EXHIBIT 10.02
AMENDED AND RESTATED LOAN AGREEMENT
AMONG
WMPT BELLAIRE, L.P.,
a Virginia Limited Partnership
as Borrower
AND
THE HUNTINGTON NATIONAL BANK
a national banking association,
as a Lender and Agent
AND
LASALLE BANK NATIONAL ASSOCIATION
a national banking association,
as a Lender
AND
KEYBANK NATIONAL ASSOCIATION
a national banking association
as a Lender
July 11, 2005
TABLE OF CONTENTS
SECTION PAGE NO.
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1. DEFINITIONS.................................................... 1
2. COMMITMENT TO LEND; COMMITMENT FEE............................. 7
2.1 Maximum Loan Amount...................................... 7
2.2 Loan Advances Evidenced by Notes......................... 7
2.3 Payment of Interest and Principal........................ 7
2.4 Default Rate............................................. 7
2.5 Late Charge.............................................. 7
3. LOAN DOCUMENTS................................................. 8
4. DISBURSEMENT OF THE LOAN....................................... 11
4.1 Conditions Precedent..................................... 11
4.2 Use of Loan Proceeds..................................... 12
4.3 Disbursement Requests.................................... 13
4.4 Certifications; Representations and Warranties........... 14
4.5 Costs.................................................... 14
4.6 Development Fees......................................... 15
4.7 Loan In Balance.......................................... 15
4.8 Application of Disbursements............................. 15
4.9 Payment of Interest by Agent............................. 16
5. REPRESENTATIONS AND WARRANTIES................................. 16
5.1 Borrower................................................. 16
5.2 Guarantor................................................ 17
5.3 Title.................................................... 17
5.4 Improvements............................................. 17
5.5 Validity and Enforceability of Documents................. 17
5.6 Litigation............................................... 17
5.7 Utilities; Authorities................................... 17
5.8 Financial Statements; Solvency........................... 18
5.9 Compliance with Laws..................................... 18
5.10 Construction Contract.................................... 18
5.11 Subcontracts............................................. 19
5.12 Plans and Specifications................................. 19
5.13 Budget................................................... 19
5.14 Hazardous Materials...................................... 19
5.15 Financing Statements..................................... 19
5.16 Event of Default......................................... 19
5.17 Sale Agreements.......................................... 20
5.18 Environmental Matters.................................... 20
5.19 The Lease................................................ 20
5.20 Continuation of Representations and Warranties........... 20
6. CASUALTIES AND CONDEMNATION.................................... 20
6.1 Agent's Election to Apply Proceeds on Indebtedness....... 20
6.2 Borrower's Obligation to Rebuild and Use of
Proceeds Therefor........................................ 21
7. BORROWER'S COVENANTS........................................... 21
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7.1 Manner of Construction................................... 21
7.2 Certificate of Completion................................ 21
7.3 Change Orders............................................ 21
7.4 Compliance with Laws..................................... 22
7.5 Inspection............................................... 22
7.6 Mechanics' Liens......................................... 22
7.7 Release by Agent......................................... 23
7.8 Financial Statements; Reports............................ 23
7.9 Affirmation of Representations and Warranties............ 23
7.10 Title.................................................... 23
7.11 Proceedings Affecting Property........................... 23
7.12 Disposal and Encumbrance of Property..................... 24
7.13 Insurance................................................ 24
7.14 Performance of Obligations; Notice of Default............ 24
7.15 Subcontracts............................................. 24
7.16 Restrictions Affecting Borrower.......................... 24
7.17 Use of Receipts.......................................... 24
7.18 Compliance............................................... 25
7.19 Additional Documents..................................... 25
8. LOAN EXPENSES.................................................. 25
9. AGENT'S REPRESENTATIVES........................................ 25
10. EVENTS OF DEFAULT.............................................. 25
11. EXERCISE OF REMEDIES........................................... 27
11.1 Remedies................................................. 27
12. MISCELLANEOUS.................................................. 28
12.1 Additional Indebtedness.................................. 28
12.2 Additional Acts.......................................... 28
12.3 Loan Agreement Governs................................... 28
12.4 Additional Advances...................................... 29
12.5 Amendment; Waiver; Approval.............................. 29
12.6 Notice................................................... 29
12.7 Benefit; Assignment...................................... 30
12.8 Governing Law............................................ 30
12.9 Indemnity................................................ 30
12.10 Headings................................................. 31
12.11 No Partnership or Joint Venture.......................... 31
12.12 Time is of the Essence................................... 31
12.13 Invalid Provisions....................................... 31
12.14 Offset................................................... 31
12.15 Acts by Lenders.......................................... 31
12.16 Joint and Several Liability; Binding Provisions.......... 32
12.17 Counterparts............................................. 32
12.18 No Third Party Borrower.................................. 32
12.19 Sign..................................................... 32
12.20 CUSTOMER IDENTIFICATION - USA PATRIOT ACT NOTICE; OFAC
AND BANK SECRECY ACT..................................... 32
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12.21 WAIVER OF RIGHT TO JURY TRIAL............................ 32
13.1 Assignments and Participations........................... 33
14. APPOINTMENT.................................................... 36
14.1 Appointment.............................................. 36
14.2 Reliance on Agent........................................ 36
14.3 Powers................................................... 36
14.4 Disbursements............................................ 37
14.5 Consents and Approvals................................... 39
14.6 Agency Provisions Relating to Collateral................. 41
14.7 Lender Actions Against Borrower or the Collateral........ 43
14.8 Assignment and Participation............................. 43
14.9 Ratable Sharing.......................................... 43
14.10 General Immunity......................................... 43
14.11 No Responsibility for Loan, Recitals, etc................ 44
14.12 Action on Instructions of Lenders........................ 44
14.13 Employment of Agents and Counsel......................... 44
14.14 Reliance on Documents; Counsel........................... 44
14.15 Agent's Reimbursement and Indemnification................ 44
14.16 Rights as a Lender....................................... 45
14.17 Lenders' Credit Decisions................................ 45
14.18 Notice of Events of Default.............................. 45
14.19 Successor Agent.......................................... 45
15. ENTIRE AGREEMENT............................................... 46
16. AMENDMENT AND RESTATEMENT...................................... 46
16.1 Amendment and Restatement................................ 46
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AMENDED AND RESTATED LOAN AGREEMENT
This Amended and Restated Loan Agreement ("Agreement") is dated as of July
11, 2005, by and among WMPT BELLAIRE, L.P. a Virginia limited partnership
("Borrower"), and THE HUNTINGTON NATIONAL BANK, a national banking association
("Huntington"), as a lender and as administrative agent, LASALLE BANK NATIONAL
ASSOCIATION, a national banking association ("LaSalle"), as a lender, and
KEYBANK NATIONAL ASSOCIATION, a national banking association ("KeyBank"), as a
lender .
1. DEFINITIONS. As used in this Agreement, the following terms shall have the
following meanings:
"Affiliate" shall mean with respect to a specified person or entity, any
individual, partnership, corporation, limited liability company, trust,
unincorporated organization, association or other entity which, directly or
indirectly, through one or more intermediaries, controls or is controlled by or
is under common control with such person or entity, including, without
limitation, any general or limited partnership in which such person or entity is
a partner.
"Agent" shall mean The Huntington National Bank in its capacity as
administrative agent for the Lenders, its successors or assigns.
"Applicable Rate" shall have the meaning ascribed thereto in the Notes.
"Assignment and Acceptance" shall mean an Assignment and Acceptance
Agreement in the form of EXHIBIT "G" attached hereto and made a part hereof.
"Assignment of Rents and Leases" shall mean the amended and restated
collateral assignment of the rents and leases of the Project, or any part
thereof, to be made by Borrower to Agent, as agent for the Lenders to secure the
Loan.
"Borrower's Equity" shall mean the sum of $8,568,041, inclusive of proceeds
of the Subordinate Loan, but excluding amounts paid to acquire a 51% interest in
Ground Lessor.
"Budget" shall mean the detailed budget of all costs to be incurred in
connection with the Work, including both hard costs and soft costs, as set forth
in EXHIBIT "A" attached hereto and made a part hereof.
"Business Day" shall mean each day excluding Saturdays, Sundays and any
other day on which Agent is closed for business to the public.
"Commitment" shall mean the maximum amount each Lender has agreed to lend
to Borrower (which amounts are set forth below the signature line of each
Lender).
"Commitment Fee" shall mean the One Hundred Fifty Thousand Dollar
($150,000) fee paid by Borrower to Lenders allocated among the Lenders as
provided in Section 14.5 hereof.
"Completion Date" shall mean January 31, 2006.
"Construction Contract" shall mean that certain agreement between Borrower
and the Contractor dated August 31, 2004, regarding the construction of the
Improvements.
"Consultant" shall mean C.D. Construction Consulting, Inc. or such other
Person hereafter designated as such by the Agent.
"Contract Assignment" shall mean the amended and restated assignment of
even date herewith by Borrower to Agent, as agent for the Lenders, of the
Construction Contract, together with all plans, specifications, permits and
licenses relating to the Project.
"Contractor" shall mean ▇.▇. ▇▇▇▇▇▇ Construction Company, Inc.
"Deed of Trust" shall mean the Amended and Restated Deed of Trust, Security
Agreement and Fixture Filing encumbering the Real Property of even date herewith
made by Borrower and Ground Lessor to Agent, as agent for the Lenders, to secure
the Loan.
"Default Rate" shall mean the Interest Rate plus four percent (4.0%) per
annum.
"Defaulting Lenders" shall have the meaning set forth in Section 14.5(b)
hereof.
"Eligible Assignee" shall mean (i) Any Lender; (ii) any commercial bank,
savings bank, savings and loan association or similar financial institution
which (A) has total assets of One Billion Dollars ($1,000,000,000) or more, (B)
is "well capitalized" within the meaning of such term under the regulations
promulgated under the auspices of the Federal Deposit Insurance Corporation
Improvement Act of 1991, (C) in the reasonable judgment of the Agent, is engaged
in the business of lending money and extending credit, and buying loans or
participations in loans under credit facilities substantially similar to those
extended under this Agreement, and (D) in the reasonable judgment of the Agent,
is operationally and procedurally able to meet the obligations of a Lenders
hereunder to the same degree as a commercial bank; (iii) any insurance company
in the business of writing insurance which (A) has total assets of One Billion
Dollars ($1,000,000,000) or more (B) is "best capitalized" within the meaning of
such term under the applicable regulations of the National Association of
Insurance Commissioners, and (C) meets the requirements set forth in subclauses
(C) and (D) of clause (ii) above; and (iv) any other financial institution
having total assets of One Billion Dollars ($1,000,000,000) (including a mutual
fund or other fund under management of any investment manager having under its
management total assets of One Billion Dollars ($1,000,000,000) or more) which
meets the requirement set forth in subclauses (C) and (D) of clause (ii) above;
provided that each Eligible Assignee must (w) be organized under the Laws of the
United States of America, any state thereof or the District of Columbia, or, if
a commercial bank, be organized under the Laws of the United States of America,
any state thereof or the District of Columbia, the Cayman Islands or any country
which is a member of the Organization for Economic Cooperation and Development,
or a political subdivision of such a country, (x) act under the Loan Documents
through a branch, agency or funding office located in the United States of
America, (y) be exempt from withholding of tax on interest and deliver the
documents related thereto pursuant to the Internal Revenue Code as in effect
from time to time and (z) not be the Borrower or an Affiliate of the Borrower.
"Event of Default" shall have the meaning ascribed to it in Section 10 of
this Agreement.
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"Force Majeure" shall mean acts of God, acts of a public enemy, terrorist
activities, fires, floods, wars, civil disturbances, sabotage, accidents,
insurrections, blockades, embargoes, storms, severe weather, explosions, damage
to improvements constructed, labor disputes (whether or not the employees'
demands are reasonable and within the party's power to satisfy), government
restrictions or regulations, acts of any Governmental Authority (whether civil
or military, foreign or domestic), all perils of the seas and other waters,
failure or delay of third parties or Governmental Authorities from whom a party
is obtaining or must obtain licenses, permits, approvals, rights of way,
easements, franchises, machinery, materials, equipment, transportation,
independent contractor's services or supplies to grant or deliver the same, or
inability to obtain labor, services, materials, equipment or transportation or
other causes beyond the control of the party responsible for performing an
obligation hereunder.
"Ground Lease" shall mean that certain Reserve "A" Houston Orthopedic
Surgical Hospital Amended and Restated Ground Lease Agreement entered into by
Borrower and Ground Lessor dated as of August 27, 2004.
"Ground Lessor" shall mean WMPT Bellaire HP, L.P., a Virginia limited
liability company.
"Guarantor" shall mean the Trust.
"Guaranty" shall mean the Replacement Guaranty of Payment and Performance
of even date herewith executed by the Trust in favor of Agent, as agent for the
Lenders.
"Hazardous Materials" shall mean and include any and all hazardous, toxic
or dangerous substances, wastes and materials and other pollutants and
contaminants as defined or described in any or all applicable federal, state or
local statutes, laws, ordinances, codes, rules, regulations, orders or decrees
(other than medical wastes created and disposed in accordance with applicable
laws in the ordinary course of Tenant's business or any other tenant hereafter
occupying any part of the Improvements) now or hereafter regulating, relating to
or imposing liability or standards of conduct with respect to environmental
matters, including, without limitation the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended by the Superfund Amendments
and Reauthorization Act of 1986 (42 U.S.C. Section 9601 et seq.), the Hazardous
Materials Transportation Act (49 U.S.C. Section 1 801 et seq.), the Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976,
as amended by the Solid and Hazardous Waste Amendments of 1984 (42 U.S.C.
Section 6901 et seq.), the Federal Water Pollution Control Act, as amended by
the Clean Water Act of 1977 and the Water Quality Act of 1987 (33 U.S.C. Section
1251 et seq.), the Toxic Substances Control Act of 1976 (15 U.S.C. Section 2601
et seq.), the Emergency Planning and Community Right-to-Know Act of 1986 (42
U.S.C. Section 11001 et seq.), the Clear Air Act of 1966, as amended (42 U.S.C.
Section 7401 et seq.), the National Environmental Policy Act of 1970 (42 U.S.C.
Section 43 21 et seq.), the Rivers and Harbours Act of 1899 (33 U.S.C. Section
401 et seq.), the Endangered Species Act of 1973, as amended (16 U.S.C. Section
1531 et seq.), the Safe Drinking Water Act of 1974, as amended (42 U.S.C.
Section 300(f)-9 seq.), the Occupational Safety and Health Act of 1970, as
amended (29 U.S.C. Section 651 et seq.) and all rules, regulations and guidance
documents promulgated or published thereunder, all as amended or hereinafter
amended. Without intending to limit the scope or breadth of the foregoing
definition,
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the term Hazardous Materials shall include asbestos, urea formaldehyde,
polychlorinated biphenyls, crude oil, radioactive materials and underground
storage tanks.
"Improvements" shall mean orthopedic hospital facility containing
approximately 126,000 square feet of floor space, 64 in-patient beds, 10
operating rooms and a parking deck with 114 parking spaces to be constructed
upon the Land, all paving, lighting, landscaping, amenities, utility lines and
equipment and all other site improvements and all other improvements located on
the Land in substantial accordance with the Plans and Specifications.
"Indemnity Agreement" shall mean the amended and restated environmental
indemnity agreement of even date herewith made by Borrower and Guarantor in
favor of Agent, as agent for the Lenders.
"Intercreditor Agreement" shall mean, collectively, that certain Amended
and Restated Intercreditor Agreement and that certain Amended and Restated
Standstill Agreement, both among Lenders and Subordinate Lender of even date
herewith relating to the Loan and the Subordinate Loan.
"Interest Rate" shall have the meaning set forth in the Notes.
"Initial Advance" shall mean the first draw or disbursement made from the
proceeds of the Loan.
"Land" shall mean the tract of land consisting of approximately 2.35 acres
of real estate, located in ▇▇▇▇▇▇ County, Texas and legally described in EXHIBIT
"B" attached hereto in which Borrower has a leasehold interest.
"Lender" shall mean each of Huntington, LaSalle and KeyBank, and "Lenders"
shall mean, collectively, Huntington, LaSalle and KeyBank.
"Loan Advance" shall mean a disbursement of all or any portion of the Loan.
"Loan" shall mean the Twenty-Four Million Dollar ($24,000,000) construction
loan to be made by Lenders to Borrower pursuant to the terms hereof.
"Loan Documents" shall mean this Agreement, the Deed of Trust, the Note,
the Assignment of Rents and Leases, the Contract Assignment, the Guaranty, the
Indemnity Agreement, and every other document now or hereafter evidencing,
securing or otherwise executed in conjunction with the Loan, together with all
amendments and modifications thereof.
"Loan Expenses" shall mean the expenses, charges, costs (including both
hard costs and soft costs) and fees of Agent relating to the making,
administration, negotiation, documentation or any other aspect of the Loan or
relating to the performance of the Work, including, without limitation, Agent's
reasonable attorneys' fees and costs in connection with the negotiation,
documentation and enforcement of the Loan, the fees of the Consultant, all
recording fees and charges, title insurance charges and premiums, escrow fees,
costs of surveys and of other bonds required by the Title Company in connection
with clearing title to the Real Property or the issuance of title reports,
binders, policies and the like, and all other costs, expenses, charges and
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fees referred to in or necessitated by the terms of this Agreement or any of the
other Loan Documents.
"Master Lease" shall mean that certain Houston Orthopedic Surgical Hospital
Amended and Restated Lease Agreement between Borrower and Tenant dated as of
April 27, 2004.
"Maturity Date" shall mean September 1, 2006.
"Maximum Amount" shall mean the aggregate amount of the Commitments.
"Notes" shall mean the Amended and Restated Promissory Notes in the form of
EXHIBITS "C-1," "C-2" and "C-3" attached hereto, with blanks completed
appropriately, executed by the Borrower payable to the order of each of the
Lenders evidencing the Loan, as supplemented, modified or amended from time to
time.
"Percentage" shall mean with respect to each Lender, the percentage that
such Lender's Commitment constitutes the maximum amount of the Loan.
"Permitted Exceptions" shall mean the exceptions to the title of the Real
Property listed on EXHIBIT "D" attached hereto and the Subordinate Loan
Documents.
"Person" shall mean any individual, firm, corporation, business enterprise,
trust, association, joint venture, partnership, governmental body or other
entity, whether acting in an individual, fiduciary or other capacity.
"Personal Property" shall mean and include any and all furniture,
furnishings, appliances, equipment and all fixtures (to the extent such fixtures
are attached in a manner so as not to be deemed to be part of the Real Property)
owned by Borrower to be located in the Improvements or otherwise at the Land
which will be used or usable in connection with the operation of the
Improvements and which will be owned, leased or otherwise possessed by Borrower
or any of its affiliates, including all of such personal property contemplated
under the Plans and Specifications.
"Plans and Specifications" shall mean, collectively, the architectural and
engineering plans and specifications relating to the Work or any portion
thereof, all of which must be acceptable to Agent in its reasonable discretion,
as listed on EXHIBIT "E" attached hereto as the same are supplemented from time
to time.
"POB Parcel" shall mean that certain 2.331 acre parcel of real estate
located in ▇▇▇▇▇▇ County, Texas described in EXHIBIT "F" attached hereto.
"Principal Balance" shall mean the unpaid principal balance of the Loan
outstanding from time to time.
"Project" shall mean the specialty hospital facility consisting of the Land
and the Improvements, together with the Personal Property.
"Project Costs" shall mean the following, all as more specifically set
forth in the Budget:
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(a) The actual hard costs of completing construction of the
Improvements and the costs of the Personal Property;
(b) Premiums for title, casualty, liability and other insurance
required by Agent;
(c) The cost of recording and filing the applicable Loan Documents;
(d) Interest, fees and similar charges payable by Borrower to Lenders
hereunder or under the Notes;
(e) Legal and other closing costs;
(f) Government fees for permits or other matters, Architectural,
engineering, survey, geotechnical, environmental and other consulting fees
and testing fees;
(g) Rent payable under the Ground Lease during the construction
period;
(h) Pre-construction developments costs as set forth in the Budget;
(i) The direct costs of HADC personnel assigned to the Project and on
site costs of its project manager and reimbursable expenses related
thereto;
(j) Such other soft costs (including contingency) as may be set forth
in the Budget or as may be hereafter approved in writing by Agent; and
(k) All other Loan Expenses.
"Real Property" shall mean the Land, the Improvements and all easements and
appurtenants thereto.
"Required Lenders" shall mean Lenders holding sixty-seven percent (67%) of
the Loan or greater.
"Soil Report" shall mean the soil test report as described in Section 3(x)
below.
"Subcontracts" shall mean all subcontracts now or hereafter entered into by
the Contractor for the construction of any of the Improvements or the
installation of any of the Personal Property.
"Subordinate Lender" shall mean The Huntington Real Estate Investment
Company, an Ohio corporation.
"Subordinate Loan" shall mean the Five Million Dollar ($5,000,000) loan to
Borrower by the Subordinate Lender.
"Subordinated Loan Documents" shall mean, collectively, all loan documents
and agreements by and between Borrower and Subordinate Lender evidencing the
Subordinate Loan including the Intercreditor Agreement
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"Survey" shall mean the plat of survey of the Real Property as described in
Section 3(h) below.
"Tenant" shall mean Houston Orthopedic Surgical Hospital, L.L.P., a Texas
limited liability partnership.
"Title Company" shall mean Fidelity National Title Insurance Company.
"Title Policy" shall mean the title insurance policy described in Section
3(j) below.
"Trust" shall mean Windrose Medical Properties Trust, a Maryland real
estate investment trust.
"Work" shall mean the performance of all work to be performed and the
supplying of all materials to be supplied in connection with the building,
furnishing, fixturing and equipping of the Improvements, all in accordance with
the provisions of this Agreement and with the Plans and Specifications, the
Budget and other documentation approved by Agent.
2. COMMITMENT TO LEND; COMMITMENT FEE.
2.1 Maximum Loan Amount. Lenders severally agree to lend to Borrower, and
Borrower agrees to borrow from Lenders, an amount not to exceed the Maximum
Amount of their respective Commitments for the purposes, upon the terms and
subject to the conditions contained in this Agreement. Notwithstanding anything
contained in this Article 2 to the contrary, Loan Advances shall be limited to
such amounts as Borrower is eligible to receive pursuant to, and upon compliance
with, the conditions of Article 4 hereof. The proceeds of the Loan disbursed to
Borrower shall be used by Borrower solely for the purpose of paying the Project
Costs. Borrower may prepay the Loan in accordance with the terms of the Notes.
2.2 Loan Advances Evidenced by Notes. All Loan Advances of the Loan
hereunder shall be evidenced by the Notes, which shall be executed and delivered
by Borrower simultaneously with the execution of this Agreement.
2.3 Payment of Interest and Principal. The payment of interest and
principal shall be governed by the provisions of the Notes; provided, however,
that Borrower hereby unconditionally and irrevocably authorizes and directs
Lenders, to disburse from the Interest Reserve established pursuant to Section
4.9 below, the amount of the monthly interest payments then owing to Lenders
under the Notes and to apply said amounts to said interest payments. Any amounts
disbursed from the Interest Reserve shall become part of the outstanding
principal balance and interest thereon shall accrue and be payable as provided
in the Notes. Principal and interest on the Loan shall be due and payable in
accordance with the terms of the Notes.
2.4 Default Rate. At any time after the Maturity Date or otherwise when an
Event of Default exists under this Agreement or any of the other Loan Documents,
the Principal Balance and any other amounts then owing by Borrower to Lenders
shall bear interest at the Default Rate.
2.5 Late Charge. If any payment of interest or principal due under a Note
is not made within ten days after such payment is due, then, in addition to the
payment of the amount so due,
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Borrower shall pay to Lenders a "late charge" of three cents (3 cent(s)) for
each whole dollar so overdue to defray part of the cost of collecting and
handling such late payment.
3. LOAN DOCUMENTS. Prior to the first Loan Advance pursuant to this Agreement,
Borrower shall execute and deliver to Agent and Lenders, if applicable, those of
the following documents required to be executed by Borrower, and shall cause to
be executed and delivered to Agent those of the following documents required to
be executed by others, all of which documents shall contain such provisions as
shall be required to conform to this Agreement and otherwise shall be
satisfactory in form and substance to Lenders:
(a) The Notes.
(b) The Guaranty.
(c) The Deed of Trust together with the UCC financing statements
perfecting the security interests created by the security agreement granted
thereunder.
(d) The Assignment of Rents and Leases.
(e) The Indemnity Agreement.
(f) The Contract Assignment, together with the consents thereto by the
Contractors.
(g) Three copies of a plat of survey (the "Survey") prepared and
certified by a registered surveyor licensed in Texas in compliance with the
minimum detail requirements most recently established by ALTA/ACSM (for a
Class A Survey), including, without limitation: the boundaries and legal
descriptions of the Land; the location of all existing improvements on the
Land; the area of the Land in square feet and acres (to the nearest one
one-hundredth of an acre); the location of all set-back lines,
rights-of-way, easements and public utilities; the location of all abutting
roadways, streets, and alleys; the location of utility services and storm
drain and sewer facilities; and showing any encroachments by improvements
on the Land over easements or adjoining property and showing any
encroachments from adjoining property onto the Land. The Survey shall be as
of a current date and shall be certified in favor of Agent and the Title
Company. All matters shown on the Survey must be reasonably acceptable to
Agent.
(h) Evidence that the following insurance coverages are in effect with
respect to the Project and in a form satisfactory to Agent:
(i) All-Risk Builder's Risk Insurance issued with respect to the
Project in an amount equal to not less than the full aggregate amount
of the Construction Contract, together with extended coverage,
vandalism and malicious mischief coverage, and such other coverage as
may be required by Agent;
(ii) Comprehensive general public liability insurance in such an
amount as may be required by Agent;
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(iii) Workers' compensation insurance and employer's liability
insurance for all contractors and subcontractors in such amounts as
may be required by Agent;
(iv) Flood Insurance if the Land is located in an area designated
as a special flood hazard area by any governmental authority having
jurisdiction over the Land; and
(v) Such other insurance coverages as Agent may reasonably
require.
All policies of insurance required to be maintained by Borrower shall be issued
by companies satisfactory to Agent and shall have coverages and endorsements and
be written for such amounts as Agent may reasonably require. All policies of
insurance shall (x) name Lenders as mortgagee or additional named insured, as
the case may require, and (y) provide that the policies may not be canceled or
modified without thirty days prior written notice to Agent.
(i) An TLTA Loan Policy of Title Insurance issued by the Title Company
in the full amount of the Loan insuring that the Deed of Trust will be a
prior lien upon the fee simple title to the Real Property to the extent of
advances made by Lenders from time to time under this Agreement, subject to
no liens, claims, exceptions or encumbrances except the Permitted
Exceptions and mechanic lien claims insured over by the Title Company in a
manner satisfactory to Agent and containing the following endorsements:
(i) Access Endorsement;
(ii) Contiguity Endorsement; and
(iii) Such additional endorsements as may be reasonably required
by Agent based upon its review of the Title Policy and Survey.
(j) Copies of such documents, if any, as Borrower has provided the
Title Company in connection with the issuance of the Title Policy.
(k) Copies of all recorded documents described in the Title Policy.
(l) Uniform Commercial Code searches covering the Guarantors and
federal and state tax lien and judgment searches covering the Guarantors.
(m) Certificate of the general partner of Borrower with (i)
Certificate of Limited Partnership, (ii) Limited Partnership Agreement,
(iii) Incumbency Certificate, (iv) Certificate of Existence issued by the
Secretary of State of Virginia, (v) a Certificate of Qualification issued
by the Texas Secretary of State and (vi) Resolutions authorizing this
transaction.
(n) Certificate of a member of Ground Lessor with (i) Articles of
Organization, (iii) Incumbency Certificate, (iii) Certificate of Existence
issued by the Secretary of State of Virginia, and (iv) Resolutions
authorizing the Deed of Trust.
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(o) Certificate of an officer of Guarantor with Resolutions
authorizing the Guaranty.
(p) An executed copy of the Construction Contract.
(q) Copies of all applicable zoning ordinances and all zoning
proceedings relating to the Project.
(r) One or more certificates executed by the Contractor certifying the
following:
(i) the Plans and Specifications prepared by the Architect and
the Engineer, as applicable, are significantly complete and to provide
a Guaranteed Maximum Price ("GMP") and build the Project and to
conform to all applicable laws;
(ii) if the Project is constructed in accordance with such Plans
and Specifications (as completed), upon completion the Project will
comply with all applicable zoning, subdivision, land use, building,
landmark, occupational health and safety, environmental and pollution
control laws, statutes, codes, ordinances and regulations; and
(iii) all permits necessary to start the construction of the
Project have been issued or can be obtained or sufficient evidence
thereof can be obtained.
(s) One set of the Plans and Specifications, which have been approved
by Borrower and the Contractor. The Plans and Specifications are subject to
approval by Agent, which will not be unreasonably withheld.
(t) Certified copies of the Construction Contracts, all licenses,
permits and governmental approvals necessary to start the construction, use
or operation of the Project and all other documents and instruments
relating to performance of the Work.
(u) Opinion letter from counsel for Borrower, the Guarantors and the
Ground Lessor in a form satisfactory to Agent.
(v) An opinion of counsel for the Tenant that the use of the Project
as a specialty hospital has been grandfathered under the applicable
regulations of the United States Department of Health and Human Services.
(w) A soil test report prepared by a licensed soil engineer approved
by Agent and otherwise satisfactory in all respects to Agent containing,
among other things, boring logs and the locations of all borings and
confirming that no condition exists with respect to the Land which would
cause subsidence of any portion of the Land and showing that no state of
facts exists which would adversely affect the completion of the Work in
accordance with the Plans and Specifications or would require any costs
with respect thereto not otherwise provided for in the Budget.
10
(x) Evidence that (i) no portion of the Project on which Improvements
are to be built under the Plans and Specifications is located in an area
designated by the Secretary of Housing and Urban Development as having
special flood hazards, or if any portion of the Project is so located,
evidence that flood insurance is in effect; and (ii) no portion of the Land
is located in a federally, state or locally designated wetland or other
type of government protected area.
(y) Certified copies of all service contracts, management agreements,
development agreements and other agreements affecting the use, development
or operation of the Project, if any.
(z) A satisfactory report prepared by an environmental engineer
approved by Agent and otherwise satisfactory in all respects to Agent.
(aa) The Ground Lease.
(bb) The Master Lease.
(cc) An appraisal prepared by an appraiser satisfactory to Agent and
indicating that the fair market value of the Project, as stabilized, is not
less than $32,000,000, which has been received and approved by Agent.
(dd) The Intercreditor Agreement.
(ee) Such other assignments, certificates, opinions and other
documents, instruments and information affecting or relating to Lenders'
interest in the Project or the use, operation, development or construction
of the Project as Agent or any Lender may reasonably require.
4. DISBURSEMENT OF THE LOAN.
4.1 Conditions Precedent. The obligation of Lenders to make the initial and
each subsequent disbursement of the Loan under this Agreement shall be
conditioned upon and subject to the payment to Lenders of all loan fees then
owing from Borrower to Lenders and to satisfaction of all of the following
conditions:
(a) All representations and warranties contained in this Agreement and
in the other Loan Documents shall be true in all material respects on and
as of the date of such disbursement.
(b) Borrower shall have performed all of its obligations under all
Loan Documents which are required to be performed on or prior to the date
of such disbursement.
(c) The Loan shall not be "out of balance" as determined under Section
4.7 below, and the disbursement shall not cause the Loan to be "out of
balance."
11
(d) Agent shall have received an inspection report of the Consultant
certifying the percentages of completion of the components of the Work and
setting forth the amount authorized for disbursement and such other matters
as Agent or the Lenders may reasonably require (including compliance of the
Work with the Plans and Specifications). Notwithstanding anything contained
in this Agreement to the contrary, all inspections of the Work made by
Agent, the Consultant or their respective agents, employees and designees
shall be solely for Agent's and Lenders' own information and shall not be
deemed to have been made for or on account of Borrower or any other party.
Borrower hereby relieves Agent and Lenders of any and all liability or
responsibility relating in any way whatsoever to the construction of the
Project, including but not limited to, the work thereat, the material or
labor supplied in connection therewith, and any errors, inconsistencies or
other defects in the Project or the Plans and Specifications.
(e) There shall be no material adverse change in the financial
condition of any of Borrower, Guarantor or the Project from that reflected
in the financial statements of Borrower, Guarantor and the Project
furnished to Agent in connection with the Lease.
(f) Borrower shall have delivered to Agent certificates from the
Contractor stating that the portion of the Project that has been completed
was constructed in substantial accordance with the Plans and Specifications
prepared by the Architect and Engineer, as applicable, and complies with
all applicable zoning, subdivision, land use, building, landmark,
occupational health and safety, environmental and pollution control laws,
statutes, codes, ordinances or regulations, and does not require any
variances therefrom, or is in compliance therewith, as the case may be. In
addition, Borrower shall have delivered to Agent copies of all licenses and
building permits necessary for commencement and completion of the Work for
which such disbursement is being requested, all of which shall be
unconditional.
(g) If any portion of the requested disbursement is for the payment of
fees owing by Borrower to any broker, then Borrower shall have delivered to
Agent a waiver of lien rights executed by such broker and otherwise in a
form satisfactory to Agent.
(h) No Event of Default shall have occurred and no event or condition,
which with the giving of notice or the passage of time, or both, would
constitute an Event of Default shall then exist.
(i) Borrower shall have provided satisfactory evidence to Agent of its
investment in the Project, including the Subordinate Loan, of not less than
the Borrower's Equity.
(j) The POB Parcel shall have been acquired by WMPT Bellaire POB,
L.P., and Agent shall have received satisfactory evidence that the
professional office building to be located thereon has been at least eighty
percent (80%) pre-leased.
4.2 Use of Loan Proceeds. The proceeds of the Loan disbursed to Borrower
shall be used by Borrower solely for the purpose of paying (or reimbursement to
others for payment of)
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items of Project Costs actually incurred by Borrower. No disbursement of the
Loan will be made until such time as the Borrower's Equity is fully disbursed.
4.3 Disbursement Requests.
(a) During each month, Borrower shall, subject to the conditions set
forth herein and in the Loan Documents, request disbursements of the Loan
to pay the actual costs incurred in connection with the construction and
development of the Project. All disbursements shall be made by Agent within
ten days of receiving a draw request and all other documentation or
information required hereunder, from Borrower.
(b) Agent and the Lenders shall not be required to make more than one
Loan disbursement in any given 30 day period. Agent may at any time take
such action as it deems appropriate to verify that the conditions precedent
to each disbursement have been satisfied, including, without limitation,
verification of any amounts due under the Construction Contract or any
Subcontract. Borrower agrees to cooperate with Agent in any such action. If
in the course of any such verification, any amount shown on the contract
entered into for the performance of any portion of the Work (including the
Construction Contract or any Subcontract), or any application for payment,
sworn statement or waiver of lien is subject to a possible discrepancy,
such discrepancy shall be eliminated by Borrower to Agent's reasonable
satisfaction. Each request for disbursement shall be made by a letter from
an authorized agent of Borrower addressed to Agent, specifying in detail
the amount and mode of each disbursement and accompanied by the following,
all in form and substance satisfactory to Agent:
(i) An Owner's Sworn Statement and disbursement request,
including an allocation among line items in the Budget, of all hard
costs of construction so requested;
(ii) A Contractor's Application for Payment and Sworn
Contractor's Statement, together with (A) a statement of a duly
authorized agent of the Contractor that all items of construction cost
have been incorporated into the Project in accordance with the Plans
and Specifications, and (B) waivers of lien from each contractor,
subcontractor to whom payment is to be made, with respect to previous
disbursements;
(iii) Evidence (including invoices and contracts) showing the
propriety of each non-construction cost item for which payment is
requested and such supporting data as Agent may reasonably require to
enable Agent to verify the correctness thereof;
(iv) Certificates of the Contractor and the Consultant stating
that each of them has made diligent investigation and that based on
such investigation all Work performed to the date of the request for
disbursement has been completed in substantial accordance with the
Plans and Specifications and certifying (A) the percentage of
completion of each component of the Work, (B) that there has been no
material deviation from the contract amount under the Construction
Contract
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or any Subcontract or the projected time of completion of any
component of the Work, (C) the total cost to complete the Work, (D)
and that after giving effect to all amounts previously certified for
payment, plus the amount then requested, the remaining uncertified and
undisbursed funds will be sufficient to pay all known costs required
to complete the Work in accordance with the Plans and Specifications;
(v) Copies of all licenses and permits (including building
permits) necessary for construction and completion of the Work with
respect thereto; and
(vi) Such other documents, assignments, certificates and opinions
as are required by the Title Company, or as may be reasonably required
by Agent.
(c) Notwithstanding anything contained in this Agreement to the
contrary, Agent shall not be required to make any disbursement of the Loan
pursuant to this Agreement until the Title Company is prepared to issue an
endorsement to the Title Policy updating the same to the date of such
disbursement and increasing the amount of coverage (including mechanic's
lien coverage) thereunder by the amount so disbursed, and insuring the lien
of the Deed of Trust to be superior to all defects in title other than the
Permitted Exceptions.
4.4 Certifications; Representations and Warranties. Each request for
disbursement by Borrower shall constitute (a) Borrower's certification that the
representations and warranties contained in Article 5 below are true and correct
in all material respects as of the date of such request, (b) Borrower's
certification that Borrower is in compliance with the conditions contained in
this Article 4, and (c) Borrower's representation and warranty to Agent, with
respect to the Work, materials and other items for which payment is requested
that (i) such Work and materials have been incorporated into the Project, free
and clear of liens and encumbrances, (ii) the value thereof is as estimated
therein, (iii) such Work and materials substantially conform to the Plans and
Specifications, this Agreement and all applicable statutes, laws, ordinances,
rules and regulations, and (iv) the requisitioned value of such Work and
materials and the amounts of all other items of cost for which payment is
requested by Borrower have theretofore been in fact paid for in cash by Borrower
or the same are then due and owing by Borrower and (unless Agent disburses funds
directly to the parties performing the Work or to the Title Company) will in
fact be paid in cash by Borrower within five days after Borrower's receipt of
the requested disbursement. Neither review nor approval by Agent of requests for
disbursement or any information contained therein or any other information
provided to Agent in accordance with the other provisions of this Article 4
shall constitute the acceptance or approval by Agent of any portion of the Work
or any such information except for the purpose of making the requested
disbursement.
4.5 Costs. For purposes of this Agreement, including without limitation,
Section 4.3 hereof, (a) the cost of labor and material furnished for the Work
shall be deemed to be incurred by Borrower when the labor and material have been
incorporated into the Project and the payment therefor is due and payable, (b)
the cost of services (other than labor included in the Work) shall be deemed to
be incurred by Borrower when the services are actually rendered and the payment
therefor is due and payable, (c) real estate taxes, interest and insurance
premiums
14
shall be deemed to be incurred by Borrower when such items become due and
payable, and (d) any other costs shall be deemed to be incurred by Borrower when
the payment therefor is due and payable, but not before the value to be received
in return for such cost has been received by Borrower.
4.6 Development Fees. No proceeds of the Loan will be disbursed for
development fees but project management direct costs and reimbursable expenses
will be paid to HADC as set forth in the Budget.
4.7 Loan In Balance.
(a) At all times prior to the Maturity Date, (i) the undisbursed
proceeds from the Loan together with the undisbursed amount of the
Borrower's Equity and the Subordinate Loan, shall be sufficient to pay all
Project Costs remaining unpaid through the projected date on which the
Improvements will be substantially completed.
(b) If Agent reasonably determines that the undisbursed proceeds from
the Loan together with the undisbursed amount of the Borrower's Equity and
the Subordinate Loan, are insufficient to pay all Project Costs remaining
unpaid through the projected date on which the Improvements will be
substantially completed, then the Loan shall be deemed "out of balance" to
the extent of such excess.
(c) If Agent reasonably deems the Loan to be out of balance as
aforesaid, Borrower shall, within ten days after written request by Agent,
deposit with Agent an amount equal to the excess amount. The sums thus
deposited with Agent will be disbursed by Agent to complete the Work prior
to any further disbursement of proceeds of the Loan (or, if the Work has
been completed, to the repayment of the Principal Balance). If such deposit
is not made within such time, an Event of Default shall be deemed to have
occurred. No interest shall be payable to Agent on such amounts when
disbursed to pay the cost of any Work.
(d) Borrower shall be entitled to reallocate among line items in the
Budget without obtaining Agent's prior written consent, so long as such
reallocation does not result in an increase in the Project Budget. The
amount allocated to the contingency and the interest reserves line shall,
at all times, be an amount reasonably acceptable to the Agent.
4.8 Application of Disbursements.
(a) Agent shall make each requested disbursement of the Loan to an
account maintained by Borrower with Agent within ten days after all of the
conditions precedent to such disbursement set forth in Section 4.1 above
have been satisfied and all documentation required under Section 4.3 above
has been delivered to Agent.
(b) Notwithstanding the foregoing, neither Agent nor any Lender shall
be responsible, liable or obligated to the contractors, sub-contractors,
suppliers, materialmen, laborers, architects, engineers, or any other
parties, for services or work performed, or for goods delivered by them or
any of them, in and upon the Land or
15
employed directly or indirectly in the performance of the Work, or for any
debts or claims whatsoever accruing in favor of any such parties and
against Borrower or others, or against the Project. It is expressly
understood and agreed that Borrower is not and shall not be an agent of
Agent or Lenders for any purpose whatsoever. Without limiting the
generality of the foregoing, advances made at Agent's option, directly to
any contractor, subcontractor or supplier of labor or materials, or any
other party, shall not be deemed a recognition by Agent or any Lender of
any third party beneficiary status of any such person or entity.
(c) Borrower covenants and agrees that it shall receive all Loan
Advances to be made hereunder by Agent as a trust fund and that Borrower
shall withdraw and use said funds solely for the payment of the bills for
the labor and materials used in the performance of the Work for which such
Loan funds were requested by Borrower, and for the payment of the other
items of Project Cost for which such Loan proceeds were requested by
Borrower, and for no other purpose whatsoever; however, nothing herein
shall impose upon Agent any obligation whatsoever to see to the proper
application of any such monies by Borrower.
(d) Whenever so requested by Agent, Borrower shall promptly furnish
Agent written evidence reasonably satisfactory to Agent that all monies
theretofore advanced by Lenders pursuant to this Agreement have actually
been paid or applied in payment of the cost of performance of the Work and
in payment of the other items of Project Cost for which such funds were
advanced by Lenders, and until such evidence is produced, at the option of
Agent, no future or additional payments or Loan Advances need be made
hereunder.
4.9 Payment of Interest by Agent. Proceeds of the Loan shall be allocated
to an interest reserve (the "Interest Reserve") as set forth in the Budget
approved by Agent. All accrued interest on the Loan shall be paid from the
Interest Reserve until fully disbursed and thereafter from rental income
received by Borrower under the Master Lease. Borrower hereby authorizes Agent on
the first day of each month during the term of the Loan (and on any other date
on which interest is due under the Notes) to disburse to itself for the benefit
of the Lenders from the undisbursed proceeds of the Interest Reserve to pay all
then accrued and unpaid interest on the Loan; provided, however, that such
authorization shall not be deemed to limit, reduce or otherwise affect
Borrower's obligation to pay interest if (a) there are no remaining amounts in
the Interest Reserve, or (b) Agent is entitled to withhold disbursement of the
Interest Reserve for any reason.
5. REPRESENTATIONS AND WARRANTIES. In order to induce Lenders to execute this
Agreement and to make the Loan, Borrower represents and warrants to Lenders as
follows:
5.1 Borrower. Borrower is a duly formed limited partnership validly
existing in the State of Virginia, duly qualified to conduct business in the
State of Texas, and has full power and authority to execute and deliver the Loan
Documents and to perform its obligations hereunder and thereunder. The Limited
Partnership Agreement of Borrower dated as of August 26, 2003, a copy of which
has been furnished to Agent, is in effect, unamended and are the true, correct
and complete documents relating to Borrower's governance. The Certificate of
Limited Partnership
16
dated as of January 16, 2003, and as amended February 28, 2003 and April 9, 2003
creating Borrower, a copy of which has been furnished to Agent, is in effect,
unamended and is the true, correct and complete document relating to Borrower's
creation and governance. Borrower has fully complied with all applicable
securities and other laws and regulations in connection with the formation of
Borrower and the sale and offer for sale of interests therein.
5.2 Guarantor. Guarantor has full power and authority to execute the
Guaranty, the Indemnity Agreement and all other Loan Documents executed by it
and to perform its obligations thereunder.
5.3 Title. At closing Borrower will own good and marketable leasehold title
to the Real Property. The Real Property is owned free and clear of all liens,
claims and encumbrances, except the Permitted Exceptions.
5.4 Improvements. Subject to the terms and conditions contained in this
Agreement, Borrower intends to improve the Land with the Improvements. The Work
will be performed in substantial accordance with the provisions of the Plans and
Specifications and the Budget and all of the other requirements of this
Agreement.
5.5 Validity and Enforceability of Documents. Upon the execution and
delivery of the Loan Documents, the Loan Documents shall be valid and binding
upon the Borrower and Guarantor in accordance with the respective provisions
thereof, and enforceable in accordance with the respective provisions thereof,
subject only to applicable bankruptcy, reorganization, insolvency, moratorium
and other similar laws affecting the enforcement of creditor's rights.
Execution, delivery and performance of the Loan Documents do not and will not
contravene, conflict with, violate or constitute a default under the Certificate
of Limited Partnership creating Borrower, the Limited Partnership Agreement of
Borrower, the organizational agreements of Guarantor or any applicable law,
rule, regulation, judgment, decree or order or any agreement, indenture or
instrument to which Borrower or Guarantor is a party or is bound or which is
binding upon or applicable to the Project or any portion thereof.
5.6 Litigation. There is not any condition, event or circumstance existing,
or any litigation, arbitration, governmental or administrative proceeding,
action, examination, claims or demand pending or, to the best of Borrower's
knowledge after due inquiry, threatened affecting Borrower, Guarantor or the
Project, or involving the validity or enforceability of the Loan Documents or
involving any risk of a judgment or liability which, if satisfied, would have a
material adverse effect on the financial condition, business or properties of
Borrower, Guarantor or the priority of the lien of the Deed of Trust, or which
would prevent Borrower or Guarantor from complying with or performing its
obligations under this Agreement, the Notes, the Guaranty or any of the other
Loan Documents within the time limits set forth therein for such compliance or
performance and no basis for any such matter exists.
5.7 Utilities; Authorities. All utilities necessary for use, operation and
occupancy of the Project (including, without limitation, water, storm sewer,
sanitary sewer and drainage, electric, gas and telephone facilities) are or
will, as a result of the development of the Project, be available at the
boundaries of the Land (or in the streets adjoining the Land), and all
requirements for the use of such utilities have been fulfilled. All building,
zoning, safety, health,
17
fire, water district, sewerage and environmental protection agency permits and
other licenses and permits which are required by any governmental authority for
construction of the Improvements, and the use, occupancy and operation of the
Project as a specialty hospital (other than approvals of healthcare governmental
authorities regarding the operation of the facility as a hospital that are to be
obtained by the owner of the hospital operations) in accordance with the Plans
and Specifications have been obtained by or furnished to Borrower and are in
full force and effect or will be obtained by and maintained in full force and
effect by Borrower when and as required by any governmental authority.
5.8 Financial Statements; Solvency. All financial statements submitted to
Agent relating to Borrower and the Guarantor are true, complete and correct, and
have been prepared in accordance with sound accounting principles consistently
applied and fairly present the financial condition of the Person to which they
pertain and the other information therein described and do not contain any
untrue statement of a material fact or omit to state a fact material to the
financial statement submitted or this Agreement. No material adverse change has
occurred in the financial condition of Borrower, or Guarantor since the dates of
each such financial statements. Borrower and Guarantor are able to pay their
respective debts as such debts become due, and they have capital sufficient to
carry on their respective present businesses and transactions and all businesses
and transactions in which they are about to engage and neither Borrower nor
Guarantor (i) are bankrupt or insolvent, (ii) have made an assignment for the
benefit of its or his creditors, (iii) have had a trustee or receiver appointed,
(iv) have had any bankruptcy, reorganization or insolvency proceedings
instituted by or against it or him, or (v) shall be rendered insolvent by its or
his execution, delivery or performance of this Agreement, the Loan Documents or
by the transactions contemplated hereunder and thereunder.
5.9 Compliance with Laws. Upon completion of the Work in substantial
accordance with the Plans and Specifications, the Project and the use, occupancy
and operation (subject to the acquisition of appropriate healthcare governmental
authorities approvals and certifications by the owner of the hospital
operations) thereof for their intended purposes will not, violate any laws,
statutes, ordinances, rules, orders or regulations of any kind whatsoever
(including without limitation, those relating to environmental protection, water
use, zoning, building, fire, health or safety), any contractual arrangements
with third parties or any covenants, conditions, easements, rights of way or
restrictions of record. Neither Borrower nor any agent thereof has received any
notice, written or otherwise, alleging any such violation, which violation has
not previously been cured. Upon completion of the Work in accordance with the
Plans and Specifications, the Project will be in full compliance and conformity
with all zoning requirements, including without limitation, those relating to
setbacks, height, parking, floor area ratio, fire lanes and percentage of land
coverage. Except for certain space in the adjoining medical office building to
be located upon the POB Parcel, no right to any off-site facilities will be
necessary to insure compliance by the Project with all environmental protection,
public highway, water use, zoning, building, fire, health, safety or similar
statutes, laws, ordinances, codes, rules, regulations, orders and decrees.
5.10 Construction Contract. Pursuant to the Construction Contract, the
Contractor has agreed to construct the Improvements. The Construction Contract
is in full force and effect, unamended, and no default exists thereunder by
either party thereto. In the event of any conflict between the terms of the
Construction Contract, other Subcontracts and this Agreement or any
18
other Loan Document, Borrower shall abide by and shall cause the applicable
Contractor to act in accordance with the provisions of the Loan Documents.
5.11 Subcontracts. Pursuant to the requirements of Section 7.15 below,
Borrower will promptly deliver to Agent true, complete and correct copies of all
Subcontracts that are entered into after the date hereof.
5.12 Plans and Specifications. Borrower has delivered to Agent true,
complete and correct copies of all of the Plans and Specifications listed in
EXHIBIT "E" attached hereto and the plans and specifications listed in EXHIBIT
"E" are the Plans and Specifications which have been approved by Agent.
5.13 Budget. The Budget is a true, complete and correct budget with respect
to Project Costs. The total of all Project Costs as specified in the Budget will
not exceed $33,160,000.
5.14 Hazardous Materials. Except as set forth in the Reports (as defined in
the Deed of Trust) and otherwise disclosed to Agent, neither Borrower nor
Guarantor has any knowledge of any Hazardous Materials that have been generated,
released, stored or deposited over, beneath or on the Land or in any structure
located on the Land. No Hazardous Materials will be used in the construction of
all or any portion of the Project, nor, to the best of Borrower's knowledge
after due inquiry, has any part of the Land been used for or as a land fill, the
result of which could impose any liability against Borrower, Agent, Lenders or
the Project under any applicable law or regulation, including, without
limitation the laws and regulations mentioned in the definition of "Hazardous
Materials" set forth above. Borrower covenants that it shall indemnify, hold
harmless and defend Agent and Lenders from any and all claims, losses, damages,
response costs and expenses (collectively, "Claims") arising out of or in any
way relating to the past, present or future presence, removal or disposal of any
Hazardous Materials over, beneath, in or on the Project regardless of whether
such presence, removal or disposal constitutes a breach of the representations,
warranties, covenants and agreements set forth in this Section, including, but
not limited to: (a) claims of third parties (including governmental agencies)
for damages, penalties, response costs, injunctive or other relief; (b) costs of
removal and restoration, including fees of attorneys and experts and costs of
reporting the existence of any Hazardous Materials to any governmental agency;
and (c) any and all expenses or obligations incurred at, before and after any
trial or appeal therefrom, including without limitation, attorneys' fees,
witness fees, deposition costs, photocopying charges and other expenses, all of
which shall be paid by Borrower when incurred. The provisions of the foregoing
representations, warranties and covenants shall not limit the provisions of the
Indemnity Agreement and the rights, remedies and protections herein and therein
shall be cumulative.
5.15 Financing Statements. There are no UCC financing statements in effect
other than those to be filed and/or recorded by Agent which name Borrower as
debtor and pertaining to any rights in any of the Personal Property.
5.16 Event of Default. No Event of Default has occurred, and no event or
condition exists, that with the giving of notice, the passage of time or both
could constitute an Event of Default.
19
5.17 Sale Agreements. Except for the agreements providing for the
Borrower's affiliate acquisition in the Ground Lessor or as set forth in the
Master Lease with respect to certain rights of first refusal, there are no sale
contracts affecting all or any portion of the Project as of the date hereof.
5.18 Environmental Matters. There are no facilities on the Real Estate that
are subject to reporting under Section 312 of the federal Emergency Planning and
Community Right-To-Know Act of 1986, 43 U.S.C. Section 11022, and federal
regulations promulgated thereunder. Except as set forth in the Reports or
otherwise disclosed by Borrower to Agent, the Real Estate does not contain any
underground storage tanks.
5.19 The Lease. The Ground Lease and the Master Lease are in full force and
effect and there are no events of default thereunder.
5.20 Continuation of Representations and Warranties. All representations
and warranties which have been made by Borrower and Guarantor shall be true in
all respects at the time of each disbursement of the Loan, and in the event of
any material breach, misrepresentation or omission, Lenders shall have the
absolute right to terminate their obligations under this Agreement (without any
obligation to refund any loan fees previously paid), and upon demand by Agent,
Borrower shall reimburse Agent for the Loan Expenses, and Agent shall be
entitled to recover from Borrower all losses and damages resulting therefrom.
6. CASUALTIES AND CONDEMNATION.
6.1 Agent's Election to Apply Proceeds on Indebtedness.
(a) Subject to the provisions of Section 6.1(b) below, Agent, for the
benefit of Lenders, may elect to collect, retain and apply upon the
indebtedness of Borrower under this Agreement or any of the other Loan
Documents all proceeds of insurance or condemnation (individually and
collectively referred to as "Proceeds") after deduction of all expenses of
collection and settlement, including attorneys' and adjusters' fees and
charges. Any proceeds remaining after repayment of the indebtedness under
the Loan Documents shall be paid by Agent to Borrower.
(b) Notwithstanding anything in Section 6.1(a) to the contrary, in the
event of any casualty to the Improvements or any condemnation of part of
the Project, Borrower shall have the option of applying the Proceeds to
restoration of the Improvements if (i) no Event of Default exists, (ii) all
Proceeds are deposited with Agent, (iii) in Agent's reasonable judgment,
the amount of Proceeds available for restoration of the Improvements
(together with undisbursed proceeds of the Loan, if any, allocated for the
cost of the Construction and any sums or other security acceptable to Agent
deposited with Agent by Borrower for such purpose) is sufficient to pay the
full and complete costs of such restoration, (iv) neither the Lease nor the
Ground Lease will be terminated as a result of such casualty or
condemnation, (v) if the cost of restoration exceeds twenty percent (20%)
of the Loan Amount, in Agent's sole determination after completion of
restoration the Loan Amount (as the same may be reduced by Borrower) will
not exceed 75% of the fair market value of the Project, (vi) in Agent's
reasonable determination, the
20
Project can be restored to an architecturally and economically viable
project in compliance with applicable Laws, and (vii) in Agent's reasonable
determination, such restoration is likely to be completed not later than
three months prior to the Maturity Date.
6.2 Borrower's Obligation to Rebuild and Use of Proceeds Therefor. In case
Agent does not elect to apply or does not have the right to apply the Proceeds
to the indebtedness, as provided in Section 6.1 above, Borrower shall:
(a) Proceed with diligence to make settlement with insurers or the
appropriate governmental authorities and cause the Proceeds to be deposited
with Agent;
(b) In the event of any delay in making settlement with insurers or
the appropriate governmental authorities or effecting collection of the
Proceeds, deposit with Agent the full amount required to complete
construction as aforesaid;
(c) In the event the Proceeds and the available proceeds of the Loan
are insufficient to assure the Agent that the Loan will be In Balance,
promptly deposit with Agent any amount necessary to place the Loan in
Balance; and
(d) Promptly proceed with the assumption of construction of the
Improvements, including the repair of all damage resulting from such fire,
condemnation or other cause and restoration to its former condition.
Any request by Borrower for a disbursement by Agent of Proceeds and funds
deposited by Borrower shall be treated by Agent as if such request were for an
advance of the Loan hereunder, and the disbursement thereof shall be conditioned
upon Borrower's compliance with and satisfaction of the same conditions
precedent as would be applicable under this Agreement for an advance of the
Loan.
7. BORROWER'S COVENANTS.
7.1 Manner of Construction. Borrower shall, at its expense, cause the Work
to be diligently and expeditiously carried out, in a good and workmanlike
manner, in accordance with the Plans and Specifications and all applicable laws,
ordinances and regulations. All materials, fixtures, equipment and other
articles used in the construction or equipping of the Project shall comply with
the Plans and Specifications. Subject to Force Majeure, Borrower shall cause the
Improvements to be completed on or before the Completion Date.
7.2 Certificate of Completion. Within thirty days after the Project is
substantially completed, Borrower shall deliver to Agent a certificate of the
Contractor stating that the Project has been completed in substantial accordance
with the Plans and Specifications and all applicable laws and regulations.
7.3 Change Orders. Borrower shall not, without the prior written approval
of Agent, make or permit any modification of the Plans and Specifications, or
amend or modify the Construction Contracts, or enter into any change orders or
additional contracts for the performance of any portion of the Work; provided,
however, Borrower shall have the right to
21
enter into one or more amendments, change orders or additional contracts so long
as (i) no Event of Default or event or circumstance that with the passage of
time, the giving of notice, or both, would constitute an Event of Default, then
exists under this Agreement or any of the other Loan Documents, (ii) such
amendment, change order or additional contract does not involve work of a
structural nature or modify the exterior of the Improvements and does not
increase the total Project Cost in excess of Thirty-Three Million One Hundred
Sixty Thousand Dollars ($33,160,000), and (iii) following the implementation of
each such amendment, change order or additional contract, the amount of the
contingency reserve contained in the Budget shall be an amount reasonably
acceptable to the Agent. As a condition precedent to Agent approving any
amendment, change order or additional contract, or to Borrower entering into any
other contract for the performance of any portion of the Work, Borrower shall,
immediately upon request of Agent and prior to commencing any Work relating to
any such amendment, change order or additional contract, deposit with Lender an
amount of money as reasonably determined by Agent after taking into account the
additional costs and expenses resulting from said amendment, change order, or
additional contract.
7.4 Compliance with Laws. Borrower shall comply or cause compliance with
all applicable building codes, zoning ordinances, environmental protection,
health and safety laws and regulations and other laws and regulations governing
the construction, development, use and operation of the Project and the
development, operation and sale of the Improvements. Evidence of such compliance
shall be submitted to Agent on request.
7.5 Inspection. Borrower shall permit inspection of the Project by Agent,
the Consultant and any other agent or designee of Agent. In addition, upon prior
reasonable notice, Borrower shall permit Agent and/or its agents and designees
access to and the right to inspect, audit and copy all books, records,
contracts, leases and other documents and information relating to Borrower or
the Project. All such books, records and accounts of operations relating to the
Project shall be kept in accordance with sound accounting practices consistently
applied. Borrower shall promptly respond to any inquiry from Agent for
information with respect to the Project which information may be verified by
Agent at Borrower's expense; provided, however, that Agent shall at all times be
entitled to rely upon any statements or representations made by Borrower or any
agent thereof.
7.6 Mechanics' Liens. Borrower shall not permit any mechanics' lien claims
to be filed or otherwise asserted against the Project or against any funds due
any contractor or subcontractor, and Borrower shall promptly (and in any event
within fifteen days after Borrower has received notice of such filing) discharge
or cause to be discharged the same in case of the filing of any claims for lien
or proceedings for the enforcement thereof; provided that in connection with any
such lien or claim which Borrower may in good faith desire to contest, Borrower
may contest the same by appropriate legal proceedings diligently prosecuted, but
only if Borrower shall furnish to the Title Company such security or indemnity
as the Title Company requires to induce the Title Company to issue an
endorsement to the Title Policy insuring over the exception created by such
lien, and provided further, that Lenders shall not be required to make any
further disbursements of the Loan until any mechanics' lien claims have been so
insured against by the Title Company.
22
7.7 Release by Agent. With respect to the matters set forth in Section 7.6
above, if Borrower shall (a) fail promptly to discharge any asserted liens or
claims, or (b) fail promptly to contest asserted liens or claims or to give
security or indemnity in the manner provided in Section 7.6 above, or (c) having
commenced to contest the same, and having given such security or indemnity, fail
to prosecute such contest with diligence, or to maintain such indemnity or
security so required by the Title Company for its full amount, or (d) upon
adverse conclusion of any such contest, fail promptly to cause any judgment or
decree to be satisfied and lien to be released, then Agent may, but shall not be
required to, upon prior written notice to Borrower procure the release and
discharge of any such claim and any judgment or decree thereon and, further,
may, in its sole discretion, effect any settlement or compromise of the same, or
may furnish such security or indemnity to the Title Company, and any amounts so
expended by Agent, including premiums paid or security furnished in connection
with the issuance of any surety company bonds, shall be deemed to constitute
disbursements of the proceeds of the Loan hereunder and shall bear interest from
the date so disbursed until paid at the Default Rate. In settling, compromising
or discharging any claims for lien, Agent shall not be required to inquire into
the validity or amount of any such claim.
7.8 Financial Statements; Reports. During the term of the Loan, Borrower
will furnish to Agent: (i) on or before April 30 of each year annual operating
statements and balance sheets for Borrower; (ii) within thirty (30) days after
the same are filed, copies of the federal tax returns for Borrower and the Trust
together with copies of all filings by the Trust with the Securities and
Exchange Commission; and (iii) from and after the commencement of occupancy of
the Tenant within thirty (30) days following the end of each calendar quarter
operating statements of the Borrower and Tenant.
7.9 Affirmation of Representations and Warranties. Borrower agrees that all
representations and warranties of Borrower contained in Article 5 hereof shall
remain true in all material respects at all times until the Loan is repaid in
full.
7.10 Title. Except for (a) the Deed of Trust and other security for the
Loan, and (b)the Permitted Exceptions, Borrower shall keep the title to the Real
Property and the Personal Property free of all liens, claims and encumbrances,
whether senior or junior to or at parity with the Deed of Trust and such other
security, subject, however, to Borrower's right to contest mechanics' liens
provided in Section 7.6 above.
7.11 Proceedings Affecting Property. If any proceedings are filed seeking
to enjoin or otherwise prevent or declare invalid or unlawful the construction,
occupancy, use, maintenance or operation of the Project, or any portion thereof,
Borrower shall cause such proceedings to be vigorously contested in good faith,
and in the event of an adverse ruling or decision, prosecute all allowable
appeals therefrom, and shall, without limiting the generality of the foregoing,
resist the entry or seek the stay of any temporary or permanent injunction that
may be entered, and use its best efforts to bring about a favorable and speedy
disposition of all such proceedings. All such proceedings, including without
limitation, all of Agent's costs, and fees and disbursements of Agent's counsel
in connection with any such proceedings, whether or not Agent is a party
thereto, shall be at Borrower's expense. To the extent that Agent incurs any
such expenses, including attorneys' fees and fees and charges for court costs,
bonds and the like, Borrower shall reimburse Agent for such expenses and the
amount due Agent shall bear interest from the date so
23
incurred by Agent until repaid to Agent at the Default Rate and shall be payable
to Agent on demand. The foregoing provisions of this Section 7.11 shall not
limit or affect the provisions of Section 10(i) below.
7.12 Disposal and Encumbrance of Property. Except for the Lease and the
Subordinate Loan, Borrower shall not, without the Required Lender's prior
written consent, suffer, permit or enter into any agreement for any sale, lease,
transfer, or in any way encumber or dispose of or grant or suffer any security
or other assignment (collateral or otherwise) of or in all or any portion of the
Project. Any consent given by Agent or deemed to have been given by Agent, or
any waiver of default under this Section 7.12, shall not constitute a consent
to, or waiver of any right, remedy or power of Agent under any subsequent
default hereunder.
7.13 Insurance. Borrower shall obtain and at all times maintain the
insurance required upon the terms of the Deed of Trust. Borrower shall pay all
premiums on all insurance policies required from time to time under this
Agreement, and thirty days prior to expiration of any such policies, Borrower
shall furnish to Agent, with premiums prepaid, additional and renewal policies
in form, and with companies, coverage, deductibles and amounts satisfactory to
Agent. In the event of failure by Borrower to provide such insurance, Agent may,
but shall not be required to, place insurance and treat the amounts expended
therefor as disbursements of Loan proceeds and such amounts from the date so
expended by Agent until repaid to Agent shall bear interest at the Default Rate.
Borrower shall not store materials or supplies on the Project site without first
providing to Agent evidence of insurance covering such materials or supplies, in
form and substance satisfactory to Agent.
7.14 Performance of Obligations; Notice of Default. Borrower shall promptly
and fully perform and comply in all respects with the obligations, terms,
agreements, provisions and requirements of this Agreement and the other Loan
Documents and all other documents and instruments relating thereto and will not
permit to occur any default or breach hereunder or thereunder. Borrower shall
promptly give to Agent notice of the occurrence of any event which does or would
with the passage of time or the giving of notice, or both, constitute an Event
of Default, or have any material adverse effect on any security for the Loan or
on Borrower's ability to perform its obligations under this Agreement or any of
the other Loan Documents or on the Guarantors' ability to perform his
obligations under the Guaranty and the other Loan Documents to which they are
parties.
7.15 Subcontracts. Within ten days after being executed, Borrower shall
deliver to Agent a copy of each Subcontract entered into by the Contractor for
an amount exceeding $500,000.
7.16 Restrictions Affecting Borrower. Borrower covenants and agrees that,
without the prior written consent of Agent, there shall not occur: (i) any
amendment or modification of the Certificate of Limited Partnership or
Partnership Agreement establishing or governing Borrower, (ii) the release or
discharge of any partner of Borrower, or (iii) the admission of any new partner.
7.17 Use of Receipts. Borrower shall cause all rents and other income and
receipts realized and received by Borrower from and in connection with the
Project during the term of the
24
Loan to be used, first for the purpose of paying interest on the Loan in
accordance with Section 4.9 above, and then for the actual costs and expenses
incurred by Borrower in connection with the ownership, operation, management and
repair of the Project, including without limitation, operating expenses, real
estate taxes and insurance premiums.
7.18 Compliance. Borrower shall use its best efforts to cause Tenant to
comply in all respects with the terms of that certain advisory opinion issued by
the United States Department of Health and Human Services dated July 8, 2004.
7.19 Additional Documents. Borrower shall not record any document
pertaining to the title to the Land without the prior written approval of Agent
of the form and substance of such documents.
8. LOAN EXPENSES. Borrower agrees to pay all of the Loan Expenses. Any Loan
Expenses paid by Agent shall bear interest commencing on the date demand for
repayment thereof is made by Agent until paid at the Default Rate and shall be
paid by Borrower upon demand, or may be paid by Agent at any time by
disbursement of proceeds of the Loan. Any Loan Expenses paid by Agent shall be
reimbursed to Agent by Borrower regardless of whether there shall be any
disbursements of the Loan.
9. AGENT'S REPRESENTATIVES. Agent, at Borrower's expense as identified in the
Budget, shall have the right to engage third party personnel in connection with
negotiation, documentation and administration of the Loan, including without
limitation, the Consultant, to (i) review the Plans and Specifications, (ii)
review Borrower's final construction budget, (iii) conduct monthly inspections
of the Work and report on the progress of construction thereof, (iv) review all
change orders, (v) review applications for disbursements and accompanying
documents, (vi) issue reports and certificates to Agent, (vii) inspect the
structural, mechanical, electrical, plumbing, HVAC and roof systems constituting
the Work, (viii) determine whether the Work has been completed in accordance
with the Plans and Specifications, and (ix) provide other services as requested
by Agent, and Borrower shall fully cooperate with the Consultant and other
personnel in all reasonable respects in connection therewith.
10. EVENTS OF DEFAULT. The occurrence of any one or more of the following shall
constitute an "Event of Default":
(a) Failure by Borrower or any other obligor to pay any installment of
principal or interest or any other amount payable pursuant to the Notes,
this Agreement, the Indemnity Agreement or any of the other Loan Documents
on or before the fifth day after the date when such amount is due and
payable; provided, however, no such five day grace period shall be
permitted with respect to the final payment of the Notes due and payable on
the Maturity Date.
(b) Failure by Borrower or Guarantor to promptly perform or cause to
be performed any non-monetary obligation or observe any non-monetary
condition, covenant, term, agreement or provision required to be performed
or observed by Borrower or Guarantor under this Agreement, the Notes, the
Deed of Trust, the Indemnity Agreement or any of the other Loan Documents;
provided, however, that if
25
such failure by its nature can be cured, then so long as the continued
operation and safety of the Project, and the priority, validity and
enforceability of the lien created by the Deed of Trust or any of the other
Loan Documents and the value of the Project are not imminently impaired,
threatened or jeopardized, then Borrower shall have a period (the "Cure
Period") of thirty (30) days after written notice from Agent of any such
failure of performance or observance to cure or cause the cure of the same,
and an Event of Default shall not be deemed to exist during the Cure
Period, provided further that if Borrower commences to cure such failure
during the Cure Period and is diligently and in good faith attempting to
effect such cure, the Cure Period shall be extended for thirty additional
days, but in no event shall the Cure Period be longer than sixty (60) days
in the aggregate. The foregoing Cure Period is intended only to apply in
circumstances not referred to in any of the other paragraphs of this
Section 10; Borrower's right to a grace or cure period, if any, with
respect to such other circumstances are to be governed by the provisions of
such other paragraphs.
(c) The existence of any material inaccuracy or untruth in any
representation, covenant or warranty contained in this Agreement or any
other Loan Documents, or of any statement or certification as to facts
delivered to Agent by or on behalf of Borrower, Guarantor or any other
applicant for the Loan.
(d) A discontinuance of the construction of the Work for a period of
thirty consecutive business days (unless otherwise approved by Agent),
other than a discontinuance resulting from Force Majeure events (it being
understood that a delay caused by an insufficiency of funds shall not be
deemed to be beyond the control of Borrower), or any delay in the Work,
other than Force Majeure events, the result of which may be, in Agent's
sole judgment, that the Work will not be substantially completed on or
before the Completion Date; provided, however, in no event shall completion
of the Work extend beyond the Maturity Date.
(e) At any time Borrower or a Guarantor files a voluntary petition in
bankruptcy, or institutes (by petition, application, answer, consent or
otherwise) any bankruptcy, insolvency, reorganization, arrangement,
composition, readjustment, dissolution, liquidation or similar proceedings
under any present or future federal, state or other statute or law, or
admits in writing his or its inability to pay his or its debts as they
mature, or makes an assignment for the benefit of his or its creditors, or
seeks or consents to the appointment of any receiver, trustee or similar
officer for all or any substantial part of his or its property.
(f) The commencement of any involuntary petition in bankruptcy against
Borrower or Guarantor or the institution against Borrower or Guarantor of
any reorganization, arrangement, composition, readjustment, dissolution,
liquidation or similar proceedings under any present or future federal,
state or other statute or law, or the appointment of a receiver, trustee or
other officer for all or any substantial part of the property of Borrower
or Guarantor which remains undismissed or undischarged for a period of
sixty (60) days.
26
(g) The disapproval by Agent at any time of any Work for failure to
comply with the Plans and Specifications or any other provisions of this
Agreement, and Borrower's failure to cause the same to be corrected to the
satisfaction of Lender within fifteen business days after the date Borrower
is given written notice of such disapproval.
(h) Any sale, transfer, lease, assignment, conveyance, financing,
lien, encumbrance or other transaction made in violation of Section 7.12 or
7.16 above.
(i) Failure of Borrower for a period of thirty days after Agent's
demand to procure the reversal, dismissal or disposition to Agent's
satisfaction of any order enjoining or otherwise preventing or declaring
invalid or unlawful the construction, occupancy, maintenance, operation or
use of the Project, or any portion thereof, in the manner required by the
terms of this Agreement, or of any proceedings which could affect the
validity or priority of the lien of the Deed of Trust or any of the other
security for the Loan, or which could materially affect Borrower's ability
to perform its obligations under this Agreement or the other Loan Documents
or Guarantor's obligations under the Guaranty.
(j) The attachment, seizure, levy upon or taking of possession by any
receiver, custodian or assignee for the benefit of creditors of all or a
substantial part of the property of Borrower or Guarantor which is not
stayed or dismissed within thirty days after the occurrence thereof.
(k) The assignment or attempted assignment of this Agreement by
Borrower without Agent's prior written consent.
(l) The occurrence of an uncured event of default under the Ground
Lease or a payment default under the Master Lease (and the same is not
cured within one hundred twenty (120) days) or a termination thereof.
11. EXERCISE OF REMEDIES.
11.1 Remedies. Upon the occurrence of any Event of Default, Agent with the
approval of the Required Lenders (for the benefit of Lenders), in addition to
availing itself of any remedies conferred upon it by law and by the terms of the
Notes, the Deed of Trust and the other Loan Documents, may pursue any one or
more of the following remedies first, concurrently or successively with each
other and with any other available remedies, it being the intent hereof that
none of such remedies shall be to the exclusion of any others:
(a) Take possession of the Project and complete the Work and do
anything necessary or desirable in Agent's sole judgment to fulfill the
obligations of Borrower hereunder, including either the right to avail
itself of and procure performance of the Construction Contract, any
Subcontracts or any other contract entered into for the performance of all
or any portion of the Work (or any substitute therefor), or to let new or
additional contracts with the same contractors or subcontractors or others,
and to employ watchmen to protect the Project from injury. Without
restricting the generality of the foregoing and for the purposes aforesaid,
Borrower hereby appoints and constitutes Agent its lawful attorney-in-fact
with full power of substitution (i) to complete the Work
27
in the name of Borrower; (ii) to use portions of the Loan or other funds
which may be reserved, escrowed or set aside for any purposes hereunder at
any time to complete the Work; (iii) to make changes in the Plans and
Specifications which shall be reasonably necessary or reasonably desirable
to complete the Work; (iv) to retain or employ new general contractors,
subcontractors, architects, engineers and inspectors as shall be required
for such purposes; (v) to pay, settle or compromise all existing bills and
claims, which may be liens or security interests or to avoid such bills and
claims becoming liens or security interests against the Project, or as may
be necessary or desirable for the completion of the Work or for the
clearance of title; (vi) to execute all applications and certificates in
the name of Borrower which may be required by any of the Loan Documents;
(vii) to prosecute and defend all actions or proceedings in connection with
the Work; (viii) to take such action and require such performance as it
deems necessary under any of the bonds to be furnished pursuant to the
provisions hereof and to make settlements and compromises with the surety
or sureties thereunder, and in connection therewith, to execute instruments
of release and satisfaction; it being understood that the foregoing power
of attorney is coupled with an interest and cannot be revoked. All sums
expended by Agent pursuant to this Article 11 shall be deemed to have been
paid to Borrower and secured by the Deed of Trust and the other Loan
Documents, and shall bear interest at the Default Rate until repaid to
Agent.
(b) Withhold further disbursements of proceeds of the Loan.
(c) Declare the unpaid indebtedness evidenced by the Notes to be
immediately due and payable.
(d) Exercise any of the rights and remedies contained in this Deed of
Trust and/or any of the other Loan Documents and/or exercise any other
rights and remedies that Agent may have at law or in equity.
(e) Apply the balance of any deposits made with Agent toward the
repayment of the Loan.
12. MISCELLANEOUS.
12.1 Additional Indebtedness. If any advances or payments made by Agent or
Lenders pursuant to this Agreement or any other Loan Document, together with
disbursements of the Loan, shall exceed the aggregate face amount of the Notes,
all such advances and payments shall constitute additional indebtedness secured
by the Deed of Trust and all other security for the Loan, and shall bear
interest at the Default Rate from the date advanced until paid.
12.2 Additional Acts. Borrower shall, upon request, execute and deliver
such further instruments and documents and do such further acts and things as
may be reasonably required to provide to Agent the evidence of and security for
the Loan contemplated by this Agreement.
12.3 Loan Agreement Governs. In the event of any inconsistency between any
provision of this Agreement and any provision of any other Loan Document, the
provision of this Agreement shall govern; provided, however, that the provisions
of all of the Loan Documents shall be construed as an integrated set of
provisions governing the Loan and, accordingly, shall
28
be interpreted and construed liberally to give the maximum validity,
enforceability and effect to all of such provisions.
12.4 Additional Advances. If an Event of Default shall occur, Agent may,
but shall not be obligated to, take any and all actions to cure such default,
and all amounts expended in so doing, all Loan Expenses and all other amounts
paid or advanced by Agent pursuant to the Loan Documents, and all other amounts
advanced by Agent in connection with the performance of the Work or preserving
any security for the Loan, shall constitute additional advances of the Loan,
shall be secured by the Deed of Trust and all other security for the Loan, and
shall bear interest at the Default Rate from the date advanced until paid.
12.5 Amendment; Waiver; Approval. This Agreement shall not be amended,
modified or supplemented without the written agreement of Borrower and Lenders
at the time of such amendment, modification or supplement. No waiver of any
provision of this Agreement or any of the other Loan Documents shall be
effective unless set forth in writing signed by the party making such waiver,
and any such waiver shall be effective only to the extent therein set forth.
Failure by Agent or Lenders to insist upon full and prompt performance of any
provisions of this Agreement or any of the other Loan Documents, or to take
action in the event of any breach of any such provision or upon the occurrence
of any Event of Default, shall not constitute a waiver of any rights of Agent or
Lenders, and Agent and Lenders may at any time thereafter exercise all available
rights and remedies with respect to such breach or Event of Default. Receipt by
Agent of any instrument or document shall not constitute or be deemed to be an
approval thereof. Any approvals required under any of the other Loan Documents
must be in writing, signed by Agent (or all of the Lenders, as applicable) and
directed to Borrower.
12.6 Notice. All notices, communications and waivers under this Loan
Agreement shall be in writing and shall be (i) delivered in person or (ii)
mailed, postage prepaid, either by registered or certified mail, return receipt
requested, or (iii) by overnight express carrier, addressed in each case as
follows:
To Agent: The Huntington National Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
With copy to: ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
To LaSalle: LaSalle Bank National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
With copy to: DLA ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ US LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
To KeyBank KeyBank Real Estate Capital
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇
With copy to: ▇▇▇▇▇▇▇ Long & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
To Borrower: c/o Windrose Medical Property Trust
Attn: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
With copy to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
General Counsel
Windrose Medical Properties Trust
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
or to any other address as to either of the parties hereto, as such party shall
designate in a written notice to the other party hereto. All notices sent
pursuant to the terms of this Section 12.6 shall be deemed received (i) if
personally delivered, then on the date of delivery, (ii) if sent by overnight,
express carrier, then on the next Business Day immediately following the day
sent, or (iii) if sent by registered or certified mail, on the earlier of the
third Business Day following the day sent or when actually received.
Notwithstanding anything in this Agreement to the contrary, all notices,
demands, requests or other communication by and between Borrower and Lenders
shall occur through Agent, and all payments required of Borrower to Lenders
shall be made by Borrower to Agent.
12.7 Benefit; Assignment. The rights, powers and remedies of Agent and
Lenders under this Agreement shall inure to the benefit of Agent and Lenders and
their respective successors and assigns. The rights and obligations of Borrower
under this Agreement may not be assigned and any purported assignment by
Borrower shall be null and void.
12.8 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Texas.
12.9 Indemnity. Borrower agrees to indemnify, defend and hold Agent and
Lenders harmless from and against any and all liabilities, obligations, losses,
damages, claims, costs and expenses (including reasonable attorneys' fees and
court costs) of whatever kind or nature which may be imposed on, incurred by or
asserted against Agent or Lenders at any time which relate to or arise from the
performance of the Work, the offer to rent all or any portion of the Project
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and/or the ownership, use, operation or maintenance of the Project, including
without limitation, any brokerage commissions or finder's fees asserted by,
through or under Borrower against Agent or Lenders with respect to the making of
the Loan and any damages incurred by Agent or Lenders by reason of the
construction of Borrower and Agent or Lenders as having the relationship of
joint venturers or partners or Borrower or Agent or Lenders being deemed to have
acted as agent for the other, except to the extent such liability, obligation,
loss, damage, claim, cost or expense arises or results directly from the gross
negligence or willful misconduct of Agent or Lenders, their agents or their
representatives following the date, if any, on which Agent or Lenders become
mortgagee in possession of the Project or if Agent or Lenders do not become
mortgagee in possession of the Project, the date, if any, on which Agent or
Lenders or their nominee acquires title to the Project. To the extent the
provisions of this Section 12.9 are inconsistent with the terms and provisions
of the Deed of Trust, the provisions of the Deed of Trust shall be deemed
controlling.
12.10 Headings. The titles and headings of the articles and paragraphs of
this Agreement have been inserted as a matter of convenience of reference only
and shall not control or affect the meaning or construction of any of the terms
or provisions of this Agreement.
12.11 No Partnership or Joint Venture. Lenders, by executing and performing
this Agreement shall not become a partner or joint venturer with Borrower or any
partner of Borrower or any of their respective associates or affiliates and all
inspections of the Project herein provided for are for the sole benefit of
Lenders.
12.12 Time is of the Essence. Time is of the essence of the payment of all
amounts due Agent and Lenders under this Agreement and performance and
observance by Borrower of each covenant, agreement, provision and term of this
Agreement and the other Loan Documents.
12.13 Invalid Provisions. In the event any one or more of the provisions
contained in this Agreement or in any of the other Loan Documents shall for any
reason be held to be invalid, illegal or unenforceable in any respect by a court
of competent jurisdiction, such invalidity, illegality or unenforceability shall
not affect any other provision of this Agreement or any other Loan Document, and
this Agreement and the other Loan Documents shall be construed as if such
invalid, illegal or unenforceable provision had never been in the Loan
Documents.
12.14 Offset. Without limitation of any other right or remedy of Lenders
hereunder or provided by law, any indebtedness relating to the Project or its
operation and now or hereafter owing to Borrower by Lenders (including, without
limitation, any amounts on deposit in any demand, time, savings, passbook or
like account maintained by Borrower with any Lender) may be offset and applied
by Lenders hereunder, or under the Notes, the Deed of Trust or any of the other
Loan Documents.
12.15 Acts by Lenders. Notwithstanding anything herein contained to the
contrary, Lenders will not be required to make any disbursement or perform any
other act under this Agreement if, as a result thereof, Lenders will violate any
law, statute, ordinance, rule, regulation or judicial decision applicable
thereto.
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12.16 Joint and Several Liability; Binding Provisions. The obligations and
liabilities of Borrower under this Agreement shall be joint and several. The
covenants, warranties, agreements, obligations, liabilities and responsibilities
of Borrower under this Agreement shall be binding upon and enforceable against
Borrower and its legal representatives, administrators, successors and permitted
assigns.
12.17 Counterparts. This Agreement may be executed in counterparts, and all
said counterparts when taken together shall constitute one and the same
Agreement.
12.18 No Third Party Borrower. This Agreement is only for the benefit of
the parties hereto. No other person or entity shall be entitled to rely on any
matter set forth herein without the prior written consent of such parties.
12.19 Sign. Subject to compliance with applicable laws, codes and
ordinances, Lenders reserve the right to publicize the making of the Loan in any
manner they deem appropriate, including, without limitation, advertisements in
trade journals and newspapers. In addition, Borrower agrees that Agent shall
have the right to erect and maintain a sign at the Project, at Agent's expense,
in a prominent location for the first twelve months of the Loan. Lenders
acknowledge and agree that any public announcement of this Loan will not be made
by Lenders without the prior approval of Borrower, which will not be
unreasonably withheld or delayed.
12.20 CUSTOMER IDENTIFICATION - USA PATRIOT ACT NOTICE; OFAC AND BANK
SECRECY ACT. Lenders hereby notify Borrower that pursuant to the requirements of
the USA Patriot Act (Title III of Pub. L. 107-56, signed into law October 26,
2001) (the "Act"), and Lenders' policies and practices, Lenders are required to
obtain, verify and record certain information and documentation that identifies
Borrower, which information includes the name and address of Borrower and such
other information that will allow Lender to identify Borrower in accordance with
the Act. In addition, Borrower shall (a) ensure that no person who owns a
controlling interest in or otherwise controls Borrower or any subsidiary of
Borrower is or shall be listed on the Specially Designated Nationals and Blocked
Person List or other similar lists maintained by the Office of Foreign Assets
Control ("OFAC"), the Department of the Treasury or included in any Executive
Orders, (b) not use or permit the use of the proceeds of the Loan to violate any
of the foreign asset control regulations of OFAC or any enabling statute or
Executive Order relating thereto, and (c) comply, and cause any of its
subsidiaries to comply, with all applicable Bank Secrecy Act ("BSA") laws and
regulations, as amended.
12.21 WAIVER OF RIGHT TO JURY TRIAL. LENDERS AND BORROWER ACKNOWLEDGE AND
AGREE THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS LOAN AGREEMENT OR ANY
OTHER LOAN DOCUMENT OR WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED HEREIN AND
THEREIN WOULD BE BASED UPON DIFFICULT AND COMPLEX ISSUES AND, THEREFORE, THE
PARTIES AGREE THAT ANY COURT PROCEEDING ARISING OUT OF ANY SUCH CONTROVERSY WILL
BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
13. ASSIGNMENTS AND PARTICIPATIONS.
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13.1 Assignments and Participations.
(a) Each Lender shall have the right to assign, transfer, sell,
negotiate, pledge or otherwise hypothecate this Agreement and any of its
rights and security hereunder and under the other Loan Documents to any
other Eligible Assignee with the prior written consent of the Agent and
with the prior written consent of Borrower, which consent by the Borrower
and the Agent shall not be unreasonably withheld, conditioned or delayed
(provided that no consent of Borrower or Agent shall be required if the
Eligible Assignee is also a Lender or of Borrower if an Event of Default
then exists); provided, however, that (i) the parties to each such
assignment shall execute and deliver to Agent, for its approval and
acceptance, an Assignment and Acceptance, (ii) each such assignment shall
be of a constant, and not a varying, percentage of the assigning Lender's
rights and obligations under this Agreement, (iii) unless the Agent and, so
long as no Event of Default exists, Borrower otherwise consent, the
aggregate amount of the Commitment of the assigning Lender being assigned
pursuant to each such assignment shall in no event be less than Two Million
Dollars ($2,000,000) (provided, however, at all times the Agent shall
retain not less than Six Million Dollars ($6,000,000), (iv) the Agent shall
receive from the assigning Lender a processing fee of Three Thousand Five
Hundred Dollars ($3,500), and (v) if the assignment is less than the
assigning Lender's entire interest in the Loan, the assigning Lender must
retain at least Two Million Dollars ($2,000,000) for any Lender other than
Agent, in Agent's discretion) interest in the Loan. The Agent may designate
any Eligible Assignee accepting an assignment of a specified portion of the
Loan to be a Co-Agent, an "Arranger" or similar title, but such designation
shall not confer on such Assignee the rights or duties of the Agent. Upon
such execution, delivery, approval and acceptance, and upon the effective
date specified in the applicable Assignment and Acceptance, (a) the
Eligible Assignee thereunder shall be a party hereto and, to the extent
that rights and obligations hereunder have been assigned to it pursuant to
such Assignment and Acceptance, have the rights and obligations of a Lender
hereunder and under the other Loan Documents, and Borrower hereby agrees
that all of the rights and remedies of Lenders in connection with the
interest so assigned shall be enforceable against Borrower by an Eligible
Assignee with the same force and effect and to the same extent as the same
would have been enforceable but for such assignment, and (b) the assigning
Lender thereunder shall, to the extent that rights and obligations
hereunder and under the other Loan Documents have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations hereunder and thereunder.
(b) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the Eligible Assignee thereunder confirm to
and agree with each other and the other parties hereto as follows: (i)
except as provided in such Assignment and Acceptance, such assigning Lender
makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with this Agreement or any other Loan Document or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of
this Agreement or any other Loan Document or any other instrument or
document furnished in connection therewith; (ii) such assigning Lender
makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or the
33
performance or observance by the Borrower of any of its obligations under
any Loan Document or any other instrument or document furnished in
connection therewith; (iii) such Eligible Assignee confirms that it has
received a copy of this Agreement together with such financial statements,
Loan Documents and other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into the
Assignment and Acceptance and to become a Lender hereunder; (iv) such
Eligible Assignee will, independently and without reliance upon Agent, the
assigning Lender or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Agreement;
(v) such Eligible Assignee appoints and authorizes the Agent to take such
action as the Agent on its behalf and to exercise such powers under this
Agreement and the other Loan Documents as are delegated to Agent by the
terms hereof and thereof, together with such powers as are reasonably
incidental thereto; and (vi) such Eligible Assignee agrees that it will
perform in accordance with their terms all of the obligations which by the
terms of this Agreement are required to be performed by it as a Lender.
(c) Agent shall maintain a copy of each Assignment and Acceptance
delivered to and accepted by it and shall record in its records the names
and address of each Lender and the Commitment of, and Percentage of the
Loan owing to, such Lender from time to time. Borrower, the Agent and
Lenders may treat each entity whose name is so recorded as a Lender
hereunder for all purposes of this Agreement.
(d) Upon receipt of an Assignment and Acceptance executed by an
assigning Lender and an Eligible Assignee, Agent shall, if such Assignment
and Acceptance has been properly completed and consented to if required
herein, accept such Assignment and Acceptance, and record the information
contained therein in its records, and the Agent shall use its best efforts
to give prompt notice thereof to Borrower (provided that neither the Agent
nor the Lenders shall be liable for any failure to give such notice).
(e) Borrower shall use reasonable efforts to cooperate with Agent and
each Lender in connection with the assignment of interests under this
Agreement or the sale of participations herein.
(f) Anything in this Agreement to the contrary notwithstanding, and
without the need to comply with any of the formal or procedural
requirements of this Agreement, including this Section, any Lender may at
any time and from time to time pledge and assign all or any portion of its
rights under all or any of the Loan Documents to a Federal Reserve Bank;
provided that no such pledge or assignment shall release such Lender from
its obligations hereunder. To facilitate any such pledge or assignment, the
Agent shall, at the request of such Lender, enter into a letter agreement
with the Federal Reserve Bank in, or substantially in, the form of the
exhibit to Appendix C to the Federal Reserve Bank of New York Operating
Circular No. 12.
(g) Anything in this Agreement to the contrary notwithstanding, any
Lender may assign all or any portion of its rights and obligations under
this Agreement to another branch or affiliate of such Lender without first
obtaining the approval of any
34
Agent or the Borrower, provided that (i) such Lender remains liable
hereunder unless the Borrower and Agent shall otherwise agree, (ii) at the
time of such assignment such Lender is not a Defaulting Lender, (iii) such
Lender gives the Agent and Borrower at least fifteen (15) days prior
written notice of any such assignment; (iv) the parties to each such
assignment execute and deliver to Agent an Assignment and Acceptance in a
form acceptable to Agent, and (v) the Agent receives from the assigning
Lender a processing fee of Three Thousand Five Hundred Dollars ($3,500).
(h) Each Lender shall have the right, without the consent of the
Borrower, to sell participations to one or more Eligible Assignees in or to
all or a portion of its rights and obligations under the Loan and the Loan
Documents; provided, however, that (i) such Lender's obligations under this
Agreement (including without limitation its Commitment to Borrower
hereunder) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such
obligations (iii) the Borrower, the Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement and with regard
to any and all payments to be made under this Agreement and (iv) the holder
of any such participation shall not be entitled to voting rights under this
Agreement or the other Loan Documents (but such holder may contract with
the Lender selling such Eligible Assignee its interest in such Lender's
share of the Loan as to voting of such Lender's interest under Section
14.6(b) [but not under any other section of this Agreement], provided that
any such agreement by a Lender shall bind only such Lender alone and not
Borrower, the other Lenders or the Agent).
(i) No Eligible Assignee of any rights and obligations under this
Agreement shall be permitted to subassign such rights and obligations. No
participant in any rights and obligations under this Agreement shall be
permitted to sell subparticipations of such rights and obligations.
(j) Borrower acknowledges and agrees that Lenders may provide to any
Assignee or Participant originals or copies of this Agreement, any other
Loan Document and any other documents, instruments, certificates, opinions,
insurance policies, letters of credit, reports, requisitions and other
materials and information of every nature or description, and may
communicate all oral information, at any time submitted by or on behalf of
Borrower or received by any Lender in connection with the Loan or with
respect to Borrower or Guarantor, provided that prior to any such delivery
or communication, such Eligible Assignees or Participants shall agree to
preserve the confidentiality of any of the foregoing to the same extent
that such Lender agreed to preserve such confidentiality. In order to
facilitate assignments to Eligible Assignees and sales to Eligible
Assignees, Borrower shall execute such further documents, instruments or
agreements as Lenders may reasonably require; provided, that Borrower shall
not be required (i) to execute any document or agreement which would
materially decrease its rights, or materially increase its obligations,
relative to those set forth in this Agreement or any of the other Loan
Documents (including financial obligations, personal recourse,
representations and warranties and reporting requirements), or (ii) to
expend more than incidental sums of money or incidental administrative time
for which it does not receive reasonable reimbursement in order to comply
with any requests or requirements of any
35
Lender in connection with such assignment or sale arrangement. In addition,
Borrower agrees to cooperate fully with Lenders in the exercise of Lenders'
rights pursuant to this Section, including providing such information and
documentation regarding Borrower as any Lender or any potential Eligible
Assignee may reasonably request and to meet with potential Eligible
Assignees.
14. APPOINTMENT.
14.1 Appointment.
(a) Huntington is hereby appointed as Agent hereunder and under each
other Loan Document, and each Lender hereby irrevocably authorize the Agent
to act as agent for each Lender and to take such actions as Lender is
obligated or entitled to take under the provisions of this Agreement and
the other Loan Documents and to exercise such powers as are set forth
herein or therein, together with such other powers as are reasonably
incidental thereto. Agent agrees to act as such upon the express conditions
contained in this Article in substantially the same manner that it would
act in dealing with a loan held for its own account. Agent shall not have a
fiduciary relationship with respect to any Lender by reason of this
Agreement.
(b) The provisions of this Article are solely for the benefit of the
Agent and the Lenders, and Borrower shall not have any rights to rely on or
enforce any of the provisions hereof except as provided in Section 14.2
below. In performing its functions and duties under this Agreement, the
Agent shall act solely as agent of Lender and does not assume, and shall
not be deemed to have assumed, any obligations toward or relationship of
agency or trust with or for the Borrower.
14.2 Reliance on Agent. All acts of and communications by the Agent, as
agent for the Lenders, shall be deemed legally conclusive and binding; and
Borrower or any third party (including any court) shall rely on any and all
communications or acts of the Agent with respect to the exercise of any rights
or the granting of any consent, waiver or approval on behalf of a Lender in all
circumstances where an action by such Lender is required or permitted pursuant
to this Agreement or the provisions of any other Loan Document or by applicable
law without the right or necessity of making any inquiry of any individual
Lender as to the authority of Agent with respect to such matter. In no event
shall any of the foregoing limit the rights or obligations of any Lender with
respect to any other Lender pursuant to this Section 14.
14.3 Powers. The Agent shall have and may exercise such powers under the
Loan Documents as are specifically delegated to the Agent by the terms of each
thereof, together with such powers as are reasonably incidental thereto, and may
exercise all other powers of Lender as are not made subject to the consent of
the Required Lenders pursuant to Section 14.6(a) or to the consent of all
Lenders pursuant to Section 14.6(b). The Agent shall not be considered, or be
deemed, a separate agent of the Lenders hereunder, but is, and shall be deemed,
acting in its contractual capacity as Agent, exercising such rights and powers
under the Loan Documents as are specifically delegated to the Agent or Agent is
otherwise entitled to take hereunder. Agent shall have no implied duties to the
Lenders, or any obligation to the Lenders to take any action except any action
specifically provided by the Loan Documents to be taken by the Agent.
36
14.4 Disbursements. At least two (2) Business Days (by 11:00 a.m.
Indianapolis, Indiana time) prior to each date a disbursement of the Loan is to
be made hereunder pursuant to this Agreement, the Agent shall notify each Lender
of the proposed disbursement and provide each Lender with a copy of the draw
request. Each Lender shall make available to Agent (or the funding Lender or
entity designated by the Agent), the amount of such Lender's Percentage of such
disbursement (with respect to such Lender, such amount being referred to herein
as an "Advance") in immediately available funds not later than 11:00 a.m.
(Indianapolis, Indiana time) on the date such disbursement is to be made (such
date being referred to herein as a "Funding Date"). Unless the Agent shall have
been notified by any Lender prior to such time for funding in respect of any
Advance that such Lender does not intend to make available to the Agent such
Lender's Advance, the Agent may assume that such Lender has made such amount
available to the Agent and the Agent, in its sole discretion, may, but shall not
be obligated to, make available to Borrower a corresponding amount. If such
corresponding amount is not in fact made available to the Agent by such Lender
on or prior to the respective Funding Date, such Lender agrees to pay and
Borrower agrees to repay to Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to Borrower until the date such amount is paid or repaid to Agent, at:
(a) in the case of such Lender, the Federal Funds Effective Rate, and
(B) in the case of Borrower, the interest rate applicable at the time to a
disbursement made on such Funding Date. If such Lender shall pay to Agent
such corresponding amount, such amount so paid shall constitute such
Lender's Advance, and if both such Lender and Borrower shall have paid and
repaid, respectively, such corresponding amount, Agent shall promptly
return to Borrower such corresponding amount in same day funds.
(b) Requests by the Agent for funding by the Lenders of disbursements
of the Loan will be made by facsimile. Each Lender shall make its Loan
Advance available to the Agent in dollars and in immediately available
funds to such Lender and account as the Agent may designate, not later than
Noon (Indianapolis, Indiana time) on the Funding Date. Nothing in this
Section 14.4 shall be deemed to relieve any Lender of its obligation
hereunder to make any Advance on any Funding Date, nor shall any Lender be
responsible for the failure of any other Lender to perform its obligations
to make any Loan Advance hereunder, and the Commitment of any Lender shall
not be increased or decreased as a result of the failure by any other
Lender to perform its obligation to make any Advances hereunder.
(c) As soon as practical Agent will promptly forward to each Lender
copies of the draw request documents described in Section 4.3 and cause the
Consultant to forward to each Lender a copy of the Consultant's most recent
inspection. Delivery of the draw request documents and the Consultant's
inspection report shall not be a condition to funding any Loan Advance.
(d) Distribution and Apportionment of Payments. Subject to Section
14.5(b), payments actually received by Agent for the account of the Lenders
shall be paid to them promptly after receipt thereof by Agent, but in any
event within one (1) Business Day, provided that, if any such payments are
not distributed to the Lenders within one Business Day after Agent's
receipt thereof, Agent shall pay to such Lenders interest
37
thereon at the rate of interest applicable to such portion of the Loan,
from the date of receipt of such funds by Agent until such funds are paid
in immediately available funds to such Lenders provided such funds are
received by Agent not later than 11:00 A.M. (Indianapolis, Indiana time) on
the date of receipt. All payments of principal and interest in respect of
the Loan, all payments of the fees described in this Agreement (but not in
any separate fee letter except to the extent expressly set forth therein),
and all payments in respect of any other obligations of Borrower under the
Loan Documents shall be allocated among such of Lenders as are entitled
thereto, in proportion of their respective Percentages or otherwise as
provided herein in the other Loan Documents, as the case may be. The Agent
shall distribute to each Lender at its primary address set forth herein, or
at such other address as a Lender may request in writing, such funds as it
may be entitled to receive, provided that the Agent shall in any event not
be bound to inquire into or determine the validity, scope or priority of
any interest or entitlement of any Lender and may suspend all payments and
seek appropriate relief (including without limitation instructions from the
Required Lenders, or all Lenders, as applicable, or an action in the nature
of interpleader) in the event of any doubt or dispute as to any
apportionment or distribution contemplated hereby. The order of priority
herein is set forth solely to determine the rights and priorities of the
Lenders as among themselves and may at any time or from time to time be
changed by the Lenders as they may elect, in writing, without necessity of
notice to or consent of or approval by Borrower. The Commitment Fee, which
Agent acknowledges has been paid by Borrower to Agent, will be allocated
among the Lenders as follows:
Huntington $60,000
LaSalle $52,500
KeyBank $37,500
(e) If a Lender (a "Defaulting Lender") defaults in making any Advance
or paying any other sum payable by it hereunder, such sum together with
interest thereon at the Default Rate from the date such amount was due
until repaid (such sum and interest thereon as aforesaid referred to,
collectively, as the "Lender Default Obligation") shall be payable by the
Defaulting Lender (i) to any Lender(s) which elect, at their sole option
(and with no obligation to do so), to fund the amount which the Defaulting
Lender failed to fund or (ii) to Agent or any other Lender which under the
terms of this Agreement is entitled to reimbursement from the Defaulting
Lender for the amounts advanced or expended. Notwithstanding any provision
hereof to the contrary, until such time as a Defaulting Lender has repaid
the Lender Default Obligation in full, all amounts which would otherwise be
distributed to the Defaulting Lender shall instead be applied first to
repay the Lender Default Obligation (to be applied first to interest at the
Default Rate and then to principal) until the Lender Default Obligation has
been repaid in full (whether by such application or by cure by the
Defaulting Lender), whereupon such Lender shall no longer be a Defaulting
Lender. Any interest collected from Borrower on account of principal
advanced by any Lender(s) on behalf of a Defaulting Lender shall be paid to
the Lender(s) who made such advance and shall be credited against the
Defaulting Lender's obligation to pay interest on the amount advanced at
the Default Rate. If no other Lender makes an advance a Defaulting Lender
failed to fund, a portion of the indebtedness of Borrower to the Defaulting
Lender equal to the Lender Default Obligation shall be
38
subordinated to the indebtedness of Borrower to all other Lenders and shall
be paid only after the indebtedness of Borrower to all other Lenders is
paid. The provisions of this Section shall apply and be effective
regardless of whether an Event of Default occurs and is then continuing,
and notwithstanding (i) any other provision of this Agreement to the
contrary or (ii) any instruction of Borrower as to its desired application
of payments. No Defaulting Lender shall have the right to vote on matters
which are subject to the consent or approval of Required Lenders or all
Lenders and while any Lender is a Defaulting Lender the requisite
percentage of Lenders which constitutes the Required Lenders shall be
calculated exclusive of the Percentage of the Defaulting Lender. The Agent
shall be entitled to (i) withhold or set off, and to apply to the payment
of the Lender Default Obligation any amounts to be paid to such Defaulting
Lender under this Agreement, and (ii) bring an action or suit against such
Defaulting Lender in a court of competent jurisdiction to recover the
Lender Default Obligation and, to the extent such recovery would not fully
compensate the Lenders for the Defaulting Lender's breach of this
Agreement, to collect damages. In addition, the Defaulting Lender shall
indemnify, defend and hold Agent and each of the other Lenders harmless
from and against any and all claims, actions, liabilities, damages, costs
and expenses (including attorneys' fees and expenses), plus interest
thereon at the Default Rate, for funds advanced by Agent or any other
Lender on account of the Defaulting Lender or any other damages such
persons may sustain or incur by reason of or as a direct consequence of the
Defaulting Lender's failure or refusal to abide by its obligations under
this Agreement.
(f) At least five Business Days prior to the first date on which
interest or fees are payable hereunder for the account of any Lender, each
Lender that is not incorporated under the laws of the United States of
America, or a state thereof, agrees that it will deliver to the Agent two
duly completed copies of United States Internal Revenue Service Form 1001
or 4224, certifying in either case that such Lender is entitled to receive
payments under this Agreement and the Notes without deduction or
withholding of any United States federal income taxes. Each Lender which so
delivers a Form 1001 or 4224 further undertakes to deliver the Agent two
additional copies of such form (or a successor form) on or before the date
that such form expires or becomes obsolete or after the occurrence of any
event requiring a change in the most recent forms so delivered by it, and
such amendments thereto or extensions or renewals thereof as may be
reasonably requested by the Agent, in each case certifying that such Lender
is entitled to receive payments under this Agreement and the Notes without
deduction or withholding of any United States federal income taxes, unless
an event (including without limitation any change in treaty, law or
regulation) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or which
would prevent such Lender from duly completing and delivering any such form
with respect to it and such Lender advises the Agent that it is not capable
of receiving payments without any deduction or withholding of United States
federal income tax.
14.5 Consents and Approvals.
(a) Each of the following shall require the approval or consent of the
Required Lenders (provided, however, in the event KeyBank and LaSalle have
exercised their
39
rights pursuant to Section 14.19(c), Huntington shall be excluded in the
calculation of "Required Lenders"):
(i) The exercise of any rights and remedies under the Loan
Documents following an Event of Default, provided that absent any
direction from the Required Lenders, Agent may exercise any right or
remedy under the Loan Documents as Agent may determine in good faith
to be necessary or appropriate to protect the Lenders or the
collateral securing the Loan;
(ii) Appointment of a successor Agent;
(iii) Approval of Post-Default Plan (as defined in and subject to
Section 14.7(d)); and
(iv) Except as referred to in subsection (b) below, approval of
any amendment or modification of this Agreement or any of the other
Loan Documents, or issuance of any waiver of any provision of this
Agreement or any of the other Loan Documents;
(b) Each of the following shall require the approval or consent of all
of the Lenders:
(i) Extension of the Maturity Date (beyond any extension
permitted herein) or forgiveness of all or any portion of the
principal amount of the Loan or any accrued interest thereon, or any
other amendment of this Agreement or the other Loan Documents which
would reduce the interest rate or interest rate options or the rate at
which fees are calculated or forgive any loan fee, or extend the time
of payment of any principal, interest or fees;
(ii) Reduction of the percentage specified in the definition of
Required Lenders;
(iii) Reducing or increasing of the amount of the Loan or any
Lender's Commitment, or change the requirement that each Lender fund
in accordance with its Percentage;
(iv) Release of any lien on any material collateral (except as
Borrower is entitled to under the Loan Documents);
(v) Release of any Guarantor; and
(vi) Amendment of the provisions of this Section 14.
(c) In addition to the required consents or approvals referred to in
subsections (a) and (b) above, the Agent may at any time request
instructions from the Required Lenders with respect to any actions or
approvals which, by the terms of this Agreement or of any of the Loan
Documents, the Agent is permitted or required to take or to grant without
instructions from any Lenders, and if such instructions are promptly
requested,
40
the Agent shall be absolutely entitled to refrain from taking any action or
to withhold any approval and shall not be under any liability whatsoever
for refraining from taking any action or withholding any approval under any
of the Loan Documents until it shall have received such instructions from
the Required Lenders. Without limiting the foregoing, no Lender shall have
any right of action whatsoever against any Agent as a result of such Agent
acting or refraining from acting under this Agreement or any of the other
Loan Documents in accordance with the instructions of the Required Lenders
or, where applicable, all Lenders. The Agent shall promptly notify each
Lender at any time that the Required Lenders have instructed the Agent to
act or refrain from acting pursuant hereto.
(d) Each Lender authorizes and directs the Agent to enter into the
Loan Documents other than this Agreement for the benefit of the Lenders.
Each Lender agrees that any action taken by the Agent at the direction or
with the consent of the Required Lenders in accordance with the provisions
of this Agreement or any other Loan Document, and the exercise by the Agent
at the direction or with the consent of the Required Lenders of the powers
set forth herein or therein, together with such other powers as are
reasonably incidental thereto, shall be authorized and binding upon all
Lenders, except for actions specifically requiring the approval of all
Lenders. All communications from the Agent to the Lenders requesting
Lenders' determination, consent, approval or disapproval (i) shall be given
in the form of a written notice to each Lender, (ii) shall be accompanied
by a description of the matter or item as to which such determination,
approval, consent or disapproval is requested, or shall advise each Lender
where such matter or item may be inspected, or shall otherwise describe the
matter or issue to be resolved, (iii) shall include, if reasonably
requested by a Lender and to the extent not previously provided to such
Lender, written materials and a summary of all oral information provided to
the Agent by Borrower in respect of the matter or issue to be resolved, and
(iv) shall include the Agent's recommended course of action or
determination in respect thereof. Each Lender shall reply promptly, but in
any event within ten (10) Business Days after receipt of the request
therefor from the Agent (the "Lender Reply Period"). Unless a Lender shall
give written notice to the Agent that it objects to the recommendation or
determination of the Agent (together with a written explanation of the
reasons behind such objection) within the Lender Reply Period, such Lender
shall be deemed to have approved of or consented to such recommendation or
determination. With respect to decisions requiring the approval of the
Required Lenders or all Lenders, the Agent shall upon receiving the
required approval or consent follow the course of action or determination
recommended to the Lenders by the Agent or such other course of action
recommended by the Required Lenders.
14.6 Agency Provisions Relating to Collateral.
(a) The Agent is hereby authorized on behalf of all Lenders, without
the necessity of any notice to or further consent from any Lender, at any
time and from time to time, to take any action with respect to any
collateral for the Loan or any Loan Document which may be necessary to
preserve and maintain such collateral or to perfect and maintain perfected
the liens upon such collateral granted pursuant to this Agreement and the
other Loan Documents.
41
(b) Except as provided in this Agreement, the Agent shall have no
obligation whatsoever to any Lender or to any other person or entity to
assure that any collateral exists or is owned by Borrower or is cared for,
protected or insured or has been encumbered or that the liens granted
herein or in any of the other Loan Documents or pursuant hereto or thereto
have been properly or sufficiently or lawfully created, perfected,
protected or enforced or are entitled to any particular priority.
(c) Should the Agent commence any proceeding or in any way seek to
enforce the Agent's or the Lenders' rights or remedies under the Loan
Documents, irrespective of whether as a result thereof the Agent shall
acquire title to any collateral, each Lender, upon demand therefor from
time to time, shall contribute its share (based on its Percentage) of the
reasonable costs and/or expenses of any such enforcement or acquisition,
including, but not limited to, fees of receivers or trustees, court costs,
title company charges, filing and recording fees, appraisers' fees and fees
and expenses of attorneys to the extent not otherwise reimbursed by
Borrower. Without limiting the generality of the foregoing, each Lender
shall contribute its share (based on its Percentage) of all reasonable
costs and expenses incurred by the Agent (including reasonable attorneys'
fees and expenses) if the Agent employs counsel for advice or other
representation (whether or not any suit has been or shall be filed) with
respect to any collateral for the Loan or any part thereof, or any of the
Loan Documents, or the attempt to enforce any security interest or lien on
any collateral, or to enforce any rights of the Agent or the Lenders or any
of Borrower's or any other party's obligations under any of the Loan
Documents, but not with respect to any dispute between Agent and any other
Lender(s). It is understood and agreed that in the event the Agent
determines it is necessary to engage counsel for Lender from and after the
occurrence of a Default or Event of Default, said counsel shall be selected
by the Agent and written notice of such selection, together with a copy of
such counsel's engagement letter and fee estimate, shall be delivered to
the Lenders.
(d) In the event that all or any portion of the collateral for the
Loan is acquired by the Agent as the result of the exercise of any remedies
hereunder or under any other Loan Document, or is retained in satisfaction
of all or any part of Borrower's obligations under the Loan Documents,
title to any such collateral or any portion thereof shall be held in the
name of the Agent or a nominee or subsidiary of Agent, as agent, for the
ratable benefit of the Agent and the Lenders. The Agent shall prepare a
recommended course of action for such collateral (the "Post-Default Plan"),
which shall be subject to the approval of the Required Lenders. The Agent
shall administer the collateral in accordance with the Post-Default Plan,
and upon demand therefor from time to time, each Lender will contribute its
share (based on its Percentage) of all reasonable costs and expenses
incurred by the Agent pursuant to the Post-Default Plan, including without
limitation, any operating losses and all necessary operating reserves. To
the extent there is net operating income from such collateral, the Agent
shall, in accordance with the Post-Default Plan, determine the amount and
timing of distributions to Lenders. All such distributions shall be made to
Lenders in accordance with their respective Percentages. In no event shall
the provisions of this subsection or the Post-Default Plan require the
Agent or any Lender to take an action which would cause such Lender to be
in violation of any applicable regulatory requirements. Further, in no
event shall the provisions of this subsection allow
42
the Agent or Required Lenders to take any action that requires the approval
of all the Lenders in accordance with Section 14.6(b) hereof, unless such
approval is obtained.
14.7 Lender Actions Against Borrower or the Collateral. Each Lender agrees
that it will not take any action, nor institute any actions or proceedings,
against Borrower or any other person hereunder or under any other Loan Documents
with respect to exercising claims against the Borrower or rights in any
Collateral without the consent of the Required Lenders. With respect to any
action by the Agent to enforce the rights and remedies of the Agent and Lenders
with respect to the Borrower and any collateral in accordance with the terms of
this Agreement, each Lender hereby consents to the jurisdiction of the court in
which such action is maintained.
14.8 Assignment and Participation. No Lender shall be permitted to assign
or sell all or any portion of its rights and obligations under this Agreement to
Borrower or any affiliate of Borrower.
14.9 Ratable Sharing. Subject to Sections 14.4 and 14.5, Lenders agree
among themselves that (i) with respect to all amounts received by them which are
applicable to the payment of the Loan, equitable adjustment will be made so
that, in effect, all such amounts will be shared among them ratably in
accordance with their Percentages, whether received by voluntary payment, by the
exercise of the right of set-off or bankers' lien, by counterclaim or cross
action or by the enforcement of any or all of the Loan Documents or any
collateral and (ii) if any of them shall by voluntary payment or by the exercise
of any right of counterclaim, set-off, bankers' lien or otherwise, receive
payment of a proportion of the aggregate amount of the Loan held by it which is
greater than its Percentage of the payments on account of the Loan, the one
receiving such excess payment shall purchase, without recourse or warranty, an
undivided interest and participation (which it shall be deemed to have done
simultaneously upon the receipt of such payment) in such obligations owed to the
others so that all such recoveries with respect to such obligations shall be
applied ratably in accordance with their Percentages; provided, that if all or
part of such excess payment received by the purchasing party is thereafter
recovered from it, those purchases shall be rescinded and the purchase prices
paid for such participations shall be returned to that party to the extent
necessary to adjust for such recovery, but without interest except to the extent
the purchasing party is required to pay interest in connection with such
recovery. Borrower agrees that any Lender so purchasing a participation from
another Lender pursuant to this Section may, to the fullest extent permitted by
law, exercise all its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Lender were the direct
creditor of Borrower in the amount of such participation.
14.10 General Immunity. Neither Agent nor any of its directors, officers,
agents or employees shall be liable to Borrower or any Lender for any action
taken or omitted to be taken by it or them hereunder or under any other Loan
Document or in connection herewith or therewith, except for its or their own
gross negligence or willful misconduct. In the absence of gross negligence, the
Agent shall not be liable for any apportionment or distribution of payments made
by it in good faith pursuant to Section 14.5, and if any such apportionment or
distribution is subsequently determined to have been made in error the sole
recourse of any Lender to whom payment was due, but not made, shall be to
recover from the recipients of such payments any payment in excess of the amount
to which they are determined to have been entitled.
43
14.11 No Responsibility for Loan, Recitals, etc. Neither Agent nor any of
its directors, officers, agents or employees shall be responsible for or have
any duty to ascertain, inquire into, or verify (i) any statement, warranty or
representation made in connection with any Loan Document or any use of the Loan;
(ii) the performance or observance of any of the covenants or agreements of any
party to any Loan Document; (iii) the satisfaction of any condition specified in
this Agreement, except receipt of items purporting to be the items required to
be delivered to any Agent; or (iv) the validity, effectiveness or genuineness of
any Loan Document or any other instrument or writing furnished in connection
therewith, provided that the foregoing shall not release Agent from liability
for its gross negligence or willful misconduct.
14.12 Action on Instructions of Lenders. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, hereunder and under any
other Loan Document in accordance with written instructions signed by all the
Lenders (or the Required Lenders, if such action may be directed hereunder by
the Required Lenders), and such instructions and any action taken or failure to
act pursuant thereto shall be binding on all of Lenders. Each Lender, severally
to the extent of its Percentage, hereby agrees to indemnify Agent against and
hold it harmless from any and all liability, cost and expense that it may incur
by reason of taking or continuing to take any such action, provided that the
foregoing shall not release Agent from liability for its gross negligence or
willful misconduct.
14.13 Employment of Agents and Counsel. The Agent may undertake any of its
duties as Agent hereunder and under any other Loan Document by or through
employees, agents, and attorneys-in-fact and shall not be liable to Lenders,
except as to money or securities received by them or their authorized agents,
for the default or misconduct of any such agents or attorneys-in-fact selected
by it with reasonable care. The Agent shall be entitled to advice of counsel
concerning all matters pertaining to the agency hereby created and its duties
hereunder and under any other Loan Document.
14.14 Reliance on Documents; Counsel. The Agent shall be entitled to rely
upon any notice, consent, certificate, affidavit, letter, telegram, statement,
paper or document believed by it to be genuine and correct and to have been
signed or sent by the proper person or persons, and, in respect to legal
matters, upon the opinion of counsel selected by the Agent, which counsel may be
an employee of Agent, provided that the foregoing shall not release the Agent
from liability for its gross negligence or willful misconduct. Any such counsel
shall be deemed to be acting on behalf of Lender in assisting the Agent with
respect to the Loan, but shall not be precluded from also representing Agent in
any matter in which the interests of Agent and the other Lenders may differ.
14.15 Agent's Reimbursement and Indemnification. Lenders agree to reimburse
and indemnify Agent ratably in accordance with their Percentage (i) for any
amounts (excluding principal and interest on the Loan and loan fees) not
reimbursed by Borrower for which Agent is entitled to reimbursement under the
Loan Documents, (ii) for any other expenses incurred by Agent on behalf of
Lender, in connection with the preparation, execution, delivery, administration
and enforcement of the Loan Documents, if not paid by Borrower, (iii) for any
expenses incurred by Agent on behalf of Lender which may be necessary or
desirable to preserve and maintain collateral or to perfect and maintain
perfected the liens upon the collateral granted pursuant to this Agreement and
the other Loan Documents, if not paid by Borrower, (iv) for any amounts and
other expenses incurred by Agent on behalf of Lender in connection with any
default by any Lender hereunder or under the other Loan Documents, if not paid
by such Lender,
44
and (v) for any liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind and nature
whatsoever which may be imposed on, incurred by or asserted against Agent in any
way relating to or arising out of the Loan Documents or any other document
delivered in connection therewith or the transactions contemplated thereby, or
the enforcement of any of the terms thereof or of any such other documents,
provided that no Lender shall be liable for any of the foregoing to the extent
they arise from the gross negligence or willful misconduct of Agent.
Notwithstanding the foregoing, in no event shall Agent incur costs in accordance
with the Section in excess of Five Hundred Thousand Dollars ($500,000) without
the prior approval of the Lenders.
14.16 Rights as a Lender. With respect to its Commitment, if any, Agent
shall have the same rights, powers and obligations hereunder and under any other
Loan Document as any Lender and may exercise such rights and powers as though it
were not an Agent, and the term "Lender" or "Lenders" shall, unless the context
otherwise indicates, include Agent in its individual capacities. The Borrower
and each Lender acknowledge and agree that Agent and/or its affiliates may
accept deposits from, lend money to, hold other investments in, and generally
engage in any kind of trust, debt, equity or other transaction or have other
relationships, in addition to those contemplated by this Agreement or any other
Loan Document, with Borrower or any of its affiliates in which Borrower or such
affiliate is not restricted hereby from engaging with any other person.
14.17 Lenders' Credit Decisions. Each Lender acknowledges that it has,
independently and without reliance upon the Agent or any other Lender and based
on the financial statements and other information prepared by Borrower and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and without
reliance upon Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement and the
other Loan Documents.
14.18 Notice of Events of Default. Should Agent receive any written notice
of the occurrence of a default or Event of Default, or should the Agent send
Borrower a notice of Default or Event of Default, the Agent shall promptly
furnish a copy thereof to each Lender.
14.19 Successor Agent.
(a) Agent may resign from the performance of all its functions and
duties hereunder at any time by giving at least thirty (30) days prior
written notice to Lenders and Borrower. Such resignation shall take effect
on the date set forth in such notice or as otherwise provided below. Such
resignation by Agent as agent shall not affect its obligations hereunder,
if any, as a Lender.
(b) Upon resignation by the Agent (or removal thereof), or any
successor Agent, the Required Lenders shall appoint a successor Agent with
the consent of Borrower, which shall not be unreasonably withheld,
conditioned or delayed (provided that no consent of Borrower shall be
required if the successor Agent is also a Lender or if an Event of Default
then exists). If no successor Agent shall have been so appointed by
45
the Required Lenders, and shall have accepted such appointment within
thirty (30) days after the retiring Agent's giving notice of resignation,
then the retiring Agent may appoint a successor Agent with the consent of
Borrower, which shall not be unreasonably withheld, conditioned or delayed
(provided that no consent of Borrower shall be required if the successor
Agent is also a Lender or if an Event of Default then exists). Upon the
acceptance of any appointment as an Agent hereunder by a successor Agent,
such successor Agent shall thereupon succeed to and become vested with all
the rights, powers, privileges and duties of the Agent and the Agent, and
the retiring Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents other than its liability, if
any, for duties and obligations accrued prior to its retirement. After any
retiring Agent's resignation hereunder as an Agent, the provisions of this
Article 14 shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as an Agent
hereunder and under the other Loan Documents.
(c) After an Event of Default, LaSalle and KeyBank (acting
collectively) shall have the right to remove Agent, as agent, by giving
written notice to Agent whereupon LaSalle shall be appointed as the "Agent"
on behalf of the Lenders. Such removal of Agent as agent shall not affect
its obligations hereunder, if any, as a Lender.
15. ENTIRE AGREEMENT. THIS LOAN AGREEMENT AND THE OTHER LOAN DOCUMENTS EMBODY
THE FINAL, ENTIRE AGREEMENT AMONG THE PARTIES HERETO AND SUPERSEDE ANY AND ALL
PRIOR COMMITMENTS, AGREEMENTS, REPRESENTATIONS AND UNDERSTANDING, WHETHER
WRITTEN OR ORAL, RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF AND MAY NOT
BE CONTRADICTED OR VARIED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS OR DISCUSSIONS OF THE PARTIES HERETO. THERE ARE NO ORAL
AGREEMENTS AMONG THE PARTIES HERETO.
16. AMENDMENT AND RESTATEMENT.
16.1 Amendment and Restatement. This Amended and Restated Loan Agreement
amends and restates in its entirety that certain Loan Agreement entered into by
Borrower and Agent, in its individual capacity on September 3, 2004.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
46
SIGNATURE PAGE OF BORROWER TO AMENDED AND RESTATED LOAN AGREEMENT
WMPT BELLAIRE, L.P. a Virginia limited
partnership
By: WMPT Bellaire Properties, L.L.C., a
Virginia limited liability company,
its General Partner
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
STATE OF INDIANA )
)SS:
COUNTY OF ▇▇▇▇▇▇ )
Before me, a Notary Public in and for said County and State, personally
appeared ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, known to me to be the President of WMPT Bellaire
Properties, L.L.C., a Virginia limited liability company, the General Partner of
WMPT BELLAIRE, L.P., a Virginia limited partnership, and acknowledged the
execution of the foregoing for and on behalf of said limited liability company
for and on behalf of said limited partnership.
Witness my hand and Notarial Seal, this 8th day of July, 2005.
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Notary Public - Signature
▇▇▇ ▇. ▇▇▇▇▇▇
Notary Public - Printed
My Commission Expires: My County of Residence:
2/24/2013 ▇▇▇▇▇▇
SIGNATURE PAGE OF THE HUNTINGTON NATIONAL BANK TO
AMENDED AND RESTATED LOAN AGREEMENT
THE HUNTINGTON NATIONAL BANK, a national
banking association
By:
------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Vice President
Commitment Amount: $9,600,000
Lender's Percentage: 40%
STATE OF INDIANA )
)SS:
COUNTY OF ______ )
Before me, a Notary Public in and for said County and State, personally
appeared ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, known to me to be a Vice President of THE HUNTINGTON
NATIONAL BANK, a national banking association, and acknowledged the execution of
the foregoing for and on behalf of said national banking association.
Witness my hand and Notarial Seal, this ____ day of ___________, 2005.
----------------------------------------
Notary Public - Signature
----------------------------------------
Notary Public - Printed
My Commission Expires: My County of Residence:
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SIGNATURE PAGE OF THE LASALLE BANK NATIONAL ASSOCIATION TO
AMENDED AND RESTATED LOAN AGREEMENT
LASALLE BANK NATIONAL ASSOCIATION, a
national banking association
By:
------------------------------------
Printed:
-------------------------------
Title:
---------------------------------
Commitment Amount: $8,400,000
Lender's Percentage: 35%
STATE OF INDIANA )
)SS:
COUNTY OF ______ )
Before me, a Notary Public in and for said County and State, personally
appeared _______________________, known to me to be a ____________________ of
LASALLE BANK NATIONAL ASSOCIATION, a national banking association, and
acknowledged the execution of the foregoing for and on behalf of said national
banking association.
Witness my hand and Notarial Seal, this ____ day of ___________, 2005.
----------------------------------------
Notary Public - Signature
----------------------------------------
Notary Public - Printed
My Commission Expires: My County of Residence:
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SIGNATURE PAGE OF KEYBANK NATIONAL ASSOCIATION TO
AMENDED AND RESTATED LOAN AGREEMENT
KEYBANK NATIONAL ASSOCIATION, a national
banking association
By:
------------------------------------
Printed:
-------------------------------
Title:
---------------------------------
Commitment Amount: $6,000,000
Lender's Percentage: 25%
STATE OF INDIANA )
)SS:
COUNTY OF ______ )
Before me, a Notary Public in and for said County and State, personally
appeared _____________________________, known to me to be a ___________________
of KEYBANK NATIONAL ASSOCIATION, a national banking association, and
acknowledged the execution of the foregoing for and on behalf of said national
banking association.
Witness my hand and Notarial Seal, this ____ day of ___________, 2005.
----------------------------------------
Notary Public - Signature
----------------------------------------
Notary Public - Printed
My Commission Expires: My County of Residence:
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