each fiscal year with respect to any
Guarantor. Lender acknowledges that Borrower's and Guarantor's financial
statements may be consolidated and such consolidated financial statements shall
be acceptable; and
(v) upon Lender's request, an annual operating budget in the form
attached hereto as Schedule IX (an "Annual Budget") presented on a monthly basis
consistent with the annual operating statement described above for the Property,
including cash flow projections for the upcoming year, and all proposed capital
replacements and improvements at least fifteen (15) days prior to the start of
each fiscal year.
(b) Upon request from Lender, Borrower and any Guarantor shall furnish
in a timely manner to Lender:
(i) If at any time the Property is not occupied by a single tenant user
pursuant to a triple net lease, a property management report for the Property,
showing the number of inquiries made and/or rental applications received from
tenants or prospective tenants and deposits received from tenants and any other
information reasonably requested by Lender, in reasonable detail and certified
by Borrower (or an officer, general partner, member or principal of Borrower if
Borrower is not an individual) under penalty of perjury to be true and complete,
but no more frequently than quarterly; and
(ii) an accounting of all security deposits held in connection with any
Lease of any part of the Property, including the name and identification number
of the accounts in which such security deposits are held, the name and address
of the financial institutions in which such security deposits are held and the
name of the person to contact at such financial institution, along with any
authority or release necessary for Lender to obtain information regarding such
accounts directly from such financial institutions.
(c) Borrower and any Guarantor shall furnish Lender with such other
additional financial or management information (including State and Federal tax
returns, if any)
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as may, from time to time, be reasonably required by Lender in form and
substance satisfactory to Lender.
(d) Borrower acknowledges the importance to Lender of the timely
delivery of each of the items required by this Section 4.1.6 (each, a "Required
Financial Item" and collectively, the "Required Financial Items"). In the event
Borrower fails to deliver to Lender any of the Required Financial Items within
the time frame specified herein and such failure is not cured within ten (10)
business days after notice from Lender (each such event, a "Reporting Failure"),
without limiting Lender's other rights and remedies with respect to the
occurrence of such an Event of Default, in the event of the occurrence of two or
more Reporting Failures in any twelve (12) month period, Borrower shall pay to
Lender the sum of $500.00 per occurrence for each such Reporting Failure. It
shall constitute a further Event of Default hereunder if any such payment is not
received by Lender within thirty (30) days of the date on which such payment is
due, and Lender shall be entitled to the exercise of all of its rights and
remedies provided hereunder.
4.1.7 TITLE TO THE PROPERTY. Borrower will warrant and defend the
validity and priority of the Liens of the Mortgage and the Assignment of Leases
on the Property against the claims of all Persons whomsoever, subject only to
Permitted Encumbrances.
4.1.8 ESTOPPEL STATEMENT.
(a) After request by Lender, Borrower shall within ten (10) Business
Days furnish Lender with a statement, duly acknowledged and certified, stating
(i) the unpaid principal amount of the Note, (ii) the Applicable Interest Rate
of the Note, (iii) the date installments of interest and/or principal were last
paid, (iv) any offsets or defenses to the payment of the Debt, if any, and (v)
that this Agreement and the other Loan Documents have not been modified or if
modified, giving particulars of such modification.
(b) After request by Borrower, Lender shall within ten (10) Business
Days furnish Borrower with a statement, duly acknowledged and certified, stating
(i) the unpaid principal amount of the Note, (ii) the Applicable Interest Rate
of the Note, (iii) the date installments of interest and/or principal were last
paid and (iv) whether or not Lender has sent any notice of default under the
Loan Documents which remains uncured in the opinion of Lender.
(c) Borrower shall deliver to Lender, upon request, an estoppel
certificate from each Tenant under any Lease (provided that Borrower shall only
be required to use commercially reasonable efforts to obtain an estoppel
certificate from any Tenant); provided that such certificate may be in the form
required under such Lease; provided further that Borrower shall not be required
to deliver such certificates more frequently than two (2) times in any calendar
year.
4.1.9 LEASES.
(a) Borrower may enter into a proposed Lease (including the renewal or
extension of an existing Lease (a "Renewal Lease")) without the prior written
consent of Lender, provided such proposed Lease or Renewal Lease (i) provides
for rental rates and terms
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comparable to existing local market rates and terms (taking into account the
type and quality of the tenant) as of the date such Lease is executed by
Borrower (unless, in the case of a Renewal Lease, the rent payable during such
renewal, or a formula or other method to compute such rent, is provided for in
the original Lease), (ii) is an arms-length transaction with a bona fide,
independent third party tenant, (iii) does not have a materially adverse effect
on the value of the Properties taken as a whole, (iv) is subject and subordinate
to the Mortgages and the lessee thereunder agrees to attorn to Lender, and (v)
is written on the standard form of lease approved by Lender. All proposed Leases
which do not satisfy the requirements set forth in this Section 4.1.9 shall be
subject to the prior approval of Lender and its counsel (which approval shall
not be unreasonably withheld, conditioned or delayed), at Borrower's expense.
Borrower shall promptly deliver to Lender copies of all Leases which are entered
into pursuant to this Subsection together with Borrower's certification that it
has satisfied all of the conditions of this Subsection.
(b) Borrower (i) shall observe and perform all the obligations imposed
upon the lessor under the Leases and shall not do or permit to be done anything
to impair the value of any of the Leases as security for the Debt; (ii) upon
request, shall promptly send copies to Lender of all notices of default which
Borrower shall send or receive thereunder; (iii) shall enforce all of the
material terms, covenants and conditions contained in the Leases upon the part
of the tenant thereunder to be observed or performed, (iv) shall not collect any
of the Rents more than one (1) calendar quarter in advance (except security
deposits shall not be deemed Rents collected in advance); (v) shall not execute
any other assignment of the lessor's interest in any of the Leases or the Rents;
and (vi) shall not consent to any assignment of or subletting otherwise not
permitted under any Leases, without the prior written consent of Lender (which
consent shall not be unreasonably withheld, conditioned or delayed). Provided no
Event of Default has occurred and is continuing, Borrower may waive, amend, add
to and/or supplement any financial covenants of Telcordia contained in the
Telcorida Lease without the prior written consent of Lender.
(c) Borrower may, without the consent of Lender, amend, modify or waive
the provisions of any Lease or terminate, reduce rents under, accept a surrender
of space under, or shorten the term of, any Lease (including any guaranty,
letter of credit or other credit support with respect thereto) provided that
such action (taking into account, in the case of a termination, reduction in
rent, surrender of space or shortening of term, the planned alternative use of
the affected space) does not have a materially adverse effect on the value of
the Property taken as a whole, and provided that such Lease, as amended,
modified or waived, is otherwise in compliance with the requirements of this
Agreement and any subordinate agreement binding upon Lender with respect to such
Lease. A termination of a Lease with a tenant who is in default beyond
applicable notice and grace periods shall not be considered an action which has
a materially adverse effect on the value of the Properties taken as a whole. Any
amendment, modification, waiver, termination, rent reduction, space surrender or
term shortening which does not satisfy the requirements set forth in this
subsection shall be subject to the prior approval of Lender and its counsel,
which approval shall not be unreasonably withheld, delayed, or conditioned, at
Borrower's expense. Borrower shall promptly deliver to Lender copies of
amendments, modifications and waivers which are entered into pursuant to this
subsection together with Borrower's certification that it has satisfied all of
the conditions of this subsection.
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(d) Notwithstanding anything contained herein to the contrary, Borrower
shall not, without the prior written consent of Lender, enter into, renew,
extend, amend, modify, waive any provisions of, terminate, reduce rents under,
accept a surrender of space under, or shorten the term of, any Major Lease. The
term "Major Lease" shall mean any Lease between Borrower as landlord and a
tenant which lease is (i) approved by Lender, in form and substance, in its sole
discretion using prudent business judgment, (ii) at comparable terms with the
Telcordia Lease and (iii) which demises in the aggregate more than the lesser of
(a) 200,000 rentable square feet or (b) fifteen percent (15%) of the total
rentable square feet at the Properties.
4.1.10 ALTERATIONS. Lender's prior approval shall be required in
connection with any alterations to any Improvements (except tenant improvements
under any Lease approved by Lender or under any Lease for which approval was not
required by Lender under this Agreement) (a) that may have a material adverse
effect on Borrower's financial condition, the value of the Property or the
ongoing revenues and expenses of the Property, (b) the cost of which (including
any related alteration, improvement or replacement) is reasonably anticipated to
exceed the Alteration Threshold or (c) made after the Maturity Date if the Loan
shall not have been repaid in full, which approval may be granted or withheld in
Lender's sole discretion. If the total unpaid amounts incurred and to be
incurred with respect to such alterations to the Improvements shall at any time
exceed the Alteration Threshold, Borrower shall upon the written request of
Lender promptly deliver to Lender as security for the payment of such amounts
and as additional security for Borrower's obligations under the Loan Documents
any of the following: (i) cash, (ii) Letters of Credit (iii) U.S. Obligations,
(iv) other securities acceptable to lender, provided that Lender shall have the
right to require Rating Agency Confirmation as to the form and issuer of same,
or (v) a completion bond, provided that Lender shall have received a Rating
Agency Confirmation as to the form and issuer of same. Such security shall be in
an amount equal to the excess of the total unpaid amounts incurred and to be
incurred with respect to such alterations to the Improvements (other than such
amounts to be paid or reimbursed by Tenants under the Leases) over the
Alteration Threshold.
4.1.11 APPROVAL OF MATERIAL AGREEMENTS. From and after the Maturity
Date, Borrower shall be required to obtain Lender's prior written approval to
any and all Material Agreements affecting the Property, which approval may be
granted or withheld in Lender's sole discretion.
4.1.12 MATERIAL AGREEMENTS. Borrower shall (a) promptly perform and/or
observe all of the material covenants and agreements required to be performed
and observed by it under each Material Agreement to which it is a party, and do
all things necessary to preserve and to keep unimpaired its rights thereunder,
(b) promptly notify Lender in writing of the giving of or receipt by Borrower of
any notice of any default by any party under any Material Agreement of which it
is aware and (c) promptly enforce in a commercially reasonable manner the
performance and observance of all of the material covenants and agreements
required to be performed and/or observed by the other party under each Material
Agreement to which it is a party in a commercially reasonable manner.
4.1.13 PERFORMANCE BY BORROWER. Borrower shall in a timely manner
observe, perform and fulfill each and every covenant, term and provision of each
Loan Document executed and delivered by Borrower (or shall cause such observance
performance and
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fulfillment), and shall not enter into or otherwise suffer or permit any
amendment, waiver, supplement, termination or other modification of any Loan
Document executed and delivered by Borrower without the prior consent of Lender.
4.1.14 COSTS OF ENFORCEMENT/REMEDYING DEFAULTS. In the event (a) that
the Mortgage is foreclosed in whole or in part or the Note or any other Loan
Document is put into the hands of an attorney for collection, suit, action or
foreclosure, (b) of the foreclosure of any Lien or Mortgage prior to or
subsequent to the Mortgage in which proceeding Lender is made a party, (c) of
the bankruptcy, insolvency, rehabilitation or other similar proceeding in
respect of Borrower or Guarantor or an assignment by Borrower or Guarantor for
the benefit of its creditors, or (d) Lender shall remedy or attempt to remedy
any Event of Default hereunder, Borrower shall be chargeable with and agrees to
pay all costs incurred by Lender as a result thereof, including costs of
collection and defense (including reasonable attorneys', experts', consultants'
and witnesses' fees and disbursements) in connection therewith and in connection
with any appellate proceeding or post-judgment action involved therein, which
shall be due and payable on demand, together with interest thereon from the date
incurred by Lender at the Default Rate, and together with all required service
or use taxes.
4.1.15 BUSINESS AND OPERATIONS. Borrower will continue to engage in the
businesses currently conducted by it as and to the extent the same are necessary
for the ownership, leasing, operation or maintenance of the Property. Borrower
will qualify to do business and will remain in good standing under the laws of
each jurisdiction as and to the extent the same are required for the ownership
and leasing of the related Property. Borrower shall at all times cause the
Property to be maintained as an office, research and development and industrial
facility.
SECTION 4.2 BORROWER NEGATIVE COVENANTS.
Borrower covenants and agrees with Lender that:
4.2.1 DUE ON SALE AND ENCUMBRANCE; TRANSFERS OF INTERESTS. Without the
prior written consent of Lender, neither Borrower nor any other Person having a
direct or indirect ownership or beneficial interest in Borrower shall sell,
convey, mortgage, grant, bargain, encumber, pledge, assign or transfer any
interest, direct or indirect, in the Borrower, the Property or any part thereof,
whether voluntarily or involuntarily, except as otherwise specifically permitted
pursuant to and in accordance with the terms and provisions hereof, of Article 6
of the Mortgage and of the other Loan Documents.
4.2.2 LIENS. Borrower shall not create, incur, assume or suffer to
exist any Lien on any portion of the Property except for Permitted Encumbrances.
4.2.3 DISSOLUTION. Borrower shall not (i) engage in any dissolution,
liquidation or consolidation or merger with or into any other business entity,
(ii) engage in any business activity not related to the ownership and operation
of the Property, or (iii) transfer, lease or sell, in one transaction or any
combination of transactions, all or substantially all of the property or assets
of Borrower except to the extent expressly permitted by the Loan Documents.
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4.2.4 CHANGE IN BUSINESS. Borrower shall not enter into any line of
business other than the ownership and operation of the Property.
4.2.5 DEBT CANCELLATION. Borrower shall not cancel or otherwise forgive
or release any claim or debt (other than termination of Leases in accordance
herewith) owed to Borrower by any Person, except for adequate consideration and
in the ordinary course of Borrower's business.
4.2.6 AFFILIATE TRANSACTIONS. Borrower shall not enter into, or be a
party to, any transaction with an Affiliate of Borrower or any of the partners
of Borrower except in the ordinary course of business and on terms which are
fully disclosed to Lender in advance and are no less favorable to Borrower or
such Affiliate than would be obtained in a comparable arm's-length transaction
with an unrelated third party.
4.2.7 ZONING. Borrower shall not initiate or consent to any zoning
reclassification of any portion of the Property or seek any variance under any
existing zoning ordinance or use or permit the use of any portion of the
Property in any manner that could result in such use becoming a non-conforming
use under any zoning ordinance or any other applicable land use law, rule or
regulation, without the prior consent of Lender.
4.2.8 ASSETS. Borrower shall not purchase or own any property other
than the Property and any property necessary or incidental for the operation of
the Property.
4.2.9 NO JOINT ASSESSMENT. Borrower shall not suffer, permit or
initiate the joint assessment of the Property (i) with any other real property
constituting a tax lot separate from the Property, and (ii) with any portion of
the Property which may be deemed to constitute personal property, or any other
procedure whereby the lien of any taxes which may be levied against such
personal property shall be assessed or levied or charged to the Property.
4.2.10 PRINCIPAL PLACE OF BUSINESS. Borrower shall not change its
principal place of business from the address set forth on the first page of this
Agreement without first giving Lender thirty (30) days prior notice.
4.2.11 ERISA. (a) Borrower shall not engage in any transaction which
would cause any obligation, or action taken or to be taken, hereunder (or the
exercise by Lender of any of its rights under the Note, this Agreement or the
other Loan Documents) to be a non-exempt (under a statutory or administrative
class exemption) prohibited transaction under the Employee Retirement Income
Security Act of 1974, as amended ("ERISA").
(b) Borrower shall deliver to Lender such certifications or other
evidence from time to time throughout the term of the Loan, as reasonably
requested by Lender, that (A) Borrower is not an "employee benefit plan" as
defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, or a
"governmental plan" within the meaning of Section 3(32) of ERISA; (B) Borrower
is not subject to any state statute regulating investments of, or fiduciary
obligations with respect to, governmental plans; and (C) one or more of the
following circumstances is true:
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(i) Equity interests in Borrower are publicly offered securities,
within the meaning of 29 C.F.R. Section 2510.3-101(b)(2);
(ii) Less than twenty-five percent (25%) of each outstanding class of
equity interests in Borrower are held by "benefit plan investors" within the
meaning of 29 C.F.R. Section 2510.3-101(f)(2);or
(iii) Borrower qualifies as an "operating company" or a "real estate
operating company" within the meaning of 29 C.F.R. Section 2510.3-101(c) or (e).
4.2.12 MATERIAL AGREEMENTS. Borrower shall not, without Lender's prior
written consent: (a) enter into, surrender or terminate any Material Agreement
to which it is a party (unless the other party thereto is in material default
and the termination of such agreement would be commercially reasonable), (b)
increase or consent to the increase of the amount of any charges under any
Material Agreement to which it is a party, except as provided therein or on an
arms'-length basis and commercially reasonable terms; or (c) otherwise modify,
change, supplement, alter or amend, or waive or release any of its rights and
remedies under any Material Agreement to which it is a party in any material
respect, except on an arms'-length basis and commercially reasonable terms.
V. INSURANCE, CASUALTY AND CONDEMNATION
SECTION 5.1 INSURANCE.
5.1.1 INSURANCE POLICIES. (a) Borrower shall obtain and maintain, or
cause to be maintained, insurance for Borrower and the Property providing at
least the following coverages:
(i) comprehensive all risk insurance on the Improvements and the
personal property at the Property, including contingent liability from Operation
of Building Laws, Demolition Costs and Increased Cost of Construction
Endorsements, in each case (A) in an amount equal to one hundred percent (100%)
of the "Full Replacement Cost," which for purposes of this Agreement shall mean
actual replacement value (exclusive of costs of excavations, foundations,
underground utilities and footings) with a waiver of depreciation, but the
amount shall in no event be less than the outstanding principal balance of the
Loan; (B) containing an agreed amount endorsement with respect to the
Improvements and personal property at the Property waiving all co-insurance
provisions; (C) providing for no deductible in excess of Two Hundred Fifty
Thousand Dollars ($250,000) for all such insurance coverage; and (D) containing
an "Ordinance or Law Coverage" or "Enforcement" endorsement if any of the
Improvements or the use of the Property shall at any time constitute legal
non-conforming structures or uses. In addition, Borrower shall obtain: (y) if
any portion of the Improvements is currently or at any time in the future
located in a federally designated "special flood hazard area", flood hazard
insurance in an amount equal to the lesser of (1) the outstanding principal
balance of the Note or (2) the maximum amount of such insurance available under
the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of
1973 or the National Flood Insurance Reform Act of 1994, as each may be amended
or such greater amount as Lender shall reasonably require; and (z) earthquake
insurance in amounts and in form and substance
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satisfactory to Lender in the event the Property is located in an area with a
high degree of seismic activity, provided that the insurance pursuant to clauses
(y) and (z) hereof shall be on terms consistent with the comprehensive all risk
insurance policy required under this subsection (i).
(ii) commercial general liability insurance against claims for personal
injury, bodily injury, death or property damage occurring upon, in or about the
Property, such insurance (A) to be on the so-called "occurrence" form with a
combined limit, excluding umbrella coverage, of not less than Fifteen Million
Dollars ($15,000,000); (B) to continue at not less than the aforesaid limit
until required to be changed by Lender by reason of changed economic conditions
making such protection inadequate; and (C) to cover at least the following
hazards: (1) premises and operations; (2) products and completed operations on
an "if any" basis; (3) independent contractors; (4) blanket contractual
liability for all legal contracts; and (5) contractual liability covering the
indemnities contained in Article 9 of the Mortgage to the extent the same is
available;
(iii) business income insurance (A) with loss payable to Lender; (B)
covering all risks required to be covered by the insurance provided for in
subsection (i) above for a period commencing at the time of loss for such length
of time as it takes to repair or replace with the exercise of due diligence and
dispatch; (C) containing an extended period of indemnity endorsement which
provides that after the physical loss to the Improvements and Personal Property
has been repaired, the continued loss of income will be insured until such
income either returns to the same level it was at prior to the loss, or the
expiration of eighteen (18) months from the date that the Property is repaired
or replaced and operations are resumed, whichever first occurs, and
notwithstanding that the policy may expire prior to the end of such period; and
(D) in an amount equal to one hundred percent (100%) of the projected gross
income from the Property for a period from the date of loss to a date (assuming
total destruction) which is twenty-four (24) months from the date that the
Property is repaired or replaced and operations are resumed. The amount of such
business income insurance shall be determined prior to the date hereof and at
least once each year thereafter based on Borrower's reasonable estimate of the
gross income from the Property for the succeeding eighteen (18) month period,
based upon the assumption that no casualty has or will occur. All proceeds
payable to Lender pursuant to this subsection shall be held by Lender and shall
be applied to the obligations secured by the Loan Documents from time to time
due and payable hereunder and under the Note; provided, however, that nothing
herein contained shall be deemed to relieve Borrower of its obligations to pay
the obligations secured by the Loan Documents on the respective dates of payment
provided for in the Note and the other Loan Documents except to the extent such
amounts are actually paid out of the proceeds of such business income insurance;
(iv) at all times during which structural construction, repairs or
alterations are being made with respect to the Improvements, and only if the
Property coverage form does not otherwise apply, (A) owner's contingent or
protective liability insurance covering claims not covered by or under the terms
or provisions of the above mentioned commercial general liability insurance
policy; and (B) the insurance provided for in subsection (i) above written in a
so-called builder's risk completed value form (1) on a non-reporting basis, (2)
against all risks insured against pursuant to subsection (i) above, (3)
including permission to occupy the Property, and (4) with an agreed amount
endorsement waiving co-insurance provisions;
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(v) statutory workers' compensation insurance with respect to any work
on or about the Property;
(vi) comprehensive boiler and machinery insurance, if applicable, in
amounts as shall be reasonably required by Lender on terms consistent with the
commercial property insurance policy required under subsection (i) above;
(vii) umbrella liability insurance in addition to primary coverage in
an amount not less than Fifteen Million and No/100 Dollars ($15,000,000) per
occurrence on terms consistent with the commercial general liability insurance
policy required under subsection (ii) above and (viii) below;
(viii) motor vehicle liability coverage for all owned and non-owned
vehicles, including rented and leased vehicles containing minimum limits per
occurrence, including umbrella coverage, of One Million and No/100 Dollars
($1,000,000);
(ix) so-called "dramshop" insurance or other liability insurance
required in connection with the sale of alcoholic beverages;
(x) intentionally omitted;
(xi) if the commercial property and business income insurance policies
required under subsections (i) and (iii) above do not cover perils of terrorism
or acts of terrorism, Borrower shall use commercially reasonable efforts,
consistent with those of prudent owners of real estate comparable to the
Property, to maintain commercial property and business income insurance for loss
resulting from perils and acts of terrorism on terms (including amounts)
consistent with those required under subsections (i) and (iii) above. If a
Rating Agency in connection with a Securitization of the Loan or in connection
with its rating surveillance of the Securities issued pursuant to a
Securitization of the Loan would not provide or maintain a rating for any
portion of the Loan or such Securities which would otherwise be available but
for the failure to maintain such terrorism insurance, Borrower will so maintain
such insurance if obtainable from any insurer or any Governmental Authority (for
the maximum amount obtainable up to the amounts set forth in subsections (i) and
(iii) above and with deductibles no greater than those provided in subsections
(i) and (iii) above). The claims paying ability rating of the insurer shall be
consistent with the requirements of Section 5.1.2 hereof or, if no insurer of
such claims paying ability rating is then issuing such terrorism insurance, the
chosen insurer shall be the insurer which is offering such terrorism insurance
and which has a claims paying ability rating the closest to that required by
Section 5.1.2 hereof; and
(xii) upon sixty (60) days' notice, such other reasonable insurance and
in such reasonable amounts as Lender from time to time may reasonably request
against such other insurable hazards which at the time are commonly insured
against for property similar to the Property located in or around the region in
which the Property is located.
(b) All insurance provided for in Section 5.1.1 (a) shall be obtained
under valid and enforceable policies (collectively, the "Policies" or in the
singular, the "Policy") and, to the extent not specified above, shall be subject
to the reasonable approval of Lender as to deductibles, loss payees and
insureds. Not less than ten (10) days prior to the expiration dates of
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the Policies theretofore furnished to Lender, certificates of insurance
evidencing the Policies accompanied by evidence satisfactory to Lender of
payment of the premiums then due thereunder (the "Insurance Premiums"), shall be
delivered by Borrower to Lender.
(c) Any blanket insurance Policy shall specifically allocate to the
Property the amount of coverage from time to time required hereunder and shall
otherwise provide the same protection as would a separate Policy insuring only
the Property in compliance with the provisions of Section 5.1.1 (a).
(d) All Policies of insurance provided for or contemplated by Section
5.1.1(a) shall be primary coverage and, except for the Policy referenced in
Section 5.1.1(a)(v), shall name Borrower as the insured and Lender and its
successors and/or assigns as the additional insured, as its interests may
appear, and in the case of property damage, boiler and machinery, flood,
earthquake and terrorism insurance, shall contain a so-called New York standard
non-contributing mortgagee clause in favor of Lender providing that the loss
thereunder shall be payable to Lender. Borrower shall not procure or permit any
of its constituent entities to procure any other insurance coverage which would
be on the same level of payment as the Policies or would adversely impact in any
way the ability of Lender or Borrower to collect any proceeds under any of the
Policies.
(e) All Policies of insurance provided for in Section 5.1.1 (a), except
for the Policies referenced in Section 5.1.1(a)(v) and (a)(viii) shall contain
clauses or endorsements to the effect that:
(i) no act or negligence of Borrower, or anyone acting for Borrower, or
of any Tenant or other occupant, or failure to comply with the provisions of any
Policy, which might otherwise result in a forfeiture of the insurance or any
part thereof, shall in any way affect the validity or enforceability of the
insurance insofar as Lender is concerned;
(ii) the Policy shall not be canceled without at least thirty (30)
days' written notice to Lender and any other party named therein as an
additional insured and, if obtainable by Borrower using commercially reasonable
efforts, shall not be materially changed (other than to increase the coverage
provided thereby) without such a thirty (30) day notice; and
(iii) Lender shall not be liable for any Insurance Premiums thereon or
subject to any assessments thereunder.
(f) If at any time Lender is not in receipt of written evidence that
all insurance required hereunder is in full force and effect, Lender shall have
the right, without notice to Borrower, to take such action as Lender deems
necessary to protect its interest in the Property, including, without
limitation, the obtaining of such insurance coverage as Lender in its sole
discretion deems appropriate and all premiums incurred by Lender in connection
with such action or in obtaining such insurance and keeping it in effect shall
be paid by Borrower to Lender upon demand and until paid shall be secured by the
Mortgage and shall bear interest at the Default Rate.
(g) In the event of foreclosure of the Mortgage or other transfer of
title to the Property in extinguishment in whole or in part of the Debt, all
right, title and interest of
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Borrower in and to the Policies that are not blanket Policies then in force
concerning the Property and all proceeds payable thereunder shall thereupon vest
in the purchaser at such foreclosure or Lender or other transferee in the event
of such other transfer of title.
5.1.2 INSURANCE COMPANY. The Policies shall be issued by financially
sound and responsible insurance companies authorized to do business in the state
in which the Property is located and having a claims paying ability rating of
"A" or better by S&P and Fitch and an insurance financial strength rating of
"Aa2" by ▇▇▇▇▇'▇. If a Securitization occurs, (i) the foregoing required
insurance company rating by a Rating Agency not rating any Securities shall be
disregarded and (ii) if the insurance company complies with the aforesaid S&P
required rating (and S&P is rating the Securities) and the other Rating Agencies
rating the Securities do not rate the insurance company, such insurance company
shall be deemed acceptable with respect to such Rating Agency not rating such
insurance company. If a Securitization occurs and S&P is not a Rating Agency,
each of the insurance companies shall have a claims paying ability rating of at
least A- by Fitch and an insurance financial strength rating of A3 by ▇▇▇▇▇'▇
and at least sixty-seven percent (67%) of the coverage shall be provided by
insurance companies having claims paying ability ratings of AA by Fitch and an
insurance financial strength rating of Aa2 by ▇▇▇▇▇'▇; provided, however, if
Fitch or ▇▇▇▇▇'▇ shall not provide a rating for an insurance company, then an
A.M. Best rating of A(X) shall be substituted for each of the foregoing rating
requirements of Fitch or ▇▇▇▇▇'▇, as applicable. Notwithstanding the foregoing,
Borrower shall be permitted to maintain the Policies with insurance companies
which do not meet the foregoing requirements (an "OTHERWISE RATED INSURER"),
provided Borrower obtains a "cut-through" endorsement (that is, an endorsement
which permits recovery against the provider of such endorsement) with respect to
any Otherwise Rated Insurer from an insurance company which meets the claims
paying ability ratings required above. Moreover, if Borrower desires to maintain
insurance required hereunder from an insurance company which does not meet the
claims paying ability ratings set forth herein but the parent of such insurance
company, which owns at least fifty-one percent (51%) of such insurance company,
maintains such ratings, Borrower may use such insurance companies if approved by
the Rating Agencies (such approval may be conditioned on items required by the
Rating Agencies including a requirement that the parent guarantee the
obligations of such insurance company). Notwithstanding anything to the contrary
in this Section 5.1.2, the insurance companies carrying the insurance required
hereunder as of the date hereof (the "CURRENT INSURERS") are hereby approved by
Lender and each Current Insurer shall continue to be approved by Lender for so
long as no material adverse change occurs with respect to the financial
condition, claims paying ability or other material aspects of such Current
Insurer. Notwithstanding the foregoing, so long as (i) the Telcordia Lease an
Acceptable Replacement Lease remains in full force and effect with Telcordia or
its assignee as the tenant thereunder or an Acceptable Replacement Tenant, (ii)
Telcordia or an Acceptable Replacement Tenant is not in default under the
Telcordia Lease or an Acceptable Replacement Lease, as applicable, beyond any
applicable notice and cure periods set forth in the Telcordia Lease, and (iii)
Borrower provides Lender with original Policies or certificates of insurance
evidencing that Telcordia or an Acceptable Replacement Tenant is carrying all
insurance required under the Telcordia Lease or an Acceptable Replacement Lease,
as applicable, then the requirements of Section 5.1.1 and 5.1.2 shall be deemed
satisfied.
SECTION 5.2 CONDEMNATION. Borrower shall promptly give Lender notice
upon Borrower becoming aware of any actual or threatened commencement of any
condemnation or
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eminent domain proceeding and shall deliver to Lender copies of any and all
papers served in connection with such proceedings. Notwithstanding any taking by
any public or quasi-public authority through eminent domain or otherwise
(including but not limited to any transfer made in lieu of or in anticipation of
the exercise of such taking), Borrower shall continue to pay the Debt at the
time and in the manner provided for its payment in the Note and in this
Agreement and the Debt shall not be reduced until any award or payment therefor
shall have been actually received and applied by Lender, after the deduction of
expenses of collection, to the reduction or discharge of the Debt. Subject to
Section 5.3 herein and the Telcordia Lease, Borrower shall cause the award or
payment made in any condemnation or eminent domain proceeding, which is payable
to Borrower, to be paid directly to Lender. Subject to Section 5.3 herein and
the Telcordia Lease, Lender shall not be limited to the interest paid on the
award by the condemning authority but shall be entitled to receive out of the
award interest at the rate or rates provided herein or in the Note. Subject to
Section 5.3 herein and the Telcordia Lease, Lender may apply any award or
payment to the reduction or discharge of the Debt whether or not then due and
payable without prepayment penalty or premium. If the Property is sold, through
foreclosure or otherwise, prior to the receipt by Lender of the award or
payment, Lender shall have the right, whether or not a deficiency judgment on
the Note (to the extent permitted in the Note or herein) shall have been sought,
recovered or denied, to receive the award or payment allocated to Borrower under
the Telcordia Lease, or a portion thereof sufficient to pay the Debt. Use of the
Net Proceeds to pay down the Debt as may be required by Lender herein will not
cause Borrower to incur either a prepayment premium or a penalty. In the event
of any conflict between the terms and conditions contained herein with respect
to the payment or settlement of any casualty or condemnation proceeds or awards
and the terms and conditions of the Telcordia Lease as of the date hereof, such
terms and conditions of the Telcordia Lease shall control.
SECTION 5.3 RESTORATION AFTER CASUALTY/CONDEMNATION. In the event of a
casualty or a taking by eminent domain, the following provisions shall apply in
connection with the Restoration (defined below) of the Property:
(a) If the Property shall be damaged or destroyed, in whole or in part,
by fire or other casualty, or if the Property or any portion thereof is taken by
the power of eminent domain, and such damage and/or taking exceeds the
Restoration Threshold, Borrower shall give prompt notice of such damage or
taking to Lender and, subject to Sections 17, 18 and 19 of the Telcordia Lease,
shall promptly commence or cause to be commenced and diligently prosecute or
cause to be prosecuted the completion of the repair and restoration of the
Property as nearly as possible to the condition the Property was in immediately
prior to such fire or other casualty or taking, with such alterations as may be
approved by Lender (the "Restoration"). Use of the Net Proceeds to pay down the
Debt as may be required by Lender herein will not cause Borrower to incur either
a prepayment premium or a penalty.
(b) The term "Net Proceeds" for purposes of this Section 5.3 shall
mean: (i) the net amount of all insurance proceeds under the Policies carried
pursuant to Subsections (i), (iii), (vi) and (xi) of this Agreement as a result
of such damage or destruction, after deduction of Lender's reasonable costs and
expenses (including, but not limited to reasonable counsel fees), if any, in
collecting the same, or (ii) the net amount of all awards and payments received
by Lender with respect to a taking referenced in Section 5.2 of this Agreement,
after deduction of Lender's reasonable costs and expenses (including, but not
limited to reasonable counsel fees), if any, in
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collecting the same, whichever the case may be. If (i) the Net Proceeds do not
exceed the Restoration Threshold; (ii) the costs of completing the Restoration
as reasonably estimated by Borrower shall be less than or equal to the Net
Proceeds (plus any additional security posted by Borrower or Telcordia for the
purpose of completing the Restoration and acceptable to Lender in its reasonable
discretion) or Telcordia shall be unconditionally obligated and, in Lender's
reasonable discretion, financially able to complete the Restoration in full,
regardless of the amount of the Net Proceeds; (iii) no Event of Default shall
have occurred and be continuing under the Note, this Agreement or any of the
other Loan Documents; (iv) the Property and the use thereof after the
Restoration will be in material compliance with, and permitted under, all
applicable zoning laws, ordinances, rules and regulations (including, without
limitation, all applicable Environmental Laws); (v) (A) in the event that the
Net Proceeds are insurance proceeds, less than twenty-five percent (25%) of the
total floor area of the Improvements has been damaged or destroyed, or rendered
unusable as a result of such fire or other casualty; or (B) in the event that
the Net Proceeds are condemnation awards, less than 25% of the Land (as defined
in the Mortgages) constituting the Property is taken, such Land that is taken is
located along the perimeter or periphery of the Property, no material portion of
the Improvements is located in such Lands, and such taking does not materially
impair access to the Property; and (vi) Lender shall be reasonably satisfied
that any operating deficits, including all scheduled payments of principal and
interest under the Note which will be incurred with respect to the Property as a
result of the occurrence of any such fire or other casualty or taking, whichever
the case may be, will be covered out of (1) the Net Proceeds, or (2) other funds
of Borrower, then the Net Proceeds will be disbursed directly to Borrower.
Notwithstanding anything to the contrary contained in this Section 5.3(b), so
long as (i) the Telcordia Lease remains in full force and effect and (ii)
Telcordia is not in default under the Telcordia Lease beyond any applicable
notice and cure periods set forth in the Telcordia Lease, then (1) subsections
(iv) and (v) of Section 5.3(b) shall be deemed not applicable and (2) Telcordia
shall be entitled to adjust and settle any claim less than the Restoration
Threshold and all settlements of claims, regardless of amount, shall be subject
to the approval of Telcordia.
(c) If the Net Proceeds are greater than the Restoration Threshold or
Borrower is not otherwise entitled to have the Net Proceeds disbursed directly
to Borrower pursuant to Subsection 5.3(b), such Net Proceeds shall be forthwith
paid to Lender to be held by Lender in a segregated account to be made available
to Borrower for the Restoration in accordance with the provisions of this
Subsection 5.3(c).
The Net Proceeds held by Lender pursuant to this Subsection 5.3(c) shall
be made available to Borrower for payment or reimbursement of Borrower's
expenses in connection with the Restoration, subject to the following
conditions:
(i) no Event of Default shall have occurred and be continuing under the
Note, this Agreement or any of the other Loan Documents;
(ii) Lender shall, within a reasonable period of time prior to request
for initial disbursement, be furnished with an estimate of the cost of the
Restoration accompanied by an independent architect's certification as to such
costs and appropriate plans and specifications for the Restoration, such plans
and specifications and cost estimates to be subject to Lender's approval, not to
be unreasonably withheld or delayed;
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(iii) the Net Proceeds, together with any cash or cash equivalent
deposited by Borrower with Lender, are sufficient to cover the cost of the
Restoration as such costs are certified by the independent architect or, to the
extent the Borrower does not deposit the deficiency, Borrower or Telcordia
demonstrate to Lender the ability, as determined by Lender in its reasonable
discretion, to pay the deficiency and all deficiency funds are expended prior to
the release of any of the Net Proceeds by Borrower;
(iv) Net Proceeds are less than the then outstanding principal balance
of the Note;
(v) (A) in the event that the Net Proceeds are insurance proceeds, less
than twenty-five percent (25%) of the total floor area of the Improvements has
been damaged or destroyed, or rendered unusable as a result of such fire or
other casualty; or (B) in the event that the Net Proceeds are condemnation
awards, less than 25% of the Land constituting the Property is taken, such Land
that is taken is located along the perimeter or periphery of the Property, no
material portion of the Improvements is located in such Lands and such taking
does not materially impair access to the Property, provided, however, that the
terms of this Section 5.3(c)(v) shall not apply so long as Telcordia is
obligated to perform the Restoration pursuant to the terms of the Telcordia
Lease;
(vi) Lender shall be satisfied that any operating deficits, including
all scheduled payments of principal and interest under the Note which will be
incurred with respect to the Property as a result of the occurrence of any such
fire or other casualty or taking, whichever the case may be, will be covered out
of (1) the Net Proceeds, or (2) other funds of Borrower;
(vii) Lender shall be satisfied that, upon the completion of the
Restoration, the net cash flow of the Property will be restored to a level
sufficient to cover all carrying costs and operating expenses of the Property,
including, without limitation, debt service on the Note and all required
replacement reserves, reserves for tenant improvements and leasing commissions,
if any;
(viii) the Restoration can reasonably be completed on or before the
earliest to occur of (A) six (6) months prior to the Maturity Date (as defined
in the Note), (B) the earliest date required for such completion under the terms
of any Major Leases and (C) such time as may be required under applicable zoning
law, ordinance, rule or regulation in order to repair and restore the Property
to as nearly as possible the condition it was in immediately prior to such fire
or other casualty or to such taking, as applicable;
(ix) the Property and the use thereof after the Restoration will be in
material compliance with, and permitted under, all applicable zoning laws,
ordinances, rules and regulations (including, without limitation, all applicable
Environmental Laws; and
(x) each Major Lease in effect as of the date of the occurrence of such
fire or other casualty shall remain in full force and effect during and after
the completion of the Restoration without abatement of rent beyond the time
required for Restoration.
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(d) The Net Proceeds held by Lender until disbursed in accordance with
the provisions of this Section 5.3 shall constitute additional security for the
Debt. The Net Proceeds other than the Net Proceeds paid under the Policy
described in Subsection 5.1(a)(iv) shall be disbursed by Lender to, or as
directed by, Borrower, in an amount equal to the costs actually incurred from
time to time for work in place as part of the Restoration less customary
retainage from time to time during the course of the Restoration, not more
frequently than once per month, upon receipt of evidence satisfactory to Lender
that (A) all materials installed and work and labor performed (except to the
extent that they are to be paid for out of the requested disbursement) in
connection with the Restoration have been paid for in full, and (B) there exist
no notices of pendency, stop orders, mechanic's or materialmen's liens or
notices of intention to file same, or any other liens or encumbrances of any
nature whatsoever on the Property arising out of the Restoration which have not
either been fully bonded and discharged of record or in the alternative fully
insured to the satisfaction of Lender by the title company insuring the lien of
this Security Instrument. The Net Proceeds paid under the Policy described in
Subsection 5.3(a)(iv) shall be disbursed by Lender to pay for debt service under
the loan evidenced by the Note, to pay other expenses incurred by Borrower in
connection with the ownership and operation of the Property, and the remainder
thereof, to, or as directed by, Borrower to pay for the cost of the Restoration
in accordance with this Section 5.3(d). Final payment of all remaining Net
Proceeds shall be made after submission to Lender of all licenses, permits,
certificates of occupancy and other required approvals of governmental
authorization having jurisdiction and Casualty Consultant's (as defined below)
certification that the Restoration has been fully completed.
(e) Subject to the rights of Telcordia under the Telcordia Lease, so
long as the Telcordia Lease remains in full force and effect, Lender shall have
the use of the plans and specifications and all permits, licenses and approvals
required or obtained in connection with the Restoration. The identity of the
contractors, subcontractors and materialmen engaged in the Restoration, as well
as the contracts under which they have been engaged, shall be subject to prior
review and acceptance by Lender and an independent consulting engineer selected
by Lender (the "Casualty Consultant"), such acceptance not to be unreasonably
withheld or delayed. All costs and expenses incurred by Lender in connection
with making the Net Proceeds available for the Restoration including, without
limitation, reasonable counsel fees and disbursements and the Casualty
Consultant's fees, shall be paid by Borrower.
(f) If at any time the Net Proceeds or the undisbursed balance thereof
shall not, in the reasonable opinion of Lender, be sufficient to pay in full the
balance of the costs which are reasonably estimated by the Casualty Consultant
to be incurred in connection with the completion of the Restoration, Borrower
shall deposit or cause to be deposited the deficiency (the "Net Proceeds
Deficiency") with Lender before any further disbursement of the Net Proceeds
shall be made. The Net Proceeds Deficiency deposited with Lender shall be held
by Lender and shall be disbursed for costs actually incurred in connection with
the Restoration on the same conditions applicable to the disbursement of the Net
Proceeds, and until so disbursed pursuant to this Section 5.3 shall constitute
additional security for the Debt.
(g) Except upon the occurrence and continuance of an Event of Default,
Borrower shall settle any insurance claims with respect to the Net Proceeds
which in the aggregate are less than the Restoration Threshold. Lender shall
have the right to participate in and reasonably approve any settlement for
insurance claims with respect to the Net Proceeds
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which in the aggregate are greater than the Restoration Threshold. If an Event
of Default shall have occurred and be continuing, Borrower hereby irrevocably
empowers Lender, in the name of Borrower as its true and lawful
attorney-in-fact, to file and prosecute such claim and to collect and to make
receipt for any such payment. If the Net Proceeds are received by Borrower and
not required to be disbursed to Telcordia pursuant to the Telcordia Lease, such
Net Proceeds shall, until the completion of the related work, be held in trust
for Lender and shall be segregated from other funds of Borrower to be used to
pay for the cost of the Restoration in accordance with the terms hereof.
(h) The excess, if any, of the Net Proceeds and the remaining
balance, if any, of the Net Proceeds Deficiency deposited with Lender after (i)
the Casualty Consultant certifies to Lender that the Restoration has been
completed in accordance with the provisions of this Section 5.3, and (ii) the
receipt by Lender of evidence satisfactory to Lender that all costs incurred in
connection with the Restoration have been paid in full and all required permits,
licenses, certificates of occupancy and other required approvals of governmental
authorities having jurisdiction have been issued, shall be remitted by Lender to
Borrower, provided no Event of Default shall have occurred and shall be
continuing under the Note, this Agreement or any of the other Loan Documents.
(i) All Net Proceeds not required (i) to be made available for the
Restoration or (ii) to be returned to Borrower as excess Net Proceeds pursuant
to Subsection 5.3(g) shall be retained and applied by Lender toward the payment
of the Debt without penalty or prepayment premium whether or not then due and
payable in such order, priority and proportions as Lender in its discretion
shall deem proper or, at the discretion of Lender, the same shall be paid,
either in whole or in part, to Borrower. If Lender shall receive and retain Net
Proceeds, the lien of the Mortgages shall be reduced only by the amount received
and retained by Lender and actually applied by Lender in reduction of the Debt.
Lender hereby agrees that Borrower may accept any rejectable offer by Telcordia
to terminate the Telcordia Lease upon the occurrence of a Termination Event
provided that simultaneously with payment of the Termination Amount, Borrower
pays Lender, without prepayment premium or penalty, the remaining unpaid
principal balance of the Note, together with unpaid interest accrued thereon.
VI. RESERVE FUNDS
SECTION 6.1 REQUIRED REPAIR FUNDS
6.1.1 DEPOSIT OF REQUIRED REPAIR FUNDS. Borrower shall perform the
repairs at the Property as set forth on Schedule II hereto (such repairs
hereinafter referred to as "Required Repairs") and shall complete each of the
Required Repairs on or before the respective deadline for each repair as set
forth on Schedule II. On the Closing Date, Borrower shall deposit with Agent the
amount set forth on such Schedule II hereto to perform the Required Repairs.
Amounts deposited pursuant to this Section 6.1.1 are referred to herein as the
"Required Repair Funds".
6.1.2 RELEASE OF REQUIRED REPAIR FUNDS. Lender shall direct Agent to
disburse to Borrower the Required Repair Funds within five (5) business days
after satisfaction by Borrower of each of the following conditions: (a) Borrower
shall submit a request for
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payment to Lender at least ten (10) days prior to the date on which Borrower
requests such payment be made and specifies the Required Repairs to be paid, (b)
on the date such request is received by Lender and on the date such payment is
to be made, no Event of Default shall exist and remain uncured, (c) Lender shall
have received a certificate from Borrower (i) stating that all Required Repairs
to be funded by the requested disbursement have been completed in a good and
workmanlike manner and in accordance with all applicable Legal Requirements,
such certificate to be accompanied by a copy of any license, permit or other
approval by any Governmental Authority required in connection with the Required
Repairs, (ii) identifying each Person that supplied materials or labor in
connection with the Required Repairs to be funded by the requested disbursement,
and (iii) stating that each such Person has been paid in full or will be paid in
full upon such disbursement, such certificate to be accompanied by lien waivers
or other evidence of payment satisfactory to Lender, (d) at Lender's option, a
title search for the Property indicating that the Property is free from all
liens, claims and other encumbrances not previously approved by Lender, (e) at
Lender's option, if the cost of the Required Repairs exceeds $75,000, Lender
shall have received a report satisfactory to Lender in its reasonable discretion
from an architect or engineer approved by Lender in respect of such architect or
engineer's inspection of the required repairs, and (f) Lender shall have
received such other evidence as Lender shall reasonably request that the
Required Repairs to be funded by the requested disbursement have been completed
and are paid for or will be paid upon such disbursement to Borrower. Lender
shall not be required to disburse Required Repair Funds more frequently than
once each calendar month, unless such requested disbursement is in an amount
greater than the Minimum Disbursement Amount (or a lesser amount if the total
Required Repair Funds is less than the Minimum Disbursement Amount, in which
case only one disbursement of the amount remaining in the account shall be
made).
SECTION 6.2 TAX FUNDS.
6.2.1 DEPOSITS OF TAX FUNDS. On the Closing Date, Borrower shall
deposit with Agent the amount of 0.00 and No/100 Dollars and, pursuant to the
Cash Management Agreement, there shall be deposited on each Monthly Payment Date
an amount equal to one- twelfth of the Taxes that Lender estimates will be
payable during the next ensuing twelve (12) months in order to accumulate
sufficient funds to pay all such Taxes at least ten (10) days prior to their
respective due dates. Amounts deposited pursuant to this Section 6.2.1 are
referred to herein as the "Tax Funds". If at any time Lender reasonably
determines that the Tax Funds will not be sufficient to pay the Taxes, Lender
shall notify Borrower of such determination and the monthly deposits for Taxes
shall be increased by the amount that Lender estimates is sufficient to make up
the deficiency at least ten (10) days prior to the respective due dates for the
Taxes; provided that if Borrower receives notice of any deficiency after the
date that is ten (10) days prior to the date that Taxes are due, Borrower will
deposit such amount within one (1) Business Day after its receipt of such
notice. Notwithstanding the foregoing, so long as no Event of Default has
occurred and is continuing and then Borrower shall not be required to make
monthly payments of Tax Funds.
6.2.2 RELEASE OF TAX FUNDS. Lender shall have the right to apply the
Tax Funds to payments of Taxes. In making any payment relating to Taxes, Lender
may do so according to any ▇▇▇▇, statement or estimate procured from the
appropriate public office (with respect to Taxes) without inquiry into the
accuracy of such ▇▇▇▇, statement or estimate or into the
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validity of any tax, assessment, sale, forfeiture, tax lien or title or claim
thereof. If the amount of the Tax Funds shall exceed the amounts due for Taxes,
Lender shall, in its sole discretion, return any excess to Borrower or credit
such excess against future payments to be made to the Tax Funds. Any Tax Funds
remaining after the Debt has been paid in full or after all Events of Default
shall have been cured shall be returned to Borrower.
SECTION 6.3 INSURANCE FUNDS.
6.3.1 DEPOSITS OF INSURANCE FUNDS. On the Closing Date, Borrower
shall deposit with Agent the amount of 0.00 and No/100 Dollars and, pursuant to
the Cash Management Agreement, there shall be deposited on each Monthly Payment
Date an amount equal to one-twelfth of the Insurance Premiums that Lender
estimates will be payable for the renewal of the coverage afforded by the
Policies upon the expiration thereof in order to accumulate sufficient funds to
pay all such Insurance Premiums at least thirty (30) days prior to the
expiration of the Policies. Amounts deposited pursuant to this Section 6.3.1 are
referred to herein as the "Insurance Funds". If at any time Lender reasonably
determines that the Insurance Funds will not be sufficient to pay the Insurance
Premiums, Lender shall notify Borrower of such determination and the monthly
deposits for Insurance Premiums shall be increased by the amount that Lender
estimates is sufficient to make up the deficiency at least thirty (30) days
prior to expiration of the Policies. Notwithstanding the foregoing, so long as
no Event of Default has occurred and is continuing then Borrower shall not be
required to make monthly payments of Insurance Funds.
6.3.2 RELEASE OF INSURANCE FUNDS. Lender shall have the right to
apply the Insurance Funds to payment of Insurance Premiums. In making any
payment relating to Insurance Premiums, Lender may do so according to any ▇▇▇▇,
statement or estimate procured from the insurer or its agent, without inquiry
into the accuracy of such ▇▇▇▇, statement or estimate. If the amount of the
Insurance Funds shall exceed the amounts due for Insurance Premiums, Lender
shall, in its sole discretion, return any excess to Borrower or credit such
excess against future payments to be made to the Insurance Funds. Any Insurance
Funds remaining after the Debt has been paid in full or after all Events of
Default shall have been cured shall be returned to Borrower.
SECTION 6.4 CAPITAL EXPENDITURE FUNDS.
6.4.1 DEPOSITS OF CAPITAL EXPENDITURE FUNDS. Borrower shall deposit
with Lender on each Monthly Payment Date an amount equal to $0.00 for annual
Capital Expenditures approved by Lender, which approval shall not be
unreasonably withheld or delayed. Amounts deposited pursuant to this Section
6.4.1 are referred to herein as the "Capital Expenditure Funds". Lender may
reassess its estimate of the amount necessary for capital expenditures from time
to time and, and may require Borrower to increase the monthly deposits required
pursuant to this Section 6.4.1 during the continuance of an Event of Default
upon thirty (30) days notice to Borrower if Lender determines in its reasonable
discretion that an increase is necessary to maintain proper operation of the
Property. Any Capital Expenditure Funds remaining after the Debt has been paid
in full or after all Events of Default shall have been cured shall be returned
to Borrower.
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6.4.2 RELEASE OF CAPITAL EXPENDITURE FUNDS. (a) Lender shall direct
Agent to disburse Capital Expenditure Funds only for Capital Expenditures.
(b) Lender shall direct Agent to disburse to Borrower the Capital
Expenditure Funds within five (5) business days after satisfaction by Borrower
of each of the following conditions: (i) Borrower shall submit a request for
payment to Lender at least ten (10) days prior to the date on which Borrower
requests such payment be made and specifies the Capital Expenditures to be paid,
(ii) on the date such request is received by Lender and on the date such payment
is to be made, no Event of Default shall exist and remain uncured, (iii) Lender
shall have received a certificate from Borrower (A) stating that the items to be
funded by the requested disbursement are Capital Expenditures, (B) stating that
all Capital Expenditures at the Property to be funded by the requested
disbursement have been completed in a good and workmanlike manner and in
accordance with all applicable Legal Requirements, such certificate to be
accompanied by a copy of any license, permit or other approval required by any
Governmental Authority in connection with the Capital Expenditures, (C)
identifying each Person that supplied materials or labor in connection with the
Capital Expenditures to be funded by the requested disbursement, and (D) stating
that each such Person has been paid in full or will be paid in full upon such
disbursement, such certificate to be accompanied by lien waivers or other
evidence of payment satisfactory to Lender, (iv) at Lender's option, a title
search for the Property indicating that the Property is free from all Liens,
claims and other encumbrances not previously approved by Lender, and (v) at
Lender's option, if the cost of any individual Capital Expenditure exceeds
$75,000, Lender shall have received a report satisfactory to Lender in its
reasonable discretion from an architect or engineer approved by Lender in
respect of such architect or engineer's inspection of the required repairs, and
(vi) Lender shall have received such other evidence as Lender shall reasonably
request that the Capital Expenditures at the Property to be funded by the
requested disbursement have been completed and are paid for or will be paid upon
such disbursement to Borrower. Lender shall not be required to disburse Capital
Expenditure Funds more frequently than once each calendar month, unless such
requested disbursement is in an amount greater than the Minimum Disbursement
Amount (or a lesser amount if the total amount of Capital Expenditure Funds is
less than the Minimum Disbursement Amount, in which case only one disbursement
of the amount remaining in the account shall be made).
(c) Nothing in this Section 6.4.2 shall (i) make Lender responsible
for making or completing the Capital Expenditures Work; (ii) require Lender to
expend funds in addition to the Capital Expenditure Funds to complete any
Capital Expenditures Work; (iii) obligate Lender to proceed with the Capital
Expenditures Work; or (iv) obligate Lender to demand from Borrower additional
sums to complete any Capital Expenditures Work.
(d) Borrower shall permit Lender and Lender's agents and
representatives (including, without limitation, Lender's engineer, architect, or
inspector) or third parties to enter onto the Property during normal business
hours (subject to the rights of Tenants under their Leases), upon reasonable
advance notice to Borrower, to inspect the progress of any Capital Expenditures
Work and all materials being used in connection therewith and to examine all
plans and shop drawings relating to such Capital Expenditures Work. Borrower
shall cause all contractors and subcontractors to cooperate with Lender or
Lender's representatives or such other Persons described above in connection
with inspections described in this Section 6.4.2(d).
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(e) If a disbursement will exceed $75,000, Lender may require an
inspection of the Property at Borrower's expense prior to making a disbursement
of Capital Expenditure Funds in order to verify completion of the Capital
Expenditures Work for which reimbursement is sought. Lender may require that
such inspection be conducted by an appropriate independent qualified
professional selected by Lender and may require a certificate of completion by
an independent qualified professional architect acceptable to Lender prior to
the disbursement of Capital Expenditure Funds. Borrower shall pay the expense of
the inspection as required hereunder, whether such inspection is conducted by
Lender or by an independent qualified professional architect.
(f) In addition to any insurance required under the Loan Documents,
Borrower shall provide or cause to be provided workmen's compensation insurance,
builder's risk, and public liability insurance and other insurance to the extent
required under applicable law in connection with Capital Expenditures Work. All
such policies shall be in form and amount reasonably satisfactory to Lender.
SECTION 6.5 ROLLOVER FUNDS.
6.5.1 DEPOSITS OF ROLLOVER FUNDS. Borrower shall deposit with Lender
on each Monthly Payment Date the sum of $0.00, for tenant improvements and
leasing commissions that may be incurred following the date hereof. Amounts
deposited pursuant to this Section 6.5.1 are referred to herein as the "Rollover
Funds".
6.5.2 RELEASE OF ROLLOVER FUNDS. Lender shall direct Agent to
disburse to Borrower the Rollover Funds within 5 business days after
satisfaction by Borrower of each of the following conditions: (i) Borrower shall
submit a request for payment to Lender at least ten (10) days prior to the date
on which Borrower requests such payment be made and specifies the tenant
improvement costs and leasing commissions to be paid, (ii) on the date such
request is received by Lender and on the date such payment is to be made, no
Event of Default shall exist and remain uncured, (iii) Lender shall have
reviewed and approved the Lease in respect of which Borrower is obligated to pay
or reimburse certain tenant improvement costs and leasing commissions, (iv)
Lender shall have received and approved a budget for tenant improvement costs
and a schedule of leasing commissions payments and the requested disbursement
will be used to pay all or a portion of such costs and payments, (v) Lender
shall have received a certificate from Borrower (A) stating that all tenant
improvements at the Property to be funded by the requested disbursement have
been completed in good and workmanlike manner and in accordance with all
applicable federal, state and local laws, rules and regulations, such
certificate to be accompanied by a copy of any license, permit or other approval
by any Governmental Authority required in connection with such tenant
improvements, (B) identifying each Person that supplied materials or labor in
connection with the tenant improvements to be funded by the requested
disbursement, and (C) stating that each such Person has been paid in full or
will be paid in full upon such disbursement, such certificate to be accompanied
by lien waivers or other evidence of payment satisfactory to Lender, (vi) at
Lender's option, a title search for the Property indicating that the Property is
free from all Liens, claims and other encumbrances not previously approved by
Lender, and (vii) Lender shall have received such other evidence as Lender shall
reasonably request that the tenant improvements at the Property to be funded by
the requested disbursement have been completed and are paid for or will be paid
upon such disbursement to
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Borrower. Lender shall not be required to disburse Rollover Funds more
frequently than once each calendar month, unless such requested disbursement is
in an amount greater than the Minimum Disbursement Amount (or a lesser amount if
the total amount of Rollover Funds is less than the Minimum Disbursement Amount,
in which case only one disbursement of the amount remaining in the account shall
be made).
SECTION 6.6 INTENTIONALLY OMITTED.
SECTION 6.7 APPLICATION OF RESERVE FUNDS.
Upon the occurrence of an Event of Default, Lender, at its option,
may withdraw the Reserve Funds and apply the Reserve Funds to the items for
which the Reserve Funds were established or to payment of the Debt in such
order, proportion and priority as Lender may determine in its sole discretion.
Lender's right to withdraw and apply the Reserve Funds shall be in addition to
all other rights and remedies provided to Lender under the Loan Documents.
SECTION 6.8 SECURITY INTEREST IN RESERVE FUNDS.
6.8.1 GRANT OF SECURITY INTEREST. Borrower shall be the owner of the
Reserve Funds. Borrower hereby pledges, assigns and grants a security interest
to Lender, as security for payment of the Debt and the performance of all other
terms, conditions and covenants of the Loan Documents on Borrower's part to be
paid and performed, in all of Borrower's right, title and interest in and to the
Reserve Funds. The Reserve Funds shall be under the sole dominion and control of
Lender.
6.8.2 INCOME TAXES. Borrower shall report on its federal, state and
local income tax returns all interest or income accrued on the Reserve Funds.
6.8.3 PROHIBITION AGAINST FURTHER ENCUMBRANCE. Borrower shall not,
without the prior consent of Lender, further pledge, assign or grant any
security interest in the Reserve Funds or permit any lien or encumbrance to
attach thereto, or any levy to be made thereon, or any UCC-1 Financing
Statements, except those naming Lender as the secured party, to be filed with
respect thereto.
VII. MANAGEMENT
The management of the Property shall be by: (a) Borrower or an
entity affiliated with Borrower approved by Lender in its reasonable discretion
for so long as Borrower or said affiliated entity is managing the Property in a
manner comparable to similar properties; or (b) a professional property
management company approved by Lender in its reasonable discretion; or (c) for
so long as the Telcordia Lease or an Acceptable Replacement Lease is in full
force and effect, by Telcordia or such Acceptable Replacement Tenant. Such
management by an affiliated entity or a professional property management company
shall be pursuant to a written agreement approved by Lender in its reasonable
discretion. In no event shall any manager be removed or replaced or the terms of
any management agreement modified or amended without the prior written consent
of Lender, which consent shall not be unreasonably withheld, conditioned or
delayed. In the event of default hereunder or under any management contract then
in effect,
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which default is not cured within any applicable grace or cure period, Lender
shall have the right to immediately terminate, or to direct Borrower to
immediately terminate, such management contract and to retain, or to direct
Borrower to retain, a new management agent approved by Lender. All Rents
generated by or derived from the Property shall first be utilized solely for
current expenses directly attributable to the ownership and operation of the
Property, including, without limitation, current expenses relating to Borrower's
liabilities and obligations with respect to the Note, this Agreement and the
other Loan Documents, and none of the Rents generated by or derived from the
Property shall be diverted by Borrower and utilized for any other purpose unless
all such current expenses attributable to the ownership and operation of the
Property have been fully paid and satisfied.
VIII. DUE ON SALE/ENCUMBRANCE
SECTION 8.1 LENDER RELIANCE. Borrower acknowledges that Lender has
examined and relied on the experience of Borrower and its officers, directors,
general partners, members, principals and (if Borrower is a trust) beneficial
owners, as applicable, in owning and operating properties such as the Property
in agreeing to make the Loan, and will continue to rely on Borrower's ownership
of the Property as a means of maintaining the value of the Property as security
for repayment of the Debt and the performance of the Other Obligations. Borrower
acknowledges that Lender has a valid interest in maintaining the value of the
Property so as to ensure that, should Borrower default in the repayment of the
Debt or the performance of the Other Obligations, Lender can recover the Debt by
a sale of the Property.
SECTION 8.2 NO SALE/ENCUMBRANCE. Borrower agrees that Borrower shall not,
without the prior written consent of Lender, sell, convey, mortgage, grant,
bargain, encumber, pledge, assign, or otherwise transfer the Property or any
part thereof or any interest therein or any direct or indirect interest in
Borrower or permit the Property or any part thereof or any interest therein or
any direct or indirect interest in Borrower to be sold, conveyed, mortgaged,
granted, bargained, encumbered, pledged, assigned, or otherwise transferred,
other than pursuant to Leases of space in the Improvements to tenants in
accordance with the provisions of Section 4.1.9 hereof.
SECTION 8.3 SALE/ENCUMBRANCE DEFINED.
(a) A sale, conveyance, mortgage, grant, bargain, encumbrance,
pledge, assignment, or transfer within the meaning of this Article 8 shall be
deemed to include, but not be limited to, (a) an installment sales agreement
wherein Borrower agrees to sell the Property or any part thereof for a price to
be paid in installments; (b) an agreement by Borrower leasing all or a
substantial part of the Property for other than actual occupancy by a space
tenant thereunder or a sale, assignment or other transfer of, or the grant of a
security interest in, Borrower's right, title and interest in and to any Leases
or any Rents; (c) if Borrower, any Guarantor, or any general or limited partner
or member of Borrower or any Guarantor is a corporation, any merger,
consolidation or voluntary or involuntary sale, conveyance, transfer or pledge
of such corporation's stock (or the stock of any corporation directly or
indirectly controlling such corporation by operation of law or otherwise) or the
creation or issuance of new stock in one or a series of transactions by which an
aggregate of more than 10% of such corporation's stock shall be vested in a
party or parties who are not now stockholders; (d) if Borrower or any Guarantor
or
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any general or limited partner or member of Borrower or any Guarantor is a
limited or general partnership or joint venture, the change, removal or
resignation of a general partner or the transfer or pledge of the partnership
interest of any general partner or any profits or proceeds relating to such
partnership interest or the voluntary or involuntary sale, conveyance, transfer
or pledge of limited partnership interests (or the limited partnership interests
of any limited partnership directly or indirectly controlling such limited
partnership by operation of law or otherwise); and (e) if Borrower or any
Guarantor or any general or limited partner or member of Borrower or any
Guarantor is a limited liability company, the change, removal or resignation of
a managing member (or if no managing member, any member or non-member manager)
or the transfer of the membership interest of a managing member (or if no
managing member, any member) or any profits or proceeds relating to such
membership interest or the voluntary or involuntary sale, conveyance, transfer
or pledge of membership interests (or the membership interests of any limited
liability company directly or indirectly controlling such limited liability
company by operation of law or otherwise).
(b) Notwithstanding the foregoing, so long as the Guarantor is
Corporate Property Associates 12 Incorporated, Corporate Property Associates 14
Incorporated, Corporate Property Associates 15 Incorporated or an Affiliate (as
defined in Section 6.5(b) hereof) (each, a "GUARANTOR"), the provisions of
clauses (c), (d) and (e) in Section 8.3(a) above shall not apply to the
Guarantor or any interest holder therein. Notwithstanding anything in this
Agreement to the contrary, (i) the transfer of any direct or indirect interests
in Borrower shall be permitted without the consent of Lender and without
requiring receipt by Lender of confirmation in writing from the Rating Agencies
that rate the Securities to the effect that such transfer will not result in a
qualification, downgrade or withdrawal of any rating initially assigned or then
currently assigned or to be assigned to the Securities, as applicable (and no
fee or charge shall be required to be paid to Lender or any Rating Agency on
account of any such transfer), so long as following such transfer, ▇▇▇▇▇ Asset
Management Corp. and/or any Affiliate responsible for the management and/or
control of the Property and/or Borrower remains in legal, beneficial and actual
control and management of the Property and/or Borrower, (ii) any involuntary
transfer caused by the death of Borrower or any general partner, shareholder,
joint venturer, member or beneficial owner of a trust shall not be an Event of
Default under this Agreement so long as Borrower is reconstituted, if required,
following such death and so long as those persons responsible for the control
and/or management of the Property and/or Borrower remain unchanged as a result
of such death, or any replacement control and/or management is approved in
writing by Lender in each instance, (iii) gifts for estate planning purposes of
any individual's interests in Borrower or in any of Borrower's general partners,
members or joint venturers to the spouse or any lineal descendant of such
individual, or to a trust for the benefit of any one or more of such individual,
spouse or lineal descendant, shall not be an Event of Default under this Loan
Agreement so long as Borrower is reconstituted, if required, following such gift
and so long as those persons responsible for the control and/or management of
the Property and/or Borrower remain unchanged following such gift, or any
replacement control and/or management is approved in writing by Lender in each
instance, (iv) the transfer of stock of any general partner, shareholder, joint
venturer, member or beneficial owner of a trust stock in Borrower or any of its
principals, including, without limitation, any Guarantor or any Indemnitor, from
time to time on a recognized public exchange shall be freely transferable
without the consent of Lender and without requiring receipt by Lender of
confirmation in writing from the Rating Agencies that rate the Securities to the
effect that such transfer will not result in a qualification, downgrade or
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withdrawal of any rating initially assigned or then currently assigned or to be
assigned to the Securities, as applicable (and no fee or charge shall be
required to be paid to Lender or any Rating Agency on account of any such
transfer), and (v) the transfer of any direct or indirect interest of any
general partner, shareholder, joint venturer, member or beneficial owner of a
trust stock in Borrower or any of its principals, including, without limitation,
any Guarantor or any Indemnitor, shall be permitted from time to time to any
Affiliate without the consent of Lender and without requiring receipt by Lender
of confirmation in writing from the Rating Agencies that rate the Securities or
Participations to the effect that such transfer will not result in a
qualification, downgrade or withdrawal of any rating initially assigned or then
currently assigned or to be assigned to the Securities or Participations, as
applicable (and no fee or charge shall be required to be paid to Lender or any
Rating Agency on account of any such transfer), so long as following such
transfer, ▇▇▇▇▇ Asset Management Corp. and/or any Affiliate responsible for the
management and/or control of the Property and/or Borrower remains in legal,
beneficial and actual control and management of the Property and/or Borrower. By
way of clarification, transfers of any direct or indirect ownership interests in
Borrower or in any partner, shareholder or member of Borrower by Corporate
Property Associates 16-Global Incorporated pursuant to a merger, consolidation,
sale or any other transfer shall be permitted with or to any Affiliate without
restriction and without the prior consent of Lender and without requiring
receipt by Lender of confirmation in writing from the Rating Agencies that rate
the Securities or Participations to the effect that such transfer will not
result in a qualification, downgrade or withdrawal of any rating initially
assigned or then currently assigned or to be assigned to the Securities or
Participations, as applicable (and no fee or charge shall be required to be paid
to Lender or any Rating Agency on account of any such transfer).
(c) If, in connection with a transfer permitted or consented to by
Lender pursuant to this Section 8.3, an Affiliate assumes the obligations of any
Guarantor or any Indemnitor and such Affiliate has a net worth of at least
$25,000,000 and shall execute, without any cost or expense to Lender, a new
guaranty or indemnity agreement in form and substance substantially similar to
the Environmental Indemnity and the Guaranty, then Lender shall release such
Guarantor or Indemnitor from all obligations first arising under the
Environmental Indemnity and the Guaranty after the closing of such transfer.
SECTION 8.4 LENDER'S RIGHTS. Lender reserves the right to condition the
consent required hereunder upon a modification of the terms hereof and on
assumption of the Note, this Security Instrument and the other Loan Documents as
so modified by the proposed transferee, payment of a transfer fee equal to one
percent (1%) of the then outstanding principal balance of the Note, and all of
Lender's expenses incurred in connection with such transfer, the approval by a
Rating Agency of the proposed transferee, the proposed transferee's continued
compliance with the covenants set forth in this Security Instrument, including,
without limitation, the covenants in Section 3.1.24 of this Agreement or
Lender's standard single purpose entity provisions for a loan of this size, or
such other conditions as Lender shall determine in its sole discretion to be in
the interest of Lender. All of Lender's expenses incurred shall be payable by
Borrower whether or not Lender consents to the transfer. Lender shall not be
required to demonstrate any actual impairment of its security or any increased
risk of default hereunder in order to declare the Debt immediately due and
payable upon Borrower's sale, conveyance, mortgage, grant, bargain, encumbrance,
pledge, assignment, or transfer of the Property without Lender's consent. This
provision shall apply to every sale, conveyance, mortgage, grant,
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bargain, encumbrance, pledge, assignment, or transfer of the Property regardless
of whether voluntary or not, or whether or not Lender has consented to any
previous sale, conveyance, mortgage, grant, bargain, encumbrance, pledge,
assignment, or transfer of the Property.
SECTION 8.5 PERMITTED ONE TIME TRANSFER.
8.5.1 (a) Notwithstanding the foregoing provisions of this Section,
Lender shall not unreasonably withhold consent to the simultaneous sale,
conveyance or transfer of the Property in its entirety on one occasion (a,
"Sale") after the first anniversary of the first day of the first calendar month
after the date hereof (or the date hereof if dated the first day of a calendar
month) and with respect to such Sale, Lender shall not require a modification of
the material economic terms hereof (other than a corresponding increase in
Borrower's deposits into the Escrow Fund with respect to Taxes in the event such
Sale results in an increase in the real property tax assessment by the
applicable taxing authority), to any person or entity provided that each of the
following terms and conditions are satisfied:
(a) no default after the expiration of notice or grace periods
is then continuing hereunder, under the Note, the Security
Instrument or under any of the other Loan Documents;
(b) Borrower gives Lender written notice of the terms of such
prospective Sale not less than thirty (30) days before the date on
which such Sale is scheduled to close and, concurrently therewith,
gives Lender all such information concerning the proposed transferee
of the Property (hereinafter, "BUYER") as Lender would reasonably
require in evaluating an initial extension of credit to a borrower
and pays to Lender a non-refundable application fee in the amount of
$2,500.00. Lender shall have the right to approve or disapprove the
proposed Buyer, such approval not to be unreasonably withheld or
delayed. In determining whether to give or withhold its approval of
the proposed Buyer, Lender shall consider the Buyer's experience and
track record in owning and operating facilities similar to the
Property, the Buyer's financial strength, the Buyer's general
business standing and the Buyer's relationships and experience with
contractors, vendors, tenants, lenders and other business entities;
provided, however, that, notwithstanding Lender's agreement to
consider the foregoing factors in determining whether to give or
withhold such approval, such approval shall be given or withheld
based on what Lender determines to be commercially reasonable and,
if given, may be given subject to such conditions as Lender may deem
reasonably appropriate;
(c) Borrower pays Lender, concurrently with the closing of
such Sale, a non-refundable assumption fee in an amount equal to all
out-of-pocket costs and expenses, including, without limitation,
reasonable attorneys' fees, incurred by Lender in connection with
the Sale plus an amount equal to one percent (1.0%) of the then
outstanding principal balance of the Note. Borrower also pays,
concurrently with the closing of such Sale, all costs and expenses
of all third parties and Rating Agencies in connection with the
Sale;
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(d) Buyer assumes and agrees to pay the indebtedness secured
hereby as and when due subject to the provisions of Article 11.22
hereof and, prior to or concurrently with the closing of such Sale,
the Buyer executes, without any cost or expense to Lender, such
documents and agreements as Lender shall reasonably require to
evidence and effectuate said assumption;
(e) Borrower and the Buyer execute, without any cost or
expense to Lender, new financing statements or financing statement
amendments and any additional documents reasonably requested by
Lender;
(f) Borrower delivers to Lender, without any cost or expense
to Lender, such endorsements to Lender's title insurance policy,
hazard insurance endorsements or certificates and other similar
materials as Lender may reasonably deem necessary at the time of the
Sale, all in form and substance reasonably satisfactory to Lender,
including, without limitation, an endorsement or endorsements to
Lender's title insurance policy insuring the lien of this Security
Instrument insuring that fee simple title to the Property is vested
in the Buyer;
(g) Buyer shall furnish, if the Buyer is a corporation,
partnership or other entity, all appropriate papers evidencing the
Buyer's capacity and good standing, and the qualification of the
signers to execute the assumption of the indebtedness secured
hereby, which papers shall include certified copies of all documents
relating to the organization and formation of the Buyer and of the
entities, if any, which are partners or members of the Buyer. The
Buyer and such constituent partners, members or shareholders of
Buyer (as the case may be), as Lender shall require, shall be single
purpose, "bankruptcy remote" entities which satisfy the requirements
of Section 3.1.24 of this Agreement and the requirements of the
Rating Agencies, and whose formation documents shall be approved by
counsel to Lender. An individual recommended by the Buyer and
approved by Lender shall serve as an independent director of the
Buyer (if the Buyer is a corporation) or the Buyer's corporate
general partner or an independent member of, in Lender's discretion,
manager, of Buyer if the Buyer is a limited liability company. The
consent of such independent director shall be required for, among
other things, any merger, consolidation, dissolution, bankruptcy or
insolvency of the Buyer.
(h) Buyer shall assume the obligations of Borrower under any
management agreements pertaining to the Property or assign to Lender
as additional security any new management agreement entered into in
connection with such Sale;
(i) Buyer shall furnish an opinion of counsel reasonably
satisfactory to Lender and its counsel (A) that the Buyer's
formation documents provide for the matters described in
subparagraph (vii) above, (B) that the assumption of the
indebtedness evidenced hereby has been duly authorized, executed and
delivered, and that the Note, this Agreement, the Security
Instrument, the assumption agreement and the other Loan Documents
are valid, binding and enforceable
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against the Buyer in accordance with their terms, subject to general
principles of equity and other customary qualifications, (C) that
the Buyer and any entity which is a controlling stockholder, member
or general partner of Buyer, have been duly organized, and are in
existence and good standing, (D) if required by Lender, that the
assets of the Buyer will not be consolidated with the assets of any
other entity having an interest in, or affiliation with, the Buyer,
in the event of bankruptcy or insolvency of any such entity, and (E)
with respect to such other matters as Lender may reasonably request;
(j) Lender shall have received confirmation in writing from
the Rating Agencies that rate the Securities or Participations (as
defined in Article 9 of the Loan Agreement) to the effect that the
Sale will not result in a qualification, downgrade or withdrawal of
any rating initially assigned or then currently assigned or to be
assigned to the Securities or Participations, as applicable;
(k) An affiliate of Buyer with a net worth (as determined by
Lender) of not less than Twenty Five Million Dollars ($25,000,000)
shall have assumed, from and after the date of such Sale, all of the
obligations of Guarantor under the Environmental Indemnity and the
Guaranty pursuant to such documents and agreements as Lender shall
reasonably require to evidence and effectuate such assumption and
thereafter Guarantor shall be released from all liabilities and
obligations under the Environmental indemnity and the Guaranty
arising from matters first occurring from and after the date of such
Sale; and
(l) Borrower's obligations under the contract of sale pursuant
to which the Sale is proposed to occur shall expressly be subject to
the satisfaction of the terms and conditions of this Section 8.5.
8.5.2 Notwithstanding the foregoing provision of this Section,
Borrower shall be permitted, after the first anniversary of the first day of the
first calendar month after the date hereof (or the date hereof if dated the
first day of a calendar month), to transfer or convey on up to two (2) occasions
all or a part of its interests in all of the Individual Properties to any
Affiliate (hereinafter defined) whose key principal's (the "KEY PRINCIPAL") net
worth as determined by Lender shall be not less than Twenty Five Million Dollars
($25,000,0000) without the approval or consent of Lender, any Rating Agency or
any investors in the Loan and without payment of the one percent (1%) transfer
fee and no additional fee shall be required to paid to any Rating Agency or
Investor on account of such transfer (but with payment of all out-of-pocket
expenses, including without limitation, reasonable attorney's fees, incurred by
Lender in connection with the transfer and all costs and expenses of all third
parties and Rating Agencies in connection with the Sale) so long as the terms
and conditions set forth in Sections 8.5.1(a), (d), (e), (f), (g), (h), (i) and
(j) are satisfied. Borrower shall, not less than thirty (30) days before any
such transfer, deliver to Lender written notice of such transfer which notice
shall (i) describe the proposed transfer in reasonable detail, (ii) include
evidence reasonably satisfactory to Lender that the proposed transferee is an
Affiliate of Borrower and that such Key Principal has a net worth of not less
than Twenty Five Million Dollars ($25,000,000), and (iii) include evidence
reasonably satisfactory to Lender that the applicable provisions of Section 8.5
hereof have been satisfied. In connection with any such transfer to an
Affiliate, Key Principal shall assume, from and after the
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date of such transfer, all of the obligations of Guarantor under the
Environmental Indemnity and the Guaranty pursuant to such documents and
agreements as Lender shall reasonably require to evidence and effectuate such
assumption and thereafter Guarantor shall be released from all liabilities and
obligations under the Environmental Indemnity and the Guaranty arising from
matters first occurring from and after the date of such transfer. As used
herein, the term "AFFILIATE" shall mean an entity which controls, is controlled
by or is under common control with Borrower, Corporate Property Associates 12
Incorporated, Corporate Property Associates 14 Incorporated, Corporate Property
Associates 15 Incorporated, CPA Acquisitions Incorporated, Guarantor or W.P.
▇▇▇▇▇ & Co. LLC.
8.5.3 In the event of a transfer pursuant to this Article 8.5, any
successor guarantor whose ownership interests are publicly held and which is
approved by Lender, or deemed approved by Lender pursuant to Section 8.5(b),
shall have the benefit of Section 8.3(b) and 8.3(c), as may be amended based on
the affiliates of said successor guarantor.
IX. SALE AND SECURITIZATION OF MORTGAGE
SECTION 9.1 SALE OF MORTGAGE AND SECURITIZATION.
(a) Lender shall have the right (i) to sell or otherwise transfer
the Loan or any portion thereof as a whole loan, (ii) to sell participation
interests in the Loan or (iii) to securitize the Loan or any portion thereof in
a single asset securitization or a pooled loan securitization. (The transaction
referred to in clauses (i), (ii) and (iii) shall hereinafter be referred to
collectively as "Secondary Market Transactions" and the transactions referred to
in clause (iii) shall hereinafter be referred to as a "Securitization". Any
certificates, notes or other securities issued in connection with a
Securitization are hereinafter referred to as "Securities").
(b) If requested by Lender, Borrower shall, at no expense to
Borrower (except to the extent otherwise made the obligation of Borrower
pursuant to a separate provision of this Agreement and/or the other Loan
Documents), assist Lender in satisfying the market standards to which Lender
customarily adheres or which may be reasonably required in the marketplace or by
the Rating Agencies in connection with any Secondary Market Transactions,
including, without limitation, to:
(i) (A) provide updated financial and other information with respect
to the Property, the business operated at the Property, Borrower, and (B)
provide updated budgets relating to the Property;
(ii) provide opinions of counsel, which may be relied upon by
Lender, the Rating Agencies and their respective counsel, agents and
representatives, as to non-consolidation, fraudulent conveyance, and true sale
or any other opinion customary in Secondary Market Transactions or required by
the Rating Agencies with respect to the Property and Borrower and Affiliates,
which counsel and opinions shall be satisfactory to Lender and the Rating
Agencies;
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(iii) provide updated, as of the closing date of the Secondary
Market Transaction, representations and warranties made in the Loan Documents
and such additional representations and warranties as the Rating Agencies may
reasonably require; and
(iv) execute amendments to the Loan Documents reasonably requested
by Lender; provided, however, that Borrower shall not be required to modify or
amend any Loan Document if such modification or amendment would (A) change the
interest rate, the stated maturity or the amortization of principal as set forth
herein or in the Note, or (B) modify or amend any other material economic term
of the Loan.
(c) If requested by Lender, Borrower shall provide Lender with the
following financial statements (it being understood that Lender shall request
(i) full financial statements if it anticipates that the principal amount of the
Loan at the time of Securitization equals or exceeds 20% of the aggregate
principal amount of all mortgage loans included in the Securitization and (ii)
summaries of such financial statements if the principal amount of the Loan at
any such time equals or exceeds 10% of such aggregate principal amount):
(i) As of the Closing Date, a balance sheet with respect to the
Property, meeting the requirements of Section 210.3-01 of Regulation S-X of the
Securities Act and statements of income and statements of cash flows with
respect to the Property, meeting the requirements of Section 210.3-02 of
Regulation S-X, provided that such balance sheet need not be audited, and, to
the extent that such balance sheet is more than 135 days old as of the Closing
Date, interim financial statements of the Property meeting the requirements of
Section 210.3-01 and 210.3-02 of Regulation S-X (all of such financial
statements, collectively, the "Standard Statements"); provided, however, that if
the Property would be deemed to constitute a business and not real estate under
Regulation S-X that has been acquired by Borrower from an unaffiliated third
party, as to which the other conditions set forth in Section 210.3-05 of
Regulation S-X for provision of financial statements in accordance with such
Section have been met, at Lender's election in lieu of or in addition to the
Standard Statements otherwise required by this Section 9.1(c)(i), Borrower shall
instead provide the financial statements required by such Section 210.3-05 of
Regulation S-X ("Acquired Property Statements").
(ii) Not later than 30 days after the end of each fiscal quarter
following the Closing Date, a balance sheet of the Property as of the end of
such fiscal quarter, meeting the requirements of Section 210.3-01 of Regulation
S-X, provided that such balance sheet need not be audited, and statements of
income and statements of cash flows of the Property for the period commencing on
the day following the last day of the most recent Fiscal Year and ending on the
date of such balance sheet and for the corresponding period of the most recent
Fiscal Year, meeting the requirements of Section 210.3-02 of Regulation S-X
(provided, that if for such corresponding period of the most recent Fiscal Year
Acquired Property Statements were permitted to be provided hereunder pursuant to
paragraph (i) above, Borrower shall instead provide Acquired Property Statements
for such corresponding period). If requested by Lender, Borrower shall also
provide "summarized financial information," as defined in Section 210.1-02(bb)
of Regulation S-X, with respect to such quarterly financial statements.
(iii) Not later than 90 days after the end of each Fiscal Year
following the Closing Date, a balance sheet of the Property as of the end of
such Fiscal Year, meeting the
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requirements of Section 210.3-01 of Regulation S-X, provided that such balance
sheet need not be audited, and statements of income and statements of cash flows
of the Property for such Fiscal Year, meeting the requirements of Section
210.3-02 of Regulation S-X provided that such statements need not be audited. If
requested by Lender, Borrower shall provide summarized financial information
with respect to such annual financial statements.
(iv) Upon 20 Business Days after notice from Lender in connection
with the Securitization of this Loan, such additional financial statements, such
that, as of the date (each a "Disclosure Document Date") of each Disclosure
Document, Borrower shall have provided Lender with all financial statements as
described in paragraph (i) above; provided that the Fiscal Year and interim
periods for which such financial statements shall be provided shall be
determined as of such Disclosure Document Date, provided that such statements
need not be audited.
(v) In the event Lender determines, in connection with a
Securitization, that the financial statements required in order to comply with
Regulation S-X or Legal Requirements are other than as provided herein, then
notwithstanding the provisions of this Section, Lender may request, and Borrower
shall promptly provide, such combination of Acquired Property Statements and/or
Standard Statements as may be necessary for such compliance.
(vi) Any other or additional financial statements, or financial,
statistical or operating information, as shall be required pursuant to
Regulation S-X (provided that such statements and information need not be
audited) or other Legal Requirements in connection with any Disclosure Document
or any filing under or pursuant to the Exchange Act in connection with or
relating to a Securitization (hereinafter an "Exchange Act Filing") or as shall
otherwise be reasonably requested by Lender to meet disclosure, rating agency or
marketing requirements.
All financial statements provided by Borrower pursuant to this Section 9.1 (c)
shall be prepared in accordance with GAAP, and shall meet the requirements of
Regulation S-X (provided that such statements need not be audited) and other
applicable Legal Requirements. All financial statements of Guarantor relating to
a Fiscal Year shall be audited by the independent accountants in accordance with
generally accepted auditing standards, Regulation S-X and all other applicable
Legal Requirements, shall be accompanied by the manually executed report of the
independent accountants thereon, which report shall meet the requirements of
Regulation S-X and all other applicable Legal Requirements, and shall be further
accompanied by a manually executed written consent of the independent
accountants, in form and substance acceptable to Lender, to the inclusion of
such financial statements in any Disclosure Document and any Exchange Act Filing
and to the use of the name of such independent accountants and the reference to
such independent accountants as "experts" in any Disclosure Document and
Exchange Act Filing, all of which shall be provided at the same time as the
related financial statements are required to be provided. All other financial
statements shall be certified by the chief financial officer of Borrower, which
certification shall state that such financial statements meet the requirements
set forth in the first sentence of this paragraph.
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SECTION 9.2 SECURITIZATION INDEMNIFICATION.
(a) Borrower agrees that information provided to Lender by Borrower
and its agents, counsel and representatives may be included in disclosure
documents in connection with the Securitization, including, without limitation,
an offering circular, a prospectus, prospectus supplement, private placement
memorandum or other offering document (each, an "Disclosure Document") and may
also be included in filings with the Securities and Exchange Commission pursuant
to the Securities Act of 1933, as amended (the "Securities Act"), or the
Securities and Exchange Act of 1934, as amended (the "Exchange Act"), and may be
made available to investors or prospective investors in the Securities, the
Rating Agencies, and service providers relating to the Securitization.
(b) Borrower shall provide in connection with each of (i) a
preliminary and a final private placement memorandum or (ii) a preliminary and
final prospectus or prospectus supplement, as applicable, an agreement (A)
certifying that Borrower has examined all relevant portions of such Disclosure
Documents specified by Lender and that to Borrower's knowledge each such
Disclosure Document, as it relates to Borrower, Borrower Affiliates and the
Property does not contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements made, in the
light of the circumstances under which they were made, not misleading, (B)
indemnifying Lender (and for purposes of this Section 9.2, Lender hereunder
shall include its officers and directors), the Affiliate of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co.
("▇▇▇▇▇▇ ▇▇▇▇▇▇▇") that has filed the registration statement relating to the
Securitization (the "Registration Statement"), each of its directors, each of
its officers who have signed the Registration Statement and each Person that
controls the Affiliate within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act (collectively, the "▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group") , and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, and any other placement agent or underwriter with respect to the
Securitization, each of their respective directors and each Person who controls
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or any other placement agent or underwriter within the meaning of
Section 15 of the Securities Act and Section 20 of the Exchange Act
(collectively, the "Underwriter Group") for any losses, claims, damages or
liabilities (collectively, the "Liabilities") to which Lender, the ▇▇▇▇▇▇
▇▇▇▇▇▇▇ Group or the Underwriter Group may become subject insofar as the
Liabilities arise out of or are based upon any untrue statement of any material
fact contained in such sections or arise out of or are based upon the omission
to state therein a material fact related to Borrower required to be stated in
such sections or necessary in order to make the statements in such sections, in
light of the circumstances under which they were made, not misleading and (C)
agreeing to reimburse Lender, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group and/or the Underwriter
Group for any reasonable legal or other expenses reasonably incurred by Lender,
the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group and the Underwriter Group in connection with
investigating or defending the Liabilities; provided, however, that Borrower
will be liable in any such case under clauses (B) or (C) above only to the
extent that any such loss claim, damage or liability arises out of or is based
upon any such untrue statement or omission made therein in reliance upon and in
conformity with information furnished to Lender by or on behalf of Borrower in
connection with the preparation of the Disclosure Document or in connection with
the underwriting or closing of the Loan, including, without limitation,
financial statements of Borrower, operating statements and rent rolls with
respect to the Property. This indemnity agreement will be in addition to any
liability which Borrower may otherwise have.
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(c) In connection with Exchange Act Filings, Borrower shall (i)
indemnify Lender, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group and the Underwriter Group for
Liabilities to which Lender, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group or the Underwriter Group
may become subject insofar as the Liabilities arise out of or are based upon the
omission or alleged omission to state in the Disclosure Document a material fact
required to be stated in the Disclosure Document in order to make the statements
in the Disclosure Document, in light of the circumstances under which they were
made, not misleading and (ii) reimburse Lender, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group or the
Underwriter Group for any legal or other expenses reasonably incurred by Lender,
the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Group or the Underwriter Group in connection with defending
or investigating the Liabilities. Notwithstanding anything to the contrary in
this Section 9.2, Borrower shall not be liable under any provision of this
Section 9.2 to the extent that any Liabilities arise from or relate to
omissions, errors or untrue statements which Borrower identified in writing to
Lender or the Underwriter Group and remain uncorrected or as to which Lender or
Underwriter Group had actual knowledge of such omission, error or untrue
statement, or which arise as a result of Lender's gross negligence or willful
misconduct.
(d) Promptly after receipt by an indemnified party under this
Section 9.2 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 9.2, notify the indemnifying party in writing of the
commencement thereof, but the omission to so notify the indemnifying party will
not relieve the indemnifying party from any liability which the indemnifying
party may have to any indemnified party hereunder except to the extent (that
failure to notify causes prejudice to the indemnifying party. In the event that
any action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled, jointly with any other indemnifying party, to participate therein and,
to the extent that it (or they) may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel satisfactory to
such indemnified party. After notice from the indemnifying party to such
indemnified party under this Section 9.2, such indemnified party shall pay for
any legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation; provided, however, if the defendants in any such action include
both the indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there are any legal defenses available to
it and/or other indemnified parties that are different from or additional to
those available to the indemnifying party, the indemnified party or parties
shall have the right to select separate counsel to assert such legal defenses
and to otherwise participate in the defense of such action on behalf of such
indemnified party at the cost of the indemnifying party. The indemnifying party
shall not be liable for the expenses of more than one separate counsel unless an
indemnified party shall have reasonably concluded that there may be legal
defenses available to it that are different from or additional to those
available to another indemnified party.
(e) Intentionally omitted.
(f) The liabilities and obligations of both Borrower and Lender
under this Section 9.2 shall survive the termination of this Agreement and the
satisfaction and discharge of the Debt.
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SECTION 9.3 INTENTIONALLY OMITTED.
X. DEFAULTS
SECTION 10.1 EVENT OF DEFAULT.
(a) Each of the following events shall constitute an event of
default hereunder (an "Event of Default"):
(i) if (A) any monthly installment of principal and/or interest due
under the Note or any amount required to be deposited into the Reserve Funds or
the payment due on the Maturity Date is not paid when due or (B) any other
portion of the Debt is not paid when due and such non-payment referred to under
this clause (B) continues for five (5) days following notice to Borrower that
the same is due and payable;
(ii) if any of the Taxes or Other Charges required to be paid by
Borrower pursuant to the terms hereof are not paid prior to delinquency, penalty
or other accrual of default interest for any reason other than a failure by
Lender to pay the such Taxes or Other Charges to the extent such amounts have
been deposited with Lender;
(iii) if the Policies are not kept in full force and effect for any
reason other than a failure by Lender to pay the premiums for such Policies to
the extent such amounts have been deposited with Lender, or if the Policies are
not delivered to Lender within ten (10) Business Days of Lender's request;
(iv) if Borrower breaches or permits or suffers a breach of
Article 6 of the Mortgage;
(v) if any representation or warranty made by Borrower herein or in
any other Loan Document, or in any report, certificate, financial statement or
other instrument, agreement or document furnished to Lender by or on behalf of
Borrower shall have been false or misleading in any material respect as of the
date the representation or warranty was made and such false or misleading
representation or warranty continues to be material;
(vi) if Borrower or Guarantor shall make an assignment for the
benefit of creditors;
(vii) if a receiver, liquidator or trustee shall be appointed for
Borrower or Guarantor or if Borrower or Guarantor shall be adjudicated a
bankrupt or insolvent, or if any petition for bankruptcy, reorganization or
arrangement pursuant to federal bankruptcy law, or any similar federal or state
law, shall be filed by or against, consented to, or taken any action indicating
acquiescence in by, Borrower or Guarantor, or if any proceeding for the
dissolution or liquidation of Borrower or Guarantor shall be instituted;
provided, however, if such appointment, adjudication, petition or proceeding was
involuntary and not consented to by Borrower or Guarantor, upon the same not
being discharged, stayed or dismissed within 90 days;
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(viii) if the Property becomes subject to any mechanic's,
materialman's or other Lien other than a Lien for local real estate taxes and
assessments not then due and payable and the Lien shall remain undischarged of
record (by payment, bonding or otherwise) for a period of 60 days after Borrower
receives notice of such Lien;
(ix) if Borrower attempts to assign its rights under this Agreement
or any of the other Loan Documents or any interest herein or therein in
contravention of the Loan Documents;
(x) if any of the factual assumptions contained in the Insolvency
Opinion, or in any other non-consolidation opinion delivered to Lender in
connection with the Loan, or in any other non-consolidation delivered subsequent
to the closing of the Loan, is or shall become untrue in any material respect;
(xi) if Borrower breaches any representation, warranty or covenant
contained in Section 3.1.24 hereof;
(xii) If Borrower fails to comply with the covenants as to
Prescribed Laws set forth in Section 4.1.1 hereof;
(xiii) if Borrower breaches any of the negative covenants contained
in Section 4.2.12 hereof or acts or neglects to act in such a manner as to be
considered a default under the Operating Agreements.
(xiv) if Guarantor breaches in any material respect any covenant,
warranty or representation contained in the Guaranty;
(xv) if Borrower shall continue to be in Default under any of the
other terms, covenants or conditions of this Agreement not specified in
subsections (i) to (xiv) above, for ten (10) days after notice to Borrower from
Lender, in the case of any Default which can be cured by the payment of a sum of
money, or for thirty (30) days after notice from Lender in the case of any other
Default; provided, however, that if such non-monetary Default is susceptible of
cure but cannot reasonably be cured within such 30-day period and provided
further that Borrower shall have commenced to cure such Default within such
30-day period and thereafter diligently and expeditiously proceeds to cure the
same, such 30-day period shall be extended for such time as is reasonably
necessary for Borrower in the exercise of due diligence to cure such Default,
such additional period not to exceed 105 days; or
(xvi) if there shall be default under any of the other Loan
Documents beyond any applicable cure periods contained in such Loan Documents,
whether as to Borrower or the Property, or if any other such event shall occur
or condition shall exist, if the effect of such event or condition is to
accelerate the maturity of any portion of the Debt or to permit Lender to
accelerate the maturity of all or any portion of the Debt.
(b) Upon the occurrence of an Event of Default (other than an Event
of Default described in clauses (vi), (vii) or (viii) above) and at any time
thereafter Lender may, in addition to any other rights or remedies available to
it pursuant to this Agreement and the other Loan Documents or at law or in
equity, take such action, without notice or demand, that Lender deems
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advisable to protect and enforce its rights against Borrower and in and to the
Property, including, without limitation, declaring the Debt to be immediately
due and payable, and Lender may enforce or avail itself of any or all rights or
remedies provided in the Loan Documents against Borrower and the Property,
including, without limitation, all rights or remedies available at law or in
equity; and upon any Event of Default described in clauses (vi), (vii) or (viii)
above, the Debt and all other obligations of Borrower hereunder and under the
other Loan Documents shall immediately and automatically become due and payable,
without notice or demand, and Borrower hereby expressly waives any such notice
or demand, anything contained herein or in any other Loan Document to the
contrary notwithstanding.
SECTION 10.2 REMEDIES.
(a) During the continuance of an Event of Default, all or any one or
more of the rights, powers, privileges and other remedies available to Lender
against Borrower under this Agreement or any of the other Loan Documents
executed and delivered by, or applicable to, Borrower or at law or in equity may
be exercised by Lender at any time and from time to time, whether or not all or
any of the Debt shall be declared due and payable, and whether or not Lender
shall have commenced any foreclosure proceeding or other action for the
enforcement of its rights and remedies under any of the Loan Documents with
respect to the Property. Any such actions taken by Lender shall be cumulative
and concurrent and may be pursued independently, singly, successively, together
or otherwise, at such time and in such order as Lender may determine in its sole
discretion, to the fullest extent permitted by law, without impairing or
otherwise affecting the other rights and remedies of Lender permitted by law,
equity or contract or as set forth herein or in the other Loan Documents.
Without limiting the generality of the foregoing, if an Event of Default is
continuing (i) Lender is not subject to any "one action" or "election of
remedies" law or rule, and (ii) all liens and other rights, remedies or
privileges provided to Lender shall remain in full force and effect until Lender
has exhausted all of its remedies against the Property and the Mortgage has been
foreclosed, sold and/or otherwise realized upon in satisfaction of the Debt or
the Debt has been paid in full.
(b) Lender shall have the right from time to time to partially
foreclose the Mortgage in any manner and for any amounts secured by the Mortgage
then due and payable as determined by Lender in its sole discretion including,
without limitation, the following circumstances: (i) in the event Borrower
defaults beyond any applicable grace period in the payment of one or more
scheduled payments of principal and interest, Lender may foreclose the Mortgage
to recover such delinquent payments, or (ii) in the event Lender elects to
accelerate less than the entire outstanding principal balance of the Loan,
Lender may foreclose the Mortgage to recover so much of the principal balance of
the Loan as Lender may accelerate and such other sums secured by the Mortgage as
Lender may elect. Notwithstanding one or more partial foreclosures, the Property
shall remain subject to the Mortgage to secure payment of sums secured by the
Mortgage and not previously recovered.
(c) Lender shall have the right from time to time to sever the Note
and the other Loan Documents into one or more separate notes, mortgages and
other security documents (the "Severed Loan Documents") in such denominations as
Lender shall determine in its sole discretion for purposes of evidencing and
enforcing its rights and remedies provided hereunder. Borrower shall execute and
deliver to Lender from time to time, promptly after the request of
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Lender, a severance agreement and such other documents as Lender shall request
in order to effect the severance described in the preceding sentence, all in
form and substance reasonably satisfactory to Lender. Borrower hereby absolutely
and irrevocably appoints Lender as its true and lawful attorney, coupled with an
interest, in its name and stead to make and execute all documents necessary or
desirable to effect the aforesaid severance, Borrower ratifying all that its
said attorney shall do by virtue thereof; provided, however, Lender shall not
make or execute any such documents under such power until three (3) business
days after notice has been given to Borrower by Lender of Lender's intent to
exercise its rights under such power. The Severed Loan Documents shall not
contain any representations, warranties or covenants not contained in the Loan
Documents and any such representations and warranties contained in the Severed
Loan Documents will be given by Borrower only as of the Closing Date.
(d) Any amounts recovered from the Property or any other collateral
for the Loan during the continuance of an Event of Default may be applied by
Lender toward the payment of any interest and/or principal of the Loan and/or
any other amounts due under the Loan Documents in such order, priority and
proportions as Lender in its sole discretion shall determine.
SECTION 10.3 RIGHT TO CURE DEFAULTS.
Lender may, but without any obligation to do so and without notice
to or demand on Borrower and without releasing Borrower from any obligation
hereunder or being deemed to have cured any Event of Default hereunder, make, do
or perform any obligation of Borrower hereunder in such manner and to such
extent as Lender may deem necessary. Lender is authorized to enter upon the
Property for such purposes, or appear in, defend, or bring any action or
proceeding to protect its interest in the Property for such purposes, and the
cost and expense thereof (including reasonable attorneys' fees to the extent
permitted by law), with interest as provided in this Section 10.3, shall
constitute a portion of the Debt and shall be due and payable to Lender upon
demand. All such costs and expenses incurred by Lender in remedying such Event
of Default or such failed payment or act or in appearing in, defending, or
bringing any action or proceeding shall bear interest at the Default Rate, for
the period after such cost or expense was incurred into the date of payment to
Lender. All such costs and expenses incurred by Lender together with interest
thereon calculated at the Default Rate shall be deemed to constitute a portion
of the Debt and be secured by the liens, claims and security interests provided
to Lender under the Loan Documents and shall be immediately due and payable upon
demand by Lender therefore.
SECTION 10.4 REMEDIES CUMULATIVE.
The rights, powers and remedies of Lender under this Agreement shall
be cumulative and not exclusive of any other right, power or remedy which Lender
may have against Borrower pursuant to this Agreement or the other Loan
Documents, or existing at law or in equity or otherwise. Lender's rights, powers
and remedies may be pursued singly, concurrently or otherwise, at such time and
in such order as Lender may determine in Lender's sole discretion. No delay or
omission to exercise any remedy, right or power accruing upon an Event of
Default shall impair any such remedy, right or power or shall be construed as a
waiver thereof, but any such remedy, right or power may be exercised from time
to time and as often as
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may be deemed expedient. A waiver of one Default or Event of Default with
respect to Borrower shall not be construed to be a waiver of any subsequent
Default or Event of Default by Borrower or to impair any remedy, right or power
consequent thereon.
XI. MISCELLANEOUS
SECTION 11.1 SUCCESSORS AND ASSIGNS.
All covenants, promises and agreements in this Agreement, by or on
behalf of Borrower, shall inure to the benefit of the legal representatives,
successors and assigns of Lender.
SECTION 11.2 LENDER'S DISCRETION.
Whenever pursuant to this Agreement Lender exercises any right given
to it to approve or disapprove, or any arrangement or term is to be satisfactory
to Lender, the decision of Lender to approve or disapprove or to decide whether
arrangements or terms are satisfactory or not satisfactory shall, absent
manifest error, except as is otherwise specifically herein provided, be in the
sole discretion of Lender and shall be final and conclusive. Prior to a
Securitization, whenever pursuant to this Agreement the Rating Agencies are
given any right to approve or disapprove, or any arrangement or term is to be
satisfactory to the Rating Agencies, the decision of Lender to approve or
disapprove or to decide whether arrangements or terms are satisfactory or not
satisfactory, based upon Lender's determination of Rating Agency criteria, shall
be substituted therefore.
SECTION 11.3 GOVERNING LAW.
(A) THIS AGREEMENT WAS NEGOTIATED IN THE STATE OF NEW YORK, AND MADE
BY LENDER AND ACCEPTED BY BORROWER IN THE STATE OF NEW YORK, AND THE PROCEEDS OF
THE NOTE DELIVERED PURSUANT HERETO WERE DISBURSED FROM THE STATE OF NEW YORK,
WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND
TO THE UNDERLYING TRANSACTION EMBODIED HEREBY, AND IN ALL RESPECTS, INCLUDING,
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE, THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE (WITHOUT
REGARD TO PRINCIPLES OF CONFLICT OF LAWS) AND ANY APPLICABLE LAW OF THE UNITED
STATES OF AMERICA, EXCEPT THAT AT ALL TIMES THE PROVISIONS FOR THE CREATION,
PERFECTION, AND ENFORCEMENT OF THE LIEN AND SECURITY INTEREST CREATED PURSUANT
HERETO AND PURSUANT TO THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY AND
CONSTRUED ACCORDING TO THE LAW OF THE STATE IN WHICH THE PROPERTY IS LOCATED, IT
BEING UNDERSTOOD THAT, TO THE FULLEST EXTENT PERMITTED BY THE LAW OF SUCH STATE,
THE LAW OF THE STATE OF NEW YORK SHALL GOVERN THE
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CONSTRUCTION, VALIDITY AND ENFORCEABILITY OF ALL LOAN DOCUMENTS AND ALL OF THE
OBLIGATIONS ARISING HEREUNDER OR THEREUNDER. TO THE FULLEST EXTENT PERMITTED BY
LAW, BORROWER HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY CLAIM TO ASSERT
THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS AGREEMENT AND THE NOTE, AND
THIS AGREEMENT AND THE NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK PURSUANT TO SECTION 5-1401 OF THE NEW
YORK GENERAL OBLIGATIONS LAW.
(B) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST LENDER OR BORROWER
ARISING OUT OF OR RELATING TO THIS AGREEMENT MAY AT LENDER'S OPTION BE
INSTITUTED IN ANY FEDERAL OR STATE COURT IN ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇, PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND
BORROWER WAIVES ANY OBJECTIONS WHICH IT MAY NOW OR HEREAFTER HAVE BASED ON VENUE
AND/OR FORUM NON CONVENIENS OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND BORROWER
HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUIT,
ACTION OR PROCEEDING. BORROWER DOES HEREBY DESIGNATE AND APPOINT:
TELC (NJ) QRS 16-30, INC.
C/O W.P. ▇▇▇▇▇ CO. LLC
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ATTENTION: DIRECTOR, ASSET MANAGEMENT
WITH A COPY TO:
▇▇▇▇ ▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ATTENTION: CHAIRMAN, REAL ESTATE DEPARTMENT
AS ITS AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY
AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN
ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND AGREES THAT SERVICE OF
PROCESS UPON SAID AGENT AT SAID ADDRESS AND WRITTEN NOTICE OF SAID SERVICE
MAILED OR DELIVERED TO BORROWER IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED IN
EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON BORROWER, IN ANY SUCH SUIT,
ACTION OR PROCEEDING IN THE STATE OF NEW YORK. BORROWER (I) SHALL GIVE PROMPT
NOTICE TO LENDER OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER, (II)
MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE
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AUTHORIZED AGENT WITH AN OFFICE IN NEW YORK, NEW YORK (WHICH SUBSTITUTE AGENT
AND OFFICE SHALL BE DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF
PROCESS), AND (III) SHALL PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED
AGENT CEASES TO HAVE AN OFFICE IN NEW YORK, NEW YORK OR IS DISSOLVED WITHOUT
LEAVING A SUCCESSOR.
SECTION 11.4 MODIFICATION, WAIVER IN WRITING.
No modification, amendment, extension, discharge, termination or
waiver of any provision of this Agreement or of any other Loan Document, nor
consent to any departure by Borrower therefrom, shall in any event be effective
unless the same shall be in a writing signed by the party against whom
enforcement is sought, and then such waiver or consent shall be effective only
in the specific instance, and for the purpose, for which given. Except as
otherwise expressly provided herein, no notice to, or demand on Borrower, shall
entitle Borrower to any other or future notice or demand in the same, similar or
other circumstances.
SECTION 11.5 DELAY NOT A WAIVER.
Neither any failure nor any delay on the part of Lender in insisting
upon strict performance of any term, condition, covenant or agreement, or
exercising any right, power, remedy or privilege hereunder, or under any other
Loan Document, shall operate as or constitute a waiver thereof, nor shall a
single or partial exercise thereof preclude any other future exercise, or the
exercise of any other right, power, remedy or privilege. In particular, and not
by way of limitation, by accepting payment after the due date of any amount
payable under this Agreement or any other Loan Document, Lender shall not be
deemed to have waived any right either to require prompt payment when due of all
other amounts due under this Agreement or the other Loan Documents, or to
declare a default for failure to effect prompt payment of any such other amount.
Lender shall have the right to waive or reduce any time periods that Lender is
entitled to under the Loan Documents in its sole and absolute discretion.
SECTION 11.6 NOTICES.
All notices, demands, requests, consents, approvals or other
communications (any of the foregoing, a "Notice") required, permitted, or
desired to be given hereunder shall be in writing sent by telefax (with answer
back acknowledged) or by registered or certified mail, postage prepaid, return
receipt requested, or delivered by hand or reputable overnight courier addressed
to the party to be so notified at its address hereinafter set forth, or to such
other address as such party may hereafter specify in accordance with the
provisions of this Section 11.6. Any Notice shall be deemed to have been
received: (a) three (3) days after the date such Notice is mailed, (b) on the
date of sending by telefax if sent during business hours on a Business Day
(otherwise on the next Business Day), (c) on the date of delivery by hand if
delivered during business hours on a Business Day (otherwise on the next
Business Day), and (d) on the next Business Day if sent by an overnight
commercial courier, in each case addressed to the parties as follows:
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If to Lender: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc.
1221 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc.
c/o ARCap Servicing, Inc.,
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇ 26
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
with a copy to: Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Facsimile No.(▇▇▇) ▇▇▇-▇▇▇▇
If to Borrower: TELC (NJ) QRS 16-30, INC.
c/o W.P. ▇▇▇▇▇ & Co LLC
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Director, Asset Management
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇ ▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chairman, Real Estate Department
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
SECTION 11.7 TRIAL BY JURY.
BORROWER AND LENDER EACH HEREBY AGREES NOT TO ELECT A TRIAL BY JURY
OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY
FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD
TO THE LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN
CONNECTION THEREWITH. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY
AND VOLUNTARILY BY BORROWER AND LENDER, AND IS INTENDED TO ENCOMPASS
INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY
JURY WOULD OTHERWISE ACCRUE. EACH PARTY IS HEREBY AUTHORIZED TO FILE A COPY OF
THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER.
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SECTION 11.8 HEADINGS.
The Article and/or Section headings and the Table of Contents in
this Agreement are included herein for convenience of reference only and shall
not constitute a part of this Agreement for any other purpose.
SECTION 11.9 SEVERABILITY.
Wherever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Agreement.
SECTION 11.10 PREFERENCES.
Lender shall have the continuing and exclusive right to apply or
reverse and reapply any and all payments by Borrower to any portion of the
obligations of Borrower hereunder consistent with the terms and provisions
hereof and the other Loan Documents. To the extent Borrower makes a payment or
payments to Lender, which payment or proceeds or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, state or federal law, common law or equitable cause, then, to
the extent of such payment or proceeds received, the obligations hereunder or
part thereof intended to be satisfied shall be revived and continue in full
force and effect, as if such payment or proceeds had not been received by
Lender.
SECTION 11.11 WAIVER OF NOTICE.
Borrower shall not be entitled to any notices of any nature
whatsoever from Lender except with respect to matters for which this Agreement
or the other Loan Documents specifically and expressly provide for the giving of
notice by Lender to Borrower and except with respect to matters for which
Borrower is not, pursuant to applicable Legal Requirements, permitted to waive
the giving of notice. Borrower hereby expressly waives the right to receive any
notice from Lender with respect to any matter for which this Agreement or the
other Loan Documents do not specifically and expressly provide for the giving of
notice by Lender to Borrower.
SECTION 11.12 REMEDIES OF BORROWER.
In the event that a claim or adjudication is made that Lender or its
agents have acted unreasonably or unreasonably delayed acting in any case where,
by law or under this Agreement or the other Loan Documents, Lender or such
agent, as the case may be, has an obligation to act reasonably or promptly,
neither Lender nor its agents shall be liable for any monetary damages, and
Borrower's sole remedy shall be limited to commencing an action seeking
injunctive relief or declaratory judgment. Any action or proceeding to determine
whether Lender has acted reasonably shall be determined by an action seeking
declaratory judgment.
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SECTION 11.13 EXPENSES; INDEMNITY.
(a) Except as expressly provided herein, Borrower shall pay or, if
Borrower fails to pay, reimburse Lender upon receipt of notice from Lender, for
all reasonable costs and expenses (including reasonable attorneys' fees and
disbursements) incurred by Lender in connection with (i) Borrower's ongoing
performance of and compliance with Borrower's agreements and covenants contained
in this Agreement and the other Loan Documents on its part to be performed or
complied with after the Closing Date, including, without limitation, confirming
compliance with environmental and insurance requirements; (ii) Lender's ongoing
performance of and compliance with all agreements and covenants contained in
this Agreement and the other Loan Documents on its part to be performed or
complied with after the Closing Date; (iii) the negotiation, preparation,
execution, delivery and administration of any consents, amendments, waivers or
other modifications to this Agreement and the other Loan Documents and any other
documents or matters requested by Borrower; (iv) the filing and recording fees
and expenses, title insurance and reasonable fees and expenses of counsel for
providing to Lender all required legal opinions, and other similar expenses
incurred, in creating and perfecting the Liens in favor of Lender pursuant to
this Agreement and the other Loan Documents; (v) enforcing or preserving any
rights, in response to third party claims or the prosecuting or defending of any
action or proceeding or other litigation or otherwise, in each case against,
under or affecting Borrower, this Agreement, the other Loan Documents, the
Property, or any other security given for the Loan; and (vi) enforcing any
obligations of or collecting any payments due from Borrower under this
Agreement, the other Loan Documents or with respect to the Property or in
connection with any "special servicing" of the Loan or any refinancing or
restructuring of the credit arrangements provided under this Agreement in the
nature of a "work-out" or of any insolvency or bankruptcy proceedings; provided,
however, that Borrower shall not be liable for the payment of any such costs and
expenses to the extent the same arise by reason of the gross negligence, illegal
acts, fraud or willful misconduct of Lender. Any costs due and payable to Lender
may be paid to Lender pursuant to the Cash Management Agreement.
(b) Borrower shall indemnify, defend and hold harmless Lender and
its officers, directors, agents, employees (and the successors and assigns of
the foregoing) (the "Lender Indemnitees") from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
claims, costs, expenses and disbursements of any kind or nature whatsoever
(including, without limitation, the reasonable fees and disbursements of counsel
for the Lender Indemnitees in connection with any investigative, administrative
or judicial proceeding commenced or threatened, whether or not the Lender
Indemnitees shall be designated a party thereto), that may be imposed on,
incurred by, or asserted against the Lender Indemnitees in any manner relating
to or arising out of (i) any breach by Borrower of its obligations under, or any
material misrepresentation by Borrower contained in, this Agreement or the other
Loan Documents, or (ii) the use or intended use of the proceeds of the Loan
(collectively, the "Indemnified Liabilities"); provided, however, that Borrower
shall not have any obligation to the Lender Indemnitees hereunder to the extent
that such Indemnified Liabilities arise from the gross negligence, illegal acts,
fraud or willful misconduct of the Lender Indemnitees. To the extent that the
undertaking to indemnify, defend and hold harmless set forth in the preceding
sentence may be unenforceable because it violates any law or public policy,
Borrower shall pay the maximum portion that it is permitted to pay and satisfy
under applicable
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law to the payment and satisfaction of all Indemnified Liabilities incurred by
the Lender Indemnitees.
SECTION 11.14 SCHEDULES INCORPORATED.
The Schedules annexed hereto are hereby incorporated herein as a
part of this Agreement with the same effect as if set forth in the body hereof.
SECTION 11.15 OFFSETS, COUNTERCLAIMS AND DEFENSES.
Any assignee of Lender's interest in and to this Agreement and the
other Loan Documents shall take the same free and clear of all offsets,
counterclaims or defenses which are unrelated to such documents which Borrower
may otherwise have against any assignor of such documents, and no such unrelated
counterclaim or defense shall be interposed or asserted by Borrower in any
action or proceeding brought by any such assignee upon such documents and any
such right to interpose or assert any such unrelated offset, counterclaim or
defense in any such action or proceeding is hereby expressly waived by Borrower.
SECTION 11.16 NO JOINT VENTURE OR PARTNERSHIP; NO THIRD PARTY
BENEFICIARIES.
(a) Borrower and Lender intend that the relationships created
hereunder and under the other Loan Documents be solely that of borrower and
lender. Nothing herein or therein is intended to create a joint venture,
partnership, tenancy-in-common, or joint tenancy relationship between Borrower
and Lender nor to grant Lender any interest in the Property other than that of
mortgagee, beneficiary or lender.
(b) This Agreement and the other Loan Documents are solely for the
benefit of Lender and Borrower and nothing contained in this Agreement or the
other Loan Documents shall be deemed to confer upon anyone other than Lender and
Borrower any right to insist upon or to enforce the performance or observance of
any of the obligations contained herein or therein. All conditions to the
obligations of Lender to make the Loan hereunder are imposed solely and
exclusively for the benefit of Lender and no other Person shall have standing to
require satisfaction of such conditions in accordance with their terms or be
entitled to assume that Lender will refuse to make the Loan in the absence of
strict compliance with any or all thereof and no other Person shall under any
circumstances be deemed to be a beneficiary of such conditions, any or all of
which may be freely waived in whole or in part by Lender if, in Lender's sole
discretion, Lender deems it advisable or desirable to do so.
SECTION 11.17 PUBLICITY.
All news releases, publicity or advertising by Borrower or its
Affiliates through any media intended to reach the general public which refers
to the Loan Documents or the financing evidenced by the Loan Documents, to
Lender, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc., or any of their Affiliates shall
be subject to the prior approval of Lender.
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SECTION 11.18 WAIVER OF MARSHALLING OF ASSETS.
To the fullest extent permitted by law, Borrower, for itself and its
successors and assigns, waives all rights to a marshalling of the assets of
Borrower, Borrower's partners and others with interests in Borrower, and of the
Property, and shall not assert any right under any laws pertaining to the
marshalling of assets, the sale in inverse order of alienation, homestead
exemption, the administration of estates of decedents, or any other matters
whatsoever to defeat, reduce or affect the right of Lender under the Loan
Documents to a sale of the Property for the collection of the Debt without any
prior or different resort for collection or of the right of Lender to the
payment of the Debt out of the net proceeds of the Property in preference to
every other claimant whatsoever.
SECTION 11.19 WAIVER OF OFFSETS/DEFENSES/COUNTERCLAIMS.
Borrower hereby waives the right to assert a counterclaim, other
than a compulsory counterclaim, in any action or proceeding brought against it
by Lender or its agents or otherwise to offset any obligations to make the
payments required by the Loan Documents. No failure by Lender to perform any of
its obligations hereunder shall be a valid defense to, or result in any offset
against, any payments which Borrower is obligated to make under any of the Loan
Documents.
SECTION 11.20 CONFLICT; CONSTRUCTION OF DOCUMENTS; RELIANCE.
In the event of any conflict between the provisions of this
Agreement and any of the other Loan Documents, the provisions of this Agreement
shall control. The parties hereto acknowledge that they were represented by
competent counsel in connection with the negotiation, drafting and execution of
the Loan Documents and that such Loan Documents shall not be subject to the
principle of construing their meaning against the party which drafted same.
Borrower acknowledges that, with respect to the Loan, Borrower shall rely solely
on its own judgment and advisors in entering into the Loan without relying in
any manner on any statements, representations or recommendations of Lender or
any parent, subsidiary or Affiliate of Lender. Lender shall not be subject to
any limitation whatsoever in the exercise of any rights or remedies available to
it under any of the Loan Documents or any other agreements or instruments which
govern the Loan by virtue of the ownership by it or any parent, subsidiary or
Affiliate of Lender of any equity interest any of them may acquire in Borrower,
and Borrower hereby irrevocably waives the right to raise any defense or take
any action on the basis of the foregoing with respect to Lender's exercise of
any such rights or remedies. Borrower acknowledges that Lender engages in the
business of real estate financings and other real estate transactions and
investments which may be viewed as adverse to or competitive with the business
of Borrower or its Affiliates.
SECTION 11.21 BROKERS AND FINANCIAL ADVISORS.
Borrower hereby represents that it has dealt with no financial
advisors, brokers, underwriters, placement agents, agents or finders in
connection with the transactions contemplated by this Agreement with the
exception of Ridgefield Financial. Borrower shall indemnify, defend and hold
Lender harmless from and against any and all claims, liabilities,
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costs and expenses of any kind (including Lender's attorneys' fees and expenses)
in any way relating to or arising from a claim by any Person that such Person
acted on behalf of Borrower or Lender in connection with the transactions
contemplated herein. The provisions of this Section 11.21 shall survive the
expiration and termination of this Agreement and the payment of the Debt.
SECTION 11.22 EXCULPATION.
Subject to the qualifications below, Lender shall not enforce the
liability and obligation of Borrower to perform and observe the obligations
contained in the Note, this Agreement, the Mortgage or the other Loan Documents
by any action or proceeding wherein a money judgment or any deficiency judgment
or other judgment establishing personal liability shall be sought against
Borrower or any principal, director, officer, employee, beneficiary,
shareholder, partner, member, trustee, agent, or affiliate of Borrower or any
legal representatives, successors or assigns of any of the foregoing
(collectively, the "Exculpated Parties"), except that Lender may bring a
foreclosure action, an action for specific performance or any other appropriate
action or proceeding to enable Lender to enforce and realize upon its interest
under the Note, this Agreement, the Mortgage and the other Loan Documents, or in
the Property, the Rents, or any other collateral given to Lender pursuant to the
Loan Documents; provided, however, that, except as specifically provided herein,
any judgment in any such action or proceeding shall be enforceable against
Borrower only to the extent of Borrower's interest in the Property, in the Rents
and in any other collateral given to Lender, and Lender, by accepting the Note,
this Agreement, the Mortgage and the other Loan Documents, shall not ▇▇▇ for,
seek or demand any deficiency judgment against Borrower or any of the Exculpated
Parties, in any such action or proceeding under or by reason of or under or in
connection with the Note, this Agreement, the Mortgage or the other Loan
Documents. The provisions of this Section shall not, however, (a) constitute a
waiver, release or impairment of any obligation evidenced or secured by any of
the Loan Documents; (b) impair the right of Lender to name Borrower as a party
defendant in any action or suit for foreclosure and sale under the Mortgage; (c)
affect the validity or enforceability of any indemnity, guaranty or similar
instrument made in connection with the Loan or any of the rights and remedies of
Lender thereunder; (d) impair the right of Lender to obtain the appointment of a
receiver; (e) impair the enforcement of the Assignment of Leases; (f) impair the
right of Lender to enforce the provisions of Section 2 of the Environmental
Indemnity; (g) impair the right of Lender to obtain a deficiency judgment or
other judgment on the Note against Borrower if necessary in order to obtain any
insurance proceeds or condemnation awards to which Lender would otherwise be
entitled to under this Agreement, provided that Lender shall only enforce such
judgment to the extent of the insurance proceeds and/or condemnation awards; or
(h) constitute a waiver of the right of Lender to enforce the liability and
obligation of Borrower, by money judgment or otherwise, to the extent of any
loss, damage, cost, expense, liability, claim or other obligation incurred by
Lender (including reasonable attorneys' fees and costs reasonably incurred)
arising out of or in connection with the following:
(i) fraud or intentional misrepresentation by Borrower or any of the
Exculpated Parties in connection with the Loan;
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(ii) Borrower's misapplication or misappropriation or conversion of
Rents or security deposits received by Borrower in advance or after the
occurrence of and during the continuance of an Event of Default;
(iii) the misapplication or the misappropriation of insurance
proceeds or condemnation awards;
(iv) intentionally omitted;
(v) Borrower's breach of, or failure to comply with, the
representations, warranties and covenants contained in Section 4.1.9 of this
Agreement; and
(vi) Any amendment, modification or waiver of any provisions of the
Telcordia Lease, except as specifically permitted pursuant to Section 4.1.9
hereof, or any termination thereof by Borrower or by Telcordia with the consent
or acquiescence of Borrower, except as otherwise specifically permitted pursuant
to the terms of the Telcordia Lease, this Agreement or the other Loan Documents
and except for the rejection of the Telcordia Lease by Telcordia or its trustee
in a bankruptcy proceeding.
Notwithstanding anything to the contrary in this Agreement, the Note
or any of the Loan Documents, (A) Lender shall not be deemed to have waived any
right which Lender may have under Section 506(a), 506(b), 1111(b) or any other
provisions of the Bankruptcy Code to file a claim for the full amount of the
Debt or to require that all collateral shall continue to secure all of the Debt
owing to Lender in accordance with the Loan Documents, and (B) the Debt shall be
fully recourse to Borrower in the event that: (i) Borrower fails to obtain
Lender's prior consent to any assignment, transfer, or conveyance of the
Property or any interest therein as required by the Mortgage or this Agreement;
or (ii) if the Property or Borrower or Guarantor shall become an asset in or be
involved in (a) a voluntary bankruptcy or insolvency proceeding or (b) an
involuntary bankruptcy or insolvency proceeding (other than one filed by or on
behalf of Lender) which is not dismissed within ninety (90) days of filing.
SECTION 11.23 PRIOR AGREEMENTS.
This Agreement and the other Loan Documents contain the entire
agreement of the parties hereto and thereto in respect of the transactions
contemplated hereby and thereby, and all prior agreements among or between such
parties, whether oral or written are superseded by the terms of this Agreement
and the other Loan Documents.
SECTION 11.24 SERVICER.
(a) At the option of Lender, the Loan may be serviced by a servicer
(the "Servicer") selected by Lender and Lender may delegate all or any portion
of its responsibilities under this Agreement and the other Loan Documents to the
Servicer pursuant to a servicing agreement (the "Servicing Agreement") between
Lender and Servicer. At closing, Borrower shall be responsible for any
reasonable set-up fees or any other initial costs relating to or arising under
the Servicing Agreement; provided, however, that Borrower shall not be
responsible for payment of the monthly servicing fee due to the Servicer under
the Servicing Agreement. Servicer shall, however, be entitled to reimbursement
of costs and expenses as and to the same
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extent (but without duplication) as Lender is entitled thereto under the
applicable provisions of this Agreement and the other Loan Documents.
(b) Upon notice thereof from Lender, Servicer shall have the right
to exercise all rights of Lender and enforce all obligations of Borrower
pursuant to the provisions of this Agreement, the Note and the other Loan
Documents.
(c) Provided Borrower shall have been given notice of Servicer's
address by Lender, Borrower shall deliver to Servicer duplicate originals of all
notices and other instruments which Borrower may or shall be required to deliver
to Lender pursuant to this Agreement, the Note and the other Loan Documents (and
no delivery of such notices or other instruments by Borrower shall be of any
force or effect unless delivered to Lender and Servicer as provided above).
SECTION 11.25 JOINT AND SEVERAL LIABILITY.
If more than one Person has executed this Agreement as "Borrower,"
the representations, covenants, warranties and obligations of all such Persons
hereunder shall be joint and several.
SECTION 11.26 CREATION OF SECURITY INTEREST.
Notwithstanding any other provision set forth in this Agreement, the
Note, the Mortgage or any of the other Loan Documents, Lender may at any time
create a security interest in all or any portion of its rights under this
Agreement, the Note, the Mortgage and any other Loan Document (including,
without limitation, the advances owing to it) in favor of any Federal Reserve
Bank in accordance with Regulation A of the Board of Governors of the Federal
Reserve System.
SECTION 11.27 ASSIGNMENTS AND PARTICIPATIONS.
(a) The Lender may, at no cost to Borrower, assign to one or more
Persons all or a portion of its rights and obligations under this Loan
Agreement.
(b) Upon such execution and delivery, from and after the effective
date specified in such Assignment and Acceptance, the assignee thereunder shall
be a party hereto and have the rights and obligations of Lender hereunder.
(c) Lender may, at no cost to Borrower, sell participations to one
or more Persons in or to all or a portion of its rights and obligations under
this Loan Agreement; provided, however, that (i) Lender's obligations under this
Loan Agreement shall remain unchanged, (ii) Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(ii) Lender shall remain the holder of any Note for all purposes of this Loan
Agreement and (iv) Borrower shall continue to deal solely and directly with
Lender in connection with Lender's rights and obligations under and in respect
of this Loan Agreement and the other Loan Documents.
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(d) Lender may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 11.27, disclose
to the assignee or participant or proposed assignee or participant, as the case
may be, any information relating to Borrower or any of its Affiliates or to any
aspect of the Loan that has been furnished to the Lender by or on behalf of the
Borrower or any of its Affiliates.
SECTION 11.28 SET-OFF. In addition to any rights and remedies of
Lender provided by this Loan Agreement and by law, the Lender shall have the
right, without prior notice to Borrower, any such notice being expressly waived
by Borrower to the extent permitted by applicable law, upon any amount becoming
due and payable by Borrower hereunder (whether at the stated maturity, by
acceleration or otherwise) to set-off and appropriate and apply against such
amount any and all deposits (general or special, time or demand, provisional or
final), in any currency, and any other credits, indebtedness or claims, in any
currency, in each case whether direct or indirect, absolute or contingent,
matured or unmatured, at any time held or owing by Lender or any Affiliate
thereof to or for the credit or the account of Borrower. Lender agrees promptly
to notify Borrower after any such set-off and application made by Lender;
provided that the failure to give such notice shall not affect the validity of
such set-off and application.
SECTION 11.29 PARTIAL RELEASE - EXPANSION PARCELS.
(a) Provided no Event of Default shall have occurred and remain
uncured and provided Borrower desires to transfer one or more Expansion Parcels
or ground lease the Ground Lease Parcel for the development of office,
residential, industrial and/or research and development facilities compatible
with the use and operation of the Property, Borrower shall have the right from
time to time prior to the Maturity Date to obtain a release of the lien of the
Mortgage (and related Loan Documents) as to an Expansion Parcels (a "Partial
Release") or ground lease the Ground Lease Parcel (a "Ground Lease") upon
satisfaction of the following conditions precedent:
(i) Borrower shall provide Lender not less than thirty (30) days
notice (or a shorter period of time if permitted by Lender in its sole
discretion) specifying the date (the "Expansion Date") on which the Partial
Release or Ground Lease, as applicable, is to occur provided, however, that
Borrower may postpone the Expansion Date from time to time as long as the
extended date is at least 5 Business Days after Notice of such extension;
(ii) Lender shall have received an Officer's Certificate (A) as to
the proposed use of the Expansion Parcel or Ground Lease Parcel, as applicable,
its compatibility with the use of the Property and its effects on the operation
and use of the remainder of the Property and (B) indicating the Gross Revenue
and Operating Expenses for the Property both immediately before and immediately
after the Partial Release or Ground Lease after taking into account the proposed
use of the Expansion Parcel or Ground Lease Parcel, as applicable, and its
effects on income and expense at the Property, together with evidence in support
of such conclusions;
(iii) In the case of a Partial Release, if required by Lender,
Borrower shall deliver to Lender an opinion of counsel for Borrower that is
standard in commercial lending transactions and subject only to customary
qualifications, assumptions and exceptions opining,
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among other things, that if a Securitization of any portion of the Loan has
occurred, the REMIC Trust formed pursuant to such Securitization will not fail
to maintain its status as a "real estate mortgage investment conduit" within the
meaning of Section 860D of the Code as a result of the partial release pursuant
to this Section 11.29;
(iv) Borrower shall have delivered to Lender evidence that Borrower
has complied with all requirements of and obtained all approvals required under
any Leases and the Operating Agreements applicable to the Partial Release or
Ground Lease, as applicable, and that such Partial Release or Ground Lease does
not violate any of the provisions of the Leases and the Operating Agreements
including, without limitation, provisions relating to the availability of
parking at the Property provided, however, that an Officer's Certificate to that
effect shall be sufficient evidence of such compliance and obtaining of such
approvals as to Leases which are not Major Leases;
(v) In the case of a Partial Release, Borrower shall have delivered
to Lender (A) at Borrower's option, (x) an endorsement to the Title Insurance
Policy, (y) an opinion of counsel (from counsel reasonably acceptable to Lender)
or (z) a certificate of an architect or engineer (from an architect or engineer
reasonably acceptable to Lender and licensed to practice in the State)
indicating that the Expansion Parcel has been legally subdivided for zoning lot
purposes from the remainder of the Property pursuant to a zoning lot subdivision
in accordance with applicable law, (B) at Borrower's option, (x) an endorsement
to the Title Insurance Policy, (y) an opinion of counsel (from counsel
reasonably acceptable to Lender) or (z) a certificate of an architect (from an
architect reasonably acceptable to Lender and licensed to practice in the State)
indicating that the balance of the Property separately conforms to and is in
material compliance with all applicable Legal Requirements and constitutes a
separate tax lot(s), (C) a certificate from an architect or engineer licensed to
practice in the State and reasonably acceptable to Lender to the effect that the
Expansion Parcel is not necessary for the uses of the remainder of the Property,
including, without limitation, for support, access, driveways, parking,
utilities, drainage flows or any other purpose, (after giving effect to any
easements therefor reserved over the Expansion Parcel for the benefit of the
remainder of the Property) and (D) an Officer's Certificate with supporting
documentation indicating that either (y) sufficient parking remains on the
remainder of the Property to comply with all Leases of such remainder and with
all Operating Agreements and which is adequate for the proper use and enjoyment
of the balance of the Property or (z) reservations of parking (in favor of such
remainder) in the Expansion Parcel are sufficient (when added to parking
otherwise available to the remainder) to comply with all Leases of such
remainder and with all Operating Agreements and which are adequate for the
proper use and enjoyment of the remainder of the Property;
(vi) In the case of a Partial Release, Borrower shall have delivered
a copy of any reciprocal easement agreement to be executed on or prior to the
Expansion Date which will provide for any of the reservations required by
Section 11.29(a)(v) and which will otherwise conform to the other requirements
of Section 11.29(a)(v) and may contain cross-easements for the benefit of the
Expansion Parcel and the remainder of the Property in respect of access,
driveways, parking, utilities, drainage flows, storm and sanitary sewers, and
other customary purposes. Such reciprocal easement agreement will contain only
those provisions which (x) are necessary or desirable to accommodate the
proposed development described in this Section 11.29, (y) are consistent with
Borrower's obligations under the Loan Documents and (z) would
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be acceptable to a prudent lender subordinating its mortgage to such an
reciprocal easement agreement;
(vii) Borrower shall have delivered a certificate from an architect
or engineer (licensed to practice in the State and reasonably acceptable to
Lender) to the effect that any improvements proposed to be built on the
Expansion Parcel or Ground Lease Parcel, as applicable, will not adversely
affect the ability to operate and maintain the remainder of the Property (after
giving effect to any easements reserved or granted for the benefit of such
remainder or the Expansion Parcel) and will not result in a loss any rentable
square feet on the remainder of the Property;
(viii) The Debt Service Coverage Ratio for the Loan, after taking
into account any improvement which is proposed to be built on the Expansion
Parcel or the Ground Lease Parcel, as applicable, and its effect on income and
expenses at the Property, will not be less than the Debt Service Coverage Ratio
for the Loan as of the date immediately preceding the release and Borrower shall
deliver an Officer's Certificate certifying thereto and showing the calculations
with respect thereto;
(ix) In the case of a Ground Lease, Borrower shall have delivered to
Lender an architect's certificate certifying that the plans and drawings for the
improvements to be built on the Expansion Parcel or Ground Lease Parcel, as
applicable, and the improvements to be constructed pursuant thereto will comply
with all Legal Requirements;
(x) Lender shall have received an appraisal of the Property dated no
more than sixty (60) days prior to the proposed Expansion Date by an appraiser
reasonably acceptable to the Rating Agencies, indicating an appraised value of
the Property after the Partial Release (i.e. the value of the Property exclusive
of the Expansion Parcel) or Ground Lease, as applicable, both before and after
construction of improvements to be built on the Expansion Parcel or Ground Lease
Parcel, as applicable, equal to or greater than the value of the Property prior
to such Partial Release (exclusive of the value of the Expansion Parcel) or
Ground Lease;
(xi) In the case of a Ground Lease, Borrower shall have delivered to
Lender, additional security for Borrower's obligations under the Loan Documents,
a Letter of Credit in the amount of the appraised value of the Ground Lease
Parcel as of the date of the appraisal;
(xii) In the case of a Partial Release, Borrower shall have
delivered a metes and bounds description of the Expansion Parcel and a survey of
the Expansion Parcel and the remainder of the Property which would be standard
in commercial lending transactions and which contains no material deviation from
the Expansion Parcel identified on Schedule VIII;
(xiii) In the case of a Ground Lease, Borrower shall have delivered
a description of the Ground Lease Parcel that is satisfactory to Lender;
(xiv) In the case of a Partial Release, Borrower shall have
delivered to Lender on the date of the release an endorsement to the policy or
policies of title insurance insuring the Mortgage reflecting the release and (A)
insuring Lender's interest in any easements created in connection with the
Release, (B) extending the effective date of the policy or policies to the
effective date of the release, and (C) confirming no change in the priority of
the Mortgage on the
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remainder of the Property or in the amount of the insurance or the coverage
under the policy or policies;
(xv) Borrower shall deliver to Lender an Officer's Certificate
certifying that the requirements set forth in this Section 11.29 have been
satisfied; and
(xvi) Borrower shall pay all out-of-pocket costs and expenses of
Lender incurred in connection with the Partial Release or Ground Lease, as
applicable, including Lender's reasonably attorneys' fees and expenses.
(xvii) In the case of a Ground Lease, (A) the request for such
ground lease shall be accompanied by, at Borrower's option, (1) an endorsement
to the Title Insurance Policy, (2) an opinion of counsel (from counsel
reasonably acceptable to Lender) or (3) an architect's or surveyor's certificate
from an architect or surveyor reasonably acceptable to Lender and licensed in
the State in which the Property is located, stating that a subdivision is not
required in order for the remainder of the Property to comply with Legal
Requirements after the commencement of the ground lease, (B) Borrower shall
deliver evidence to Lender indicating that either (1) financing is available
from a reliable funding source to fund the cost of the improvements to be
constructed on the Ground Lease Parcel or (2) the tenant has sufficient
financial wherewithal to pay for the cost of construction of such improvements,
(D) such ground lease shall be approved by Lender and shall contain the
following provisions: (1) the Ground Lease Parcel shall not be used for any
purpose other than that which is compatible with the current use of the
Property, (2) the ground lease shall require that the tenant be responsible for
construction of improvements (however, Borrower, as the landlord thereunder, may
be responsible for construction of the improvements provided that Borrower
complies with the provisions of Section 4.1.10), all allocable taxes and all
insurance, maintenance, utility, repair and other similar obligations with
respect to the tenant's improvements, (3) the tenant shall be required to
restore the demised premises in the case of casualty and condemnation to a safe
and habitable condition and/or to remove any damaged structures or debris
therefrom so as to leave the demised premises in a safe condition, and (4) the
tenant shall discharge (unless the same have been bonded or otherwise secured to
Lender's satisfaction) within thirty (30) days any mechanic's Lien filed against
the demised premises by reason of the acts of the tenant or Persons claiming by,
through or under the tenant. Such ground lease may permit the tenant to procure
mortgage financing secured by the leasehold estate created thereby and such
ground lease will contain no provisions which are inconsistent with Borrower's
obligations under the Loan Documents or which would be unacceptable to a prudent
lender subordinating its mortgage to same (including any provisions which are
materially detrimental to the interests of such lender).
(xviii) If Borrower is unable to legally subdivide the Expansion
Parcel from the remainder of Property, if Borrower desires to enter into a
ground lease in lieu of conveying title to the Expansion Parcel, Borrower shall
have the right to ground lease the Expansion Parcel to a Person other than
Borrower in lieu of such conveyance and Lender shall subordinate the Lien of the
Mortgage and the other Loan Documents to such lease, provided Borrower complies
with all of the conditions set forth in Section 11.29 to the extent applicable
to a Ground Lease.
(b) If Borrower has elected to release the Expansion Parcel and the
requirements of this Section 11.29 have been satisfied, the Expansion Parcel
shall be released
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from the Lien of the Mortgage (and related Loan Documents), any reciprocal
easement agreement approved by Lender may be executed and Lender shall consent
and subordinate the Lien of the Mortgage thereto. In connection with the release
of the Lien, Borrower shall submit to Lender, not less than 10 days prior to the
Expansion Date (or such shorter time as is acceptable to Lender in its sole
discretion), a release of Lien (and related Loan Documents) for execution by
Lender and a consent and subordination to any reciprocal easement agreement
approved by Lender for execution by Lender. Such release and consent and
subordination shall be in a form appropriate in the jurisdiction in which the
Property is located and shall contain standard provisions protecting the rights
of a releasing lender. In addition, Borrower shall provide all other
documentation Lender reasonably requires to be delivered by Borrower in
connection with such release, together with an Officer's Certificate certifying
that such documentation (i) is in compliance with all Legal Requirements, and
(ii) will effect such release in accordance with the terms of this Agreement.
Borrower shall pay all costs, taxes and expenses associated with the release of
the Lien of the Mortgage, including Lender's reasonable attorneys' fees.
Borrower shall cause title to the Expansion Parcel so released from the Lien of
the Mortgage to be transferred to and held by a Person other than Borrower.
SECTION 11.30 COMPONENT NOTES.
Lender, without in any way limiting Lender's other rights hereunder,
in its sole and absolute discretion, shall have the right at any time to require
Borrower to execute and deliver "component" notes (including senior and junior
notes), which notes may be paid in such order of priority as may be designated
by Lender, provided that (i) the aggregate principal amount of such "component"
notes shall equal the outstanding principal balance of the Loan immediately
prior to the creation of such "component" notes, (ii) the weighted average
interest rate of all such "component" notes shall on the date created equal the
interest rate which was applicable to the Loan immediately prior to the creation
of such "component" notes, (iii) the debt service payments on all such
"component" notes shall on the date created equal the debt service payment which
was due under the Loan immediately prior to the creation of such component notes
and (iv) the other terms and provisions of each of the "component" notes shall
be identical in substance and substantially similar in form to the Loan
Documents. Borrower, no cost or expense to Lender or Borrower (other than its
own costs and expenses in connection with the review, execution and delivery of
the component notes), shall cooperate with all reasonable requests of Lender in
order to establish the "component" notes and shall execute and deliver such
documents as shall reasonably be required by Lender and any Rating Agency in
connection therewith, all in form and substance reasonably satisfactory to
Lender and any Rating Agency, including, without limitation, the severance of
security documents if requested. In the event Borrower fails to execute and
deliver such documents to Lender within 10 Business Days following written
request by Lender, Borrower hereby absolutely and irrevocably appoints Lender as
its true and lawful attorney, coupled with an interest, in its name and stead to
make and execute all documents necessary or desirable to effect such
transactions, Borrower ratifying all that such attorney shall do by virtue
thereof.
It shall be an Event of Default under this Agreement, the Note, the
Mortgage and the other Loan Documents if Borrower fails to comply with any of
the terms, covenants or conditions of this Section 11.30 after expiration of ten
(10) Business Days after written notice thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Loan
Agreement to be duly executed by their duly authorized representatives, all as
of the day and year first above written.
LENDER:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MORTGAGE
CAPITAL INC, a New York corporation
By:/s/ ▇▇▇▇▇▇▇ DEUTSCH
------------------------------
Name: ▇▇▇▇▇▇▇ DEUTSCH
Title: an authorized signatory
BORROWER:
TELC (NJ) QRS 16-30, INC.,
a Delaware corporation
By:
-----------------------------
Name:
Title:
IN WITNESS WHEREOF, the parties hereto have caused this Loan
Agreement to be duly executed by their duly authorized representatives, all as
of the day and year first above written.
LENDER:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MORTGAGE
CAPITAL INC, a New York corporation
By:
------------------------------
Name:
Title:
BORROWER:
TELC (NJ) QRS 16-30, INC.,
a Delaware corporation
By:/s/ ▇▇▇▇▇ ▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇▇▇
Title: Vice President
SCHEDULE I
RENT ROLL
SCHEDULE II
REQUIRED REPAIRS
PROPERTY REQUIRED REPAIR DEADLINE DEPOSIT AMOUNT
-------- --------------- -------- --------------
SCHEDULE III
ORGANIZATIONAL CHART
TELC (NJ) QRS 16-30, INC.
CORPORATE STRUCTURE
[FLOW CHART]
--------------------------------------------------------------------------------
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
--------------------------------------------------------------------------------
MSMC Loan No. 05-19219
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MORTGAGE CAPITAL INC.,
a New York corporation
(Lender)
and
TELCORDIA TECHNOLOGIES, INC.,
a Delaware corporation
(Tenant)
and
TECL (NJ) QRS 16-30, INC.,
a Delaware corporation
(Landlord)
_____________,2005
PREPARED BY AND UPON
RECORDATION RETURN TO:
Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Property ▇▇▇▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (formerly ▇▇▇ ▇▇▇▇ ▇▇▇▇)
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ of Middlesex, State of New Jersey
-2-
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (the
"Agreement") is made as of ______________________, 2005 by and among ▇▇▇▇▇▇
▇▇▇▇▇▇▇ MORTGAGE CAPITAL, INC., a New York corporation, having an address at c/o
ArCap Servicing, Inc., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ("Lender"). TELCORDIA TECHNOLOGIES, INC., a Delaware
corporation, having an address at ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ("Tenant"), and TELC (NJ) QRS 16-30, INC., a Delaware corporation, having
an address at c/o W.P. ▇▇▇▇▇ & Co., LLC, ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("Landlord").
RECITALS:
A. Lender is the present owner and holder of that certain Mortgage (the
"Security Instrument") dated as of __________________, 2005, given by Landlord
to Lender which encumbers the fee simple absolute estates of Landlord in certain
premises described in Exhibit A attached hereto (the "Property") and which,
among other security instruments, secures the payment of certain indebtedness
owed by Landlord to Lender evidenced by a certain promissory note dated
________________, 2005, given by Landlord to Lender (the "Note");
B. Tenant is the holder of a leasehold estate in the Property under and
pursuant to the provisions of a certain lease dated _______________, 2005
between Landlord, as landlord and Tenant, as tenant (as may be amended from
time to time, the "Lease"); and
C. Tenant has agreed to subordinate the Lease to the Security
Instrument and to the lien thereof and Lender has agreed to grant
non-disturbance to Tenant under the Lease on the terms and conditions
hereinafter set forth.
AGREEMENT:
For good and valuable consideration, Tenant, Lender and Landlord agree as
follows:
1. Subordination. The Lease and all of the terms, covenants and
provisions thereof and all rights, remedies and options of Tenant thereunder are
and shall at all times continue to be subject and subordinate in all respects to
the terms, covenants and provisions of the Security Instrument, as of the date
hereof, and to the lien thereof, including without limitation, all renewals,
increases, modifications, spreaders, consolidations, replacements and
extensions thereof and to all sums secured thereby and advances made
thereunder with the same force and effect as if the Security Instrument had
been executed, delivered and recorded prior to the execution and delivery of the
Lease.
2. Non-Disturbance. If any action or proceeding is commenced by Lender
for the foreclosure of the Security Instrument or the sale of the Property,
neither Tenant nor any senior secured lender, subordinate senior lender,
purchase money equipment lender or equipment lessor of Tenant that is a party
with Landlord to any consent, waiver or agreement pursuant to Section 32 of the
Lease (hereinafter "Tenant's Lender") shall be named as a party to such action
or proceeding unless such joinder shall be required by law, provided, however,
such joinder shall
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not result in the termination of the Lease or disturb or interfere with Tenant's
possession or use of the premises demised thereunder or any of Tenant's other
rights under the Lease or any rights of Tenant's Lender (including, without
limitation, Tenant's current senior secured lenders pursuant to the terms of
that certain Landlord's Waiver and Agreement the "(Landlord's Waiver and
Agreement") dated as of the date of the Lease among Tenant, Landlord and
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Bank, N.A., as agent for Tenant's current senior secured
lenders), except as specifically set forth elsewhere in this Agreement, and the
sale of the Property in any such action or proceeding and the exercise by Lender
of any of its other rights under the Note or the Security Instrument shall be
made subject to all rights of Tenant under the Lease and any rights of any
Tenant's Lenders (including, without limitation Tenant's current senior secured
lenders under the Landlord's Waiver and Agreement), provided that at the time of
the commencement of any such action or proceeding or at the time of any such
sale or exercise of any such other rights, an Event of Default, as defined in
the Lease, by Tenant shall not have occurred and be continuing and Landlord
shall not have terminated the Lease. The immediately preceding sentence shall in
no way be deemed a waiver of Lender's rights to enforce any remedy against
Tenant under the Lease, as Landlord, pursuant to the terms of the Lease in the
event that Lender becomes the owner of the Property by reason of the foreclosure
of the Security Instrument or the acceptance of a deed or assignment in lieu of
foreclosure or otherwise.
3. Attornment. If Lender or any other subsequent purchaser of the
Property shall become the owner of the Property by reason of the foreclosure of
the Security Instrument or the acceptance of a deed or assignment in lieu of
foreclosure or by reason of any other enforcement of the Security Instrument
(Lender or such other purchaser being hereinafter referred as "Purchaser"), and
the conditions set forth in Section 2 above have been met at the time Purchaser
becomes owner of the Property, the Lease shall not be terminated or affected
thereby but shall continue in full force and effect as a direct lease between
Purchaser and Tenant upon all of the terms, covenants and conditions set forth
in the Lease and in that event, Tenant agrees to attorn to Purchaser and
Purchaser by virtue of such acquisition of the Property shall be deemed to have
agreed to accept such attornment, provided, however, that Purchaser shall not be
(a) liable for the failure of any prior landlord (any such prior landlord,
including Landlord and any successor landlord, being hereinafter referred to as
a "Prior Landlord") to perform any of its obligations under the Lease which have
accrued prior to the date on which Purchaser shall become the owner of the
Property, provided that the foregoing shall not limit Purchaser's obligations
under the Lease to correct any conditions of a continuing nature that (i)
existed as of the date Purchaser shall become the owner of the Property and (ii)
violate Purchaser's obligations as Landlord under the Lease; provided further,
however, that Purchaser shall have received written notice of such omissions,
conditions or violations and has had a reasonable opportunity to cure the same,
all subject to the terms and conditions of the Lease; (b) subject to any
offsets, defenses, abatements or counterclaims which shall have accrued in favor
of Tenant against any Prior Landlord prior to the date upon which Purchaser
shall become the owner of the Property in connection with a default by any Prior
Landlord thereunder, (c) bound by any payment of Basic Rent which Tenant may
have paid more than one (1) quarter in advance to any Prior Landlord unless (i)
such sums are actually received by Purchaser or (ii) such prepayment shall have
been expressly approved of by Purchaser (this subsection (c) shall not apply to
prepaid Basic Rent paid in accordance with the Lease) (d) bound by any agreement
terminating or amending or modifying the Basic Rent, term, commencement date or
other material term of the Lease, or any voluntary surrender of the Property,
made without Lender's prior written consent to the extent such consent is
required
-4-
under the Security Instrument, Note or the other related loan documents or (e)
to the extent such consent is required under the Security Instrument, the Note
or other related loan documents, bound by any assignment of the Lease or
sublease of the Property, or any portion thereof, made prior to the time
Purchaser succeeded to Landlord's interest other than any existing today
(including, without limitation, the sublease to Science Applications
International Corporation for approximately 1,000 square feet on a
month-to-month basis, the rooftop licenses to SkyTel Corp., New York SMSA
Limited Partnership, MCImetro Access Transmission Services, LLC, Sprint Spectrum
L.P. and Nextel of New York Inc. and the license to Toshiba America Research,
Inc. for approximately 2,855 square feet) if pursuant to the provisions of the
Lease. Alternatively, upon the written request of Lender or its successors or
assigns, Tenant shall enter into a new lease of the Premises with Lender or such
successor or assign, at Lender's or such successor or assign's cost and expense,
for the then remaining term of the Lease, upon the same terms and conditions as
contained in the Lease (as the same may be amended or modified as mutually
agreed to by Tenant and Purchaser).
4. Right of First Refusal. In the event that Lender or any other
subsequent purchaser of the Property shall become the owner of the Property by
reason of the foreclosure of the Security Instrument or the acceptance of a deed
or assignment in lieu of foreclosure or by reason of any other enforcement of
the Security Instrument, such event shall not trigger any right of first refusal
that Tenant has under the Lease.
5. Notice to Tenant. After written notice is given to Tenant by
Lender that the Landlord is in default under the Note and the Security
Instrument and that the rentals under the Lease should be paid to Lender
pursuant to the terms of the assignment of leases and rents executed and
delivered by Landlord to Lender in connection therewith, Tenant shall (but
subject at all times to compliance with applicable law) thereafter pay to
Lender or as directed by the Lender in writing, all rentals and all other
monies due or to become due to Landlord under the Lease and Landlord hereby
expressly authorizes Tenant to make such payments to Lender and hereby
releases and discharges Tenant from any liability to Landlord on account of
any such payments.
6. Lender's Consent. Tenant shall not, without obtaining the prior
written consent of Lender, but only to the extent such consent is required
pursuant to the Security Instrument, Note or other related loan documents, (a)
enter into any agreement amending, modifying or terminating the Basic Rent,
term, commencement date other material term of the Lease, (b) prepay any of the
Basic Rent due under the Lease for more than one (1) quarter in advance of the
due dates thereof, other than the prepaid Basic Rent paid in accordance with the
Lease, (c) voluntarily surrender the Property or terminate the Lease without
cause or shorten the term thereof other than pursuant to the provisions of the
Lease, or (d) assign the Lease or sublet the Property or any part thereof other
than pursuant to the provisions of the Lease; and any such amendment,
modification, termination, prepayment, voluntarily surrender, assignment or
subletting, without Lender's prior consent, except as otherwise permitted by
this Section 6, shall not be binding upon Lender. As to the Landlord, the terms
and restrictions contained in Security Instrument shall control to the extent
there is any conflict between the Security Instrument and this Agreement.
-5-
7. Notice to Lender and Right to Cure. Tenant shall notify Lender if
Tenant becomes aware of any default by Landlord under the Lease and agrees
that, notwithstanding any provisions of the Lease to the contrary, no notice of
cancellation thereof or of an abatement associated with such default shall be
effective unless Lender shall have received notice of default giving rise to
such cancellation or abatement and (i) in the case of any such default that can
be cured by the payment of money, until thirty (30) days shall have elapsed
following the giving of such notice or (ii) in the case of any other such
default, forty-five (45) days, except for a default which cannot be cured in
such a period of time, in which case Lender shall have a reasonable period for
remedying such default following the giving of such notice and following the
time when Lender shall have become entitled under the Security Instrument to
remedy the same, including such time as may be necessary to acquire possession
of the Property if possession is necessary to effect such cure, provided Lender,
with reasonable diligence, shall (a) pursue such remedies as are available to it
under the Security Instrument so as to be able to remedy the default, and (b)
thereafter shall have commenced and continued to remedy such default or cause
the same to be remedied, but in no event shall such period of time exceed ninety
(90) days. Notwithstanding the foregoing, Lender shall have no obligation to
cure any such default by Landlord under the Lease.
8. Notices. All notices or other written communications hereunder shall
be deemed to have been properly given (i) upon delivery, if delivered in person
or by facsimile transmission with receipt acknowledged by the recipient thereof
and confirmed by telephone by sender, (ii) one (1) Business Day (hereinafter
defined) after having been deposited for overnight delivery with any reputable
overnight courier service, or (iii) three (3) Business Days after having been
deposited in any post office or mail depository regularly maintained by the U.S.
Postal Service and sent registered or certified mail, postage prepaid, return
receipt requested, addressed as follows:
If to Tenant: Telcordia Technologies, Inc.
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
With a Copy To: ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
If to Lender: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital, Inc.
1221 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a Copy To: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Mortgage Capital Inc.
ArCap Servicing, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
-6-
With a Copy To: Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Landlord: TELC (NJ) QRS 16-30, Inc.
c/o W.P. ▇▇▇▇▇ & Co., LLC
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Director, Asset Management
With a Copy To: ▇▇▇▇ ▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chairman, Real Estate Department
or addressed as such party may from time to time designate by written notice to
the other parties. For purposes of this Section 7, the term "Business Day"
shall mean a day on which commercial banks are not authorized or required by law
to close in the state or commonwealth where the Property is located. Either
party by notice to the other may designate additional or different addresses for
subsequent notices or communications.
9. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of Lender, Tenant and Purchaser and their respective
successors and assigns.
10. Governing Law. This Agreement shall be deemed to be a contract
entered into pursuant to the laws of the State or Commonwealth where the
Property is located and shall in all respects be governed, construed, applied
and enforced in accordance with the laws of the State or Commonwealth where the
Property is located.
11. Miscellaneous. This Agreement may not be modified in any manner or
terminated except by an instrument in writing executed by the parties hereto. If
any term, covenant or condition of this Agreement is held to be invalid, illegal
or unenforceable in any respect, this Agreement shall be construed without such
provision. This Agreement may be executed in any number of duplicate originals
and each duplicate original shall be deemed to be an original. This Agreement
may be executed in several counterparts, each of which counterparts shall be
deemed an original instrument and all of which together shall constitute a
single Agreement. Whenever the context may require, any pronouns used herein
shall include the corresponding masculine, feminine or neuter forms, and the
singular form of nouns and pronouns shall include the plural and vice versa.
12. Joint and Several Liability. If Tenant consists of more than one
person, the obligations and liabilities of each such person hereunder shall be
joint and several.
13. Definitions. The term "Lender" as used herein shall include the
successors and assigns of Lender as holder of the Security Instrument or the
acceptance of a deed or assignment in lieu of foreclosure or otherwise. The term
"Landlord" as used herein shall mean
-7-
and include the present landlord under the Lease and such landlord's successors
in interest under the Lease, but shall not mean or include Lender unless and
until Lender has succeeded to the interest of Landlord under the Lease. The term
"Property" as used herein shall mean the Property, the improvements now or
hereafter located thereon and the estates therein encumbered by the Security
Instrument. The term "Tenant" as used herein shall mean and include the present
tenant under the Lease and such tenant's successors in interest.
14. Further Acts. The parties hereto will do, execute, acknowledge and
deliver such further acts and assurances as any other party shall, from time to
time, reasonably require, for the better assuring and confirming the rights
granted by the terms of this Agreement or for carrying out the intention or
facilitating the performance of the terms of this Agreement or for filing,
registering or recording this Agreement provided that any such further agreement
or assurance shall be consistent with the terms of the Lease and this Agreement.
15. Limitations on Purchaser's Liability. In no event shall the
Purchaser, nor any heir, legal representative, successor, or assignee of the
Purchaser have any personal liability for the obligations of Landlord under the
Lease and should the Purchaser succeed to the interests of the Landlord under
the Lease, Tenant shall look only to the estate and property of any such
Purchaser in the Property for the satisfaction of Tenant's remedies for the
collection of a judgment (or other judicial process) requiring the payment of
money in the event of any default by any Purchaser as landlord under the Lease,
and no other property or assets of any Purchaser shall be subject to levy,
execution or other enforcement procedure for the satisfaction of Tenant's
remedies under or with respect to the Lease; provided, however, that the Tenant
may exercise any other right or remedy provided thereby or by law in the event
of any failure by Landlord to perform any such obligation. The parties hereby
agree that Lender, upon becoming the owner of the Property, or any Purchaser of
the Property, shall be liable for any prepaid Basic Rent less any amounts that
have been applied theretofore in accordance with the terms of the Lease on the
date of such foreclosure or acceptance of deed in lieu. The parties further
acknowledge that pursuant to the terms of the Lease, in the event the Lease is
terminated prior to the expiration of the Lease due to an Event of Default under
the Lease (as defined therein) any prepaid Basic Rent or any interest thereon
and any prepaid Basic Rent shall be applied in accordance with the terms of the
Lease.
16. Estoppel Certificate. Tenant, shall, from time to time, within
twenty (20) days after request by Lender, execute, acknowledge and deliver to
Lender a statement by Tenant certifying (a) that the Lease is unmodified and in
full force and effect (except as otherwise specified), (b) the amounts of fixed
rent, additional rent, percentage rent or other sums, if any, which are payable
in respect of the Lease and the commencement date and expiration date of the
Lease, (c) the dates to which the fixed rent, additional rent, and other sums
which are payable in respect to the Lease have been paid, (d) that, to the
knowledge of the signer of such certificate and except as otherwise specified,
no default by Landlord exists under the Lease, and (e) except as otherwise
specified, there are no proceedings pending or, to the knowledge of the signer,
threatened, against Tenant before or by any court or administrative agency
which, if adversely decided, would materially and adversely affect the financial
condition and operations of Tenant. Tenant also shall include in any such
statement such other information concerning the Lease as Lender may reasonably
request. Any such statements by Tenant may be relied upon by Lender and its
successors and assigns. Any estoppel certificate under this provision shall
state the title
-8-
of the signatory thereto and that such person is duly authorized to execute
and deliver same on behalf of Tenant. In no event shall any person signing any
such statement be personally liable thereunder.
[NO FURTHER TEXT ON THIS PAGE]
-9-
IN WITNESS WHEREOF, the parties hereto have caused this Loan Agreement to
be duly executed by their duly authorized representatives, all as of the day and
year first above written.
LENDER:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MORTGAGE
CAPITAL INC, a New York corporation
By: /s/ ▇▇▇▇▇▇▇ Deutsch
-------------------------------
Name: ▇▇▇▇▇▇▇ DEUTSCH
Title: an authorized signatory
BORROWER:
TELC (NJ) QRS 16-30, INC.,
a Delaware corporation
By:_______________________________
Name:
Title:
IN WITNESS WHEREOF, Lender, Tenant and Landlord have duly executed this
Agreement as of the date first above written.
LENDER:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ MORTGAGE CAPITAL,
INC., a New York corporation
By:____________________________________
Name:__________________________________
Title:_________________________________
TENANT:
TELCORDIA TECHNOLOGIES, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Corporate Vice President and
Deputy General Counsel
LANDLORD:
TELC (NJ) QRS 16-30, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇
Its: VP
-10-
STATE OF ____________________
COUNTY OF ___________________
This instrument was acknowledged before me on the _____ day of__________, 20
______________________ by ____________________ the __________________ of
_________, a _________________, the ____________________________ of
___________, a ________, on behalf of said corporation.
___________________________________
Notary Public in and for
the State of_________
___________________________________
My commission expires: ______________
STATE OF _________________
COUNTY OF ______________
This instrument was acknowledged before me on the 11 day of March _____,
2005 by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ the Corporate Vice President & Deputy General Counsel
Telcordia Technologies Inc., a Delaware Corporation, on behalf of said
corporation.
▇▇▇▇▇▇ ▇▇▇▇▇▇
Notary Public, State of New York
No. 01KO6113974
Qualified In Rookland County
Certificate Filed In New York County
Commission Expires Aug. 9, 2006
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Notary Public in and for
the State of NY
___________________________________
My commission expires: ___________
STATE OF New York
COUNTY OF New York
This instrument was acknowledged before me on the 14th day of March____, 2005 by
▇▇▇▇▇ ▇▇▇ the Vice President of TELC (NJ) QRS 16-30 INC., a Delaware
Corporation, on behalf of said corporation.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------ Notary Public, State of New York
Notary Public in and for No. 01CO6111240
the State of NY Qualified in New York County
Commission Expires June 7, 2008
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------
My commission expires: 6/7/08
EXHIBIT A
LEGAL DESCRIPTIONS OF PROPERTY
EXHIBIT A
PROPERTY DESCRIPTION
ALL THAT CERTAIN PLOT, PIECE OR PARCEL OF LAND, WITH THE BUILDING AND
IMPROVEMENTS THEREON ERECTED, SITUATE, LYING AND BEING IN the Township of
Piscataway, COUNTY of Middlesex, STATE OF NEW JERSEY, BOUNDED AND DESCRIBED AS
FOLLOWS:
PARCEL ONE - BLOCK 591, LOT 2.01 - RECORD DESCRIPTION
All that certain lot, tract or parcel of land and premise situate, lying and
being in the Township of Piscataway, County of Middlesex and State of New
Jersey, being more particularly described as follows:
BEGINNING at the intersection of the westerly sideline of Hoes Lane, variable
width Right-of-Way, with the northerly sideline of ▇▇▇▇▇▇ Avenue, 66 foot
Right-of-Way, and from said point running; thence
1. Along the said northerly sideline of ▇▇▇▇▇▇ Avenue on a curve to the
right said curve having a radius of 20.00 feet, a length along the
arc of 28.17 feet, a bearing along the chord of South 27 degrees 22
minutes 04 seconds West, and a chord distance of 25.90 feet to a
point of tangency, thence
2. Continuing along said northerly sideline, South 67 degrees 43
minutes 22 seconds West, a distance of 473.88 feet; thence
3. North 22 degrees 16 minutes 39 seconds West, a distance of 250.00
feet; thence
4. South 67 degrees 43 minutes 21 seconds West, a distance of 280.00
feet; thence
5. South 22 degrees 16 minutes 39 seconds East, a distance of 250.00
feet to the said northerly sideline of ▇▇▇▇▇▇ Avenue; thence
6. Along said sideline, South 67 degrees 43 minutes 22 seconds West, a
distance of 292.29 feet; thence
7. South 67 degrees 53 minutes 22 seconds West, a distance of 787.50
feet; thence
8. North 20 degrees 10 minutes 39 seconds West, a distance of 414.90
feet; thence
9. North 43 degrees 04 minutes 48 seconds West, a distance of 328.55
feet; thence
10. North 13 degrees 38 minutes 03 seconds West, a distance of 435.20
feet; thence
11. North 12 degrees 16 minutes 28 seconds West, a distance of 278.51
feet; thence
12. North 12 degrees 11 minutes 18 seconds West, a distance of 626.96
feet; thence
13. North 18 degrees 37 minutes 49 seconds West, a distance of 62.60
feet; thence
14. North 65 degrees 49 minutes 40 seconds East, a distance of 97.25
feet; thence
15. North 70 degrees 47 minutes 05 seconds East, a distance of 465.73
feet; thence
1
16. North 70 degrees 37 minutes 52 seconds East, a distance of 664.05
feet; thence
17. North 70 degrees 38 minutes 36 seconds East, a distance of 524.76
feet to a concrete monument in the westerly sideline of Hoes Lane;
thence
18. Along said sideline, South 24 degrees 17 minutes 54 seconds East, a
distance of 526.99 feet to a point of curvature; thence
19. Continuing along the said sideline on a curve to the left said curve
having a radius of 6052.00 feet, a length along the arc of 422.51
feet, a bearing along the chord of South 26 degrees 17 minutes 34
seconds East, and a chord distance of 422.42 feet to a point of
reverse curvature; thence
20. Continuing along the said sideline on a curve to the right said
curve having a radius of 2948.00 feet, a length along the arc of
823.24 feet, a bearing along the chord of South 20 degrees 17
minutes 54 seconds East and a chord distance of 820.56 feet to a
point of tangency, thence
21. South 12 degrees 17 minutes 54 seconds East, a distance of 184.28
feet to the POINT of BEGINNING.
The above described being known as a description of Block 591, Lots 2.01, said
Lot being shown on the Piscataway Township Tax Map Sheet 51, also bring shown on
a plat entitled "Reverse Subdivision Plan" prepared by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Associates, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ dated May 26, 1999.
PARCEL ONE - BLOCK 591, LOT 2.01 - SURVEY DESCRIPTION
All that certain lot, tract or parcel of land and premise situate, lying and
being in the Township of Piscataway, County of Middlesex and State of New
Jersey, being more particularly described as follows:
BEGINNING at the intersection of the westerly sideline of Hoes Lane, variable
width Right-of-Way, with the northerly sideline of ▇▇▇▇▇▇ Avenue, 66 foot
Right-of-Way, and from said point running; thence
1. Along the said northerly sideline of ▇▇▇▇▇▇ Avenue on a curve to the
right said curve having a radius of 20.00 feet, a length along the
arc of 28.17 feet, a bearing along the chord of South 27 degrees 22
minutes 04 seconds West, and a chord distance of 25.90 feet to a
point of tangency; thence
2. Continuing along said northerly sideline, South 67 degrees 43
minutes 22 seconds West, a distance of 473.88 feet; thence
3. North 22 degrees 16 minutes 39 seconds West, a distance of 250.00
feet; thence
4. South 67 degrees 43 minutes 21 seconds West, a distance of 280.00
feet; thence
5. South 22 degrees 16 minutes 39 seconds East, a distance of 250.00
feet to the said northerly sideline of ▇▇▇▇▇▇ Avenue; thence
2
6. Along said sideline, South 67 degrees 43 minutes 22 seconds West, a
distance of 292.29 feet; thence
7. South 67 degrees 53 minutes 22 seconds West, a distance of 787.50
feet; thence
8. North 20 degrees 10 minutes 39 seconds West, a distance of 414.90
feet; thence
9. North 43 degrees 04 minutes 48 seconds West, a distance of 328.55
feet; thence
10. North 13 degrees 38 minutes 03 seconds West, a distance of 435.20
feet; thence
11. North 12 degrees 16 minutes 28 seconds West, a distance of 278.51
feet; thence
12. North 12 degrees 11 minutes 18 seconds West, a distance of 626.96
feet; thence
13. North 18 degrees 37 minutes 49 seconds West, a distance of 62.60
feet; thence
14. North 65 degrees 49 minutes 40 seconds East, a distance of 97.25
feet; thence
15. North 70 degrees 47 minutes 05 seconds East, a distance of 465.73
feet; thence
16. North 70 degrees 37 minutes 52 seconds East, a distance of 664.05
feet; thence
17. North 70 degrees 38 minutes 36 seconds East, a distance of 524.76
feet to a concrete monument in the westerly sideline of Hoes Lane;
thence
18. Along said sideline, South 24 degrees 17 minutes 54 seconds East, a
distance of 526.99 feet to a point of curvature; thence
19. Continuing along the said sideline on a curve to the left said curve
having a radius of 6052.00 feet, a length along the arc of 422.51
feet, a bearing along the chord of South 26 degrees 17 minutes 54
seconds East, and a chord distance of 422.42 feet to a point of
reverse curvature; thence
20. Continuing along the said sideline on a curve to the right said
curve having a radius of 2948.00 feet, a length along the arc of
823.24 feet, a bearing along the chord of South 20 degrees 17
minutes 54 seconds ▇▇▇▇ and a chord distance of 820.56 feet to a
point of tangency; thence
21. South 12 degrees 17 minutes 54 seconds East, a distance of 184.28
feet to a point of curvature; thence
22. Continuing along the said sideline on a curve to the left said curve
having a radius of 5052.02 feet, a length along the arc of 60.70
feet, a bearing along the chord of South 12 degrees 38 minutes 34
seconds East and a chord distance of 60.70 feet to the Point of
BEGINNING.
The above description is drawn in accordance with a Survey prepared by ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, PLS of ▇▇▇▇▇▇ Associates, PA, dated January 10, 2005, last revised
January 24, 2005.
For Information Only:
Commonly known as: ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ / ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ Block 591, Lot 2.01 - Tax Map of the Township of
Piscataway
3
PARCEL TWO - BLOCK 501.1, LOT 6.01 - RECORD DESCRIPTION
All that certain lot, tract or parcel of land and premise situate, lying and
being in the Township of Piscataway, County of Middlesex and State of New
Jersey, being more particularly described as follows:
BEGINNING at the intersection of the southerly sideline of Knightsbridge Road,
with the westerly sideline of Hoes Lane, variable width Right-of-Way, and from
said point; running; thence
1. Along the said westerly sideline of Hoes Lane, South 26 degrees 25
minutes 40 seconds East, a distance of 20.89 feet; thence
2. South 70 degrees 22 minutes 20 seconds West, a distance of 234.83
feet; thence
3. South 26 degrees 25 minutes 40 seconds East, a distance of 250.00
feet; thence
4. North 70 degrees 22 minutes 20 seconds East, a distance of 234.84
feet to the said westerly sideline of Hoes Lane; thence
5. Along said sideline, South 26 degrees 25 minutes 40 seconds East, a
distance of 536.53 feet to a point on a non-tangent curve; thence
6. Continuing along said sideline on a curve to the left said curve
having a radius of 6934.54 feet, a length along the arc of 528.81
feet, a bearing along the chord of South 22 degrees 06 minutes 50
seconds East and a chord distance of 528.69 feet to a point of
tangency, thence
7. Continuing along said sideline, South 24 degrees 17 minutes 54
seconds East, a distance of 46.89 feet to a concrete monument;
thence
8. South 70 degrees 38 minutes 36 seconds West, a distance of 524.76
feet; thence
9. South 70 degrees 37 minutes 52 seconds West, a distance of 664.05
feet; thence
10. North 00 degrees 42 minutes 10 seconds West, a distance of 984.92
feet to a point of curvature; thence
11. Along a curve to the left said curve having a radius of 525.75 feet,
a length along the arc of 173.66 feet, a bearing along the chord of
North 10 degrees 09 minutes 55 seconds East and a chord distance of
172.87 feet to a point of tangency; thence
12. North 19 degrees 37 minutes 40 seconds West, a distance of 278.70
feet to a point of curvature; thence
13. Along a curve to the left said curve having a radius of 30.00 feet,
a length along the arc of 4036 feet, a bearing along the chord of
North 58 degrees 10 minutes 06 seconds West and a chord distance of
37.38 feet to a point on a non-tangent curve in the southerly
sideline of Knightsbridge Road; thence
14. Along said sideline on a curve to the left said curve having a
radius of 656.91 feet, a length along the arc of 99.40, a bearing
along the chord of North 74 degrees 42
4
minutes 26 seconds East and a chord distance of 99.31 feet to a
point of tangency; thence
15. Continuing along said sideline, North 70 degrees 22 minutes 20
seconds East, a distance of 343.84 feet; thence
16. Continuing along said sideline, South 26 degrees 25 minutes 40
seconds East, a distance of 5.04 feet; thence
17. Continuing along said sideline, North 70 degrees 22 minutes 20
seconds East, a distance of 268.62 feet to a point of curvature;
thence
18. Along said sideline on a curve to the right said curve having a
radius of 30.00 feet, a length along the arc of 43.56 feet, a
bearing along the chord of South 68 degrees 01 minutes 40 seconds
East and a chord distance of 39.84 feet to the Point of BEGINNING.
The above described being known as a Consolidated description of Block 501.1,
Lots 6,9.01 and 10, said Lots being shown on the Piscataway Township Tax Map
Sheet 44C, also being shown on a plat entitled "Reverse Subdivision Plan"
prepared by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Associates, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇, dated May 26, 1999.
PARCEL TWO - BLOCK 501.1, LOT 6.01 - SURVEY DESCRIPTION
All that certain lot, tract or parcel of land and premise situate, lying and
being in the Township of Piscataway, County of Middlesex and State of New
Jersey, being more particularly described as follows:
BEGINNING at the intersection of the southerly sideline of Knightsbridge Road,
with the westerly sideline of Hoes Lane, variable width Right-of-Way, and from
said point; running; thence
1. Along the said westerly sideline of Hoes Lane, South 26 degrees 49
minutes 32 seconds East, a distance of 20.89 feet; thence
2. South 69 degrees 58 minutes 28 seconds West, a distance of 234.83
feet; thence
3. South 26 degrees 49 minutes 32 seconds East, a distance of 250.00
feet; thence
4. North 69 degrees 58 minutes 28 seconds East, a distance of 234.84
feet to the said westerly sideline of Hoes Lane; thence
5. Along said sideline, South 26 degrees 49 minutes 32 seconds East, a
distance of 535.73 feet to a point on a non-tangent curve; thence
6. Continuing along said sideline on a curve to the left said curve
having a radius of 6934.54 feet, a length along the arc of 537.85
feet, a bearing along the chord of South 22 degrees 30 minutes 27
seconds East and a chord distance of 537.71 feet to a point of
tangency; thence
7. Continuing along said sideline, South 24 degrees 17 minutes 54
seconds East, a distance of 46.89 feet to a concrete monument;
thence
5
8. South 70 degrees 38 minutes 36 seconds West, a distance of 524.76
feet; thence
9. South 70 degrees 37 minutes 52 seconds West, a distance of 664.05
feet, thence
10. North 01 degrees 06 minutes 02 seconds West, a distance of 984.92
feet to a point of curvature; thence
11. Along a curve to the left said curve having a radius of 525,75 feet,
a length along the arc of 173.66 feet, a bearing along the chord of
North 10 degrees 33 minutes 47 seconds West and a chord distance of
172.87 feet to a point of tangency, thence
12. North 20 degrees 01 minutes 32 seconds West, a distance of 278.70
feet to a point of curvature; thence
13. Along a curve to the left said curve having a radius of 30.00 feet,
a length along the arc of 40.36 feet, a bearing along the chord of
North 58 degrees 33 minutes 57 seconds West and a chord distance of
37.38 feet to a point on a non-tangent curve in the southerly
sideline of Knightsbridge Road; thence
14. Along said sideline on a curve to the left said curve having a
radius of 656.91 feet, a length along the arc of 99.40, a bearing
along the chord of North 74 degrees 18 minutes 34 seconds East and a
chord distance of 99.31 feet to a point of tangency; thence
15. Continuing along said sideline, North 69 degrees 58 minutes 28
seconds East, a distance of 343.84 feet; thence
16. Continuing along said sideline, South 26 degrees 49 minutes 31
seconds East, a distance of 5.04 feet; thence
17. Continuing along said sideline, North 69 degrees 58 minutes 28
seconds East, a distance of 268.62 feet to a point of curvature;
thence
18. Along said sideline on a curve to the right said curve having a
radius of 30.00 feet, a length along the arc of 43.56 feet, a
bearing along the chord of South 68 degrees 25 minutes 32 seconds
East and a chord distance of 39.84 feet to the Point of BEGINNING.
The above description is drawn in accordance with a Survey prepared by ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, PLS of ▇▇▇▇▇▇ Associates, PA, dated January 10, 2005, last revised
January 24, 2005.
For Information Only:
Commonly known as: ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
Block 501.01, ▇▇▇ ▇.▇▇ - ▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇
6
EXHIBIT A
LEGAL DESCRIPTION
EXHIBIT A
Legal Description of Property
ALL THAT CERTAIN PLOT, PIECE OR PARCEL OF LAND, WITH THE BUILDING AND
IMPROVEMENTS THEREON ERECTED, SITUATE, LYING AND BEING IN ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ OF NEW JERSEY, BOUNDED AND DESCRIBED AS
FOLLOWS:
PARCEL ONE - BLOCK 591, LOT 2.01 - RECORD DESCRIPTION
All that certain lot, tract or parcel of land and premise situate, lying and
being in the Township of Piscataway, County of Middlesex and State of New
Jersey, being more particularly described as follows:
BEGINNING at the intersection of the westerly sideline of Hoes Lane, variable
width Right-of-Way, with the northerly sideline of ▇▇▇▇▇▇ Avenue, 66 foot
Right-of-Way, and from said point running; thence
1. Along the said northerly sideline of ▇▇▇▇▇▇ Avenue on a curve to the
right said curve having a radius of 20.00 feet, a length along the
arc of 28.17 feet, a bearing along the chord of South 27 degrees 22
minutes 04 seconds West, and a chord distance of 25.90 feet to a
point of tangency; thence
2. Continuing along said northerly sideline, South 67 degrees 43
minutes 22 seconds West, a distance of 473.88 feet; thence
3. North 22 degrees 16 minutes 39 seconds West, a distance of 250.00
feet; thence
4. South 67 degrees 43 minutes 21 seconds West, a distance of 280.00
feet; thence
5. South 22 degrees 16 minutes 39 seconds East, a distance of 250.00
feet to the said northerly sideline of ▇▇▇▇▇▇ Avenue; thence
6. Along said sideline, South 67 degrees 43 minutes 22 seconds West, a
distance of 292.29 feet; thence
7. South 67 degrees 53 minutes 22 seconds West, a distance of 787.50
feet; thence
8. North 20 degrees 10 minutes 39 seconds West, a distance of 414.90
feet; thence
9. North 43 degrees 04 minutes 48 seconds West, a distance of 328.55
feet; thence
10. North 13 degrees 38 minutes 03 seconds West, a distance of 435.20
feet; thence
11. North 12 degrees 16 minutes 28 seconds West, a distance of 278.51
feet; thence
12. North 12 degrees 11 minutes 18 seconds West, a distance of 626.96
feet; thence
13. North 18 degrees 37 minutes 49 seconds West, a distance of 62.60
feet; thence
14. North 65 degrees 49 minutes 40 seconds East, a distance of 97.25
feet; thence
15. North 70 degrees 47 minutes 05 seconds East, a distance of 465.73
feet; thence
16. North 70 degrees 37 minutes 52 seconds East, a distance of 664.05
feet; thence
17. North 70 degrees 38 minutes 36 seconds East, a distance of 524.76
feet to a concrete monument in the westerly sideline of Hoes Lane;
thence
18. Along said sideline, South 24 degrees 17 minutes 54 seconds East, a
distance of 526.99 feet to a point of curvature; thence
19. Continuing along the said sideline on a curve to the left said curve
having a radius of 6052.00 feet, a length along the arc of 422.51
feet, a bearing along the chord of South 26 degrees 17 minutes 34
seconds East, and a chord distance of 422.42 feet to a point of
reverse curvature; thence
20. Continuing along the said sideline on a curve to the right said
curve having a radius of 2948.00 feet, a length along the arc of
823.24 feet, a bearing along the chord of South 20 degrees 17
minutes 54 seconds East and a chord distance of 820.56 feet to a
point of tangency; thence
21. South 12 degrees 17 minutes 54 seconds East, a distance of 184.28
feet to the POINT of BEGINNING.
The above described being known as a description of Block 591, Lots 2.01, said
Lot being shown on the Piscataway Township Tax Map Sheet 51, also being shown on
a plat entitled "Reverse Subdivision Plan" prepared by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Associates, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ dated May 26, 1999.
-2-
PARCEL ONE - BLOCK 591, LOT 2.01 - SURVEY DESCRIPTION
All that certain lot, tract or parcel of land and premise situate, lying and
being in the Township of Piscataway, County of Middlesex and State of New
Jersey, being more particularly described as follows:
BEGINNING at the intersection of the westerly sideline of Hoes Lane, variable
width Right-of-Way, with the northerly sideline of ▇▇▇▇▇▇ Avenue, 66 foot
Right-of-Way, and from said point running; thence
1. Along the said northerly sideline of ▇▇▇▇▇▇ Avenue on a curve to the
right said curve having a radius of 20.00 feet, a length along the
arc of 28.17 feet, a bearing along the chord of South 27 degrees 22
minutes 04 seconds West, and a chord distance of 25.90 feet to a
point of tangency; thence
2. Continuing along said northerly sideline, South 67 degrees 43
minutes 22 seconds West, a distance of 473.88 feet; thence
3. North 22 degrees 16 minutes 39 seconds West, a distance of 250.00
feet; thence
4. South 67 degrees 43 minutes 21 seconds West, a distance of 280.00
feet; thence
5. South 22 degrees 16 minutes 39 seconds East, a distance of 250.00
feet to the said northerly sideline of ▇▇▇▇▇▇ Avenue; thence
6. Along said sideline, South 67 degrees 43 minutes 22 seconds West, a
distance of 292.29 feet; thence
7. South 67 degrees 53 minutes 22 seconds West, a distance of 787.50
feet; thence
8. North 20 degrees 10 minutes 39 seconds West, a distance of 414.90
feet, thence
9. North 43 degrees 04 minutes 48 seconds West, a distance of 328.55
feet; thence
10. North 13 degrees 38 minutes 03 seconds West, a distance of 435.20
feet; thence
11. North 12 degrees 16 minutes 28 seconds West, a distance of 278.51
feet; thence
12. North 12 degrees 11 minutes 18 seconds West, a distance of 626.96
feet; thence
13. North 18 degrees 37 minutes 49 seconds West, a distance of 62.60
feet; thence
14. North 65 degrees 49 minutes 40 seconds East, a distance of 97.25
feet; thence
15. North 70 degrees 47 minutes 05 seconds East, a distance of 465.73
feet: thence
16. North 70 degrees 37 minutes 52 seconds East, a distance of 664.05
feet; thence
-3-
17. North 70 degrees 38 minutes 36 seconds East, a distance of 524.76
feet to a concrete monument in the westerly sideline of Hoes Lane;
thence
18. Along said sideline, South 24 degrees 17 minutes 54 seconds East, a
distance of 526.99 feet to a point of curvature; thence
19. Continuing along the said sideline on a curve to the left said curve
having a radius of 6052.00 feet, a length along the arc of 422.51
feet, a bearing along the chord of South 26 degrees 17 minutes 54
seconds East, and a chord distance of 422.42 feet to a point of
reverse curvature; thence
20. Continuing along the said sideline on a curve to the right said
curve having a radius of 2948.00 feet, a length along the arc of
823.24 feet, a bearing along the chord of South 20 degrees 17
minutes 54 seconds East and a chord distance of 820.56 feet to a
point of tangency; thence
21. South 12 degrees 17 minutes 54 seconds East, a distance of 184.28
feet to a point of curvature; thence
22. Continuing along the said sideline on a curve to the left said curve
having a radius of 5052.02 feet, a length along the arc of 60.70
feet, a bearing along the chord of South 12 degrees 38 minutes 34
seconds East and a chord distance of 60.70 feet to the Point of
BEGINNING.
The above description is drawn in accordance with a Survey prepared by ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, PLS of ▇▇▇▇▇▇ Associates, PA, dated January 10, 2005, last revised
January 24, 2005.
For Information Only:
Commonly known as: ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ / ▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ Block 591, Lot 2.01 - Tax Map of the
Township of Piscataway
-4-
PARCEL TWO - BLOCK 501.1, LOT 6.01 - RECORD DESCRIPTION
All that certain lot, tract or parcel of land and premise situate, lying and
being in the Township of Piscataway, County of Middlesex and State of New
Jersey, being more particularly described as follows:
BEGINNING at the intersection of the southerly sideline of Knightsbridge Road,
with the westerly sideline of Hoes Lane, variable width Right-of-Way, and from
said point; running; thence
1. Along the said westerly sideline of Hoes Lane, South 26 degrees 25
minutes 40 seconds East, a distance of 20.89 feet; thence
2. South 70 degrees 22 minutes 20 seconds West, a distance of 234.83
feet; thence
3. South 26 degrees 25 minutes 40 seconds East, a distance of 250.00
feet; thence
4. North 70 degrees 22 minutes 20 seconds East, a distance of 234.84
feet to the said westerly sideline of Hoes Lane; thence
5. Along said sideline, South 26 degrees 25 minutes 40 seconds East, a
distance of 536.53 feet to a point on a non-tangent curve; thence
6. Continuing along said sideline on a curve to the left said curve
having a radius of 6934.54 feet, a length along the arc of 528.81
feet, a bearing along the chord of South 22 degrees 06 minutes 50
seconds East and a chord distance of 528.69 feet to a point of
tangency; thence
7. Continuing along said sideline, South 24 degrees 17 minutes 54
seconds East, a distance of 46.89 feet to a concrete monument;
thence
8. South 70 degrees 38 minutes 36 seconds West, a distance of 524.76
feet; thence
9. South 70 degrees 37 minutes 52 seconds West, a distance of 664.05
feet; thence
10. North 00 degrees 42 minutes 10 seconds West, a distance of 984.92
feet to a point of curvature; thence
11. Along a curve to the left said curve having a radius of 525.75 feet,
a length along the arc of 173.66 feet, a bearing along the chord of
North 10 degrees 09 minutes 55 seconds East and a chord distance of
172.87 feet to a point of tangency; thence
12. North 19 degrees 37 minutes 40 seconds West, a distance of 278.70
feet to a point of curvature; thence
13. Along a curve to the left said curve having a radius of 30.00 feet,
a length along the arc of 40.36 feet, a bearing along the chord of
North 58 degrees 10 minutes
-5-
06 seconds West and a chord distance of 37.38 feet to a point on a
non-tangent curve in the southerly sideline of Knightsbridge Road;
thence
14. Along said sideline on a curve to the left said curve having a
radius of 656.91 feet, a length along the arc of 99.40, a bearing
along the chord of North 74 degrees 42 minutes 26 seconds East and a
chord distance of 99.31 feet to a point of tangency; thence
15. Continuing along said sideline, North 70 degrees 22 minutes 20
seconds East, a distance of 343.84 feet; thence
16. Continuing along said sideline, South 26 degrees 25 minutes 40
seconds East, a distance of 5.04 feet; thence
17. Continuing along said sideline, North 70 degrees 22 minutes 20
seconds East, a distance of 268.62 feet to a point of curvature;
thence
18. Along said sideline on a curve to the right said curve having a
radius of 30.00 feet, a length along the arc of 43.56 feet, a
bearing along the chord of South 68 degrees 01 minutes 40 seconds
East and a chord distance of 39.84 feet to the Point of BEGINNING.
The above described being known as a Consolidated description of Block 501,1,
Lots 6,9.01 and 10, said Lots being shown on the Piscataway Township Tax Map
Sheet 44C, also being shown on a plat entitled "Reverse Subdivision Plan"
prepared by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Associates, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇, dated May 26, 1999.
-6-
PARCEL TWO - BLOCK 501.1, LOT 6.01 - SURVEY DESCRIPTION
All that certain lot, tract or parcel of land and premise situate, lying and
being in the Township of Piscataway, County of Middlesex and State of New
Jersey, being more particularly described as follows:
BEGINNING at the intersection of the southerly sideline of Knightsbridge Road,
with the westerly sideline of Hoes Lane, variable width Right-of-Way, and from
said point; running; thence
1. Along the said westerly sideline of Hoes Lane, South 26 degrees 49
minutes 32 seconds East, a distance of 20.89 feet; thence
2. South 69 degrees 58 minutes 28 seconds West, a distance of 234.83
feet; thence
3. South 26 degrees 49 minutes 32 seconds East, a distance of 250.00
feet; thence
4. North 69 degrees 58 minutes 28 seconds East, a distance of 234.84
feet to the said westerly sideline of Hoes Lane; thence
5. Along said sideline, South 26 degrees 49 minutes 32 seconds East, a
distance of 535.73 feet to a point on a non-tangent curve; thence
6. Continuing along said sideline on a curve to the left said curve
having a radius of 6934.54 feet, a length along the arc of 537.85
feet, a bearing along the chord of South 22 degrees 30 minutes 27
seconds East and a chord distance of 537.71 feet to a point of
tangency; thence
7. Continuing along said sideline, South 24 degrees 17 minutes 54
seconds East, a distance of 46.89 feet to a concrete monument;
thence
8. South 70 degrees 38 minutes 36 seconds West, a distance of 524.76
feet; thence
9. South 70 degrees 37 minutes 52 seconds West, a distance of 664.05
feet; thence
10. North 01 degrees 06 minutes 02 seconds West, a distance of 984.92
feet to a point of curvature; thence
11. Along a curve to the left said curve having a radius of 525.75 feet,
a length along the arc of 173.66 feet, a bearing along the chord of
North 10 degrees 33 minutes 47 seconds West and a chord distance of
172.87 feet to a point of tangency; thence
12. North 20 degrees 01 minutes 32 seconds West, a distance of 278.70
feet to a point of curvature; thence
13. Along a curve to the left said curve having a radius of 30.00 feet,
a length along the arc of 40.36 feet, a bearing along the chord of
North 58 degrees 33 minutes
-7-
57 seconds West and a chord distance of 37.38 feet to a point on a
non-tangent curve in the southerly sideline of Knightsbridge Road;
thence
14. Along said sideline on a curve to the left said curve having a
radius of 656.91 feet, a length along the arc of 99.40, a bearing
along the chord of North 74 degrees 18 minutes 34 seconds East and a
chord distance of 99.31 feet to a point of tangency; thence
15. Continuing along said sideline, North 69 degrees 58 minutes 28
seconds East, a distance of 343.84 feet; thence
16. Continuing along said sideline, South 26 degrees 49 minutes 31
seconds East, a distance of 5.04 feet; thence
17. Continuing along said sideline, North 69 degrees 58 minutes 28
seconds East, a distance of 268.62 feet to a point of curvature;
thence
18. Along said sideline on a curve to the right said curve having a
radius of 30.00 feet, a length along the arc of 43.56 feet, a
bearing along the chord of South 68 degrees 25 minutes 32 seconds
East and a chord distance of 39.84 feet to the Point of BEGINNING.
The above description is drawn in accordance with a Survey prepared by ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, PLS of ▇▇▇▇▇▇ Associates, PA, dated January 10, 2005, last revised
January 24, 2005.
For Information Only:
Commonly known as: ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
Block 501.01, ▇▇▇ ▇.▇▇ - ▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇▇
-8-
SCHEDULE V
GROUND LEASE PARCEL
[MASTER PLAN]
SCHEDULE VI-A
MONTHLY OPERATING STATEMENT
SCHEDULE VI-B
QUARTERLY OPERATING STATEMENT
SCHEDULE VI-C
ANNUAL OPERATING STATEMENT
SCHEDULE VII
BALANCE SHEET
SCHEDULE VIII
EXPANSION PARCEL
Release Parcel A
[MASTER PLAN]
Release Parcel B
[MASTER PLAN]
SCHEDULE IX
ANNUAL BUDGET