EXHIBIT 10.131
LOAN AGREEMENT
between
▇▇▇▇▇▇ Hills Mall, LLC
as Borrower
The Lenders Party Hereto
as Lenders
and
Eurohypo AG, New York Branch
as Administrative Agent
Date: As of June 3, 2008
▇▇▇▇▇▇ Hills Mall
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
TABLE OF CONTENTS
Page No.
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ARTICLE 1 CERTAIN DEFINITIONS.................................................1
Section 1.1 Certain Definitions..........................................1
Section 1.2 Types of Loans..............................................28
ARTICLE 2 LOAN TERMS.........................................................28
Section 2.1 The Commitments, Loans and Notes............................28
Section 2.2 Conversions or Continuations of Loans.......................29
Section 2.3 Interest Rate; Late Charge..................................30
Section 2.4 Terms of Payment............................................31
Section 2.5 Extensions of Maturity Date.................................32
Section 2.6 Intentionally Omitted.......................................36
Section 2.7 Cash Management.............................................36
Section 2.8 Payments; Pro Rata Treatment; Etc...........................38
Section 2.9 Yield Protection; Etc.......................................42
Section 2.10 Agency Fee..................................................48
ARTICLE 3 INSURANCE, CONDEMNATION, AND IMPOUNDS..............................48
Section 3.1 Insurance...................................................48
Section 3.2 Use and Application of Net Proceeds.........................53
Section 3.3 Casualty and Condemnation...................................57
ARTICLE 4 RESERVES; COLLATERAL LETTERS OF CREDIT.............................58
Section 4.1 Real Estate Tax and Insurance Reserve Fund..................58
Section 4.2 Ground Rent Reserve Account.................................59
Section 4.3 Intentionally Omitted.......................................60
Section 4.4 Low DSCR Reserve Fund.......................................60
Section 4.5 Intentionally Omitted.......................................62
Section 4.6 Required Repair Reserve Fund................................62
Section 4.7 Reserve Funds and Security Accounts Generally...............63
Section 4.8 Collateral Letters of Credit................................65
ARTICLE 5 ENVIRONMENTAL MATTERS..............................................66
Section 5.1 Certain Definitions.........................................66
Section 5.2 Representations and Warranties on Environmental Matters.....68
Section 5.3 Covenants on Environmental Matters..........................68
Section 5.4 Allocation of Risks and Indemnity...........................69
Section 5.5 No Waiver...................................................70
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ARTICLE 6 LEASING MATTERS....................................................70
Section 6.1 Representations and Warranties on Leases....................70
Section 6.2 Standard Lease Form; Approval Rights........................70
Section 6.3 Covenants...................................................71
Section 6.4 Tenant Estoppels............................................71
ARTICLE 7 REPRESENTATIONS AND WARRANTIES.....................................72
Section 7.1 Organization and Power......................................72
Section 7.2 Validity of Loan Documents..................................72
Section 7.3 Liabilities; Litigation.....................................72
Section 7.4 Taxes and Assessments.......................................73
Section 7.5 Other Agreements; Defaults..................................73
Section 7.6 Compliance with Law.........................................73
Section 7.7 Location of Borrower........................................73
Section 7.8 ERISA.......................................................74
Section 7.9 Margin Stock................................................74
Section 7.10 Tax Filings.................................................74
Section 7.11 Solvency....................................................74
Section 7.12 Full and Accurate Disclosure................................74
Section 7.13 Single Purpose Entity.......................................74
Section 7.14 Management Agreement........................................75
Section 7.15 No Conflicts................................................75
Section 7.16 Title.......................................................75
Section 7.17 Use of Project..............................................75
Section 7.18 Flood Zone..................................................75
Section 7.19 Insurance...................................................76
Section 7.20 Certificate of Occupancy; Licenses..........................76
Section 7.21 Physical Condition..........................................76
Section 7.22 Boundaries..................................................76
Section 7.23 Separate Lots...............................................76
Section 7.24 Reserved....................................................76
Section 7.25 Filing and Recording Taxes..................................76
Section 7.26 Investment Company Act......................................77
Section 7.27 Foreign Assets Control Regulations, Etc.....................77
Section 7.28 Organizational Structure....................................77
Section 7.29 Ground Lease................................................78
Section 7.30 Tenant Improvement Work.....................................79
Section 7.31 Tenant Improvement Allowances...............................79
ARTICLE 8 FINANCIAL REPORTING................................................79
Section 8.1 Financial Statements........................................79
Section 8.2 Accounting Principles.......................................81
Section 8.3 Other Information...........................................81
Section 8.4 Annual Budget...............................................81
Section 8.5 Audits......................................................81
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Page No.
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ARTICLE 9 COVENANTS..........................................................81
Section 9.1 Due on Sale and Encumbrance; Transfers of Interests.........81
Section 9.2 Taxes; Charges..............................................82
Section 9.3 Control; Management.........................................83
Section 9.4 Operation; Maintenance; Inspection..........................84
Section 9.5 Taxes on Security...........................................84
Section 9.6 Legal Existence; Name, Etc..................................84
Section 9.7 Affiliate Transactions......................................85
Section 9.8 Limitation on Other Debt....................................85
Section 9.9 Further Assurances..........................................85
Section 9.10 Estoppel Certificates.......................................85
Section 9.11 Notice of Certain Events....................................85
Section 9.12 Indemnification.............................................85
Section 9.13 Payment for Labor and Materials.............................86
Section 9.14 Alterations.................................................86
Section 9.15 Hedge Agreements............................................86
Section 9.16 Certain Financial Covenants.................................89
Section 9.17 Handicapped Access..........................................89
Section 9.18 Zoning......................................................90
Section 9.19 ERISA.......................................................90
Section 9.20 Books and Records; Inspection Rights........................91
Section 9.21 Foreign Assets Control Regulations..........................91
Section 9.22 Litigation Naming Administrative Agent or a Lender..........91
Section 9.23 Ground Lease Covenants......................................91
ARTICLE 10 EVENTS OF DEFAULT.................................................94
Section 10.1 Payments....................................................94
Section 10.2 Insurance...................................................94
Section 10.3 Single Purpose Entity.......................................94
Section 10.4 Taxes.......................................................95
Section 10.5 Sale, Encumbrance, Etc......................................95
Section 10.6 Representations and Warranties..............................95
Section 10.7 Other Encumbrances..........................................95
Section 10.8 Various Covenants...........................................95
Section 10.9 Hedge Arrangements..........................................95
Section 10.10 Financial Covenants.........................................95
Section 10.11 Involuntary Bankruptcy or Other Proceeding..................95
Section 10.12 Voluntary Petitions, Etc....................................96
Section 10.13 Indebtedness................................................96
Section 10.14 Dissolution.................................................96
Section 10.15 Judgments...................................................96
Section 10.16 Security....................................................96
Section 10.17 Guarantor Documents.........................................97
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Page No.
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Section 10.18 Security Accounts...........................................97
Section 10.19 Hedge Agreement.............................................97
Section 10.20 Covenants...................................................97
Section 10.21 Ground Lease................................................97
ARTICLE 11 REMEDIES..........................................................97
Section 11.1 Remedies - Insolvency Events................................97
Section 11.2 Remedies - Other Events.....................................98
Section 11.3 Administrative Agent's Right to Perform the Obligations.....98
ARTICLE 12 MISCELLANEOUS.....................................................99
Section 12.1 Notices.....................................................99
Section 12.2 Amendments, Waivers, Etc....................................99
Section 12.3 Limitation on Interest.....................................100
Section 12.4 Invalid Provisions.........................................101
Section 12.5 Reimbursement of Expenses..................................101
Section 12.6 Approvals; Third Parties; Conditions.......................102
Section 12.7 Lenders and Administrative Agent Not in Control;
No Partnership.............................................102
Section 12.8 Time of the Essence........................................102
Section 12.9 Successors and Assigns.....................................102
Section 12.10 Renewal, Extension or Rearrangement........................103
Section 12.11 Waivers....................................................103
Section 12.12 Cumulative Rights..........................................103
Section 12.13 Singular and Plural........................................103
Section 12.14 Phrases....................................................103
Section 12.15 Exhibits and Schedules.....................................103
Section 12.16 Titles of Articles, Sections and Subsections...............103
Section 12.17 Promotional Material.......................................104
Section 12.18 Survival...................................................104
Section 12.19 WAIVER OF JURY TRIAL.......................................104
Section 12.20 Remedies of Borrower.......................................104
Section 12.21 Governing Law..............................................105
Section 12.22 Entire Agreement...........................................106
Section 12.23 Counterparts...............................................106
Section 12.24 Assignments and Participations.............................106
Section 12.25 Brokers....................................................109
Section 12.26 Right of Set-off...........................................109
Section 12.27 Limitation on Liability of Administrative Agent's
and the Lenders' Officers, Employees, etc..................110
Section 12.28 Cooperation with Syndication...............................110
Section 12.29 Loan Components............................................110
ARTICLE 13 FULL RECOURSE....................................................111
Section 13.1 Full Recourse..............................................111
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ARTICLE 14 ADMINISTRATIVE AGENT.............................................111
Section 14.1 Appointment, Powers and Immunities.........................111
Section 14.2 Reliance by Administrative Agent...........................112
Section 14.3 Defaults...................................................113
Section 14.4 Rights as a Lender.........................................116
Section 14.5 Standard of Care; Indemnification..........................116
Section 14.6 Non-Reliance on Administrative Agent and Other Lenders.....116
Section 14.7 Failure to Act.............................................117
Section 14.8 Resignation of Administrative Agent........................117
Section 14.9 Consents under Loan Documents..............................117
Section 14.10 Authorization..............................................118
Section 14.11 Agency Fee.................................................118
Section 14.12 Defaulting Lenders.........................................118
Section 14.13 Liability of Administrative Agent..........................120
Section 14.14 Transfer of Agency Function................................120
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LIST OF EXHIBITS AND SCHEDULES
EXHIBIT A - LEGAL DESCRIPTION OF PROJECT
EXHIBIT B - LEGAL DESCRIPTION OF GROUND LEASE PROPERTY
EXHIBIT C - FORM OF NOTE
EXHIBIT D - FORM OF ASSIGNMENT AND ACCEPTANCE
EXHIBIT E FORM OF NOTICE OF CONVERSION/CONTINUATION
EXHIBIT F FORM OF HEDGE PLEDGE AGREEMENT
EXHIBIT G SAMPLE DSCR CALCULATION
EXHIBIT H FORM OF RECYCLED ENTITY CERTIFICATE
EXHIBIT I LIST OF PRIOR LOAN DOCUMENTS
EXHIBIT J LIST OF APPROVED LEASES AS OF THE CLOSING DATE
EXHIBIT K FORM OF CONFIDENTIALITY AGREEMENT
EXHIBIT L FORM OF REPLACEMENT CLEARING ACCOUNT AGREEMENT
SCHEDULE 1 - COMMITMENTS
SCHEDULE 2.1 - ADVANCE CONDITIONS
SCHEDULE 2.4(1) WIRE INSTRUCTIONS
SCHEDULE 4.6 - REQUIRED REPAIRS
SCHEDULE 6.1 EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES ON LEASES
SCHEDULE 6.2 LEASING GUIDELINES
SCHEDULE 7.3 LITIGATION
SCHEDULE 7.28 - ORGANIZATIONAL CHART
SCHEDULE 7.30 TENANT IMPROVEMENT WORK
SCHEDULE 7.31 TENANT IMPROVEMENT ALLOWANCES
SCHEDULE 12.28 PERMITTED FINANCING TRANSACTIONS
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LOAN AGREEMENT
This Loan Agreement (this "Agreement") is entered into as of June 3, 2008
among ▇▇▇▇▇▇ HILLS MALL, LLC, a limited liability company duly organized and
validly existing under the laws of the State of Delaware ("Borrower"); each of
the lenders that is a signatory hereto identified under the caption "LENDERS" on
the signature pages hereof and each lender that becomes a "Lender" after the
date hereof pursuant to Section 12.24(2) (individually, a "Lender" and,
collectively, the "Lenders"); and EUROHYPO AG, NEW YORK BRANCH, as
administrative agent for the Lenders (in such capacity, together with its
successors in such capacity, "Administrative Agent").
ARTICLE 1
CERTAIN DEFINITIONS
Section 1.1 Certain Definitions. As used herein, the following terms have
the meanings indicated:
(1) "Access Laws" has the meaning assigned in Section 9.17(1).
(2) "Act" shall have the meaning set forth in the definition of
"Single Member Bankruptcy Remote LLC".
(3) "Additional Cash Collateral Account" has the meaning assigned to
such term in the Cash Management Agreement.
(4) "Additional Costs" has the meaning assigned in Section 2.9(1)(a).
(5) "Additional Interest" means any and all amounts which may become
due and payable by Borrower in accordance with the terms and provisions of
any Hedge Agreement provided by Eurohypo or its Affiliates which is secured
by the Mortgage in accordance with Section 9.15, which amounts shall be
evidenced by and payable pursuant to the Notes in favor of Eurohypo and/or
such Affiliate; provided, however, that Additional Interest shall not
include any amounts which may become due and payable pursuant to any Hedge
Agreement which is not secured by the Mortgage.
(6) "Adjusted LIBOR Rate" means, for any Interest Period for any
LIBOR-based Loan, a rate per annum (rounded upwards to the nearest 1/32 of
1%) equal to the LIBOR Rate for such Interest Period divided by 1 minus the
Reserve Requirement (if any) for such Interest Period.
(7) "Advance Date" has the meaning assigned in Section 2.8(6).
(8) "Advanced Amount" has the meaning assigned in Section 14.12(2).
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(9) "Affiliate" means with respect to any Person, another Person that
directly or indirectly controls, or is under common control with, or is
controlled by, such Person and, if such Person is an individual, any member
of the immediate family (including parents, spouse, children and siblings)
of such individual and any trust whose principal beneficiary is such
individual or one or more members of such immediate family and any Person
who is controlled by any such member or trust. As used in this definition,
"control" (including, with its correlative meanings, "controlled by" and
"under common control with") shall mean possession, directly or indirectly,
of power to direct or cause the direction of management or policies
(whether through ownership of securities or partnership or other ownership
interests, by contract or otherwise), provided that, in any event, any
Person that owns directly or indirectly securities having 25% or more of
the voting power for the election of directors or other governing body of a
corporation or 25% or more of the partnership, membership or other
ownership interests of any other Person (other than as a limited partner of
such other Person) will be deemed to control such corporation or other
Person. Notwithstanding the foregoing, no individual shall be an Affiliate
solely by reason of his or her being a director, officer, trustee or
employee of Borrower.
(10) "Agency Fee" means the agency fee agreed to by Borrower and
Administrative Agent pursuant to the Fee Letter.
(11) "Agreement" means this Loan Agreement, as amended from time to
time.
(12) "Anti-Terrorism Order" shall mean Executive Order No. 13,224, 66
Fed. Reg. 49,079 (2001), issued by the President of the United States of
America (Executive Order Blocking Property and Prohibiting Transactions
With Persons Who Commit, Threaten to Commit, or Support Terrorism).
(13) "Applicable Lending Office" means, for each Lender and for each
Type of Loan, the "Lending Office" of such Lender (or of an affiliate of
such Lender) designated for such Type of Loan on the respective signature
pages hereof or such other office of such Lender (or of an affiliate of
such Lender) as such Lender may from time to time specify to Administrative
Agent and Borrower as the office by which its Loans of such Type are to be
made and maintained.
(14) "Applicable Margin" means (a) for Base Rate Loans, 1.25% per
annum; and (b) for LIBOR-based Loans, 2.35% per annum.
(15) "Appraisal" means an appraisal of the Project prepared by an
appraiser satisfactory to Administrative Agent, which appraisal must also
(a) satisfy the requirements of Title XI of the Federal Institution Reform,
Recovery and Enforcement Act of 1989 and the regulations promulgated
thereunder (including the appraiser with respect thereto) and (b) be
otherwise in form and substance reasonably satisfactory to Administrative
Agent.
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(16) "Approved Fund" shall mean any Person (other than a natural
person) that is engaged in making, purchasing, holding or investing in bank
loans and similar extensions of credit in the ordinary course of its
business and that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that
administers or manages a Lender.
(17) "Approved Lease(s)" means (a) those existing leases of portions
of the Project as of the Closing Date listed on Exhibit J, and (b) each
lease of all or any portion of the Project entered into after the Closing
Date in accordance with the terms and conditions contained in Section 6.2,
as such leases (in the case of both clauses (a) and (b)) may be modified or
amended pursuant to the terms of this Agreement.
(18) "Assignment and Acceptance" means an Assignment and Acceptance,
duly executed by the parties thereto, in substantially the form of Exhibit
D hereto and consented to by Administrative Agent in accordance with
Section 12.24(2).
(19) "Assignment of Rents and Leases" means the Assignment of Rents
and Leases, executed by Borrower for the benefit of Administrative Agent
(on behalf of the Lenders), and pertaining to leases of space in the
Project, as the same may be modified or amended from time to time.
(20) "Award" shall mean any compensation paid by any Governmental
Authority in connection with a Condemnation in respect of all or any part
of the Project.
(21) "Bankruptcy Code" shall mean Title 11 of the United States Code,
11 U.S.C. ss.101, et seq., as the same may be amended from time to time,
and any successor statute or statutes and all rules and regulations from
time to time promulgated thereunder, and any other Federal or state
bankruptcy or insolvency law.
(22) "Bankruptcy Party" has the meaning assigned in Section 10.8.
(23) "Base Rate" means, for any day, a rate per annum equal to the
higher of (a) the Federal Funds Rate for such day plus 1/2 of 1% or (b) the
Prime Rate for such day. Each change in any interest rate provided for
herein based upon the Base Rate resulting from a change in the Base Rate
shall take effect at the time of such change in the Base Rate.
(24) "Base Rate Loans" means Loans that bear interest at rates based
upon the Base Rate.
(25) "Basle Accord" means the proposals for risk-based capital
framework described by the Basle Committee on Banking Regulations and
Supervisory Practices in its paper entitled "International Convergence of
Capital Measurement and Capital Standards" dated July 1988, as amended,
modified and supplemented and in effect from time to time or any
replacement thereof.
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(26) "Bifurcation" has the meaning assigned in Section 12.29.
(27) "Borrower Party" means any Guarantor, any general partner or
member in Borrower, any general partner in any partnership that is a
general partner or member in Borrower and any member in any limited
liability company that is a general partner or member in Borrower,
provided, however, that no "Class B" preferred member in Managing Member
shall be deemed to be a Borrower Party solely as a result of its ownership
of such "Class B" preferred membership interest in Managing Member.
(28) "Borrower's Operating Account" means that certain operating
account number ▇▇▇▇-▇▇▇-▇▇▇▇ maintained by Borrower with The Huntington
National Bank, Columbus, OH (ABA #▇▇▇▇▇▇▇▇▇), or such other account as
Borrower shall designate from time to time in writing to Administrative
Agent and Clearing Bank.
(29) "Business Day" means (a) any day other than a Saturday, a Sunday,
or other day on which commercial banks located in New York City are
authorized or required by law to remain closed and (b) in connection with a
borrowing of, a payment or prepayment of principal of or interest on, a
Conversion of or into, or an Interest Period for, a LIBOR-based Loan or a
notice by Borrower with respect to any such borrowing, payment, prepayment
or Conversion, the term "Business Day" shall also exclude a day on which
banks are not open for dealings in Dollar deposits in the London interbank
market.
(30) "Cash Management Account" has the meaning assigned to such term
in the Cash Management Agreement.
(31) "Cash Management Agreement" means that certain Cash Management
and Security Agreement to be executed, dated and delivered by Borrower,
Administrative Agent (on behalf of the Lenders) and the Depository Bank on
the Closing Date, as the same may be modified, amended and/or supplemented
and in effect from time to time, and any replacement Cash Management
Agreement entered into with any future Depository Bank in accordance with
the terms of this Agreement and the other Loan Documents, as the same may
be modified, amended and/or supplemented and in effect from time to time.
(32) "Casualty" has the meaning specified in Section 3.3 hereof.
(33) "Casualty Consultant" has the meaning assigned to such term in
Section 3.2(2)(c).
(34) "Casualty Retainage" has the meaning assigned to such term in
Section 3.2(2)(d).
4
(35) "Casualty/Taking Account" has the meaning assigned to such term
in the Cash Management Agreement.
(36) "Change of Control" shall mean (a) any event, including, without
limitation, the sale, transfer or issuance, in one or more transactions, of
any direct or indirect beneficial ownership interests in Borrower which
results in (i) Managing Member failing to be the sole member of Borrower or
failing to have the responsibility for managing and administering the
day-to-day business and affairs of Borrower, (ii) OG Retail Holding Co.,
LLC, a Delaware limited liability company, failing to be the managing
member of Managing Member or failing to have the responsibility for
managing and administering the day-to-day business and affairs of Managing
Member, (iii) Sponsor failing to be the administering member of OG Retail
Holding Co., LLC or failing to have the responsibility for managing and
administering the day-to-day business and affairs of OG Retail Holding Co.,
LLC, or (iv) Glimcher Properties Corporation, a Delaware corporation,
failing to be the sole general partner of Sponsor or failing to have the
responsibility for managing and administering the day-to-day business and
affairs of Sponsor, or (b) Sponsor no longer directly or indirectly (i)
owns at least 52% of the ownership interests in, and rights to
distributions from, Borrower, or (ii) has responsibility for managing and
administering the day-to-day business and affairs of the Borrower, or (c)
in any other respects, any Person other than Sponsor directly or indirectly
Controls Borrower. As used in this definition, "Control" of one Person (the
"controlled Person") by another Person (the "controlling Person") shall
mean the possession, directly or indirectly, by the controlling Person of
the power or ability to direct or cause the direction of the management or
policies of the controlled Person, whether through the ability to exercise
voting power, by contract or otherwise ("Controlled" and "Controlling" each
have the meanings correlative thereto).
(37) "Clearing Account" has the meaning assigned to such term in the
Cash Management Agreement.
(38) "Clearing Account Agreement" means that certain Deposit Account
Control Agreement among Borrower, Administrative Agent and the Clearing
Bank pertaining to the Clearing Account, as the same may be modified,
amended and/or supplemented and in effect from time to time, and any
replacement Clearing Account Agreement entered into with any future
Clearing Bank in accordance with the terms of this Agreement and the other
Loan Documents, as the same may be modified, amended and/or supplemented
and in effect from time to time.
(39) "Clearing Account Sweep Notice" means a Notice (as defined in the
Clearing Account Agreement in effect as of the Closing Date) and any other
notice from Administrative Agent to any Clearing Bank instructing such
Clearing Bank to sweep funds from the Clearing Account to the Cash
Management Account instead of to the Borrower's Operating Account, such
Clearing Account Sweep Notice to be given in accordance with this Agreement
and the other Loan Documents.
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(40) "Clearing Bank" has the meaning assigned to such term in the Cash
Management Agreement.
(41) "Closing Date" means the date of this Agreement.
(42) "Collateral Letter of Credit" means a clean, irrevocable and
unconditional standby letter of credit that is (1) (a) issued in favor of
Administrative Agent (on behalf of the Lenders) in the amount of any cash
required pursuant to the terms of this Agreement or any other Loan Document
it is being substituted for, (b) issued by an issuer having a paying office
in the City of New York and having a rating with respect thereto of "AA" or
better by S&P (or any equivalent rating from ▇▇▇▇▇'▇) or such other issuer
as shall be approved by Administrative Agent in its sole and absolute
discretion, (c) drawable, in whole or in part from time to time, by
Administrative Agent upon the presentment to the issuer of a clean
sight-draft demanding such payment, (d) either (I) an "evergreen" letter of
credit that initially has an expiration date of at least one (1) year from
the date of deposit and is automatically renewed from year to year or one
which does not expire until at least thirty (30) Business Days after the
Maturity Date, or (II) a letter of credit that initially has an expiration
date of at least one (1) year from the date of deposit and pursuant to
which Administrative Agent shall have the right to draw upon same within
thirty (30) days prior to the expiration date of such letter of credit and
each renewal and extension thereof unless, at least thirty (30) days prior
to such expiration date of such letter of credit and each renewal and
extension thereof, Borrower shall have furnished a replacement, extension
or renewal Collateral Letter of Credit, (e) freely assignable by
Administrative Agent at no cost and expense, and (f) otherwise reasonably
satisfactory to Administrative Agent or (2) subject to clause (b) above,
otherwise in form and substance reasonably satisfactory to Administrative
Agent.
(43) "Commitment" means, as to each Lender, the obligation of such
Lender to make a Loan in a principal amount up to but not exceeding the
amount set opposite the name of such Lender on Schedule 1 under the caption
"Commitment" or, in the case of a Person that becomes a Lender pursuant to
an assignment permitted under Section 12.24(2), as specified in the
respective instrument of assignment pursuant to which such assignment is
effected. The original aggregate principal amount of the Commitments is
$90,000,000.00.
(44) "Commitment Letter" means the commitment letter dated as of April
14, 2008 and executed by Borrower as of April 15, 2008 pursuant to which
Eurohypo agreed to make and arrange the Loans to Borrower upon the terms
and conditions contained therein.
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(45) "Condemnation" shall mean a temporary or permanent taking by any
Governmental Authority as the result or in lieu or in anticipation of the
exercise of the right of condemnation or eminent domain, of all or any part
of the Project, or any interest therein or right accruing thereto,
including any right of access thereto or any change of grade affecting the
Project or any part thereof.
(46) "Condemnation Proceeds" has the meaning assigned to such term in
Section 3.2(2).
(47) "Continue" "Continuation" and "Continued" refer to the
continuation pursuant to Section 2.2 of (a) a LIBOR-based Loan from one
Interest Period to the next Interest Period or (b) a Base Rate Loan at the
Base Rate.
(48) "Convert" "Conversion" and "Converted" refer to a conversion
pursuant to the terms of this Agreement of one Type of Loans into another
Type of Loans, which may be accompanied by the transfer by a Lender (at its
sole and absolute discretion) of a Loan from one Applicable Lending Office
to another.
(49) "Debt" means, for any Person, without duplication: (a) all
indebtedness of such Person for borrowed money, for amounts drawn under a
letter of credit, or for the deferred purchase price of property for which
such Person or its assets is liable, (b) all unfunded amounts under a loan
agreement, letter of credit, or other credit facility for which such Person
would be liable, if such amounts were advanced under the credit facility,
(c) all amounts required to be paid by such Person as a guaranteed payment
to partners, members (or other equity holders) or a preferred or special
dividend, including any mandatory redemption of shares or interests, (d)
all indebtedness guaranteed by such Person, directly or indirectly, (e) all
obligations under leases that constitute capital leases for which such
Person is liable, and (f) all obligations of such Person under interest
rate swaps, caps, floors, collars and other interest hedge agreements, in
each case whether such Person is liable contingently or otherwise, as
obligor, guarantor or otherwise, or in respect of which obligations such
Person otherwise assures a creditor against loss.
(50) "Debt Service" means, as of any date of determination, an amount
calculated on an annualized basis equal to the constant monthly payment of
principal plus interest required to fully amortize, over a term of thirty
(30) years commencing as of the date of such calculation, a loan in an
amount equal to the then outstanding principal amount of principal which
can be outstanding under the Notes, assuming such amount were to bear
interest at a rate equal to the greatest of (a) a rate determined by
Administrative Agent as of the date of such calculation equivalent to the
yield, calculated by linear interpolation (rounded upwards to the next 1/32
of 1%), on United States Treasury obligations having maturities as close as
possible to ten (10) years from the date of such calculation, plus 250
basis points, (b) the actual interest rate on the Loans, provided that if
there is more than one Interest Period, and/or any outstanding Base Rate
7
Loans, at such time, the rate shall be (1) the highest LIBOR Rate on any
Loans at such time plus the Applicable Margin, or (2) if there are
outstanding Base Rate Loans, the Base Rate plus the Applicable Margin, if
such aggregate amount is higher than the aggregate amount set forth in
clause (1) above, in either case on the date of computation, and (c) seven
percent (7.0%) per annum. Such calculations shall take into account the
benefit of any Hedge Agreements in effect during the most recently ended
period in question and shall result in an imputed amount, rather than the
actual payments by Borrower of principal and interest on the outstanding
principal amount during such period. All of such calculations shall be
subject to the reasonable approval of Administrative Agent.
(51) "Debt Service Account" has the meaning assigned to such term in
the Cash Management Agreement.
(52) "Debt Service Coverage Ratio" means, for the period of time for
which calculation is being made, the ratio of (a) Net Operating Income for
the most recently ended 12-month period as of the date of determination to
(b) Debt Service as of the date of determination. The Debt Service Coverage
Ratio shall be calculated based the Operating Revenues and Operating
Expenses for the applicable 12-month period, as reasonably determined by
Administrative Agent based upon the most recent quarterly reports required
to have been submitted by Borrower under Section 8.1 (or, if no such
reports have been so submitted, such other information as Administrative
Agent shall determine in its sole and absolute discretion), which
determination shall be conclusive in the absence of manifest error. By way
of example, attached as Exhibit G is a sample financial statement
reflecting Borrower's calculation of the Debt Service Coverage Ratio as of
the Closing Date.
(53) "Default Rate" means a rate per annum equal to 5% plus the Base
Rate as in effect from time to time plus the Applicable Margin for Base
Rate Loans, provided that, with respect to principal of a LIBOR-based Loan,
the "Default Rate" shall be the greater of (a) 5% plus the interest rate
for such Loan as provided in Section 2.3 and (b) the rate provided for
above in this definition; provided, however, that in no event shall the
Default Rate exceed the maximum rate allowed by applicable law.
(54) "Defaulting Lender" has the meaning assigned in Section 14.12(1).
(55) "Depository Bank" means LaSalle Bank National Association, or any
successor financial institution appointed by Administrative Agent pursuant
hereto or pursuant to the Cash Management Agreement.
(56) "Dollars" and "$" means lawful money of the United States of
America.
(57) "Election" has the meaning assigned in Section 9.23(8).
8
(58) "Eligible Assignee" means any of (i) a commercial bank organized
under the Laws of the United States, or any state thereof, and having (x)
total assets in excess of $1,000,000,000 and (y) a combined capital and
surplus of at least $250,000,000; (ii) a commercial bank organized under
the laws of any other country which is a member of the Organization of
Economic Cooperation and Development ("OECD"), or a political subdivision
of any such country, and having (x) total assets in excess of
$1,000,000,000 and (y) a combined capital and surplus of at least
$250,000,000, provided that such bank is acting through a branch or agency
located in the country in which it is organized or another country which is
also a member of OECD; (iii) a life insurance company organized under the
Laws of any state of the United States, or organized under the Laws of any
country and licensed as a life insurer by any state within the United
States and having admitted assets of at least $1,000,000,000; (iv) a
nationally recognized investment banking company or other financial
institution in the business of making loans, or an Affiliate thereof (other
than any Person which is directly or indirectly a Borrower Party or
directly or indirectly an Affiliate of any Borrower Party) organized under
the Laws of any state of the United States, and licensed or qualified to
conduct such business under the Laws of any such state and having (1) total
assets of at least $1,000,000,000 and (2) a net worth of at least
$250,000,000; (v) an Approved Fund; or (vi) or a Related Entity of
Eurohypo.
(59) "Environmental Claim" has the meaning assigned in Article 5.
(60) "Environmental Indemnity" means that certain Environmental
Indemnity Agreement by Borrower and Guarantor in favor of Administrative
Agent and each of the Lenders, to be executed, dated and delivered to
Administrative Agent (on behalf of the Lenders) on the Closing Date, as the
same may be modified, amended and/or supplemented and in effect from time
to time.
(61) "Environmental Laws" has the meaning assigned in Article 5.
(62) "Environmental Liens" has the meaning assigned in Article 5.
(63) "Environmental Loss" has the meaning assigned in Article 5.
(64) "Eurohypo" means Eurohypo AG, New York Branch.
(65) "Eurohypo Counterparty" means Eurohypo and or any of its Related
Entities.
(66) "Event of Default" has the meaning assigned in Article 10.
9
(67) "Federal Funds Rate" means, for any day, the rate per annum
(rounded upwards to the nearest 1/100 of 1%) equal to the weighted average
of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day, provided that (a) if the day for which such rate is to
be determined is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the immediately preceding
Business Day as so published on the next succeeding Business Day and (b) if
such rate is not so published for any Business Day, the Federal Funds Rate
for such Business Day shall be the average (rounded, if necessary, upwards
to the nearest 1/100 of 1%) of the rate quotations received by
Administrative Agent on such Business Day on such transactions from three
federal funds brokers of recognized standing selected by Administrative
Agent.
(68) "Fee Letter" means the letter agreement, dated the date hereof,
between Borrower and Administrative Agent with respect to certain fees
payable by Borrower in connection with the Loans, as the same may be
modified or amended from time to time.
(69) "First Extension Period" has the meaning assigned to such term in
Section 2.5(1).
(70) "First Extension Notice" has the meaning assigned to such term in
Section 2.5(1).
(71) "Flex Letter" means that certain letter agreement dated as of the
date hereof between Administrative Agent and Borrower regarding the
prospective syndication of the Loans to additional lenders.
(72) "Flood Insurance Acts" has the meaning assigned to such term in
Section 3.1(1)(g).
(73) "Flood Insurance Policies"(a)listed in the Annex to, or otherwise
subject to the provisions of, the Executive Order No. 13224 on Terrorist
Financing, effective September 24, 2001, and relating to Blocking Property
and Prohibiting Transactions With Persons Who Commit, Threaten to Commit,
or Support Terrorism (the "Executive Order");
(74) "Form W 8BEN" has the meaning assigned to such term in Section
2.9(6)(a).
(75) "Form W 8ECI" has the meaning assigned to such term in Section
2.9(6)(a).
(76) "Governmental Authority" means any governmental department,
commission, board, bureau, agency, regulatory authority, instrumentality,
judicial or administrative body, federal, state or local, or foreign having
jurisdiction over the matter or matters in question.
(77) "Ground Lease" means that certain GROUND LEASE dated September
23, 1969, by and between ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, individually, and as
attorney in fact for ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇; ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, trustee for ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III and ▇▇▇▇
▇. ▇▇▇▇▇▇▇; ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, trustee for J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and
10
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇; and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, trustee for ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
and ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇ (collectively "Original Lessor") and ▇▇▇▇▇▇ ▇.
▇▇▇▇, Inc., a California corporation as lessee ("Original Lessee"), for the
ground lease of the Ground Lease Property; as amended by: ASSIGNMENT OF
LEASE dated December 22, 1972, by and between ▇▇▇▇▇▇ ▇. ▇▇▇▇, Inc., as
assignor, and ▇▇▇▇-▇▇▇▇▇▇ Associates, a limited partnership in which ▇▇▇▇▇▇
▇. ▇▇▇▇, Inc. is the general partner, as assignee; ADDENDUM NO. 1 TO GROUND
LEASE DATED SEPTEMBER 23, 1969 dated December 22, 1972, between Original
Lessor and ▇▇▇▇-▇▇▇▇▇▇ Associates, a limited partnership in which ▇▇▇▇▇▇ ▇.
▇▇▇▇, Inc. is the general partner, ▇▇▇▇▇▇▇▇-▇▇▇▇ Stores, Inc., a California
corporation, Sears, ▇▇▇▇▇▇▇ and Co., a New York corporation, ▇. ▇. ▇▇▇▇▇
Properties, Inc., a Delaware corporation, and Adcor Realty Corporation, a
New York corporation; CONSTRUCTION, OPERATION, AND RECIPROCAL EASEMENT
AGREEMENT dated December 22, 1972, by and between ▇▇▇▇-▇▇▇▇▇▇ Associates,
▇▇▇▇▇▇▇▇-▇▇▇▇ Stores, Inc., Sears, ▇▇▇▇▇▇▇ and Co., ▇. ▇. ▇▇▇▇▇ Properties,
Inc., and Adcor Realty Corporation; SUBORDINATION AGREEMENT dated December
22, 1972, by Original Lessor; ASSIGNMENT OF LEASE dated March 13, 1974,
between ▇▇▇▇-▇▇▇▇▇▇ Associates, as assignor, and The National Life and
Accident Insurance Company, a Tennessee corporation, as assignee;
ASSIGNMENT AND ASSUMPTION OF ▇▇▇▇▇▇▇▇▇▇ LEASE dated December 20, 1990, by
and between American General Life and Accident Insurance Company, a
Tennessee corporation (as successor-in-interest to The National Life and
Accident Insurance Company), as assignor, and RT-H Corporation of
California, a California corporation, as assignee; DEED AND ASSIGNMENT
dated December 20, 1991, between RT-H Corporation of California, a
California corporation, as grantor/assignor, and ▇▇▇▇-▇▇▇▇▇▇ Associates, as
grantee/assignee; GROUND LEASE ASSIGNMENT dated August 5, 1996, by and
between ▇▇▇▇-▇▇▇▇▇▇ Associates, as assignor, and Kent Properties, Inc., a
California corporation, as assignee; GROUND LEASE ASSIGNMENT dated October
21, 1996, by and between Kent Properties, Inc., as assignor, and ▇▇▇▇▇▇
Capistrano Partners, a California general partnership, as assignee; GROUND
LEASE ASSIGNMENT dated October 21, 1996, by and between ▇▇▇▇▇▇ Capistrano
Partners, as assignor, and ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLC, a California limited
liability company, as assignee.
(78) "Ground Lease Property" means the real property described in
Exhibit B attached hereto, which property is subject to the Ground Lease
and constitutes a portion of the Project.
(79) "Ground Rent Reserve Account" has the meaning assigned to such
term in the Cash Management Agreement.
(80) "Ground Rent Reserve Fund" has the meaning assigned to such term
in Section 4.2.
11
(81) "Guarantors" means the Persons, if any, executing a Guaranty,
including Sponsor.
(82) "Guaranty" means the instruments of guaranty, if any, now or
hereafter in effect from a Guarantor to Administrative Agent (on behalf of
the Lenders).
(83) "Hazardous Materials" has the meaning assigned in Article 5.
(84) "Hedge Agreement" means any swap/cap agreement between Borrower
and one or more financial institutions providing for the transfer or
mitigation of interest risks either generally or under specific
contingencies, as the same may be modified, amended and/or supplemented and
in effect from time to time in accordance with Section 9.15; provided,
however, that any such agreement may only be secured by the Liens and
Security Documents securing the Loans, if, and only if, the protection is
provided by one or more Eurohypo Counterparties and otherwise complies with
Section 9.15.
(85) "Hedge Agreement Pledge" means that certain Assignment, Pledge
and Security Agreement substantially in the form of Exhibit F attached
hereto, to be executed, dated and delivered by Borrower to Administrative
Agent (on behalf of the Lenders) on the Closing Date and at any other time
Borrower elects or is required to enter into an Hedge Agreement, covering
Borrower's right, title and interest in and to any such Hedge Agreement, as
the same may be modified, amended and/or supplemented and in effect from
time to time.
(86) "Improvements" has the meaning assigned in the Mortgage.
(87) "Indebtedness" has the meaning assigned in the Mortgage.
(88) "Independent Director" means (a) in the case of a Single Member
Bankruptcy Remote LLC: a natural person selected by Borrower and reasonably
satisfactory to Administrative Agent who shall not have been at the time of
such individual's appointment as an Independent Director of the Single
Member Bankruptcy Remote LLC, does not thereafter become while serving as
an Independent Director (except pursuant to an express provision in the
Single Member Bankruptcy Remote LLC's limited liability company agreement
providing for the Independent Director to become a Special Member (defined
below) upon the sole member of such Single Member Bankruptcy Remote LLC
ceasing to be a member in such Single Member Bankruptcy Remote LLC) and
shall not have been at any time during the preceding five years (i) a
shareholder/partner/member of, or an officer or employee of, Borrower or
any of its shareholders, subsidiaries or Affiliates, (ii) a director or
member (other than as an Independent Director) of Borrower or any
12
shareholder, subsidiary or Affiliate of Borrower, (iii) a customer of, or
supplier to, Borrower or any of its shareholders, subsidiaries or
Affiliates, (iv) a Person who Controls any such shareholder, supplier or
customer, or (v) a member of the immediate family of any such shareholder/
director/partner/member, officer, employee, supplier or customer or of any
director of Borrower (other than as an Independent Director); and (b) in
the case of a corporation, an individual selected by Borrower and
reasonably satisfactory to Administrative Agent who shall not have been at
the time of such individual's appointment as a director, does not
thereafter become while serving as an Independent Director and shall not
have been at any time during the preceding five years (i) a
shareholder/partner/member of, or an officer, employee, consultant, agent
or advisor of, Borrower or any of its shareholders, subsidiaries, members
or Affiliates, (ii) a director of any shareholder, subsidiary, member, or
Affiliate of Borrower other than Borrower's general partner or managing
member, (iii) a customer of, or supplier to, Borrower or any of its
shareholders, subsidiaries or Affiliates, (iv) a Person who Controls any
such shareholder, supplier or customer, or (v) a member of the immediate
family (including a grandchild or sibling) of any such
shareholder/director/partner/member, officer, employee, supplier or
customer or of any other director of Borrower's general partner or managing
member. A natural person who satisfies the foregoing definition other than
subparagraph (a)(iii) or (b)(iii) above shall not be disqualified from
serving as an Independent Director of an entity if such individual is an
Independent Director provided by a nationally-recognized company that
provides professional independent directors, members or managers (a
"Professional Independent Director") and other corporate services in the
ordinary course of its business. A natural person who otherwise satisfies
the foregoing definition other than subparagraph (a)(ii) or (b)(ii) above
by reason of being the independent director, member or manager of a
"special purpose entity" affiliated with the Borrower shall not be
disqualified from serving as an Independent Director of the Borrower if
such individual is either (x) a Professional Independent Director and (y)
the fees that such individual earns from serving as independent manager or
independent member of affiliates of the Borrower in any given year
constitute in the aggregate less than five percent (5%) of such
individual's annual income for that year. Notwithstanding the immediately
preceding sentence, an Independent Director may not simultaneously serve as
Independent Director of the Borrower and independent manager, member or
director of a special purpose entity that owns a direct or indirect equity
interest in the Borrower or a direct or indirect interest in any
co-borrower with the Borrower. For purposes of this paragraph, a "special
purpose entity" is an entity, whose organizational documents contain
restrictions on its activities and impose requirements intended to preserve
such entity's separateness that are substantially similar to the provisions
of the definition of "Single Purpose Entity".
(89) "Insurance Premiums" has the meaning assigned to such term in
Section 3.1(2).
(90) "Interest Period" means, with respect to any LIBOR-based Loan,
each period commencing on the date such LIBOR-based Loan is made or
Converted from a Base Rate Loan or (in the event of a Continuation) the
last day of the immediately preceding Interest Period for such Loan and
ending on the numerically corresponding day in the first, second, third,
sixth or (to the extent twelve month LIBOR contracts are available from,
13
and can be reasonably provided by, all Lenders) twelfth, calendar month
thereafter, as Borrower may select as provided in Section 2.8(5); provided
that (i) each Interest Period that commences on the last Business Day of a
calendar month (or on any day for which there is no numerically
corresponding day in the appropriate subsequent calendar month) shall end
on the last Business Day of the appropriate subsequent calendar month; (ii)
each Interest Period that would otherwise end on a day that is not a
Business Day shall end on the next succeeding Business Day (or, if such
next succeeding Business Day falls in the next succeeding calendar month,
on the immediately preceding Business Day); (iii) no Interest Period shall
have a duration of less than one month and, if the Interest Period for any
LIBOR-based Loan would otherwise be a shorter period, such Loan shall bear
interest at the Base Rate plus the Applicable Margin for Base Rate Loans;
(iv) in no event shall any Interest Period extend beyond the Maturity Date;
and (v) there may be no more than three (3) separate Interest Periods in
respect of LIBOR-based Loans outstanding from each Lender at any one time.
The first Interest Period shall be the Stub Interest Period.
(91) "Interest Rate Hedge Period" has the meaning assigned to such
term in Section 9.15.
(92) "LIBOR Rate" means, for any Interest Period for any LIBOR-based
Loan, the rate per annum appearing on Reuters Screen (LIBOR01 (formerly
operated as Page 3750 of the Dow ▇▇▇▇▇ Market Service (Telerate)) (or on
any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as reasonably determined
by Administrative Agent from time to time for purposes of providing
quotations of interest rates applicable to Dollar deposits in the London
interbank market) at approximately 11:00 a.m. London time on the date two
(2) Business Days prior to the first day of such Interest Period as the
rate for the offering of Dollar deposits having a term comparable to such
Interest Period, provided that if such rate does not appear on such page,
or if such page shall cease to be publicly available, or if the information
contained on such page, in the reasonable judgment of Administrative Agent
shall cease accurately to reflect the rate offered by leading banks in the
London interbank market as reported by any publicly available source of
similar market data selected by Administrative Agent, the LIBOR Rate for
such Interest Period shall be determined from quotations received by
Administrative Agent from three banks of recognized standing in the London
interbank market selected by Administrative Agent.
(93) "LIBOR-based Loans" means Loans that bear interest at rates based
on rates referred to in the definition of "LIBOR Rate".
(94) "Licenses" has the meaning assigned in Section 7.20.
14
(95) "Lien" means any interest, or claim thereof, in the Project
securing an obligation owed to, or a claim by, any Person other than the
owner of the Project, whether such interest is based on common law, statute
or contract, including the lien or security interest arising from a deed of
trust, mortgage, assignment, encumbrance, pledge, security agreement,
conditional sale or trust receipt or a lease, consignment or bailment for
security purposes. The term "Lien" shall include reservations, exceptions,
encroachments, easements, rights of way, covenants, conditions,
restrictions, leases and other title exceptions and encumbrances affecting
the Project.
(96) "Loans" means the loans to be made by the Lenders to Borrower
under this Agreement and all other amounts evidenced or secured by the Loan
Documents.
(97) "Loan to Value Ratio" means, as of the date of determination, the
percentage obtained by dividing (a) the aggregate amount of the principal
then due under the Notes by (ii) the "as-is" value of the Project as
provided in an Appraisal.
(98) "Loan Documents" means: (a) this Agreement, (b) the Notes, (c)
the Guaranty, (d) any letter of credit provided to Administrative Agent in
connection with the Loan, (e) the Mortgage, (f) the Assignment of Rents and
Leases, (g) the Subordination of Management Agreement, (h) the
Environmental Indemnity, (i) Hedge Agreement Pledge, (j) the Cash
Management Agreement, (k) Uniform Commercial Code financing statements, (l)
such assignments of management agreements, contracts and other rights as
may be required under the Commitment or otherwise requested by
Administrative Agent, (m) the Flex Letter, (n) all other documents
evidencing, securing or governing the Loans, and (o) all amendments,
modifications, renewals, substitutions and replacements of any of the
foregoing.
(99) "Loan Transactions" has the meaning assigned to such term in
Section 2.8(4).
(100) "Low DSCR Account" has the meaning assigned to such term in the
Cash Management Agreement.
(101) "Low DSCR Cure Delivery" has the meaning assigned to such term
in Section 4.4(2).
(102) "Low DSCR Cure Prepayment" has the meaning assigned to such term
in Section 4.4(2).
(103) "Low DSCR Release Event" means, at any time after the occurrence
of a Low DSCR Trigger Event, that either (a) Borrower has made a Low DSCR
Cure Prepayment with respect to the applicable Low DSCR Trigger Event in
accordance with Section 4.4, (b) Borrower has delivered a Low DSCR Cure
Delivery with respect to the applicable Low DSCR Trigger Event in
accordance with Section 4.4, or (c) the Debt Service Coverage Ratio, as
determined as of the end of each calendar quarter, shall be at or above
1.45:1.00 for at least two (2) consecutive calendar quarters.
15
(104) "Low DSCR Reserve Fund" has the meaning assigned to such term in
Section 4.4(1).
(105) "Low DSCR Trigger Event" means, at any time prior to the
Maturity Date, that the Debt Service Coverage Ratio measured as of the end
of any calendar quarter is less than 1.40:1.00.
(106) "Low DSCR Trigger Period" means the period of time after a Low
DSCR Trigger Event until the occurrence of a Low DSCR Release Event.
(107) "Majority Lenders" means Lenders holding at least sixty-six and
two-thirds percent (66 2/3%) of the aggregate outstanding principal amount
of the Loans or, if the Loans shall not have been made, at least sixty-six
and two-thirds percent (66 2/3%) of the Commitments.
(108) "Major Lease" shall mean any lease that, when combined with all
other leases of space in the Project to the same tenant, (a) accounts for
ten percent (10%) or more of the total gross rental revenue of the Project
and/or (b) demises 15,000 rentable square feet or more.
(109) "Management Agreement" means that certain Property Management
Agreement dated as of December 29, 2005 between Manager and Borrower with
respect to the management of the Project by the Manager, together with any
management agreements entered into with future Managers in accordance with
the terms of this Agreement.
(110) "Manager" means, individually and collectively, as the context
requires, such determination to be made by Administrative Agent in its sole
good faith discretion, Glimcher Development Corporation, a Delaware
corporation, and Glimcher Properties Limited Partnership, a Delaware
limited partnership, which is initially the manager of the Project under
the Management Agreement, together with any successor property managers
appointed for the Project in accordance with the terms of this Agreement.
(111) "Managing Member" means ▇▇▇▇▇▇ Hills Mall REIT, LLC, a Delaware
limited liability company, as managing member under the organizational
documents of Borrower.
(112) "Material Action" means any action to consolidate or merge the
Borrower with or into any Person, or sell all or substantially all of the
assets of the Borrower, or to institute proceedings to have the Borrower be
adjudicated bankrupt or insolvent, or consent to the institution of
bankruptcy or insolvency proceedings against the Borrower or file a
petition seeking, or consent to, reorganization or relief with respect to
16
the Borrower under any applicable federal or state law relating to
bankruptcy, or consent to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Borrower
or a substantial part of its property, or make any assignment for the
benefit of creditors of the Borrower, or admit in writing the Borrower's
inability to pay its debts generally as they become due, or take action in
furtherance of any such action, or, to the fullest extent permitted by law,
dissolve or liquidate the Borrower.
(113) "Material Adverse Effect" means a material adverse effect, as
reasonably determined by Administrative Agent, on (a) the Project or the
business, operations, financial condition, prospects, liabilities or
capitalization of Borrower, (b) the ability of Borrower to perform its
obligations under any of the Loan Documents to which it is a party,
including the timely payment of the principal of or interest on the Loans
or other amounts payable in connection therewith, (c) the ability of the
Guarantor or any Borrower Party to perform its obligations under any of the
Loan Documents to which it is a party, (d) the validity or enforceability
of any of the Loan Documents or (e) the rights and remedies of the Lenders
and Administrative Agent under any of the Loan Documents.
(114) "Maturity Date" means the earlier of (a) June 1, 2010, as such
date may be extended by the First Extension Period, and, if so extended, as
such date may be further extended by the Second Extension Period, or (b)
any earlier date on which all of the Loans are required to be paid in full,
by acceleration or otherwise, under this Agreement or any of the other Loan
Documents.
(115) "Monthly Amortization Payment Amount" means the amount that
would be required to fully amortize, over a term of thirty (30) years
commencing as of the date of the first day of the First Extension Term, a
loan in an amount equal to the then outstanding principal amount
outstanding under the Notes as of the first day of the First Extension
Term, assuming such amount were to bear interest at a rate equal to the
greatest of (a) a rate determined by Administrative Agent as of the first
day of the First Extension Term equivalent to the yield, calculated by
linear interpolation (rounded upwards to the next 1/32 of 1%), on United
States Treasury obligations having maturities as close as possible to ten
(10) years from the first day of the First Extension Term, plus 250 basis
points, (b) the actual interest rate on the Loans, provided that if there
is more than one Interest Period, and/or any outstanding Base Rate Loans,
at such time, the rate shall be (1) the highest LIBOR Rate on any Loans at
such time plus the Applicable Margin, or (2) if there are outstanding Base
Rate Loans, the Base Rate plus the Applicable Margin, if such aggregate
amount is higher than the aggregate amount set forth in clause (1) above,
in either case on the first day of the First Extension Term, and (c) seven
percent (7.0%) per annum. All of such calculations shall be subject to the
reasonable approval of Administrative Agent.
17
(116) "Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc. and any
successor thereto.
(117) "Mortgage" means the Fee and Leasehold Deed of Trust, Assignment
of Leases and Rents, Security Agreement and Fixture Filing, executed by
Borrower in favor of Administrative Agent (on behalf of the Lenders),
covering the Project and any amendments, modifications, renewals,
substitutions, consolidations, severances and replacements thereof.
(118) "Net Operating Income" means the amount by which Operating
Revenues exceed Operating Expenses.
(119) "Net Proceeds" has the meaning assigned to such term in Section
3.2(2).
(120) "Net Proceeds Deficiency" has the meaning assigned to such term
in Section 3.2(2)(f).
(121) "Notes" means the promissory notes of even date herewith as
provided for in Section 2.1(4) and all promissory notes delivered in
substitution or exchange therefor, in each case as the same may be
consolidated, replaced, severed, modified, amended or extended from time to
time.
(122) "Operating Expenses" means all reasonable and necessary expenses
of operating the Project in the ordinary course of business which are paid
in cash by Borrower and which are directly associated with and fairly
allocable to the Project for the applicable period, including (a)
annualized ad valorem real estate taxes and assessments and insurance
premiums, (b) capital expenses at an imputed annual rate of $0.20 per
square foot of the floor area of the improvements at the Project, and (c)
management fees in an amount equal to the greater of (i) the management
fees actually paid during the applicable period and (ii) three and one-half
percent (3.5%) of annualized Operating Revenues. Operating Expenses shall
not include federal, state or local income taxes or legal and other
professional fees unrelated to the operation of the Project and shall not
include Debt Service.
(123) "Operating Revenues" means all cash rental receipts of Borrower
from operation of the Project during the applicable period, determined in
accordance with GAAP, but without taking into account straight-lining of
rents and extraordinary revenues and specifically excluding (a) security
deposits and ▇▇▇▇▇▇▇ money deposits until they are forfeited by the
depositor, (b) advance rentals until they are earned, (c) any lease
termination or buy-out payment made by any tenant in connection with any
surrender, cancellation or termination of its lease, and (d) proceeds from
a sale or other disposition. For purposes of calculating Debt Service
Coverage Ratio, Operating Revenues shall not include payments received from
any tenant (i) who is the subject of any bankruptcy or other insolvency
proceeding, or (ii) who is in material default for 30 days or more under
its lease. For purposes of calculating Debt Service Coverage Ratio,
Operating Revenues (i) shall be adjusted to reflect a deemed vacancy rate
equal to the greater of (A) the actual vacancy rate, or (B) 5%.
18
(124) "Participant" has the meaning assigned in Section 12.24(3).
(125) "Payment Date" means the first Business Day of each calendar
month.
(126) "Payor" has the meaning assigned in Section 2.8(6).
(127) "Permitted Encumbrances" has the meaning set forth in the
Mortgage.
(128) "Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, trustee, estate, limited
liability company, unincorporated organization, real estate investment
trust, government or any agency or political subdivision thereof, or any
other form of entity.
(129) "Policy" shall have the meaning assigned in Section 3.1(2).
(130) "Potential Default" means the occurrence of any event or
condition which, with the giving of notice, the passage of time, or both,
would constitute an Event of Default.
(131) "Prime Rate" means the rate of interest from time to time
announced by Eurohypo at its principal office in New York City as its prime
commercial lending rate, it being understood that such prime commercial
rate is a reference rate and does not necessarily represent the lowest or
best rate being charged by Eurohypo to any customer.
(132) "Prior Loan" means that certain indebtedness in an original
principal amount equal to approximately $92,000,000 together with all other
indebtedness, obligations and liabilities under the Prior Loan Documents.
(133) "Prior Loan Documents" means those documents listed on Exhibit
I.
(134) "Professional Independent Director" shall have the meaning set
forth in the definition of "Independent Director".
(135) "Prohibited Person" shall mean any Person:
19
(a) listed in the Annex to, or otherwise subject to the provisions of, the
Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001,
and relating to Blocking Property and Prohibiting Transactions With Persons Who
Commit, Threaten to Commit, or Support Terrorism (the "Executive Order");
(b) that is owned or controlled by, or acting for or on behalf of, any
person or entity that is listed to the Annex to, or is otherwise subject to the
provisions of, the Executive Order;
(c) with whom any Lender is prohibited from dealing or otherwise engaging
in any transaction by any terrorism or money laundering law, including the
Executive Order;
(d) who is known to Borrower to commit, threaten or conspire to commit or
support "terrorism", as defined in the Executive Order;
(e) that is named as a "specially designated national and blocked person"
on the most current list published by the U.S. Treasury Department Office of
Foreign Assets Control at its official website,
▇▇▇▇://▇▇▇.▇▇▇▇▇.▇▇▇.▇▇▇▇/▇▇▇▇▇▇.▇▇▇ or at any replacement website or other
replacement official publication of such list; or
(f) who is known to Borrower to be an Affiliate of or affiliated with a
Person listed above.
(136) "Project" means that certain property commonly known as ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ Avenue, Industry, California, located on the
real property described in Exhibit A, and all related facilities,
amenities, fixtures, and personal property owned by Borrower and any
improvements now or hereafter located thereon.
(137) "Proposed Lender" has the meaning assigned in Section 2.9(7).
(138) "Qualified Insurer" has the meaning assigned to such term in
Section 3.1(2).
(139) "Regulation D" means Regulation D of the Board of Governors of
the Federal Reserve System of the United States of America (or any
successor), as the same may be modified and supplemented and in effect from
time to time.
(140) "Regulatory Change" means, with respect to any Lender, any
change after the date hereof in Federal, state or foreign law or
regulations (including, without limitation, Regulation D) or the adoption
or making after such date of any interpretation, directive or request
applying to a class of banks including such Lender of or under any Federal,
state or foreign law or regulations (whether or not having the force of law
and whether or not failure to comply therewith would be unlawful) by any
court or governmental or monetary authority charged with the interpretation
or administration thereof.
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(141) "Related Entity" means, as to any Person, (a) any Affiliate of
such Person; (b) any other Person into which, or with which, such Person is
merged, consolidated or reorganized, or which is otherwise a successor to
such Person by operation of law, or which acquires all or substantially all
of the assets of such Person; (c) any other Person which is a successor to
the business operations of such Person and engages in substantially the
same activities; or (d) any Affiliate of the Persons described in clauses
(b) and (c) of this definition.
(142) "Requesting Lender" has the meaning assigned in Section 2.9(7).
(143) "Required Payment" has the meaning assigned in Section 2.8(6).
(144) "Required Repairs" has the meaning assigned to such term in
Section 4.6(1).
(145) "Required Repair Reserve Fund" has the meaning assigned to such
term in Section 4.6(1).
(146) "Reserve Account Collateral" has the meaning assigned to such
term in Section 4.7(1).
(147) "Reserve Funds" means, collectively, the Tax and Insurance
Reserve Fund, the Ground Rent Reserve Fund, the Low DSCR Reserve Fund and
the Required Repair Reserve Fund.
(148) "Reserve Requirement" means, for any Interest Period for any
LIBOR-based Loan, the average maximum rate at which reserves (including,
without limitation, any marginal, supplemental or emergency reserves) are
required to be maintained during such Interest Period under Regulation D by
member banks of the Federal Reserve System in New York City with deposits
exceeding $1,000,000,000 against "Eurocurrency liabilities" (as such term
is used in Regulation D). Without limiting the effect of the foregoing, the
Reserve Requirement shall include any other reserves required to be
maintained by such member banks by reason of any Regulatory Change with
respect to (i) any category of liabilities that includes deposits by
reference to which the LIBOR Rate for any Interest Period for any
LIBOR-based Loans is to be determined as provided in the definition of
"LIBOR Rate" or (ii) any category of extensions of credit or other assets
that includes LIBOR-based Loans.
(149) "Restoration" shall mean the repair and restoration of the
Project after a Casualty or Condemnation as nearly as possible to the
condition the Project was in immediately prior to such Casualty or
Condemnation, with such alterations as may be reasonably approved by
Administrative Agent, provided that Administrative Agent's approval shall
not be required for any such alterations required by applicable law so long
as Borrower provides Administrative Agent with notice of such alterations
together with a certification from Borrower that such alterations are
required by applicable law.
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(150) "S&P" means Standard and Poor's Ratings Services, a division of
The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and any successor thereto.
(151) "Second Extension Period" has the meaning assigned to such term
in Section 2.5(2).
(152) "Second Extension Notice" has the meaning assigned to such term
in Section 2.5(2).
(153) "Security Accounts" means, collectively, the Tax and Insurance
Reserve Account, the Ground Rent Reserve Account, the Casualty/Taking
Account, the Required Repair Reserve Account, the Additional Cash
Collateral Account, the Cash Management Account, the Low DSCR Account, the
Debt Service Account and the Reserve Funds.
(154) "Security Documents" means collectively, the Mortgage, the Hedge
Agreement Pledge, the Clearing Account Agreement, the Cash Management
Agreement and all Uniform Commercial Code financing statements required by
this Agreement, the Mortgage, the Hedge Agreement Pledge, the Clearing
Account Agreement or the Cash Management Agreement to be filed with respect
to the applicable security interests.
(155) "Single Member Bankruptcy Remote LLC' means a limited liability
company organized under the laws of the State of Delaware which at all
times since its formation and at all times thereafter: (a) complies with
the following clauses of the definition of Single Purpose Entity below -
(b)(i)(A), (b)(ii)(A), (b)(iii), (b)(iv), (b)(ix), (b)(x), (b)(xi) and
(b)(xiii) through (b)(xxxii); (b) has maintained and will maintain its
accounts, books and records separate from any other person; (c) has and
will have an operating agreement which provides that the business and
affairs of Borrower shall be managed by its sole member (the "Sole
Member"), and at all times there shall be at least two (2) duly appointed
Independent Directors, and the Sole Member will not, without the written
consent of both of the Independent Directors (1) take any action affecting
its status as a "Single Purpose Entity" or (2) take any other Material
Action; (d) has and will have an operating agreement which provides that,
as long as any portion of the Indebtedness remains outstanding, (1) upon
the occurrence of any event that causes Sole Member to cease to be a member
of Borrower (other than (X) upon an assignment by Sole Member of all of its
limited liability company interest in Borrower and the admission of the
transferee, if permitted pursuant to the organizational documents of
Borrower and the Loan Documents, or (y) the resignation of Sole Member and
the admission of an additional member of Borrower, if permitted pursuant to
the organizational documents of Borrower and the Loan Documents), a person
acting as an Independent Director of Borrower shall, without any action of
any Person and simultaneously with Sole Member ceasing to be a member of
22
Borrower, automatically be admitted as the sole member of Borrower (the
"Special Member") and shall preserve and continue the existence of Borrower
without dissolution, (2) no Special Member may resign or transfer its
rights as Special Member unless (x) a successor Special Member has been
admitted to Borrower as a Special Member, and (y) such successor Special
Member has also accepted its appointment as an Independent Director and (3)
except as expressly permitted pursuant to the terms of this Agreement, Sole
Member may not resign and no additional member shall be admitted to
Borrower; (e) has and will have an operating agreement which provides that,
as long as any portion of the Indebtedness remains outstanding, (1)
Borrower shall be dissolved, and its affairs shall be wound up only upon
the first to occur of the following: (x) the termination of the legal
existence of the last remaining member of Borrower or the occurrence of any
other event which terminates the continued membership of the last remaining
member of Borrower in Borrower unless the business of Borrower is continued
in a manner permitted by its operating agreement or the Delaware Limited
Liability Company Act (the "Act") or (y) the entry of a decree of judicial
dissolution under Section 18-802 of the Act, (2) upon the occurrence of any
event that causes the last remaining member of Borrower to cease to be a
member of Borrower or that causes Sole Member to cease to be a member of
Borrower (other than (x) upon an assignment by Sole Member of all of its
limited liability company interest in Borrower and the admission of the
transferee, if permitted pursuant to the organizational documents of
Borrower and the Loan Documents, or (y) the resignation of Sole Member and
the admission of an additional member of Borrower, if permitted pursuant to
the organizational documents of Borrower and the Loan Documents), to the
fullest extent permitted by law, the personal representative of such member
shall be authorized to, and shall, within 90 days after the occurrence of
the event that terminated the continued membership of such member in
Borrower, agree in writing to continue the existence of Borrower and to the
admission of the personal representative or its nominee or designee, as the
case may be, as a substitute member of Borrower, effective as of the
occurrence of the event that terminated the continued membership of such
member in Borrower; (3) the bankruptcy of Sole Member or a Special Member
shall not cause such member or Special Member, respectively, to cease to be
a member of Borrower and upon the occurrence of such an event, the business
of Borrower shall continue without dissolution; (4) in the event of
dissolution of Borrower, Borrower shall conduct only such activities as are
necessary to wind up its affairs (including the sale of the assets of
Borrower in an orderly manner), and the assets of Borrower shall be applied
in the manner, and in the order of priority, set forth in Section 18-804 of
the Act; and (5) to the fullest extent permitted by law, each of Sole
Member and the Special Members shall irrevocably waive any right or power
that they might have to cause Borrower or any of its assets to be
partitioned, to cause the appointment of a receiver for all or any portion
of the assets of Borrower, to compel any sale of all or any portion of the
assets of Borrower pursuant to any applicable law or to file a complaint or
to institute any proceeding at law or in equity to cause the dissolution,
liquidation, winding up or termination of Borrower.
23
(156) "Single Purpose Entity" means (a) a limited liability company
that is a Single Member Bankruptcy Remote LLC or (b) a corporation, limited
partnership or limited liability company which at all times since its
formation and at all times thereafter: (i) was and will be organized solely
for the purpose of (A) owning the Project or (B) acting as a general
partner of the limited partnership that owns the Project or member of the
limited liability company that owns the Project; (ii) has not engaged and
will not engage in any business unrelated to (A) the ownership of the
Project, (B) acting as general partner of the limited partnership that owns
the Project or (C) acting as a member of the limited liability company that
owns the Project, as applicable; (iii) has not had and will not have any
assets other than those related to the Project or its partnership or member
interest in the limited partnership or limited liability company that owns
the Project, as applicable; (iv) has not engaged, sought or consented to
and will not engage in, seek or consent to any dissolution, winding up,
liquidation, consolidation, merger, asset sale (except as expressly
permitted by this Agreement), transfer of partnership or membership
interests or the like, or amendment of its limited partnership agreement,
articles of incorporation, articles of organization, certificate of
formation or operating agreement (as applicable); (v) if such entity is a
limited partnership, has and will have, as its only general partners,
Single Purpose Entities that are corporations; (vi) if such entity is a
corporation, has and will have at least two (2) Independent Directors, and
has not caused or allowed and will not cause or allow the board of
directors of such entity to take any action requiring the unanimous
affirmative vote of 100% of the members of its board of directors unless
all of the directors and all Independent Directors shall have participated
in such vote; (vii) if such entity is a limited liability company, has and
will have at least one member that has been and will be a Single Purpose
Entity that has been and will be a corporation and such corporation is the
managing member of such limited liability company; (viii) if such entity is
a limited liability company, has and will have an operating agreement
providing that (A) such entity will dissolve only upon the bankruptcy of
the managing member, (B) the vote of a majority-in-interest of the
remaining members is sufficient to continue the life of the limited
liability company in the event of such bankruptcy of the managing member
and (C) if the vote of a majority-in-interest of the remaining members to
continue the life of the limited liability company following the bankruptcy
of the managing member is not obtained, the limited liability company may
not liquidate the Project without the consent of the Administrative Agent
for as long as all or any portion of the Loans are outstanding; (ix) has
not, and without the unanimous consent of all of its partners, directors or
members (including all Independent Directors), as applicable, will not,
with respect to itself or to any other entity in which it has a direct or
indirect legal or beneficial ownership interest (A) file a bankruptcy,
insolvency or reorganization petition or otherwise institute insolvency
proceedings or otherwise seek any relief under any laws relating to the
relief from debts or the protection of debtors generally, (B) seek or
consent to the appointment of a receiver, liquidator, assignee, trustee,
sequestrator, custodian or any similar official for such entity or for all
or any portion of such entity's properties, (C) make any assignment for the
24
benefit of such entity's creditors or (D) take any action that might cause
such entity to become insolvent; (x) has remained and will remain solvent
and has maintained and will maintain adequate capital in light of its
contemplated business operations; (xi) has not failed and will not fail to
correct any known misunderstanding regarding the separate identity of such
entity; (xii) has maintained and will maintain its accounts, books and
records separate from any other Person and will file its own tax returns;
(xiii) has maintained and will maintain its books, records, resolutions and
agreements as official records; (xiv) has not commingled and will not
commingle its funds or assets with those of any other Person; (xv) has held
and will hold its assets in its own name; (xvi) has conducted and will
conduct its business in its name or under the trade name of the Project,
(xvii) has maintained and will maintain its financial statements,
accounting records and other entity documents separate from any other
Person; (xviii) has paid and will pay its own liabilities, including the
salaries of its own employees, out of its own funds and assets; (xix) has
observed and will observe all partnership, corporate or limited liability
company formalities, as applicable; (xx) has maintained and will maintain
an arm's-length relationship with its Affiliates; (xxi) (A) if such entity
owns the Project, has not (except for the Prior Loan, which will be fully
satisfied with the proceeds of the Loans and for which Borrower shall have
no continuing liability, actual or contingent, upon closing of the Loans
and from which the Project has been fully released) incurred and will not
incur any Debt other than (1) the Loans, (2) obligations under any Hedge
Agreement entered into in accordance with Section 9.15 and (3) unsecured
trade and operational debt which is (I) incurred in the ordinary course of
business, (II) paid when due and in any event not more than sixty (60) days
after the date incurred, (III) with trade creditors, (IV) in the aggregate,
in an amount less than $250,000, and (V) not evidenced by a note, or (B) if
such entity acts as the general partner of a limited partnership which owns
the Project, has not incurred and will not incur any Debt other than
unsecured trade and operational debt which is (I) incurred in the ordinary
course of business relating to acting as general partner of the limited
partnership which owns the Project, (II) paid when due and in any event not
more than thirty (30) days after the date incurred, (III) with trade
creditors, (IV) in the aggregate, in an amount less than $10,000, and (V)
not evidenced by a note, or (C) if such entity acts as a managing member of
a limited liability company which owns the Project, has not incurred and
will not incur any Debt other than unsecured trade and operational debt
which is (I) incurred in the ordinary course of business relating to acting
as a member of the limited liability company which owns the Project, (II)
paid when due and in any event not more than thirty (30) days after the
date incurred, (III) with trade creditors, (IV) in the aggregate, in an
amount less than $10,000, and (V) not evidenced by a note; (xxii) has not
(except for the Prior Loan, which will be fully satisfied with the proceeds
of the Loans and for which Borrower shall have no continuing liability,
actual or contingent, upon closing of the Loans and from which the Project
has been fully released) assumed or guaranteed and will not assume or
guarantee or become obligated for the debts of any other Person or hold out
its credit as being available to satisfy the obligations of any other
Person except for the Loans; (xxiii) has not and will not acquire
25
obligations or securities of its partners, members or shareholders; (xxiv)
has allocated and will allocate fairly and reasonably shared expenses,
including shared office space, and uses separate stationery, invoices and
checks; (xxv) except in connection with the Loans, has not (except for the
Prior Loan, which will be fully satisfied with the proceeds of the Loans
and for which Borrower shall have no continuing liability, actual or
contingent, upon closing of the Loans and from which the Project has been
fully released) pledged and will not pledge its assets for the benefit of
any other Person; (xxvi) has held itself out and identified itself and will
hold itself out and identify itself as a separate and distinct entity under
its own name and not as a division or part of any other Person; (xxvii) has
maintained and will maintain its assets in such a manner that it will not
be costly or difficult to segregate, ascertain or identify its individual
assets from those of any other Person; (xxviii) has not made and will not
make loans to any Person; (xxix) has not identified and will not identify
its partners, members or shareholders, or any Affiliate of any of them, as
a division or part of it; (xxx) has not entered into or been a party to,
and will not enter into or be a party to, any transaction with its
partners, members, shareholders or Affiliates except in the ordinary course
of its business and on terms which are intrinsically fair and are no less
favorable to it than would be obtained in a comparable arm's-length
transaction with an unrelated third party; (xxxi) has had and will have no
obligation to indemnify its partners, officers, directors, members or
Special Members, as the case may be, or has such an obligation that is
fully subordinated to the Indebtedness and will not constitute a claim
against it if cash flow in excess of the amount required to pay the
Indebtedness is insufficient to pay such obligation; and (xxxii) will
consider the interests of its creditors in connection with all corporate,
partnership or limited liability actions, as applicable.
(157) "Site Assessment" means an environmental engineering report for
the Project prepared by an engineer engaged by Administrative Agent at
Borrower's expense, and in a manner reasonably satisfactory to
Administrative Agent, based upon an investigation relating to and making
appropriate inquiries concerning the existence of Hazardous Materials on or
about the Project, and the past or present discharge, disposal, release or
escape of any such substances, all consistent with good customary and
commercial practice.
(158) "Sole Member" shall have the meaning set forth in the definition
of "Single Member Bankruptcy Remote LLC".
(159) "Sources and Uses Budget" means the closing statement for the
transaction approved by Administrative Agent on the Closing Date showing
total costs relating to the subject transaction, the use of the initial
advance of the Loans, and amounts allocated for future advances (if any).
(160) "Special Advance Lender" has the meaning assigned in Section
14.12(1).
26
(161) "Special Member" shall have the meaning set forth in the
definition of "Single Member Bankruptcy Remote LLC".
(162) "Sponsor" means Glimcher Properties Limited Partnership, a
Delaware limited partnership.
(163) "Stub Interest Period" has the meaning assigned in Section
2.4(1).
(164) "Subordination of Management Agreement" means that certain
Manager's Consent and Subordination of Management Agreement, dated the date
hereof, by the Manager in favor of Administrative Agent (on behalf of the
Lenders), as the same may be modified, amended and/or supplemented and in
effect from time to time.
(165) "Syndication" has the meaning assigned to in Section 12.28.
(166) "Tax and Insurance Reserve Account" has the meaning assigned to
such term in the Cash Management Agreement.
(167) "Tax and Insurance Reserve Fund" has the meaning assigned in
Section 4.1(1).]
(168) "Taxes" has the meaning assigned in Section 9.2.
(169) "Tenant Improvement Allowances" means those certain tenant
improvement allowances which Borrower is obligated to make under leases of
any portion of the Project, for tenant improvement work to be performed by
the respective tenants thereunder.
(170) "Tenant Improvement Work" means work to be performed and paid by
Borrower, if any, pursuant to leases of any portion of Project.
(171) "Terrorism Insurance" has the meaning assigned to such term in
Section 3.1(2).
(172) "Terrorism Insurance Required Amount" has the meaning assigned
to such term in Section 3.1(2).
(173) "Third-Party Counterparty" has the meaning assigned to such term
in Section 9.15(1).
(174) "Third-Party Hedge Agreement" has the meaning assigned to such
term in Section 9.15(3).
(175) "Threshold Amount" means $500,000.
27
(176) "Type" has the meaning assigned in Section 2.1.
(177) "Unpaid Amount" has the meaning assigned in Section 14.12(2).
Section 1.2 Types of Loans. Loans hereunder are distinguished by "Type".
The "Type" of a Loan refers to whether such Loan is an Base Rate Loan or a
LIBOR-based Loan, each of which constitutes a Type.
ARTICLE 2
LOAN TERMS
Section 2.1 The Commitments, Loans and Notes.
(1) Loans. Each Lender severally agrees, on the terms and conditions
of this Agreement, to make a term loan to Borrower in Dollars in a
principal amount up to but not exceeding the amount of the Commitment of
such Lender. The Loans shall be funded in a single advance and repaid in
accordance with this Agreement. The advance of the Loans shall be made in
accordance with the Sources and Uses Budget upon Borrower's satisfaction of
the conditions described in Schedule 2.1.
(2) Lending Offices. The Loans of each Lender shall be made and
maintained at such Lender's Applicable Lending Office for Loans of such
Type.
(3) Several Obligations. The failure of any Lender to make any Loan to
be made by it on the date specified therefor shall not relieve any other
Lender of its obligation to make its Loan, but neither any Lender nor
Administrative Agent shall be responsible for the failure of any other
Lender to make a Loan to be made by such other Lender.
(4) Notes.
(a) Loan Notes. The Loans made by each Lender shall be evidenced by a
single promissory note of Borrower substantially in the form of Exhibit C,
payable to such Lender in a principal amount equal to the amount of its
Commitment as originally in effect and otherwise duly completed.
(b) Endorsements on Notes. The date, amount, Type, interest rate and
duration of Interest Period (if applicable) of each Loan made by each Lender to
Borrower, and each payment made on account of the principal thereof, shall be
recorded by such Lender on its books and, prior to any transfer of the Note held
by it, endorsed by such Lender on the schedule attached to such Note or any
continuation thereof; provided that the failure of such Lender to make any such
recordation or endorsement shall not affect the obligations of Borrower to make
a payment when due of any amount owing hereunder or under such Note in respect
of such Loans.
28
(c) Substitution, Exchange and Subdivision of Notes. No Lender shall be
entitled to have its Notes substituted or exchanged for any reason, or
subdivided for promissory notes of lesser denominations, except in connection
with a permitted assignment of all or any portion of such Lender's Commitment,
Loans and Note pursuant to Sections 12.10 and 12.24 (and, if requested by any
Lender, Borrower agrees to so substitute or exchange any Notes and enter into
note splitter agreements in connection therewith).
(d) Loss, Theft, Destruction or Mutilation of Notes. In the event of the
loss, theft or destruction of any Note, upon Borrower's receipt of a reasonably
satisfactory indemnification agreement executed in favor of Borrower by the
holder of such Note, or in the event of the mutilation of any Note, upon the
surrender of such mutilated Note by the holder thereof to Borrower, Borrower
shall execute and deliver to such holder a new replacement Note in lieu of the
lost, stolen, destroyed or mutilated Note.
(e) Funding of Loans. Each Lender shall make each Loan to be made by it
hereunder on the proposed date thereof by wire transfer of immediately available
funds by 12:00 noon, New York City time, to the account of Administrative Agent
most recently designated by it for such purpose by notice to the Lenders.
Administrative Agent will promptly make such Loans available to Borrower by wire
transfer of immediately available funds to an account in the United States
designated by the Borrower in writing.
Section 2.2 Conversions or Continuations of Loans.
(1) Subject to Sections 2.8(4), 2.9(2) and 2.9(3), Borrower shall have
the right to Convert Loans of one Type into Loans of another Type or
Continue Loans of one Type as Loans of the same Type, at any time or from
time to time; provided that: (a) Borrower shall give Administrative Agent
notice of each such Conversion or Continuation as provided in Section
2.8(5); (b) LIBOR-based Loans may be Converted only on the last day of an
Interest Period for such Loans unless Borrower complies with the terms of
Section 2.9(5) and (c) subject to Sections 2.9(1) and 2.9(3), any
Conversion or Continuation of Loans shall be pro rata among the Lenders.
Notwithstanding the foregoing, and without limiting the rights and remedies
of Administrative Agent and the Lenders under Article 11, in the event that
any Event of Default has occurred and is continuing, Administrative Agent
may (and at the request of the Majority Lenders shall) suspend the right of
Borrower to Convert any Loan into a LIBOR-based Loan, or to Continue any
Loan as a LIBOR-based Loan for so long as such Event of Default has
occurred and is continuing, in which event all Loans shall be Converted (on
the last day(s) of the respective Interest Periods therefor) or Continued,
as the case may be, as Base Rate Loans. In connection with any such
Conversion, a Lender may (at its sole and absolute discretion) transfer a
Loan from one Applicable Lending Office to another.
(2) Notwithstanding anything to the contrary contained in this
Agreement, at any time that a Hedge Agreement is in effect, Borrower shall
have the right to choose only an Interest Period which is the same as the
Interest Rate Hedge Period.
29
Section 2.3 Interest Rate; Late Charge.
(1) Borrower hereby promises to pay to Administrative Agent for
account of each Lender interest on the unpaid principal amount of each Loan
(which may be Base Rate Loans and/or LIBOR-based Loans) made by such Lender
for the period from and including the date of such Loan to but excluding
the date such Loan shall be paid in full, at the following rates per annum:
(a) during such periods as such Loan is an Base Rate Loan, the Base Rate
plus the Applicable Margin; and
(b) during such periods as such Loan is a LIBOR-based Loan, for each
Interest Period relating thereto, the Adjusted LIBOR Rate for such Loan for such
Interest Period plus the Applicable Margin.
(2) Accrued interest on each Loan shall be payable (i) monthly in
arrears on each Payment Date and (ii) in the case of any Loan, upon the
payment or prepayment thereof or the Conversion of such Loan to a Loan of
another Type (but only on the principal amount so paid, prepaid or
Converted), except that interest payable at the Default Rate shall be
payable from time to time on demand as provided in this Agreement and the
other Loan Documents.
(3) Notwithstanding anything to the contrary contained herein, after
the Maturity Date and during any period when an Event of Default exists and
is continuing, Borrower shall pay to Administrative Agent for the account
of each Lender interest at the applicable Default Rate on the outstanding
principal amount of any Loan made by such Lender, any interest payments
(except a late payment of any Additional Interest which shall be governed
by the terms of the Hedge Agreement) thereon not paid when due and on any
other amount payable by Borrower hereunder, under the Notes and any other
Loan Documents.
(4) Promptly after the determination of any interest rate provided for
herein or any change therein, Administrative Agent shall give notice
thereof to the Lenders to which such interest is payable and to Borrower,
but the failure of Administrative Agent to provide such notice shall not
affect Borrower's obligation for the payment of interest on the Loans.
(5) In addition to any sums due under this Section 2.3, Borrower shall
pay to Administrative Agent for the account of the Lenders a late payment
premium in the amount of (a) three percent (3%) of any payment of principal
under the Loans due on the Maturity Date that is made after the Maturity
Date, and (b) five percent (5%) of (i) any payments of principal under the
Loans (other than the principal payment due on the Maturity Date) made
after the due date thereof, and (ii) any payments of interest or other sums
under the Loans (other than the principal payment due on the Maturity Date)
made more than five (5) days after the due date thereof, which late payment
premium, in each case, shall be due with any such late payment or upon
demand by Administrative Agent. Such late payment charge represents the
30
reasonable estimate of Borrower and the Lenders of a fair average
compensation for the loss that may be sustained by the Lenders due to the
failure of Borrower to make timely payments. Such late charge shall be paid
without prejudice to the right of Administrative Agent and the Lenders to
collect any other amounts provided herein or in the other Loan Documents to
be paid or to exercise any other rights or remedies under the Loan
Documents.
(6) Borrower shall pay Additional Interest under the Notes in
accordance with the terms of the Hedge Agreement.
Section 2.4 Terms of Payment. The Loans shall be payable as follows:
(1) Interest. On the date hereof, Borrower shall make a payment of
interest only (covering the period from the date hereof through and
including June 30, 2008 (the "Stub Interest Period"), and beginning on
August 1, 2008 and on each Payment Date thereafter, Borrower shall pay
interest in arrears on each such Payment Date in accordance with the wire
transfer instructions set forth in Schedule 2.4(1) hereto (or such other
instructions as Administrative Agent may from time to time provide) until
all amounts due under the Loan Documents are paid in full.
(2) Principal Amortization. In the event the Maturity Date is extended
pursuant to Section 2.5, then, on the first Payment Date occurring during
the First Extension Period and on each Payment Date thereafter, Borrower
shall pay to Administrative Agent (on behalf of the Lenders) an amount
equal to the Monthly Amortization Payment Amount, such amount to be applied
in reduction of the unpaid principal balance of the Loans.
(3) Maturity. On the Maturity Date, Borrower shall pay to
Administrative Agent (on behalf of the Lenders) all outstanding principal,
accrued and unpaid interest, and any other amounts due under the Loan
Documents.
(4) Optional Prepayments. Subject to the provisions of Sections 2.4(6)
and 2.9(5), Borrower shall have the right to prepay Loans in whole or in
part on any Payment Date, without premium or penalty; provided that: (a)
Borrower shall give Administrative Agent notice of each such prepayment as
provided in Section 2.8(5) (and, upon the Payment Date specified in any
such notice of prepayment, the amount to be prepaid shall become due and
payable hereunder) and (b) partial prepayments shall be in the minimum
aggregate principal amounts specified in Section 2.8(4). Subject to the
provisions of Sections 2.4(6) and 2.9(5), Borrower shall have the right to
prepay Loans in an aggregate amount equal to $45,000,000 if permitted under
the terms of the Flex Letter, without premium or penalty; provided that
Borrower shall give Administrative Agent three Business Days prior written
notice of such prepayment (and, upon the third Business Day after
Administrative Agent's receipt of such notice of prepayment, the amount to
be prepaid shall become due and payable hereunder). Loans that are prepaid
cannot be reborrowed.
31
(5) Mandatory Prepayments. If a casualty or condemnation shall occur
with respect to the Project, Borrower, upon Borrower's or Administrative
Agent's receipt of the applicable insurance proceeds or condemnation award,
shall prepay the Loan, if required by the provisions of Article 3, on the
dates and in the amounts specified therein without premium (but subject to
the provisions of Sections 2.4(6) and 2.9(5)). Nothing in this Section
2.4(5) shall be deemed to limit any obligation of Borrower under the
Mortgage or any other Security Document, including any obligation to remit
to a collateral or similar account maintained by Administrative Agent
pursuant to the Mortgage or any of the other Security Documents the
proceeds of insurance, condemnation award or other compensation received in
respect of any casualty or condemnation.
(6) Interest and Other Charges on Prepayment. If the Loans are
prepaid, in whole or in part, pursuant to Section 2.4(4), 2.4(5) or 4.4,
each such prepayment shall be made on the prepayment date specified in the
notice to Administrative Agent pursuant to Section 2.8(5) (except for
prepayments pursuant to Section 4.4, which shall be made on the date such
amounts are applied by Administrative Agent pursuant to Section 4.4 and
prepayments pursuant to the Flex Letter, which shall be made upon the third
Business Day after Administrative Agent's receipt of such notice of
prepayment) and (in every case) together with (a) the accrued and unpaid
interest (including accrued and unpaid Additional Interest, if applicable)
on the principal amount prepaid and (b) any amounts payable to a Lender
pursuant to Section 2.9(5) as a result of such prepayment while an Adjusted
LIBOR Rate is in effect; provided, however, that any such prepayment shall
be applied first, to the prepayment of any portions of the outstanding
principal amount that are Base Rate Loans and, second, to the prepayment of
any portions of the outstanding principal amount that are LIBOR-based Loans
applying such sums first to LIBOR-based Loans of the shortest maturity so
as to minimize breakage costs; provided further, however, that if an Event
of Default has occurred and is continuing, Administrative Agent may
distribute such payment to the Lenders for application in such manner as it
or the Majority Lenders, subject to Section 2.8(2), may determine to be
appropriate).
(7) Application of Payments. All payments received by Administrative
Agent under the Loan Documents shall be applied: first, to any fees and
expenses due to Administrative Agent and the Lenders under the Loan
Documents; second, to any Default Rate interest or late charges; third, to
accrued and unpaid interest; and fourth, to the principal sum and other
amounts due under the Loan Documents; provided, however, that, if an Event
of Default has occurred and is continuing Administrative Agent shall apply
such payments in any order or manner as Administrative Agent shall
determine.
Section 2.5 Extensions of Maturity Date.
32
(1) First Extension Option. Borrower may, at its option, extend the
term of the then outstanding principal amount for a period of one (1) year
to the first anniversary of the original Maturity Date (the applicable
period being, the "First Extension Period"), subject to the satisfaction of
the following conditions:
(a) Borrower shall notify (the "First Extension Notice") Administrative
Agent of Borrower's exercise of such option between sixty (60) and one hundred
twenty (120) days prior to the original Maturity Date;
(b) No Potential Default or Event of Default has occurred and is continuing
as of the date of the First Extension Notice, as of the original Maturity Date
or would result from the extension of the maturity of the Loans for the First
Extension Period;
(c) Not less than 90% of the rentable area of the Project is leased to
tenants under Approved Leases, which tenants are in occupancy of the premises
demised thereunder and have commenced paying rent thereunder and none of which
tenants is in material default under its Approved Lease;
(d) The Loan to Value Ratio as of the original Maturity Date does not
exceed 50%, based on a new Appraisal obtained by Administrative Agent not more
than ninety (90) days prior to the original Maturity Date, such Appraisal to be
at Borrower's expense and reasonably satisfactory to Administrative Agent in all
respects;
(e) The Debt Service Coverage Ratio as of the end of the calendar quarter
most recently ended on the original Maturity Date shall be equal to or greater
than 1.50:1.00;
(f) If the Hedge Agreement in effect at the time of Borrower's giving of
the First Extension Notice is scheduled to mature or expire prior to the end of
the First Extension Period, Borrower shall have obtained and delivered to
Administrative Agent not later than ten (10) Business Days prior to the first
day of the First Extension Period one or more replacement Hedge Agreements which
meet the requirements of Section 9.15 which shall be effective on or before the
beginning of the First Extension Period and shall have a maturity date not
earlier than the end of the First Extension Period;
(g) The expiration date of any Collateral Letters of Credit, if still
outstanding pursuant to the terms of this Agreement or any other Loan Document,
shall be extended to a date which is thirty (30) days beyond the end of the
First Extension Period;
(h) Current financial statements regarding Borrower (dated not earlier than
ninety (90) days prior to the First Extension Notice) and all other financial
statements and other information as may be required under this Agreement and the
Loan Documents regarding Borrower and the Project shall have been submitted
promptly to Administrative Agent;
(i) In the reasonable opinion of Administrative Agent, there shall not have
occurred any Material Adverse Effect;
33
(j) Whether or not the extension becomes effective, Borrower shall pay all
out-of-pocket costs and expenses incurred by Administrative Agent and the
Lenders in connection with the proposed extension (pre- and post-closing),
including appraisal fees and legal fees; all such costs and expenses shall be
due and payable upon demand, and any failure to pay such amounts shall
constitute a default under this Agreement and the Loan Documents;
(k) Not later than the original Maturity Date, (i) the extension shall have
been documented to the Lenders' satisfaction and consented to by Borrower,
Administrative Agent and all the Lenders, including the execution and delivery
by the Guarantors of reaffirmations of their respective obligations under the
Guaranty and (ii) Administrative Agent shall have been provided with an updated
title report and judgment and lien searches, and appropriate title insurance
endorsements shall have been issued as required by Administrative Agent; and
(l) Borrower shall pay to Administrative Agent (for the benefit of the
Lenders in accordance with their proportionate shares) on the original Maturity
Date a non-refundable extension fee equal to 0.15% of an amount equal to the
outstanding principal amount at such time.
Any such extension shall be otherwise subject to all of the other terms and
provisions of this Agreement and the other Loan Documents.
(2) Second Extension Option. Provided the term has been extended for
the First Extension Period as provided in Section 2.5(1), Borrower may, at
its option, extend the term of the then outstanding principal amount for a
period of one (1) year to the second anniversary of the original Maturity
Date (the applicable period being, the ("Second Extension Period"), subject
to the satisfaction of the following conditions:
(a) Borrower shall notify (the "Second Extension Notice") Administrative
Agent of Borrower's exercise of such option between sixty (60) and one hundred
twenty (120) days prior to the last day of the First Extension Period;
(b) No Potential Default or Event of Default has occurred and is continuing
as of the date of the Second Extension Notice, as of the last day of the First
Extension Period or would result from the extension of the maturity of the Loans
for the Second Extension Period;
(c) Not less than 90% of the rentable area of the Project is leased to
tenants under Approved Leases, which tenants are in occupancy of the premises
demised thereunder and have commenced paying rent thereunder and none of which
tenants is in material default under its Approved Lease;
(d) The Loan to Value Ratio as of the last day of the First Extension
Period does not exceed 50%, based on the Appraisal obtained by Administrative
Agent under Section 2.5(1)(d) above;
34
(e) The Debt Service Coverage Ratio as of the end of the calendar quarter
most recently ended on the last day of the First Extension Period shall be equal
to or greater than 1.55:1.00;
(f) If the Hedge Agreement in effect at the time of Borrower's giving of
the Second Extension Notice is scheduled to mature or expire prior to the end of
the Second Extension Period, Borrower shall have obtained and delivered to
Administrative Agent not later than ten (10) Business Days prior to the first
day of the Second Extension Period one or more replacement Hedge Agreements
which meet the requirements of Section 9.15 which shall be effective on or
before the beginning of the Second Extension Period and shall have a maturity
date not earlier than the end of the Second Extension Period;
(g) The expiration date of any Collateral Letters of Credit, if still
outstanding pursuant to the terms of this Agreement or any other Loan Document,
shall be extended to a date which is thirty (30) days beyond the end of the
Second Extension Period;
(h) Current financial statements regarding Borrower (dated not earlier than
ninety (90) days prior to the Second Extension Notice) and all other financial
statements and other information as may be required under this Agreement and the
Loan Documents regarding Borrower and the Project shall have been submitted
promptly to Administrative Agent;
(i) In the reasonable opinion of Administrative Agent, there shall not have
occurred any Material Adverse Effect;
(j) Whether or not the extension becomes effective, Borrower shall pay all
out-of-pocket costs and expenses incurred by Administrative Agent and the
Lenders in connection with the proposed extension (pre- and post-closing),
including appraisal fees and legal fees; all such costs and expenses shall be
due and payable upon demand, and any failure to pay such amounts shall
constitute a default under this Agreement and the Loan Documents;
(k) Not later than the last day of the First Extension Period, (i) the
extension shall have been documented to the Lenders' satisfaction and consented
to by Borrower, Administrative Agent and all the Lenders, including the
execution and delivery by the Guarantors of reaffirmations of their respective
obligations under the Guaranty and (ii) Administrative Agent shall have been
provided with an updated title report and judgment and lien searches, and
appropriate title insurance endorsements shall have been issued as required by
Administrative Agent; and
(l) Borrower shall pay to Administrative Agent (for the benefit of the
Lenders in accordance with their proportionate shares) on the last day of the
First Extension Period a non-refundable extension fee equal to 0.15% of an
amount equal to the outstanding principal amount at such time.
Any such extension shall be otherwise subject to all of the other terms and
provisions of this Agreement and the other Loan Documents.
35
Section 2.6 Intentionally Omitted.
Section 2.7 Cash Management.
(1) Deposits into Clearing Account. Borrower shall cause all rents
from the Project to be deposited into the Clearing Account in accordance
with the Clearing Account Agreement and the Cash Management Agreement.
Without limitation of the foregoing, Borrower shall, and shall cause the
Manager to, (a) deliver irrevocable written instructions to all tenants
under leases to deliver all rents payable thereunder directly to the
Clearing Account, and (b) deposit all amounts received by Borrower or the
Manager constituting rents or other revenue of any kind from the Project
into the Clearing Account within one (1) Business Day of receipt thereof.
Disbursements from the Clearing Account will be made in accordance with the
terms and conditions of this Agreement, the Cash Management Agreement and
the Clearing Account Agreement. Administrative Agent shall have sole
dominion and control over the Clearing Account and Borrower shall have no
rights to make withdrawals therefrom except as expressly set forth in the
Clearing Account Agreement.
(2) Disbursements from Clearing Account. So long as (i) no Event of
Default has occurred and is continuing, and (ii) no Low DSCR Trigger Period
has commenced and is continuing, all available funds on deposit in the
Clearing Account shall be transferred on a daily basis (or on such other
schedule as Borrower may arrange with Clearing Bank but, in any event, not
less often than two (2) times each calendar week) to Borrower's Operating
Account (and Borrower agrees that deposit of the same therein shall be
deemed to be receipt by Borrower). Upon the occurrence and during the
continuance of any (i) Event of Default, or (ii) Low DSCR Trigger Period,
Administrative Agent shall have the right to send a Clearing Account Sweep
Notice to the Clearing Bank directing that all available funds on deposit
in the Clearing Account shall be transferred on a daily basis to the Cash
Management Account and, upon delivery of same, such funds shall be so
transferred in accordance with the Clearing Account Agreement.
Disbursements from the Cash Management Account will be made in accordance
with the terms and conditions of this Agreement and the Cash Management
Agreement.
(3) Disbursements from Cash Management Account. So long as an Event of
Default is not continuing, Administrative Agent shall direct Cash
Management Bank to apply funds on deposit in the Cash Management Account
(to the extent not held in Security Accounts constituting sub-accounts of
the Cash Management Account, if any, and with the exception of Net
Proceeds, which shall be applied as provided in Section 3.2 of this
Agreement) on each Payment Date as follows:
(i) first, funds sufficient to pay the amount required to be
deposited in the Tax and Insurance Reserve Account on the applicable
Payment Date as described in Section 4.1(1) hereof, which amount shall
be deposited in the Tax and Insurance Reserve Account;
36
(ii) second, funds sufficient to pay the amount required to be
deposited in the Ground Rent Reserve Account on the applicable Payment
Date as described in Section 4.2(1) hereof, which amount shall be
deposited in the Ground Rent Reserve Account;
(iii) third, funds sufficient to pay the aggregate amount of
scheduled principal (if any) and interest payments under the Notes and
any other amounts owing to Administrative Agent and Lenders under the
Loan Documents on the applicable Payment Date, which amount shall be
deposited in the Debt Service Account;
(iv) fourth, to Borrower's Operating Account, amounts required
for payment of all Operating Expenses of the Project for such month,
in the amount for such month set forth on the annual operating budget
previously approved by Administrative Agent (and Borrower agrees that
deposit of the same therein shall be deemed to be receipt by
Borrower); and
(v) fifth, all remaining funds, to the Low DSCR Account, to be
held as a reserve and as additional collateral for the Loans, subject
to Section 4.4(3) hereof.
Notwithstanding the foregoing, if any Event of Default has occurred and is
continuing, then all amounts on deposit in the Cash Management Account
shall be allocated as determined by Administrative Agent in Administrative
Agent's sole and absolute discretion.
(4) Sufficient Funds. Notwithstanding anything to the contrary
contained in this Agreement or the other Loan Documents, and provided no
Event of Default has occurred and is continuing, Borrower's obligations
with respect to the monthly payment of interest and principal (if any) and
the deposits to be made into the Security Accounts and any other payment
due pursuant to this Agreement or any other Loan Document shall be deemed
satisfied to the extent sufficient amounts are deposited in the Cash
Management Account and are unconditionally available to Administrative
Agent (on behalf of the Lenders) to satisfy such obligations in accordance
with the terms of this Agreement and the Cash Management Agreement on the
dates each such payment is required, regardless of whether any of such
amounts are so applied by Administrative Agent.
(5) Insufficient Funds. The insufficiency of funds on deposit in the
Clearing Account or the Cash Management Account (or any sub-account
thereunder) shall not absolve Borrower of the obligation to make any
payments as and when due pursuant to this Agreement and the other Loan
Documents, and such obligations shall be separate and independent, and not
conditioned on any event or circumstance whatsoever.
37
(6) Replacement Agreements. Upon any termination of the then-existing
Cash Management Agreement and/or Clearing Account Agreement, as applicable,
for any reason, Borrower shall (i) enter into, and cause Manager to enter
into, a replacement Cash Management Agreement with a replacement Depository
Bank selected by Administrative Agent in a form substantially similar to
the Cash Management Agreement or such other form as shall be reasonably
acceptable to Administrative Agent, Borrower and such replacement
Depository Bank, (ii) enter, and cause Manager to enter into, into a
replacement Clearing Account Agreement with a replacement Clearing Bank
selected by Administrative Agent in the form attached hereto as Exhibit L,
and (iii) at the direction of Administrative Agent, deliver replacement
irrevocable written instructions to all tenants under leases to deliver all
rents payable thereunder directly to the new Clearing Account, if
applicable.
Section 2.8 Payments; Pro Rata Treatment; Etc.
(1) Payments Generally.
(a) Payments by Borrower. Except to the extent otherwise provided herein,
all payments of principal, interest and other amounts to be made by Borrower
under this Agreement and the Notes, and, except to the extent otherwise provided
therein, all payments to be made by Borrower under any other Loan Document,
shall be made in Dollars, in immediately available funds, without deduction,
set-off or counterclaim, to Administrative Agent at an account designated by
Administrative Agent by notice to Borrower, not later than 12:00 noon, New York
City time, on the date on which such payment shall become due (each such payment
made after such time on such due date to be deemed to have been made on the next
succeeding Business Day).
(b) Application of Payments. Subject to the provisions of Section 2.4(7),
Borrower shall, at the time of making each payment under this Agreement or any
Note for the account of any Lender, specify to Administrative Agent (which shall
so notify the intended recipient(s) thereof) the Loans or other amounts payable
by Borrower hereunder to which such payment is to be applied (and in the event
that Borrower fails to so specify, or if an Event of Default has occurred and is
continuing, Administrative Agent may distribute such payment to the Lenders for
application in such manner as it may determine to be appropriate, subject to
Section 2.8(2) and any other agreement among Administrative Agent and the
Lenders with respect to such application).
(c) Forwarding of Payments by Administrative Agent. Except as otherwise
agreed by Administrative Agent and the Lenders, each payment received by
Administrative Agent under this Agreement or any Note for account of any Lender
shall be paid by Administrative Agent promptly to such Lender, in immediately
available funds, for account of such Lender's Applicable Lending Office for the
Loan or other obligation in respect of which such payment is made.
38
(d) Extensions to Next Business Day. If the due date of any payment under
this Agreement or any Note would otherwise fall on a day that is not a Business
Day, such date shall be extended to the next succeeding Business Day, and
interest shall be payable for any principal so extended for the period of such
extension.
(2) Pro Rata Treatment. Except to the extent otherwise provided
herein: (a) each advance of a Loan from the Lenders under Section 2.1(1)
shall be made from the Lenders, and any termination of the obligation to
make an advance of the Loans shall be applied to the respective Commitments
of the Lenders, pro rata according to the amounts of their respective
Commitments; (b) except as otherwise provided in Section 2.9(4), Loans
shall be allocated pro rata among the Lenders according to the amounts of
their respective Commitments (in the case of the making of Loans) or their
respective Loans (in the case of Conversions or Continuations of Loans);
(c) each payment or prepayment of principal of Loans by Borrower shall be
made for account of the Lenders pro rata in accordance with the respective
unpaid principal amounts of the Loans held by them; and (d) each payment of
interest on Loans by Borrower shall be made for account of the Lenders pro
rata in accordance with the amounts of interest on such Loans then due and
payable to the respective Lenders.
(3) Computations. Interest on all Loans shall be computed on the basis
of a year of 360 days and actual days elapsed (including the first day but
excluding the last day) occurring in the period for which payable.
(4) Minimum Amounts. Except for (a) mandatory prepayments made
pursuant to Section 2.4(5) and (b) Conversions or prepayments made pursuant
to Section 2.9(4), each borrowing, Conversion, Continuation and partial
prepayment of principal (collectively, "Loan Transactions") of Loans (a)
shall be in an aggregate amount at least equal to $1,000,000, (b) in the
case of any partial prepayment, if in excess of $1,000,000, shall be in
whole multiples of $1,000,000, and (c) in the case of borrowings of,
Conversions into, or Continuations of, LIBOR-based Loans, if in excess of
$1,000,000, shall be in whole multiples of $100,000 in excess thereof (Loan
Transactions of or into Loans of different Types or Interest Periods at the
same time hereunder shall be deemed separate Loan Transactions for purposes
of the foregoing, one for each Type or Interest Period); provided that if
any Loans or borrowings would otherwise be in a lesser principal amount for
any period, such Loans shall be Base Rate Loans during such period.
Notwithstanding the foregoing, the minimum amount of $1,000,000 shall not
apply to Conversions of lesser amounts into a tranche of Loans that has (or
will have upon such Conversion) an aggregate principal amount exceeding
such minimum amount and one Interest Period.
(5) Certain Notices. Notices by Borrower to Administrative Agent
regarding Loan Transactions and the selection of Types of Loans and/or of
the duration of Interest Periods shall be irrevocable and shall be
effective only if received by Administrative Agent not later than 12:00
noon, New York City time, on the number of Business Days prior to the date
of the proposed Loan Transaction or the first day of such Interest Period
specified below:
39
---------------------------------------------------------------------------
Notice Number of Business
Days Prior
---------------------------------------------------------------------------
Optional Prepayment 3
---------------------------------------------------------------------------
Conversions into, Continuations as, or borrowings in 3
Base Rate Loans
---------------------------------------------------------------------------
Conversions into, Continuations as, borrowings in or 3
changes in duration of Interest Period for,
LIBOR-based Loans (subject to Section 2.4(6)
---------------------------------------------------------------------------
Each such notice of a Loan Transaction shall specify the amount (subject to
Section 2.8(4)), Type, and Interest Period of such proposed Loan Transaction,
and the date (which shall be a Business Day) of such proposed Loan Transaction.
Notices for Conversions and Continuations shall be in the form of Exhibit E.
Each such notice specifying the duration of an Interest Period shall specify the
portion of the Loans to which such Interest Period is to relate. Administrative
Agent shall promptly notify the Lenders of the contents of each such notice. If
Borrower fails to select (i) the Type of Loan or (ii) the duration of any
Interest Period for any LIBOR-based Loan within the time period (i.e., three (3)
Business Days prior to the first day of the next applicable Interest Period) and
otherwise as provided in this Section 2.8(5), such Loan (if outstanding as a
LIBOR Loan) will be automatically Continued as an LIBOR-based Loan with an
Interest Period of one (1) month on the last day of the current Interest Period
for such Loan (based on a LIBOR-based Rate determined two (2) Business Days
prior to the first day of the next Interest Period) or, if outstanding as an
Base Rate Loan, will remain as a Base Rate Loan.
(6) Non-Receipt of Funds by Administrative Agent. Unless
Administrative Agent shall have been notified by a Lender or Borrower (in
either case, the "Payor") prior to the date on which the Payor is to make
payment to Administrative Agent of (in the case of a Lender) the proceeds
of a Loan to be made by such Lender hereunder or (in the case of Borrower)
a payment to Administrative Agent for account of any Lender hereunder (in
either case, such payment being herein called the "Required Payment"),
which notice shall be effective upon receipt, that the Payor does not
intend to make the Required Payment to Administrative Agent, Administrative
Agent may assume that the Required Payment has been made and may, in
reliance upon such assumption (but shall not be required to), make the
amount thereof available to the intended recipient(s) on such date; and, if
the Payor has not in fact made the Required Payment to Administrative
Agent, the recipient(s) of such payment shall, on demand, repay to
Administrative Agent the amount so made available together with interest
thereon in respect of each day during the period commencing on the date
(the "Advance Date") such amount was so made available by Administrative
Agent until the date Administrative Agent recovers such amount at a rate
per annum equal to (a) the Federal Funds Rate for such day in the case of
40
payments returned to Administrative Agent by any of the Lenders or (b) the
applicable interest rate due hereunder with respect to payments returned by
Borrower to Administrative Agent and, if such recipient(s) shall fail
promptly to make such payment, Administrative Agent shall be entitled to
recover such amount, on demand, from the Payor, together with interest as
aforesaid; provided that if neither the recipient(s) nor the Payor shall
return the Required Payment to Administrative Agent within three (3)
Business Days of the Advance Date, then, retroactively to the Advance Date,
the Payor and the recipient(s) shall each be obligated to pay interest on
the Required Payment as follows:
(a) if the Required Payment shall represent a payment to be made by
Borrower to the Lenders, Borrower and the recipient(s) shall each be obligated
retroactively to the Advance Date to pay interest in respect of the Required
Payment at the Default Rate (without duplication of the obligation of Borrower
under Section 2.3 to pay interest on the Required Payment at the Default Rate),
it being understood that the return by the recipient(s) of the Required Payment
to Administrative Agent shall not limit such obligation of Borrower under
Section 2.3 to pay interest at the Default Rate in respect of the Required
Payment, and
(b) if the Required Payment shall represent proceeds of a Loan to be made
by the Lenders to Borrower, the Payor and Borrower shall each be obligated
retroactively to the Advance Date to pay interest in respect of the Required
Payment pursuant to whichever of the rates specified in Section 2.3 is
applicable to the Type of such Loan, it being understood that the return by
Borrower of the Required Payment to Administrative Agent shall not limit any
claim Borrower may have against the Payor in respect of such Required Payment.
(7) Sharing of Payments, Etc.
(a) Right of Set off. Borrower agrees that, in addition to (and without
limitation of) any right of set off, banker's lien or counterclaim a Lender may
otherwise have, (subject, as among the Lenders, to Section 12.26), each Lender
shall be entitled, at its option (to the fullest extent permitted by law), to
set off and apply any deposit (general or special, time or demand, provisional
or final), or other indebtedness, held by it for the credit or account of
Borrower at any of its offices, in Dollars or in any other currency, against any
principal of or interest on any of such Lender's Loans or any other amount
payable to such Lender hereunder, that is not paid when due (regardless of
whether such deposit or other indebtedness is then due to Borrower), in which
case it shall promptly notify Borrower and Administrative Agent thereof,
provided that such Lender's failure to give such notice shall not affect the
validity thereof.
(b) Sharing. If any Lender shall obtain from Borrower payment of any
principal of or interest on any Loan owing to it or payment of any other amount
under this Agreement or any other Loan Document through the exercise (subject,
as among the Lenders, to Section 12.26) of any right of set-off, banker's lien
or counterclaim or similar right or otherwise (other than from Administrative
Agent as provided herein), and, as a result of such payment, such Lender shall
have received a greater percentage of the principal of or interest on the Loans
or such other amounts then due hereunder or thereunder by Borrower to such
Lender than the percentage received by any other Lender, it shall promptly
purchase from such other Lenders participations in (or, if and to the extent
specified by such Lender, direct interests in) the Loans or such other amounts,
respectively, owing to such other Lenders (or in interest due thereon, as the
case may be) in such amounts, and make such other adjustments from time to time
41
as shall be equitable, to the end that all the Lenders shall share the benefit
of such excess payment (net of any expenses that may be incurred by such Lender
in obtaining or preserving such excess payment) pro rata in accordance with the
unpaid principal of and/or interest on the Loans or such other amounts,
respectively, owing to each of the Lenders. To such end all the Lenders shall
make appropriate adjustments among themselves (by the resale of participations
sold or otherwise) if such payment is rescinded or must otherwise be restored.
(c) Consent by Borrower. Borrower agrees that any Lender so purchasing such
a participation (or direct interest) may exercise (subject, as among the
Lenders, to Section 12.26) all rights of set-off, banker's lien, counterclaim or
similar rights with respect to such participation as fully as if such Lender
were a direct holder of Loans or other amounts (as the case may be) owing to
such Lender in the amount of such participation.
(d) Rights of Lenders; Bankruptcy. Nothing contained herein shall require
any Lender to exercise any such right or shall affect the right of any Lender to
exercise, and retain the benefits of exercising, any such right with respect to
any other indebtedness or obligation of Borrower. If, under any applicable
bankruptcy, insolvency or other similar law, any Lender receives a secured claim
in lieu of a set-off to which this Section 2.8(7) applies, such Lender shall, to
the extent practicable, exercise its rights in respect of such secured claim in
a manner consistent with the rights of the Lenders entitled under this Section
2.8(7) to share in the benefits of any recovery on such secured claim.
Section 2.9 Yield Protection; Etc.
(1) Additional Costs.
(a) Costs of Making or Maintaining LIBOR-based Loans. Borrower shall pay
directly to each Lender from time to time such amounts as such Lender may
determine to be necessary to compensate such Lender for any costs that such
Lender determines are attributable to its making or maintaining of any
LIBOR-based Loans or its obligation to make any LIBOR-based Loans hereunder, or
any reduction in any amount receivable by such Lender hereunder in respect of
any of such Loans or such obligation (such increases in costs and reductions in
amounts receivable being herein called "Additional Costs"), resulting from any
Regulatory Change that:
(i) shall subject any Lender (or its Applicable Lending Office for
any of such Loans) to any tax, duty or other charge in respect of
such Loans or its Note or changes the basis of taxation of any
amounts payable to such Lender under this Agreement or its Note
in respect of any of such Loans (excluding changes in the rate of
tax on the overall net income of such Lender or of such
Applicable Lending Office by the jurisdiction in which such
Lender has its principal office or such Applicable Lending
Office); or
42
(ii) imposes or modifies any reserve, special deposit or similar
requirements (other than the Reserve Requirement used in the
determination of the Adjusted LIBOR Rate for any Interest Period
for such Loan) relating to any extensions of credit or other
assets of, or any deposits with or other liabilities of, such
Lender (including, without limitation, any of such Loans or any
deposits referred to in the definition of "LIBOR Rate"), or any
commitment of such Lender (including, without limitation, the
Commitment of such Lender hereunder); or
(iii) imposes any other condition affecting this Agreement or its Note
(or any of such extensions of credit or liabilities) or its
Commitment.
If any Lender requests compensation from Borrower under this paragraph (a),
Borrower may, by notice to such Lender (with a copy to Administrative Agent),
suspend the obligation of such Lender thereafter to make or Continue LIBOR-based
Loans, or to Convert Loans into LIBOR-based Loans, until the Regulatory Change
giving rise to such request ceases to be in effect (in which case the provisions
of Section 2.9(4) shall be applicable), provided that such suspension shall not
affect the right of such Lender to receive the compensation so requested.
(b) Costs Attributable to Regulatory Change or Risk-Based Capital
Guidelines. Without limiting the effect of the foregoing provisions of this
Section 2.9(1) (but without duplication), Borrower shall pay directly to each
Lender from time to time on request such amounts as such Lender may determine to
be necessary to compensate such Lender (or, without duplication, the bank
holding company of which such Lender is a subsidiary) for any costs that it
determines are attributable to the maintenance by such Lender (or any Applicable
Lending Office or such bank holding company), pursuant to any law or regulation
or any interpretation, directive or request (whether or not having the force of
law and whether or not failure to comply therewith would be unlawful) of any
court or governmental or monetary authority (i) following any Regulatory Change
or (ii) implementing any risk based capital guideline or other requirement
(whether or not having the force of law and whether or not the failure to comply
therewith would be unlawful) hereafter issued by any government or governmental
or supervisory authority implementing at the national level the Basle Accord, of
capital in respect of its Commitment or Loans (such compensation to include,
without limitation, an amount equal to any reduction of the rate of return on
assets or equity of such Lender (or any Applicable Lending Office or such bank
holding company) to a level below that which such Lender (or any Applicable
Lending Office or such bank holding company) could have achieved but for such
law, regulation, interpretation, directive or request.
(c) Notification and Certification. Each Lender shall notify Borrower of
any event occurring after the date hereof entitling such Lender to compensation
under paragraph (a) or (b) of this Section 2.9(1) as promptly as practicable,
but in any event within sixty (60) days, after such Lender obtains actual
knowledge thereof; provided that (i) if any Lender fails to give such notice
within sixty (60) days after it obtains actual knowledge of such an event, such
Lender shall, with respect to compensation payable pursuant to this Section
2.9(1) in respect of any costs resulting from such event, only be entitled to
payment under this Section 2.9(1) for costs incurred from and after the date
forty-five (45) days prior to the date that such Lender does give such notice
and (ii) each Lender will designate a different Applicable Lending Office for
the Loans of such Lender affected by such event if such designation will avoid
43
the need for, or reduce the amount of, such compensation and will not, in the
sole opinion of such Lender, be disadvantageous to such Lender, except that such
Lender shall have no obligation to designate an Applicable Lending Office
located in the United States of America. Each Lender will furnish to Borrower a
certificate setting forth the basis and amount of each request by such Lender
for compensation under paragraph (a) or (b) of this Section 2.9(1).
Determinations and allocations by any Lender for purposes of this Section 2.9(1)
of the effect of any Regulatory Change pursuant to paragraph (a) of this Section
2.9(1), or of the effect of capital maintained pursuant to paragraph (b) of this
Section 2.9(1), on its costs or rate of return of maintaining Loans or its
obligation to make Loans, or on amounts receivable by it in respect of Loans,
and of the amounts required to compensate such Lender under this Section 2.9(1),
shall be conclusive, provided that such determinations and allocations are made
on a reasonable basis.
(2) Limitation on Types of Loans. Anything herein to the contrary
notwithstanding, if, on or prior to the determination of the LIBOR Rate for
any Interest Period for any LIBOR-based Loan:
(a) Administrative Agent in good faith determines, which determination
shall be conclusive, that quotations of interest rates for the relevant deposits
referred to in the definition of LIBOR Rate are not being provided in the
relevant amounts or for the relevant maturities for purposes of determining
rates of interest for LIBOR-based Loans as provided herein; or
(b) the Majority Lenders determine, which determination shall be
conclusive, and notify Administrative Agent that the relevant rates of interest
referred to in the definition of LIBOR Rate upon the basis of which the rate of
interest for LIBOR-based Loans for such Interest Period is to be determined are
not likely adequately to cover the cost to such Lenders of making or maintaining
LIBOR-based Loans for such Interest Period; then Administrative Agent shall give
Borrower and each Lender prompt notice thereof and, so long as such condition
remains in effect, the Lenders shall be under no obligation to make additional
LIBOR-based Loans, to Continue LIBOR-based Loans or to Convert Loans of any
other Type into LIBOR-based Loans, and Borrower shall, on the last day(s) of the
then current Interest Period(s) for the outstanding LIBOR-based Loans, either
prepay such Loans or such Loans shall be automatically Converted into Base Rate
Loans.
(3) Illegality. Notwithstanding any other provision of this Agreement,
in the event that it becomes unlawful for any Lender or its Applicable
Lending Office to honor its obligation to make or maintain LIBOR-based
Loans hereunder (and, in the sole opinion of such Lender, the designation
of a different Applicable Lending Office would either not avoid such
unlawfulness or would be disadvantageous to such Lender), then such Lender
shall promptly notify Borrower thereof (with a copy to Administrative
Agent) and such Lender's obligation to make or Continue, or to Convert
Loans of any other Type into, LIBOR-based Loans shall be suspended until
such time as such Lender may again make and maintain LIBOR-based Loans (in
which case the provisions of Section 2.9(4) shall be applicable).
44
(4) Treatment of Affected Loans. If the obligation of any Lender to
make LIBOR-based Loans or to Continue, or to Convert Base Rate Loans into,
LIBOR-based Loans shall be suspended pursuant to Section 2.9(1) or 2.9(3),
such Lender's Loans shall be automatically Converted into Base Rate Loans
on the last day(s) of the then current Interest Period(s) for Loans (or, in
the case of a Conversion resulting from a circumstance described in Section
2.9(3), on such earlier date as such Lender may specify to Borrower with a
copy to Administrative Agent) and, unless and until such Lender gives
notice as provided below that the circumstances specified in Section 2.9(1)
or 2.9(3) that gave rise to such Conversion no longer exist:
(a) to the extent that such Lender's Loans have been so Converted, all
payments and prepayments of principal that would otherwise be applied to such
Lender's Loans shall be applied instead to its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by such Lender as
LIBOR-based Loans shall be made or Continued instead as Base Rate Loans, and all
Loans of such Lender that would otherwise be Converted into LIBOR-based Loans
shall remain as Base Rate Loans.
If such Lender gives notice to Borrower with a copy to Administrative Agent that
the circumstances specified in Section 2.9(1) or 2.9(3) that gave rise to the
Conversion of such Lender's Loans pursuant to this Section 2.9(4) no longer
exist (which such Lender agrees to do promptly upon such circumstances ceasing
to exist) at a time when LIBOR-based Loans made by other Lenders are
outstanding, such Lender's Base Rate Loans shall be automatically Converted, on
the first day(s) of the next succeeding Interest Period(s) for such outstanding
LIBOR-based Loans, to the extent necessary so that, after giving effect thereto,
all Base Rate Loans and LIBOR-based Loans are allocated among the Lenders
ratably (as to principal amounts, Types and Interest Periods) in accordance with
their respective Commitments.
(5) Compensation. Borrower shall pay to Administrative Agent for
account of each Lender, upon the request of such Lender through
Administrative Agent, such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost or
expense that such Lender determines is attributable to:
(a) any payment, prepayment or Conversion of a LIBOR-based Loan made by
such Lender for any reason (including, without limitation, the acceleration of
the Loans pursuant to Administrative Agent's or the Lenders' rights referred to
in Article 11) on a date other than the last day of the Interest Period for such
Loan; or
(b) any failure by Borrower for any reason to borrow a LIBOR-based Loan
from such Lender on the date for such borrowing specified in the relevant notice
of borrowing given to Administrative Agent in accordance with the terms of this
Agreement.
Without limiting the effect of the preceding sentence, such compensation shall
include an amount equal to the excess, if any, of (i) the amount of interest
that otherwise would have accrued on the principal amount so paid, prepaid,
45
Converted or not borrowed for the period from the date of such payment,
prepayment, Conversion or failure to borrow to the last day of the then current
Interest Period for such Loan (or, in the case of a failure to borrow, the
Interest Period for such Loan that would have commenced on the date specified
for such borrowing) at the applicable rate of interest for such Loan provided
for herein over (ii) the amount of interest that otherwise would have accrued on
such principal amount at a rate per annum equal to the interest component of the
amount such Lender would have bid in the London interbank market for Dollar
deposits of leading banks in amounts comparable to such principal amount and
with maturities comparable to such period (as reasonably determined by such
Lender), or if such Lender shall cease to make such bids, the equivalent rate,
as reasonably determined by such Lender, derived from Page 3750 of the Dow ▇▇▇▇▇
Markets (Telerate) Service or other publicly available source as described in
the definition of LIBOR Rate.
(6) U.S. Taxes.
(a) Gross-up for Deduction or Withholding of U.S. Taxes. Borrower agrees to
pay to each Lender that is not a U.S. Person such additional amounts as are
necessary in order that the net payment of any amount due to such non-U.S.
Person hereunder after deduction for or withholding in respect of any U.S. Taxes
imposed with respect to such payment (or in lieu thereof, payment of such U.S.
Taxes by such non-U.S. Person), will not be less than the amount stated herein
to be then due and payable, provided that the foregoing obligation to pay such
additional amounts shall not apply:
(i) to any payment to any Lender hereunder unless such Lender is, on
the date hereof (or on the date it becomes a Lender hereunder as
provided in Section 12.24(2)) and on the date of any change in
the Applicable Lending Office of such Lender, either entitled to
submit a Form W-8BEN (relating to such Lender and entitling it to
a complete exemption from withholding on all interest to be
received by it hereunder in respect of the Loans) or Form W-8ECI
(relating to all interest to be received by such Lender hereunder
in respect of the Loans), or
(ii) to any U.S. Taxes imposed solely by reason of the failure by such
non-U.S. Person to comply with applicable certification,
information, documentation or other reporting requirements
concerning the nationality, residence, identity or connections
with the United States of America of such non U.S. Person if such
compliance is required by statute or regulation of the United
States of America as a precondition to relief or exemption from
such U.S. Taxes.
For the purposes hereof, (A) "U.S. Person" means a citizen, national or resident
of the United States of America, a corporation, limited liability company,
partnership or other entity created or organized in or under any laws of the
United States of America or any state thereof, or any estate or trust that is
subject to Federal income taxation regardless of the source of its income, (B)
"U.S. Taxes" means any present or future tax, assessment or other charge or levy
46
imposed by or on behalf of the United States of America or any taxing authority
thereof or therein, (C) "Form W-8BEN" means Form W-8BEN of the Department of the
Treasury of the United States of America and (D) "Form W-8ECI" means Form W-8ECI
of the Department of the Treasury of the United States of America. Each of the
Forms referred to in the foregoing clauses (C) and (D) shall include such
successor and related forms as may from time to time be adopted by the relevant
taxing authorities of the United States of America to document a claim to which
such Form relates.
(b) Evidence of Deduction, Etc. Within thirty (30) days after paying any
amount to Administrative Agent or any Lender from which it is required by law to
make any deduction or withholding, and within thirty (30) days after it is
required by law to remit such deduction or withholding to any relevant taxing or
other authority, Borrower shall deliver to Administrative Agent for delivery to
such non-U.S. Person evidence satisfactory to such Person of such deduction,
withholding or payment (as the case may be).
(7) Replacement of Lenders. If any Lender requests compensation
pursuant to Section 2.9(1) or 2.9(6), or any Lender's obligation to
Continue Loans of any Type, or to Convert Loans of any Type into the other
Type of Loan, shall be suspended pursuant to Section 2.9(2) or 2.9(3) (any
such Lender requesting such compensation, or whose obligations are so
suspended, being herein called a "Requesting Lender"), Borrower, upon three
(3) Business Days notice, may require that such Requesting Lender transfer
all of its right, title and interest under this Agreement and such
Requesting Lender's Note to any bank or other financial institution (a
"Proposed Lender") identified by Borrower that is reasonably satisfactory
to Administrative Agent (i) if such Proposed Lender agrees to assume all of
the obligations of such Requesting Lender hereunder, and to purchase all of
such Requesting Lender's Loans hereunder for consideration equal to the
aggregate outstanding principal amount of such Requesting Lender's Loans,
together with interest thereon to the date of such purchase (to the extent
not paid by Borrower), and satisfactory arrangements are made for payment
to such Requesting Lender of all other amounts accrued and payable
hereunder to such Requesting Lender as of the date of such transfer
(including any fees accrued hereunder and any amounts that would be payable
under Section 2.9(5) as if all of such Requesting Lender's Loans were being
prepaid in full on such date) and (ii) if such Requesting Lender has
requested compensation pursuant to Section 2.9(1) or 2.9(6), such Proposed
Lender's aggregate requested compensation, if any, pursuant to Section
2.9(1) or 2.9(6) with respect to such Requesting Lender's Loans is lower
than that of the Requesting Lender. Subject to the provisions of Section
12.24(2), such Proposed Lender shall be a "Lender" for all purposes
hereunder. Without prejudice to the survival of any other agreement of
Borrower hereunder, the agreements of Borrower contained in Sections
2.9(1), 2.9(6) and 12.5 (without duplication of any payments made to such
Requesting Lender by Borrower or the Proposed Lender) shall survive for the
benefit of such Requesting Lender under this Section 2.9(7) with respect to
the time prior to such replacement.
47
Section 2.10 Agency Fee. Until payment in full of all obligations under
this Agreement and the other Loan Documents, Borrower shall pay to
Administrative Agent, for its sole account, the Agency Fee in accordance with
the Fee Letter.
ARTICLE 3
INSURANCE, CONDEMNATION, AND IMPOUNDS
Section 3.1 Insurance.
(1) Borrower shall obtain and maintain, or cause to be maintained,
Policies for Borrower and the Project providing at least the following
coverages:
(a) comprehensive all risk insurance, including but not limited to
windstorm, on the improvements and the personal property, in each case (A) in an
amount equal to 100% of the "Full Replacement Cost," which for purposes of this
Agreement shall mean actual replacement value (exclusive of costs of
excavations, foundations, underground utilities and footings) with a waiver of
depreciation, (B) containing an agreed amount endorsement with respect to the
improvements and personal property waiving all coinsurance provisions; (C)
providing for no deductible in excess of TWENTY FIVE THOUSAND AND 00/100 DOLLARS
($25,000), with the exception of wind, earthquake and flood which may carry a
deductible no greater than 5% of the total insurable value of the Project; and
(D) providing law and ordinance coverage, including loss to the undamaged
portion of the building, demolition and debris removal costs and increased cost
of construction if any of the Improvements or the use of the Project shall at
any time constitute legal non-conforming structures or uses in amounts as
required by Administrative Agent. In the event that coverage is no longer
carried on a blanket basis exceeding the Project's Full Replacement Cost, then
the Full Replacement Cost shall be redetermined from time to time (but not more
frequently than once in any twelve (12) calendar months) at the request of
Administrative Agent by an appraiser or contractor designated and paid by
Borrower and approved by Administrative Agent, or by an engineer or appraiser in
the regular employ of the insurer. After the first appraisal, additional
appraisals may be based on construction cost indices customarily employed in the
trade. No omission on the part of Administrative Agent to request any such
ascertainment shall relieve Borrower of any of its obligations under this
Subsection;
(b) commercial general liability insurance against claims for personal
injury, bodily injury, death or property damage occurring upon, in or about the
Project, such insurance (A) to be on an "occurrence" form with a combined single
limit of not less than ONE MILLION AND 00/100 DOLLARS ($1,000,000) per
occurrence and TWO MILLION AND 00/100 DOLLARS ($2,000,000) general aggregate
(with a "per location" aggregate if on a blanket policy); (B) to continue at not
less than the aforesaid limit until required to be changed by Administrative
Agent in writing by reason of changed economic conditions making such protection
inadequate and to be without any deductible or self-insured retention unless
otherwise agreed to by Administrative Agent in its sole discretion; and (C) to
cover at least the following hazards: (1) premises and operations; (2) products
and completed operations on an "if any" basis; (3) independent contractors; (4)
blanket contractual liability for all "insured contracts" as defined in the
standard general liability policy; and (5) contractual liability covering the
indemnities contained in Sections 5.4, 11.3 and 14.5 hereof, to the extent the
same is available and falls within the definition of "insured contracts",
subject to the normal exclusions and restrictions of a standard Commercial
General Liability policy;
48
(c) business income/loss of rents insurance (A) with loss payable to
Administrative Agent (for the benefit of the Lenders); (B) covering all risks
required to be covered by the insurance provided for in Section 3.1(1)(a), (d),
(f), (g) and (h) hereof; (C) in an amount equal to (or, in the case of blanket
insurance, exceeding) 100% of the projected gross income from the Project (on an
actual loss sustained basis) for a period continuing until the Restoration of
the Project is completed; the amount of such business income/loss of rents
insurance shall be determined prior to the date hereof and at least once each
year thereafter based on Borrower's reasonable estimate of the gross income from
the Project for the succeeding twenty-four (24) month period and (D) containing
an extended period of indemnity endorsement which provides that after the
physical loss to the improvements and the personal property has been repaired,
the continued loss of income will be insured until such income either returns to
the same level it was at prior to the loss, or the expiration of twelve (12)
months from the date that the Project is repaired or replaced and operations are
resumed, whichever first occurs, and notwithstanding that the policy may expire
prior to the end of such period. All insurance proceeds payable to
Administrative Agent (for the benefit of the Lenders) pursuant to this Section
3.1(1)(c) shall be held by Administrative Agent and shall be applied to the
obligations secured hereunder from time to time due and payable hereunder and
under the Notes and this Agreement; provided, however, that nothing herein
contained shall be deemed to relieve Borrower of its obligations to pay the
obligations secured hereunder on the respective dates of payment provided for in
the Notes and this Agreement except to the extent such amounts are actually paid
out of the proceeds of such business income/loss of rents insurance;
(d) at all times during which structural construction, repairs or
alterations are being made with respect to the Improvements and only if the
property and liability coverage forms do not otherwise apply (A) owner's
contingent or protective liability insurance covering claims not covered by or
under the terms or provisions of the insurance provided for in Section
3.1(1)(b), (j) and (k); and (B) the insurance provided for in Section 3.1(1)(a)
shall be written in a so called builder's risk completed value form or
equivalent coverage, including coverage for 100% of the total costs of
construction (1) on a non reporting basis, (2) against Terrorism and all risks
insured against pursuant to Section 3.1(1)(a), (c), (f), (g) and (h), (3) shall
include permission to occupy the Project, and (4) shall contain an agreed amount
endorsement waiving coinsurance provisions;
(e) workers' compensation and employers liability in the amount of ONE
MILLION AND 00/100 DOLLARS ($1,000,000), subject to the statutory limits of the
state in which the Project is located (if applicable);
(f) comprehensive boiler and machinery insurance, if applicable, in an
amount equal to one hundred percent (100%) of the replacement costs of the
equipment and the area surrounding the equipment or as shall be reasonably
required by Administrative Agent on terms consistent with the commercial
property insurance policy required under Section 3.1(1)(a);
49
(g) if any portion of the improvements is at any time located in an area
identified by the Secretary of Housing and Urban Development or any successor
thereto as an area having special flood hazards pursuant to the National Flood
Insurance Act of 1968, the Flood Disaster Protection Act of 1973 or the National
Flood Insurance Reform Act of 1994, as each may be amended, or any successor law
(the "Flood Insurance Acts"), flood hazard insurance of the following types and
in the following amounts (A) coverage under Policies issued pursuant to the
Flood Insurance Acts (the "Flood Insurance Policies") in an amount equal to the
maximum limit of coverage available for the Project under the Flood Insurance
Acts plus (B) coverage under supplemental private Policies in an amount, which
when added to the coverage provided under the Flood Act Policies with respect to
the Project, is not less than the original principal balance of the Notes or
such lower amount as Administrative Agent may require at its sole discretion;
(h) if required by Administrative Agent, earthquake insurance in amounts
and in form and substance reasonably satisfactory to Administrative Agent,
provided that the insurance pursuant to this Section 3.1(1)(h) hereof shall be
on terms consistent with the all risk insurance policy required under Section
3.1(1)(a) hereof, with the exception of the deductible which shall be no greater
than 5% of the total insurable value of the Project;
(i) crime coverage in an amount not less than Two Million and No/100
Dollars to ($2,000,000) protect against employee dishonesty and related
incidents, with Administrative Agent named as loss payee (if applicable);
(j) automobile liability coverage for all owned and non owned vehicles,
including rented and leased vehicles containing minimum limits per occurrence,
including umbrella coverage, of One Million and No/100 Dollars ($1,000,000.00)
(if applicable);
(k) umbrella/excess liability insurance in an amount not less than EIGHTY
MILLION AND 00/100 DOLLARS ($80,000,000) per occurrence on terms consistent with
the policies required under Section 3.1(1)(b) and (j) hereof;
(l) so-called "dramshop" or other liability insurance required in
connection with the sale or distribution of alcoholic beverages in amounts as
required by Lender (if applicable);
(m) such other insurance and in such amounts as Administrative Agent from
time to time may request, and as such other insurance becomes available in the
insurance market, against such other insurable hazards which at the time are
required to be insured against by prudent lenders for property similar to the
Project located in or around the region in which the Project is located.
In addition to, and without limiting the foregoing requirements, Borrower shall
maintain all insurance policies required under the Ground Lease.
(2) All insurance provided for in Section 3.1(1) hereof shall be
obtained under valid and enforceable policies (the "Policies" or in the
singular, the "Policy"), in such forms and, from time to time after the
date hereof, in such amounts as may be reasonably satisfactory to
Administrative Agent, issued by financially sound and responsible insurance
companies permitted to do business in the state in which the Project is
located and reasonably approved by Administrative Agent. The Policies must
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be issued by either (A) an insurance company having, at all times relevant
hereto, a claims paying ability/financial strength rating of "A" (or its
equivalent) or better by at least two (2) Rating Agencies (one of which
must be S&P), or (B) a syndicate of insurers through which (1) at least
sixty percent (60%) of claims coverage shall be with one or more carriers
having, at all times relevant hereto, a claims paying ability/financial
strength rating of "A" (or its equivalent) or better by at least two (2)
Rating Agencies (one of which must be S&P), and (2) the remainder (not to
exceed forty percent (40%)) of claims coverage shall be with one or more
carriers having a claims paying ability/financial strength rating of "BBB"
(or its equivalent) or better by at least two (2) Rating Agencies (one of
which must be S&P) (each such insurer satisfying the requirements of this
Section 3.1(2) shall be referred to below as a "Qualified Insurer"). No
Policy shall contain an exclusion from coverage under such Policy for loss
or damage incurred as a result of an act of terrorism or similar acts of
sabotage, provided that Borrower may obtain separate Terrorism Insurance
coverage subject to and in accordance with the terms of this Section
3.1(2). Borrower will be required to maintain insurance against terrorism,
terrorist acts or similar acts of sabotage ("Terrorism Insurance") with
coverage amounts of not less than an amount equal to the full replacement
cost of the improvements and the personal property plus business income
(the "Terrorism Insurance Required Amount").
(3) All Policies provided for or contemplated by Section 3.1(1)
hereof, except for the Policy referenced in Section 3.1(1)(e), shall name
Borrower as the Named Insured and shall name Administrative Agent (for the
benefit of the Lenders) as additional insureds, as their respective
interests may appear, and in the case of, but not limited to, property,
terrorism, builder's risk (if applicable), boiler and machinery, earthquake
and flood insurance, shall name Administrative Agent as Loss Payee and
shall contain a so-called New York standard non-contributing mortgagee
clause or its equivalent in favor of Administrative Agent providing that
the loss thereunder shall be payable to Administrative Agent in accordance
with the terms of this Agreement and shall otherwise be in form, substance
and content reasonably acceptable to Administrative Agent.
(4) All Policies provided for in Section 3.1(1) hereof shall contain
clauses or endorsements to the effect that:
(i) no act or negligence of Borrower, or anyone acting for Borrower,
or failure to comply with the provisions of any Policy which
might otherwise result in a forfeiture of the insurance or any
part thereof, shall in any way affect the validity or
enforceability of the insurance insofar as Administrative Agent
is concerned;
(ii) the Policy shall not be materially changed (other than to
increase the coverage provided thereby) or cancelled without at
least 30 days' written notice to Administrative Agent and any
other party named therein as an insured;
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(iii) each Policy shall provide that the issuers thereof shall give
written notice to Administrative Agent if the Policy has not been
renewed thirty (30) days prior to its expiration; and
(iv) Administrative Agent shall not be liable for any insurance
premiums thereon or subject to any assessments thereunder.
(5) Not less than thirty (30) days prior to the expiration dates of
the Policies theretofore furnished to Administrative Agent, certificates of
insurance evidencing replacement or renewal Policies accompanied by
evidence reasonably satisfactory to Administrative Agent of payment of the
premiums due thereunder (the "Insurance Premiums") shall be delivered by
Borrower to Administrative Agent. If at any time Administrative Agent is
not in receipt of written evidence that all insurance required hereunder is
in full force and effect, Administrative Agent shall have the right,
without notice to Borrower to take such action as Administrative Agent
deems necessary to protect its interest in the Project, including, without
limitation, the obtaining of such insurance coverage as Administrative
Agent in its reasonable discretion deems appropriate, and all expenses
incurred by Administrative Agent in connection with such action or in
obtaining such insurance and keeping it in effect shall be paid by Borrower
to Administrative Agent upon demand and until paid shall be secured by the
Mortgage and shall bear interest at the Default Rate.
(6) In the event of a foreclosure of any of the Mortgage, or other
transfer of title to the Project in extinguishment in whole or in part of
the Loans all right, title and interest of Borrower in and to the Policies
then in force and all proceeds payable thereunder shall thereupon vest in
the purchaser at such foreclosure or Administrative Agent for the benefit
of the Lenders or other transferee in the event of such other transfer of
title.
(7) Borrower shall not obtain (a) any umbrella or blanket liability or
casualty Policy unless, in each case, such Policy is approved in advance in
writing by Administrative Agent and Lenders' interest is included therein
as provided in this Agreement, or (b) separate insurance concurrent in form
or contributing in the event of loss with that required in Section 3.1(1)
to be furnished by, or which may be required to be furnished by, Borrower.
In the event Borrower obtains separate insurance or an umbrella or a
blanket policy, Borrower shall notify Administrative Agent of the same and
shall cause certified copies of each Policy to be delivered as required in
Section 3.1(5).
(8) Borrower shall give immediate written notice of any loss in excess
of $100,000 to the insurance carrier and to Administrative Agent. Borrower
hereby irrevocably authorizes and empowers Administrative Agent, as
attorney in fact for Borrower coupled with an interest, to make proof of
loss, to adjust and compromise any claim under insurance policies, to
appear in and prosecute any action arising from such insurance policies, to
collect and receive insurance proceeds, and to deduct therefrom
Administrative Agent's expenses incurred in the collection of such
proceeds. Nothing contained in this Section 3.1(8), however, shall require
Administrative Agent or any Lender to incur any expense or take any action
hereunder.
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(9) Administrative Agent hereby acknowledges that, based upon the
evidence of insurance provided to Administrative Agent by Borrower prior to
the date hereof, to the best of Administrative Agent's knowledge, Borrower
is in compliance with the requirements of this Section 3.1 as of the
Closing Date.
Section 3.2 Use and Application of Net Proceeds.
The following provisions shall apply in connection with the Restoration of
the Project:
(1) If the Net Proceeds shall be less than the Threshold Amount and
the costs of completing the Restoration shall be less than Threshold
Amount, the Net Proceeds will be disbursed by Administrative Agent to
Borrower upon receipt, provided that (a) no Potential Default, Event of
Default and/or Low DSCR Trigger Event has occurred and is continuing and
(b) Borrower delivers to Administrative Agent a written undertaking to
expeditiously commence and to satisfactorily complete with due diligence
the Restoration in accordance with the terms of this Agreement.
(2) If the Net Proceeds are equal to or greater than Threshold Amount
or the costs of completing the Restoration is equal to or greater than
Threshold Amount Administrative Agent shall make the Net Proceeds available
for the Restoration in accordance with the provisions of this Section 3.2.
The term "Net Proceeds" shall mean: (i) the net amount of all insurance
proceeds received by Administrative Agent pursuant to Section 3.1(1)(a),
(d), (f), (g) and (h) as a result of such damage or destruction, after
deduction of its reasonable costs and expenses (including, but not limited
to, reasonable counsel fees), if any, in collecting same ("Insurance
Proceeds"), or (ii) the net amount of the Award, after deduction of its
reasonable costs and expenses (including, but not limited to, reasonable
counsel fees), if any, in collecting same ("Condemnation Proceeds"),
whichever the case may be.
(a) The Net Proceeds shall be made available to Borrower for Restoration
provided that each of the following conditions are met:
(i) no Potential Default or Event of Default shall have occurred and
be continuing;
(ii) (1) in the event the Net Proceeds are Insurance Proceeds, less
than fifty percent (50%) of the gross leasable area of the
improvements on the Project has been damaged, destroyed or
rendered unusable as a result of such Casualty or (2) in the
event the Net Proceeds are Condemnation Proceeds, less than ten
percent (10%) of the land constituting the Project is taken, and
such land is located along the perimeter or periphery of the
Project;
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(iii) Leases demising in the aggregate a percentage amount equal to or
greater than sixty percent (60%) of the total rentable space in
the Project which has been demised under executed and delivered
leases in effect as of the date of the occurrence of such fire or
other casualty or taking, whichever the case may be, shall remain
in full force and effect during and after the completion of the
Restoration, notwithstanding the occurrence of any such Casualty
or Condemnation, whichever the case may be;
(iv) Borrower shall commence the Restoration as soon as reasonably
practicable and shall diligently pursue the same to satisfactory
completion in compliance with all applicable laws, including,
without limitation, all applicable Environmental Laws;
(v) Administrative Agent shall be reasonably satisfied that any
operating deficits, including all scheduled payments of principal
and interest under the Notes, which will be incurred with respect
to the Project as a result of the occurrence of any such Casualty
or Condemnation, whichever the case may be, will be covered out
of (1) the Net Proceeds, (2) the insurance coverage referred to
in Section 3.1(1)(c), if applicable, and (3) by other funds of
Borrower;
(vi) Administrative Agent shall be reasonably satisfied that the
Restoration will be substantially completed in accordance with
applicable laws so that the tenants can legally and physically
occupy their space on or before the earliest to occur of (1)
three (3) months prior to the Maturity Date, (2) twelve (12)
months after the occurrence of such Casualty or Condemnation, or
(3) such time as may be required under applicable law, in order
to repair and restore the Project to the condition it was in
immediately prior to such Casualty or Condemnation or (4) the
expiration of the insurance coverage referred to in Section
3.1(1)(c);
(vii) the Project and the use thereof after the Restoration will be in
compliance with and permitted under all applicable laws;
(viii) Administrative Agent shall be satisfied that the Debt Service
Coverage Ratio after the completion of the Restoration shall be
equal to or greater than the lesser of 1.45 to 1.00 or the Debt
Service Coverage Ratio immediately prior to the Casualty or
Condemnation, as applicable;
(ix) such Casualty or Condemnation, as applicable, does not result in
the total and permanent (following the Restoration) loss of
access to the Project or the related improvements;
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(x) Borrower shall deliver, or cause to be delivered, to
Administrative Agent a signed detailed budget approved in writing
by Borrower's architect or engineer stating the entire cost of
completing the Restoration, which budget shall be reasonably
acceptable to Administrative Agent;
(xi) the Net Proceeds together with any cash or letter of credit
deposited by Borrower with Administrative Agent are sufficient in
Administrative Agent's reasonable discretion to cover the cost of
the Restoration; and
(xii) the Management Agreement in effect as of the date of the
occurrence of such Casualty or Condemnation, whichever the case
may be, shall (1) remain in full force and effect during the
Restoration and shall not otherwise terminate as a result of the
Casualty or Condemnation or the Restoration or (2) if terminated,
shall have been replaced with a replacement Management Agreement
with a replacement Manager approved by Administrative Agent,
prior to the opening or reopening of the Project or any portion
thereof for business with the public.
(b) The Net Proceeds shall be held by Administrative Agent in an interest
bearing account (with interest to be available to Borrower to the same extent as
Net Proceeds are made available pursuant to the terms of this Section 3.2) and,
until disbursed in accordance with the provisions of this Section 3.2, shall
constitute additional security for the Loans and other obligations under the
Loan Documents. The Net Proceeds shall be disbursed by Administrative Agent to,
or as directed by, Borrower from time to time during the course of the
Restoration, upon receipt of evidence reasonably satisfactory to Administrative
Agent that (A) all materials installed and work and labor performed (except to
the extent that they are to be paid for out of the requested disbursement) in
connection with the Restoration have been paid for in full (less Casualty
Retainage), (B) all conditions precedent set forth in Section 3.2(2)(a) have
been satisfied, and (C) there exist no notices of pendency, stop orders,
mechanic's or materialman's liens or notices of intention to file same, or any
other Liens or encumbrances of any nature whatsoever on the Project which have
not either been fully bonded to the reasonable satisfaction of Administrative
Agent and discharged of record or in the alternative fully insured to the
reasonable satisfaction of Administrative Agent by the title company issuing the
title insurance policy.
(c) All plans and specifications required in connection with the
Restoration, the cost of which is greater than the Threshold Amount, shall be
subject to prior review and acceptance (which shall not be unreasonably
withheld, conditioned or delayed) in all material respects by Administrative
Agent and by an independent consulting engineer (the "Casualty Consultant")
selected by Administrative Agent and approved by Borrower, such approval not to
be unreasonably withheld, conditioned or delayed. Administrative Agent shall
have the use of the plans and specifications and all permits, licenses and
approvals required or obtained in connection with the Restoration. The identity
of the contractors, subcontractors and materialmen engaged in the Restoration
the cost of which is greater than the Threshold Amount, as well as the contracts
55
under which they have been engaged, shall be subject to prior review and
acceptance by Administrative Agent and the Casualty Consultant, such acceptance
not to be unreasonably withheld. All costs and expenses incurred by
Administrative Agent in connection with making the Net Proceeds available for
the Restoration including, without limitation, reasonable counsel fees and
disbursements and the Casualty Consultant's fees, shall be paid by Borrower.
(d) In no event shall Administrative Agent be obligated to make
disbursements of the Net Proceeds in excess of an amount equal to the costs
actually incurred from time to time for work in place as part of the
Restoration, as certified by the Casualty Consultant, minus the Casualty
Retainage. The term "Casualty Retainage" shall mean an amount equal to (i) ten
percent (10%) of the first fifty percent (50%) of the costs actually incurred
for work in place as part of the Restoration, and (ii) five percent (5%) of the
remainder of the costs actually incurred for work in place as part of the
Restoration, in each case as certified by the Restoration Consultant, until the
Restoration has been completed. The Casualty Retainage shall in no event, and
notwithstanding anything to the contrary set forth above in this Section 3.2(2),
be less than the amount actually held back by Borrower from contractors,
subcontractors and materialmen engaged in the Restoration (but shall not be
duplicative of such amounts actually held back by Borrower). The Casualty
Retainage shall not be released until the Casualty Consultant certifies to
Administrative Agent that the Restoration has been completed (subject to
punchlist items and non-material items of work) in accordance with the
provisions of this Section 3.2 and that all approvals necessary for the
re-occupancy and use of the Project have been obtained from all appropriate
Governmental Authorities, and Administrative Agent receives evidence reasonably
satisfactory to Administrative Agent that the costs of the Restoration have been
paid in full or will be paid in full out of the Casualty Retainage; provided,
however, that Administrative Agent will release the portion of the Casualty
Retainage being held with respect to any contractor, subcontractor or
materialman engaged in the Restoration as of the date upon which the Casualty
Consultant certifies to Administrative Agent that the contractor, subcontractor
or materialman has satisfactorily completed all work and has supplied all
materials in accordance with the provisions of the contractor's, subcontractor's
or materialman's contract, the contractor, subcontractor or materialman delivers
the lien waivers and evidence of payment in full of all sums due to the
contractor, subcontractor or materialman as may be reasonably requested by
Administrative Agent or by the title company issuing the title insurance policy
for the Project, and receives an endorsement to such title insurance policy
insuring the continued priority of the Lien of the Mortgage and evidence of
payment of any premium payable for such endorsement. The release of any such
portion of the Casualty Retainage shall be approved by the surety company, if
any, which has issued a payment or performance bond with respect to the
contractor, subcontractor or materialman, if and to the extent such approval is
required by the terms of the applicable payment or performance bond.
(e) Administrative Agent shall not be obligated to make disbursements of
the Net Proceeds more frequently than once every calendar month.
(f) If at any time the Net Proceeds or the undisbursed balance thereof
shall not, in the opinion of Administrative Agent in consultation with the
Casualty Consultant, if any, be sufficient to pay in full the balance of the
costs which are estimated by the Casualty Consultant to be incurred in
connection with the completion of the Restoration, Borrower shall deposit the
deficiency (the "Net Proceeds Deficiency"), either in cash or a letter of
credit, with Administrative Agent before any further disbursement of the Net
Proceeds shall be made. The Net Proceeds Deficiency deposited with
56
Administrative Agent shall be held by Administrative Agent in the
Casualty/Taking Account in accordance with the Cash Management Agreement and
shall be disbursed for costs actually incurred in connection with the
Restoration on the same conditions applicable to the disbursement of the Net
Proceeds, and until so disbursed pursuant to Section 3.2 hereof shall constitute
additional security for the Loans and other obligations under the Loan
Documents.
(g) The excess, if any, of the Net Proceeds and the remaining balance, if
any, of the Net Proceeds Deficiency deposited with Administrative Agent after
the Casualty Consultant certifies to Administrative Agent that the Restoration
has been completed in accordance with the provisions of Section 3.2, hereof and
the receipt by Administrative Agent of evidence reasonably satisfactory to
Administrative Agent that all costs incurred in connection with the Restoration
have been paid in full, shall be remitted by Administrative Agent to Borrower,
provided no Event of Default shall have occurred and shall be continuing.
(3) All Net Proceeds not required (i) to be made available for the
Restoration or (ii) to be returned to Borrower as excess Net Proceeds
pursuant to Section 3.2(2)(g) hereof may be retained and applied by
Administrative Agent toward the payment of the Loans (without any
prepayment premium) whether or not then due and payable in the manner
provided in Section 2.4(6) (or, if an Event of Default has occurred and is
continuing, in such order, proportion and priority as Administrative Agent
may determine in its sole and absolute discretion) or, at the sole and
absolute discretion of Administrative Agent, the same may be paid, either
in whole or in part, to Borrower for such purposes as Administrative Agent
shall approve, in its sole and absolute discretion. If Administrative Agent
shall receive and retain Net Proceeds, the Lien of the Mortgage shall be
reduced only by the amount thereof received and retained by Administrative
Agent and actually applied by Administrative Agent in reduction of the
Loans.
Section 3.3 Casualty and Condemnation.
(a) If the Project shall be damaged or destroyed, in whole or in part, by
fire or other casualty (a "Casualty"), Borrower shall give prompt notice of such
damage to Administrative Agent and shall promptly commence and diligently
prosecute the completion of the Restoration of the Project as nearly as possible
to the condition the Project was in immediately prior to such Casualty, with
such alterations as may be reasonably approved by Administrative Agent and
otherwise in accordance with Section 3.2 hereof. Borrower shall pay all costs of
such Restoration whether or not such costs are covered by insurance (provided
that, if Net Proceeds are required to be made available to Borrower for
Restoration pursuant to the terms of Section 3.2 hereof, they are made available
to Borrower for Restoration). Administrative Agent may, but shall not be
obligated to, make proof of loss if not made promptly by Borrower.
(b) Borrower shall promptly give Administrative Agent notice of the actual
commencement (or threat in writing) of any proceeding for the Condemnation of
all or any part of the Project and shall deliver to Administrative Agent copies
of any and all papers served in connection with such proceedings (or received
relating to such threatened proceedings). Administrative Agent may participate
57
in any such proceedings, and Borrower shall, from time to time, deliver to
Administrative Agent all instruments reasonably requested by it to permit such
participation. Borrower shall, at its expense, diligently prosecute any such
proceedings, and shall consult with Administrative Agent, its attorneys and
experts, and cooperate with them in the carrying on or defense of any such
proceedings. Notwithstanding any taking by any public or quasi public authority
through Condemnation or otherwise (including, but not limited to, any transfer
made in lieu of or in anticipation of the exercise of such taking), Borrower
shall continue to pay the Loans at the time and in the manner provided for its
payment in the Notes and in this Agreement and the Loans shall not be reduced
until any Award shall have been actually received and applied by Administrative
Agent, after the deduction of expenses of collection, to the reduction or
discharge of the Loans. Administrative Agent and the Lenders shall not be
limited to the interest paid on the Award by the condemning authority but shall
be entitled to receive out of the Award interest at the rate or rates provided
herein or in the Notes. If the Project or any portion thereof is taken by a
condemning authority, Borrower shall, promptly commence and diligently prosecute
the Restoration of the Project and otherwise comply with the provisions of
Section 3.2 hereof. If the Project is sold, through foreclosure or otherwise,
prior to the receipt by Administrative Agent of the Award, Administrative Agent
shall have the right, whether or not a deficiency judgment on the Notes shall
have been sought, recovered or denied, to receive the Award, or a portion
thereof sufficient to pay the Loans.
ARTICLE 4
RESERVES; COLLATERAL LETTERS OF CREDIT
Section 4.1 Real Estate Tax and Insurance Reserve Fund.
(1) Deposits. Upon the commencement and during the continuance of a
Low DSCR Trigger Period, on each Payment Date, Borrower shall (except to
the extent such amounts have already been deposited in the Tax and
Insurance Reserve Account pursuant to Section 2.7(3)(i)) deposit with
Administrative Agent, for deposit in the Tax and Insurance Reserve Account,
(i) a monthly amount, as determined by Administrative Agent, which will be
sufficient to accumulate with Administrative Agent thirty (30) days prior
to each due date therefor sufficient funds to pay all real estate taxes
which Administrative Agent estimates will be payable during the next
ensuing twelve (12) months, and (ii) a monthly amount, as reasonably
determined by Administrative Agent, which will be sufficient to accumulate
in the Tax and Insurance Reserve Account thirty (30) days prior to the
expiration of the insurance policies which Administrative Agent estimates
will be payable for the renewal of the coverage afforded by the insurance
policies during the next ensuing twelve (12) months (said amounts in
clauses (i) and (ii) above, together with any amount already on deposit in
the Tax and Insurance Reserve Account as set forth in the first sentence of
this Section 4.1(1), being, collectively, the "Tax and Insurance Reserve
Fund"). If at any time Administrative Agent reasonably determines that the
Tax and Insurance Reserve Fund is not or will not be sufficient to pay real
estate taxes and insurance premiums by the dates set forth in clauses (i)
and (ii) above, Administrative Agent shall notify Borrower of such
determination and Borrower shall increase its monthly payments to
58
Administrative Agent by the amount that Administrative Agent estimates is
sufficient to make up the deficiency thirty (30) days prior to delinquency
of the real estate taxes and/or thirty (30) days prior to expiration of the
insurance policies, as the case may be.
(2) Disbursements. Borrower shall furnish Administrative Agent with
(i) bills for the charges for which such deposits are required and (ii) a
disbursement request (in a form reasonably satisfactory to Administrative
Agent), executed by an authorized officer of Borrower, at least thirty (30)
days prior to the date on which the charges become delinquent. Provided
that no Event of Default has occurred and is continuing, Administrative
Agent will direct the Depository Bank to apply the Tax and Insurance
Reserve Fund to payments of insurance premiums and real estate taxes
required to be made by Borrower pursuant to Sections 3.1 and 9.2,
respectively, and under the Mortgage but not, in any event, earlier than
ten (10) days prior to the due dates thereof and, in any event, only to the
extent sufficient funds are then available in the Tax and Insurance Reserve
Fund. In making any payment relating to the Tax and Insurance Reserve Fund,
the Depository Bank may do so according to any ▇▇▇▇, statement or estimate
procured from the appropriate public office (with respect to real estate
taxes) or insurer or agent (with respect to insurance premiums), without
inquiry into the accuracy of such ▇▇▇▇, statement or estimate or into the
validity of any tax, assessment, sale, forfeiture, tax lien or title or
claim thereof unless said ▇▇▇▇, statement or estimate is obviously
incorrect. If the amount of the Tax and Insurance Reserve Fund shall exceed
the amounts due for real estate taxes and insurance premiums pursuant to
Sections 3.1 and 9.2, respectively, Administrative Agent shall, in its sole
and absolute discretion, return any excess to Borrower or credit such
excess against future payments to be made to the Tax and Insurance Reserve
Fund. Provided that on the date that said real estate taxes are due and
payable, no Event of Default has occurred and is continuing and sufficient
funds are on deposit in the Tax and Insurance Reserve Fund to pay real
estate taxes, Borrower shall not be liable to pay and shall not be charged
with any late charges, interest and/or penalties imposed by or payable to
any Governmental Authority as a result of the Depository Bank's failure to
pay real estate taxes prior to the date that same become delinquent.
(3) Release. Provided no Event of Default has occurred and is
continuing, any funds held in the Tax and Insurance Reserve Fund shall be
released to Borrower upon the occurrence of a Low DSCR Release Event and,
in such event Borrower shall no longer be required to cause any amounts to
be deposited into the Tax and Insurance Reserve Account unless a Low DSCR
Trigger Event occurs with respect to any future calendar quarter.
Section 4.2 Ground Rent Reserve Account.
(1) Deposits. Upon the occurrence and during the continuance of a Low
DSCR Trigger Period, on each Payment Date, Borrower shall deposit with
Administrative Agent, for deposit in the Ground Rent Reserve Account, a
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monthly amount, as reasonably determined by Administrative Agent, which
will be sufficient to accumulate in the Ground Rent Reserve Account thirty
(30) days prior to the due date therefor, sufficient funds to pay all rent
and other amounts payable by Borrower under the Ground Lease which
Administrative Agent estimates will be payable during the next ensuing
twelve (12) months (said amount being the "Ground Rent Reserve Fund"). If
at any time Administrative Agent reasonably determines that the Ground Rent
Reserve Fund is not or will not be sufficient to pay all rent and other
amounts payable by Borrower under the Ground Lease by the dates set forth
above, Administrative Agent shall notify Borrower of such determination and
Borrower shall increase its monthly payments to Administrative Agent by the
amount that Administrative Agent estimates is sufficient to make up the
deficiency thirty (30) days prior to delinquency of such rent and other
amounts payable by Borrower under the Ground Lease.
(2) Disbursement. Borrower shall furnish Administrative Agent with (i)
bills or other evidences reasonably acceptable to Administrative Agent of
the amounts for which such deposits are required and (ii) a disbursement
request (in a form reasonably satisfactory to Administrative Agent),
executed by an authorized officer of Borrower, at least thirty (30) days
prior to the date on which such amounts first become due and payable under
the Ground Lease. Provided that no Event of Default has occurred and is
continuing, Administrative Agent will direct the Depository Bank to apply
the Ground Rent Reserve Fund to payments of rent and other amounts payable
by Borrower under the Ground Lease but not, in any event, earlier than ten
(10) days prior to the due dates thereof and, in any event, only to the
extent sufficient funds are then available in the Ground Rent Reserve Fund.
In making any payment relating to the Ground Rent Reserve Fund, the
Depository Bank may do so according to any ▇▇▇▇ or other evidence of the
amounts due as Borrower shall have provided as required above, without
inquiry into the accuracy of such ▇▇▇▇ or other evidence. If the amount of
the Ground Rent Reserve Fund shall exceed the amounts required to pay all
rent and other amounts payable by Borrower under the Ground Lease,
Administrative Agent shall, in its sole and absolute discretion, return any
excess to Borrower or credit such excess against future payments to be made
to the Ground Rent Reserve Fund.
(3) Release. Provided no Event of Default has occurred and is
continuing, any funds held in the Ground Rent Reserve Fund shall be
released to Borrower upon the occurrence of a Low DSCR Release Event and,
in such event Borrower shall no longer be required to cause any amounts to
be deposited into the Ground Rent Reserve Account unless a Low DSCR Trigger
Event occurs with respect to any future calendar quarter.
Section 4.3 Intentionally Omitted.
Section 4.4 Low DSCR Reserve Fund.
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(1) Deposits. During any Low DSCR Trigger Period, Borrower shall cause
such amounts to be deposited in the Low DSCR Account as are required to be
deposited therein pursuant to Section 2.7 hereof and pursuant to the Cash
Management Agreement (said amounts being, collectively, the "Low DSCR
Reserve Fund"), which amounts shall constitute additional collateral for
the Loans.
(2) Cure of Low DSCR Trigger Event. Upon the occurrence of a Low DSCR
Trigger Event, Borrower shall have the right, on or before the date which
is ten (10) days after the date of any such determination (but in any event
within fifty (50) days after the end of the applicable calendar quarter) to
either (a) make a payment (a "Low DSCR Cure Prepayment") in reduction of
the outstanding principal amount of the Loans in an amount reasonably
determined by Administrative Agent (together with all applicable breakage
costs or other charges, if any, provided for herein) such that after giving
effect to such payment, the Debt Service Coverage Ratio would have been at
least 1.45:1.00 as of the end of the applicable calendar quarter had such
prepayment been made as of the first day of such calendar quarter; or (b)
make a deposit of cash with Administrative Agent, and/or deliver a
Collateral Letter of Credit to Administrative Agent as additional
collateral for the Notes and Borrower's other obligations under the Loan
Documents (such cash or Collateral Letter of Credit, a "Low DSCR Cure
Delivery"), in each case, in an amount reasonably determined by
Administrative Agent such that if the amount so deposited were used to make
a principal prepayment, the Debt Service Coverage Ratio would have been at
least 1.45:1.00 as of the end of the applicable calendar quarter had such
prepayment been made as of the first day of such calendar quarter;
provided, however, that Borrower shall only be permitted to cure a Low DSCR
Trigger Event by delivery of a Low DSCR Cure Delivery pursuant to clause
(b) of this Section 4.4(2) two (2) times during the term of the Loans and
any other cure of a Low DSCR Trigger Event by Borrower pursuant to this
Section 4.4(2) must be accomplished pursuant to clause (a) hereof. Any cash
Low DSCR Cure Delivery and the proceeds of any Collateral Letter of Credit
Low DSCR Cure Delivery shall be deposited by Administrative Agent in the
Additional Cash Collateral Account as additional collateral for all
obligations under this Agreement and the other Loan Documents, to be
applied in accordance with Section 4.8 below, and shall be subject to the
terms of the Cash Management Agreement, including the security interest
granted by Borrower therein pursuant to the Cash Management Agreement.
(3) Release. Provided no Event of Default has occurred and is
continuing, any funds held in the Low DSCR Account delivered pursuant to
Section 4.4(1) shall be released to Borrower upon the occurrence of a Low
DSCR Release Event and, in such event Borrower shall no longer be required
to cause any amounts to be deposited into the Low DSCR Account unless a Low
DSCR Trigger Event occurs with respect to any future calendar quarter.
Provided no Event of Default has occurred and is continuing, any cash Low
DSCR Cure Delivery and the proceeds of any Collateral Letter of Credit Low
DSCR Cure Delivery held in the Additional Collateral Account pursuant to
Section 4.4(2) and any undrawn Collateral Letters of Credit delivered
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pursuant to Section 4.4(2) shall be released to Borrower when the Debt
Service Coverage Ratio, as determined as of the end of each calendar
quarter, shall be at or above 1.45:1.00 for at least two (2) consecutive
calendar quarters and, in such event Borrower shall no longer be required
to cause any amounts to be deposited into the Additional Collateral Account
pursuant to Section 4.4(2) unless a Low DSCR Trigger Event occurs with
respect to any future calendar quarter.
(4) Application to Obligations. If at any time a Low DSCR Trigger
Event occurs and a Low DSCR Release Event does not occur within two (2)
calendar quarters after such Low DSCR Trigger Event, then, Administrative
Agent, at its option, may withdraw any amounts on deposit in the Low DSCR
Account and apply such funds to payment of the Loans in the manner provided
in Section 2.4(6) or, if an Event of Default has occurred and is
continuing, in such order, proportion and priority as Administrative Agent
may determine in its sole and absolute discretion. Administrative Agent's
right to withdraw and apply such funds shall be in addition to all other
rights and remedies provided to Administrative Agent on behalf of the
Lenders under the Loan Documents.
Section 4.5 Intentionally Omitted.
Section 4.6 Required Repair Reserve Fund.
(1) Deposits. Borrower shall perform the repairs at the Project, as
more particularly set forth on Schedule 4.6 hereto (such repairs
hereinafter referred to as "Required Repairs") in a good and workmanlike
manner free and clear of all Liens whether or not the Required Repair
Reserve Fund is sufficient to cover all of the costs required to make the
Required Repairs. Borrower shall substantially complete the Required
Repairs on or before the required deadline for each repair as set forth on
Schedule 4.6, subject however to extension for force majeure. On the
Closing Date, Borrower shall deposit $227,198 (the "Required Repair Reserve
Fund") with Administrative Agent to perform the Required Repairs for the
Project, which amount shall be deposited in the Required Repair Reserve
Account.
(2) Disbursements. Administrative Agent will cause the Depository Bank
to transfer amounts credited to the Required Repair Reserve Fund to
Borrower's account to pay or reimburse Borrower for the costs incurred by
Borrower in connection with the Required Repairs from time to time on a
monthly basis upon satisfaction by Borrower of each of the following
conditions: (i) Borrower shall submit a written request for payment to
Administrative Agent at least ten (10) Business Days prior to the date on
which Borrower requests such payment be made and specifies the Required
Repairs to be paid, (ii) on the date such request is received by
Administrative Agent and on the date such payment is to be made, no Event
of Default shall exist and remain uncured, (iii) Administrative Agent shall
have received a certificate from Borrower (A) stating that all Required
Repairs to be funded by the requested disbursement have been completed in a
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good and workmanlike manner and substantially in accordance with all
applicable laws, such certificate to be accompanied by a copy of any
license, permit or other approval by any Governmental Authority required to
commence and/or complete such Required Repairs, (B) identifying each Person
that supplied materials or labor in connection with the Required Repairs to
be funded by the requested disbursement, and (C) stating that each such
Person has been paid in full or will be paid in full upon such
disbursement, such certificate to be accompanied by lien waivers or other
evidence of payment reasonably satisfactory to Administrative Agent, (iv)
Administrative Agent shall have received such other evidence as
Administrative Agent shall reasonably request that the Required Repairs to
be funded by the requested disbursement have been completed and are paid
for or will be paid upon such disbursement to Borrower, (v) Administrative
Agent shall not be required to approve any costs for a particular Required
Repair which exceeds the portion of the Required Repair Reserve Fund
allocated to such Required Repair on Schedule 4.6, and (vi) Administrative
Agent may require an inspection of the Project at Borrower's expense prior
to making a monthly disbursement in order to verify completion of the
Required Repair for which reimbursement is sought and, if any such
inspection is so required, the same shall be completed with reasonable
diligence. In addition, if required by Administrative Agent, Borrower shall
deliver to Administrative Agent, in connection with any disbursement to pay
or reimburse Borrower for any costs incurred under a contract that requires
payment by Borrower of an aggregate of more than $50,000 (whether or not
the individual payment exceeds such amount), copies of lien waivers and
releases from the general contractor under the applicable contract in
connection with the requested disbursement. Administrative Agent shall not
be required to make disbursements from the Required Repair Account unless
such requested disbursement is in an amount greater than $25,000 (or a
lesser amount if the total amount in the Required Repair Account is less
than $25,000, in which case only one disbursement of the amount remaining
in the account shall be made) and such disbursement shall be made only upon
satisfaction of each condition contained in this Section 4.6. Upon
completion of the Required Repairs, any funds remaining on deposit in the
Required Repair Reserve Account shall be promptly disbursed to Borrower.
Section 4.7 Reserve Funds and Security Accounts Generally.
(1) Grant of Security Interest. Borrower hereby grants a perfected
first priority security interest in favor of Administrative Agent for the
ratable benefit of the Lenders in each Reserve Fund and Security Account
established by or for it hereunder and all financial assets and other
property and sums at any time held, deposited or invested therein, and all
security entitlements and investment property relating thereto, together
with any interest or other earnings thereon, and all proceeds thereof,
whether accounts, general intangibles, chattel paper, deposit accounts,
instruments, documents or securities (collectively, "Reserve Account
Collateral"), together with all rights of a secured party with respect
thereto (even if no further documentation is requested by Administrative
Agent or the Lenders or executed by Borrower).
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(2) Borrower covenants and agrees:
(A) to do all acts that may be reasonably necessary to maintain, preserve
and protect Reserved Account Collateral;
(B) to pay promptly when due all material taxes, assessments, charges,
encumbrances and liens now or hereafter imposed upon or affecting any Reserved
Account Collateral;
(C) to appear in and defend any action or proceeding which may materially
and adversely affect Borrower's title to or Administrative Agent's interest in
the Reserved Account Collateral;
(D) following the creation of each Reserve Fund and Security Account
established by or for Borrower and the initial funding thereof, other than to
Administrative Agent pursuant to this Agreement or the Cash Management
Agreement, not to transfer, assign, sell, surrender, encumber, mortgage,
hypothecate, or otherwise dispose of any of the Reserve Account Collateral or
rights or interests therein, and to keep the Reserve Account Collateral free of
all levies and security interests or other liens or charges except the security
interest in favor of Administrative Agent granted hereunder;
(E) to account fully for and promptly deliver to Administrative Agent, in
the form received, all documents, chattel paper, instruments and agreements
constituting the Reserve Account Collateral hereunder, endorsed to
Administrative Agent or in blank, as requested by Administrative Agent, and
accompanied by such powers as appropriate and until so delivered all such
documents, instruments, agreements and proceeds shall be held by Borrower in
trust for Administrative Agent, separate from all other property of Borrower;
and
(F) from time to time upon request by Administrative Agent, to furnish such
further assurances of Borrower's title with respect to the Reserve Account
Collateral, execute such written agreements, or do such other acts, all as may
be reasonably necessary to effectuate the purposes of this agreement or as may
be required by law, or in order to perfect or continue the first-priority lien
and security interest of Administrative Agent in the Reserve Account Collateral.
(3) Rights on Event of Default. Upon the occurrence and during the
continuance of an Event of Default, Administrative Agent, at its option,
may withdraw the Reserve Funds and the other funds in the Security Accounts
and apply such funds to the items for which the Reserve Funds were
established or to payment of the Loans in such order, proportion and
priority as Administrative Agent may determine in its sole and absolute
discretion. Administrative Agent's right to withdraw and apply such funds
shall be in addition to all other rights and remedies provided to
Administrative Agent on behalf of the Lenders under the Loan Documents.
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(4) Prohibition Against Further Encumbrance. Borrower shall not,
without the prior consent of Administrative Agent, further pledge, assign
or grant any security interest in the Reserve Funds or the Security
Accounts or permit any Lien to attach thereto, or any levy to be made
thereon, or any Uniform Commercial Code financing statements, except those
naming Administrative Agent on behalf of the Lenders as the secured party,
to be filed with respect thereto.
(5) Release of Reserve Funds. Any amount remaining in the Reserve
Funds and the Security Accounts after the Loans have been paid in full
shall be promptly returned to Borrower.
Section 4.8 Collateral Letters of Credit. With respect to any Collateral
Letter of Credit which Borrower may furnish or cause to be furnished to
Administrative Agent in accordance with the terms of this Agreement or any of
the other Loan Documents:
(1) Administrative Agent will be entitled, among other things, to make
one or more draws by presentment thereof to the issuing bank accompanied
only by Administrative Agent's clean sight-draft, it being intended that
the issuing bank shall have no right to inquire as to Administrative
Agent's right to draw upon such Collateral Letter of Credit;
(2) Administrative Agent shall be entitled, among other things, to
draw upon each Collateral Letter of Credit, in whole, or in part from time
to time, upon the occurrence and during the continuance of any Event of
Default or under the other circumstances under which a draw shall be
permitted under the Loan Documents or the Collateral Letter of Credit;
(3) Administrative Agent shall have the right to draw upon any
Collateral Letter of Credit within thirty (30) days prior to the expiration
date of such Collateral Letter of Credit and each renewal and extension
thereof unless, prior to such expiration date of such Collateral Letter of
Credit and each renewal and extension thereof, Borrower shall have
furnished a replacement, extension or renewal Collateral Letter of Credit,
acceptable to Administrative Agent, it being the intent hereof that at no
time shall the unexpired term of any Collateral Letter of Credit be less
than thirty (30) days. If Administrative Agent draws upon a Collateral
Letter of Credit pursuant to the terms of this subsection (3), then
Administrative Agent shall hold the proceeds thereof in the Additional Cash
Collateral Account as additional collateral for all obligations under this
Agreement and the other Loan Documents, to be applied in accordance with
subsections (4) and (5) below.
(4) Administrative Agent shall also be entitled to draw upon a
Collateral Letter of Credit if Administrative Agent believes that its
rights to draw on such Collateral Letter of Credit could be in jeopardy.
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Without limiting the foregoing, Administrative Agent shall also be entitled
to draw on a Collateral Letter of Credit if the credit rating or financial
condition of the issuing bank is no longer meets the minimum rating
contained in the definition of Collateral Letter of Credit. Following a
draw by Administrative Agent on a Collateral Letter of Credit solely
because of the deterioration of the creditworthiness of the issuing bank,
Administrative Agent will deposit such proceeds in the Additional Cash
Collateral Account as security for the purposes for which such Letter of
Credit was delivered and Administrative Agent shall be entitled to draw
upon such proceeds to the same extent it would have been entitled to make a
draw under the applicable Letter of Credit. Administrative Agent shall
direct the Depository Bank to disburse such proceeds to Borrower provided
(i) Borrower delivers to Administrative Agent a replacement Collateral
Letter of Credit within ten (10) days of Administrative Agent's draw, (ii)
there exists no Event of Default or Potential Default, and (iii) Borrower
pays all of Administrative Agent's fees and expenses in connection with
such draw and disbursement.
(5) No draw by Administrative Agent on any Collateral Letter of Credit
shall cure or be deemed to cure any Event of Default or limit in any
respect any of Administrative Agent's or the Lenders' remedies under the
Loan Documents, it being understood that Administrative Agent's and the
Lenders' rights and remedies hereunder shall be cumulative and
Administrative Agent and the Lenders shall have no obligations to apply the
proceeds of any draw to missed installments or other amounts then due and
unpaid under the Loans. Proceeds of any draw upon a Collateral Letter of
Credit (after reimbursement of any costs and expenses, including attorneys'
fees and reimbursements, incurred by Administrative Agent in connection
with such draw) may be applied by Administrative Agent to the payment of
the Loans in such manner as Administrative Agent may determine. No delay or
omission of Administrative Agent or the Lenders in exercising any right to
draw on a Collateral Letter of Credit shall impair any such right, or shall
be construed as a waiver of, or acquiescence in, any Event of Default.
(6) Administrative Agent shall, upon request, release its rights in
any Collateral Letters of Credit and surrender such Collateral Letters of
Credit to the issuing bank upon the payment in full of all Loans.
ARTICLE 5
ENVIRONMENTAL MATTERS
Section 5.1 Certain Definitions. As used herein, the following terms have
the meanings indicated:
(1) "Environmental Claim" means, with respect to any Person, any
written request for information by a Governmental Authority, or any written
notice, notification, claim, administrative, regulatory or judicial action,
66
suit, judgment, demand or other written communication by any Person or
Governmental Authority alleging or asserting liability with respect to
Borrower or the Project, whether for damages, contribution,
indemnification, cost recovery, compensation, injunctive relief,
investigatory, response, remediation, damages to natural resources,
personal injuries, fines or penalties arising out of, based on or resulting
from (i) the presence, use or release into the environment of any Hazardous
Materials originating at or from, or otherwise affecting, the Project, (ii)
any fact, circumstance, condition or occurrence forming the basis of any
violation, or alleged violation, of any Environmental Law by Borrower or
otherwise affecting the health, safety or environmental condition of the
Project or (iii) any alleged injury or threat of injury to the environment
by Borrower or otherwise affecting the Project.
(2) "Environmental Laws" means any federal, state or local law
(whether imposed by statute, or administrative or judicial order, or common
law), now or hereafter enacted, governing health, safety, industrial
hygiene, the environment or natural resources, or Hazardous Materials,
including, such laws governing or regulating the use, generation, storage,
removal, recovery, treatment, handling, transport, disposal, control,
discharge of, or exposure to, Hazardous Materials.
(3) "Environmental Liens" has the meaning assigned to such term in
Section 5.3(4).
(4) "Environmental Loss" means any losses, damages, costs, fees,
expenses, claims, suits, judgments, awards, liabilities (including but not
limited to strict liabilities), obligations, debts, diminutions in value,
fines, penalties, charges, costs of remediation (whether or not performed
voluntarily), amounts paid in settlement, foreseeable and unforeseeable
consequential damages, litigation costs, reasonable attorneys' fees and
expenses, engineers' fees, environmental consultants' fees, and
investigation costs (including but not limited to costs for sampling,
testing and analysis of soil, water, air, building materials, and other
materials and substances whether solid, liquid or gas), of whatever kind or
nature, and whether or not incurred in connection with any judicial or
administrative proceedings, actions, claims, suits, judgments or awards
relating to Hazardous Materials, Environmental Claims, Environmental Liens
and violation of Environmental Laws.
(5) "Hazardous Materials" means (a) petroleum or chemical products,
whether in liquid, solid, or gaseous form, or any fraction or by product
thereof, (b) asbestos or asbestos containing materials, (c) polychlorinated
biphenyls (pcbs), (d) radon gas, (e) underground storage tanks, (f) any
explosive or radioactive substances, (g) lead or lead-based paint, (h)
mold, or (i) any other substance, material, waste or mixture which is or
shall be listed, defined, or otherwise determined by any Governmental
Authority to be hazardous, toxic, dangerous or otherwise regulated,
controlled or giving rise to liability under any Environmental Laws.
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Section 5.2 Representations and Warranties on Environmental Matters.
Borrower represents and warrants to Administrative Agent and the Lenders that,
to Borrower's knowledge, except as set forth in the Site Assessment, (1) no
Hazardous Material is now or was formerly used, stored, generated, manufactured,
installed, treated, discharged, disposed of or otherwise present at or about the
Project or any property adjacent to the Project (except for cleaning and other
products currently used in connection with the maintenance, repair or operation
of the Project in full compliance with Environmental Laws), (2) all permits,
licenses, approvals and filings required by Environmental Laws have been
obtained, and the use, operation and condition of the Project do not, and did
not previously, violate any Environmental Laws, (3) no civil, criminal or
administrative action, suit, claim, hearing, investigation or proceeding has
been brought or been threatened, nor have any settlements been reached by or
with any parties or any Liens imposed in connection with the Project concerning
Hazardous Materials or Environmental Laws and (4) no underground storage tanks
exist at the Project.
Section 5.3 Covenants on Environmental Matters.
(1) Borrower shall (a) comply in all respects with applicable
Environmental Laws; (b) notify Administrative Agent immediately upon
Borrower's discovery of any spill, discharge, release or presence of any
Hazardous Material at, upon, under, within, contiguous to or otherwise
affecting the Project (except for cleaning and other products used in
connection with the maintenance, repair or operation of the Project in full
compliance with Environmental Laws); (c) to the extent required by
applicable Environmental Laws, promptly remove any Hazardous Materials and
remediate the Project in full compliance with Environmental Laws and in
accordance with the recommendations and specifications of an independent
environmental consultant approved by Administrative Agent; and (d) promptly
forward to Administrative Agent copies of all orders, notices, permits,
applications or other communications and reports in connection with any
spill, discharge, release or the presence of any Hazardous Material or any
other matters relating to the Environmental Laws or any similar laws or
regulations, as they may affect the Project or Borrower.
(2) Borrower shall not cause, shall prohibit any other Person within
the control of Borrower from causing, and shall use prudent, commercially
reasonable efforts to prohibit other Persons (including tenants) from
causing (a) any spill, discharge or release, or the use, storage,
generation, manufacture, installation, or disposal, of any Hazardous
Materials at, upon, under, within or about the Project or the
transportation of any Hazardous Materials to or from the Project (except
for cleaning and other products used in connection with the maintenance,
repair or operation of the Project in full compliance with Environmental
Laws), (b) any underground storage tanks to be installed at the Project, or
(c) any activity that requires a permit or other authorization under
Environmental Laws to be conducted at the Project without Administrative
Agent's prior written consent.
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(3) Borrower shall provide to Administrative Agent, at Borrower's
expense promptly upon the written request of Administrative Agent from time
to time, a Site Assessment or, if required by Administrative Agent, an
update to any existing Site Assessment, to assess the presence or absence
of any Hazardous Materials and the potential costs in connection with
abatement, cleanup or removal of any Hazardous Materials found on, under,
at or within the Project. Borrower shall pay the cost of no more than one
such Site Assessment or update in any twelve (12) month period, unless
Administrative Agent's request for a Site Assessment is based on
information provided under Section 5.3(1), a reasonable suspicion of
Hazardous Materials at or near the Project, a breach of representations
under Section 5.2, or an Event of Default, in which case any such Site
Assessment or update shall be at Borrower's expense.
(4) Environmental Notices. Borrower shall promptly provide notice to
Administrative Agent of:
(a) all Environmental Claims asserted or threatened against Borrower or any
other party occupying the Project or any portion thereof or against the Project
which become known to Borrower;
(b) the discovery by Borrower of any occurrence or condition on the Project
or on any real property adjoining or in the vicinity of the Project which could
reasonably be expected to lead to an Environmental Claim against Borrower,
Administrative Agent or any of the Lenders;
(c) the commencement or completion of any remediation at the Project; and
(d) any Lien or other encumbrance imposed pursuant to any Environmental Law
"Environmental Liens".
In connection therewith, Borrower shall transmit to Administrative Agent copies
of any citations, orders, notices or other written communications received from
any Person and any notices, reports or other written communications submitted to
any Governmental Authority with respect to the matters described above.
Section 5.4 Allocation of Risks and Indemnity. As between Borrower,
Administrative Agent and the Lenders, all risk of loss associated with
non-compliance with Environmental Laws, or with the presence of any Hazardous
Material at, upon, within, contiguous to or otherwise affecting the Project,
shall lie solely with Borrower. Accordingly, Borrower shall bear all risks and
costs associated with any Environmental Loss, damage or liability therefrom,
including all costs of removal of Hazardous Materials or other remediation
required by Administrative Agent or by law. Borrower shall indemnify, defend and
hold Administrative Agent and the Lenders harmless from and against all loss,
liabilities, damages, claims, costs and expenses (including reasonable costs of
defense) arising out of or associated, in any way, with the non-compliance with
Environmental Laws, or the existence of Hazardous Materials in, on, or about the
Project, or a breach of any representation, warranty or covenant contained in
this Article 5, whether based in contract, tort, implied or express warranty,
strict liability, criminal or civil statute or common law, including those
69
arising from the joint, concurrent, or comparative negligence of Administrative
Agent and the Lenders; provided, however, Borrower shall not be liable under
such indemnification to the extent such loss, liability, damage, claim, cost or
expense has resulted solely from Administrative Agent's or any Lender's gross
negligence or willful misconduct, in which case the party to whom the gross
negligence or willful misconduct is attributable (but not any other party) shall
not be entitled to the indemnification provided for hereunder to the extent of
such gross negligence or willful misconduct. Borrower's obligations under this
Section 5.4 shall arise upon the discovery of the presence of any Hazardous
Material, whether or not any Governmental Authority has taken or threatened any
action in connection with the presence of any Hazardous Material, and whether or
not the existence of any such Hazardous Material or potential liability on
account thereof is disclosed in the Site Assessment and shall continue
notwithstanding the repayment of the Loans or any transfer or sale of any right,
title and interest in the Project (by foreclosure, deed in lieu of foreclosure
or otherwise).
Section 5.5 No Waiver. Notwithstanding any provision in this Article 5 or
elsewhere in the Loan Documents, or any rights or remedies granted by the Loan
Documents, Administrative Agent and the Lenders do not waive and expressly
reserves all rights and benefits now or hereafter accruing to Administrative
Agent and/or any Lenders under the "security interest" or "secured creditor"
exception under applicable Environmental Laws, as the same may be amended. No
action taken by Administrative Agent and/or any Lender pursuant to the Loan
Documents shall be deemed or construed to be a waiver or relinquishment of any
such rights or benefits under the "security interest exception".
ARTICLE 6
LEASING MATTERS
Section 6.1 Representations and Warranties on Leases. Borrower represents
and warrants to Administrative Agent and the Lenders with respect to leases of
the Project that: (1) to Borrower's knowledge, the rent roll delivered to
Administrative Agent is true and correct to the extent of its terms, and the
leases are valid and in and full force and effect; (2) the leases (including
amendments) are in writing, and there are no oral agreements with respect
thereto; (3) the copies of the leases delivered to Administrative Agent are true
and complete; (4) to Borrower's knowledge, neither the landlord nor any tenant
is in monetary default or material non-monetary default under any of the leases
except as otherwise set forth on Schedule 6.1; (5) Borrower has received no
written notice of termination or default with respect to any lease except as
otherwise set forth on Schedule 6.1; (6) Borrower has not assigned or pledged
any of the leases, the rents or any interests therein except to Administrative
Agent (on behalf of the Lenders); (7) no tenant or other party has an option to
purchase all or any portion of the Project; (8) no tenant has the right to
terminate its lease prior to expiration of the stated term of such lease; and
(9) no tenant has prepaid more than one month's rent in advance (except for bona
fide security deposits not in excess of an amount equal to two month's rent).
Section 6.2 Standard Lease Form; Approval Rights. All leases and other
rental arrangements shall in all respects be approved by Administrative Agent
and all future leases and other future rental arrangements shall be on a
standard lease form approved by Administrative Agent with no modifications
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(except as approved by Administrative Agent). Such lease form shall at all times
provide that (i) the lease is subordinate to the Mortgage, and (ii) the tenant
will attorn to Administrative Agent (on behalf of the Lenders) following an
Event of Default. Borrower shall hold all tenant security deposits in accordance
with the terms of the applicable lease and applicable law and, without limiting
the foregoing, to the extent required by applicable law, shall not commingle any
such funds with any other funds of Borrower. Within ten (10) days after
Administrative Agent's request, Borrower shall furnish to Administrative Agent a
statement of all tenant security deposits, and copies of all leases not
previously delivered to Administrative Agent, certified by Borrower as being
true and correct. Notwithstanding anything contained in the Loan Documents,
Administrative Agent's approval shall not be required for future leases, lease
extensions, amendments or other modifications if the following conditions are
satisfied: (1) there exists no Potential Default or Event of Default; (2) the
lease is on the standard lease form approved by Administrative Agent with no
modifications except for commercially reasonable changes agreed to in the
ordinary course of Borrower's business, provided that in any event there shall
be no material modifications to the subordination, attornment, estoppel and
landlord liability clauses without the prior written consent of Administrative
Agent; (3) the lease does not conflict with any restrictive covenant affecting
the Project or any other lease for space in the Project; (4) the lease is not a
Major Lease; (5) the lease, lease extension, amendment or other modification, as
applicable, shall comply with the leasing guidelines schedule attached hereto as
Schedule 6.2; (6) the lease is with a third party and not an Affiliate of
Borrower or any Guarantor; (8) the lease shall not contain any options for
renewal or expansion by the tenant at rental rates which are below reasonable
comparable market levels at the time the lease is executed; (9) the lease shall
be to a tenant which Borrower, in its professional and commercially reasonable
judgment, has determined is creditworthy; and (10) the lease is for a term of
not more than ten (10) years (exclusive of renewal options which, together with
the initial lease term, shall not exceed fifteen (15) years).
Section 6.3 Covenants. Borrower (1) shall perform the obligations which
Borrower is required to perform under the leases; (2) shall use diligent and
commercially reasonable efforts to enforce the obligations to be performed by
the tenants; (3) shall promptly furnish to Administrative Agent any notice of
default or termination received by Borrower from any tenant under a Major Lease,
and any notice of default or termination given by Borrower to any tenant under a
Major Lease; (4) shall not collect any rents for more than thirty (30) days in
advance of the time when the same shall become due, except for bona fide
security deposits not in excess of an amount equal to two month's rent; (5)
shall not enter into any ground lease or master lease of any part of the
Project; (6) shall not further assign or encumber any lease; (7) shall not,
except with Administrative Agent's prior written consent, such consent not to be
unreasonably withheld, cancel or accept surrender or termination of any Major
Lease; and (8) shall not, except with Administrative Agent's prior written
consent, modify or amend any lease (except for modifications and amendments not
affecting the economic terms of the lease expressly permitted without
Administrative Agent's approval pursuant to Section 6.2 and minor modifications
and amendments entered into in the ordinary course of business, consistent with
prudent property management practices), and any action in violation of clauses
(5), (6), (7), and (8) of this Section 6.3 shall be void at the election of
Administrative Agent.
Section 6.4 Tenant Estoppels. At Administrative Agent's request (such
request to be made not more than one (1) time in any calendar year unless an
Event of Default shall have occurred and is continuing), Borrower shall use
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diligent and commercially reasonable efforts to obtain and furnish to
Administrative Agent, written estoppels in the form, if any, previously approved
by Administrative Agent for the applicable lease and otherwise in form and
substance satisfactory to Administrative Agent, executed by tenants under leases
in the Project and confirming the term, rent, and other provisions and matters
relating to the leases.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Administrative Agent and the Lenders
that:
Section 7.1 Organization and Power. Borrower and each Borrower Party is
duly organized, validly existing and in good standing under the laws of the
state of its formation or existence, and is in compliance with legal
requirements applicable to doing business in the state in which the Project is
located. Borrower is not a "foreign person" within the meaning of ss. 1445(f)(3)
of the Internal Revenue Code. Borrower's United States employer tax
identification number is ▇▇-▇▇▇▇▇▇▇.
Section 7.2 Validity of Loan Documents. The execution, delivery and
performance by Borrower and each Borrower Party of the Loan Documents: (1) are
duly authorized and do not require the consent or approval of any other party or
Governmental Authority which has not been obtained; and (2) will not violate any
law or result in the imposition of any Lien upon the assets of any such party,
except as contemplated by the Loan Documents. The Loan Documents constitute the
legal, valid and binding obligations of Borrower and each Borrower Party,
enforceable in accordance with their respective terms, subject to applicable
bankruptcy, insolvency, or similar laws generally affecting the enforcement of
creditors' rights.
Section 7.3 Liabilities; Litigation.
(1) The financial statements delivered by Borrower and each Borrower
Party have been prepared in accordance with GAAP, subject to customary
footnotes and year-end adjustments, and fairly present, as of the
applicable dates thereof, the financial condition or, if applicable, the
results of operations, for the period covered thereby, and there has been
no material change to such financial condition or results since the date of
the most recent financial statements delivered by Borrower and each
Borrower Party, as applicable. Except as disclosed in such financial
statements, there are no liabilities (fixed or contingent) affecting the
Project, Borrower or any Borrower Party of a type required to be reflected
on a balance sheet prepared in accordance with GAAP which have not
otherwise been disclosed to Administrative Agent in writing. Except as set
forth on set forth on Schedule 7.3, there is no litigation, administrative
proceeding, investigation or other legal action (including any proceeding
under any state or federal bankruptcy or insolvency law) pending or, to the
knowledge of Borrower, threatened, against the Project, Borrower or any
Borrower Party. No litigation, administrative proceeding, investigation or
other legal action listed on Schedule 7.3, individually or in the
aggregate, could, if adversely determined, have a Material Adverse Effect.
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(2) Neither Borrower nor any Borrower Party is contemplating either
the filing of a petition by it under state or federal bankruptcy or
insolvency laws or the liquidation of all or a major portion of its assets
or property, and neither Borrower nor any Borrower Party has knowledge of
any Person contemplating the filing of any such petition against it.
Section 7.4 Taxes and Assessments. The Project is comprised of one or more
parcels, each of which constitutes a separate tax lot and none of which
constitutes a portion of any other tax lot. There are no pending or, to
Borrower's best knowledge, proposed, special or other assessments for public
improvements or otherwise affecting the Project, nor are there any contemplated
improvements to the Project that may result in such special or other
assessments.
Section 7.5 Other Agreements; Defaults. Neither Borrower nor any Borrower
Party is a party to any agreement or instrument or subject to any court order,
injunction, permit, or restriction which might have a Material Adverse Effect.
Neither Borrower nor any Borrower Party is in violation of any agreement which
violation would have a Material Adverse Effect.
Section 7.6 Compliance with Law.
(1) Borrower and each Borrower Party have all requisite licenses,
permits, franchises, qualifications, certificates of occupancy or other
governmental authorizations to own, lease and operate the Project and carry
on its business, and, to Borrower's knowledge, the Project is in compliance
in all material respects with all applicable legal requirements and is free
of structural defects, and all building systems contained therein are in
good working order, subject to ordinary wear and tear. The Project does not
constitute, in whole or in part, a legally non-conforming use under
applicable legal requirements;
(2) No condemnation has been commenced or, to Borrower's knowledge, is
contemplated with respect to all or any portion of the Project or for the
relocation of roadways providing access to the Project; and
(3) The Project has adequate rights of access to public ways and is
served by adequate water, sewer, sanitary sewer and storm drain facilities.
All public utilities necessary or convenient to the full use and enjoyment
of the Project are located in the public right-of-way abutting the Project,
and all such utilities are connected so as to serve the Project without
passing over other property, except to the extent such other property is
subject to a perpetual easement for such utility benefiting the Project.
All roads necessary for the full utilization of the Project for its current
purpose have been completed and dedicated to public use and accepted by all
Governmental Authorities.
Section 7.7 Location of Borrower. Borrower's principal place of business
and chief executive offices are located at the address stated in Section 12.1.
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Section 7.8 ERISA. Borrower has not established any pension plan for
employees which would cause Borrower to be subject to the Employee Retirement
Income Security Act of 1974, as amended.
Section 7.9 Margin Stock. No part of proceeds of the Loans will be used for
purchasing or acquiring any "margin stock" within the meaning of Regulations T,
U or X of the Board of Governors of the Federal Reserve System.
Section 7.10 Tax Filings. Borrower and each Borrower Party have filed (or
have obtained effective extensions for filing) all federal, state and local tax
returns required to be filed and have paid or made adequate provision for the
payment of all federal, state and local taxes, charges and assessments payable
by Borrower and each Borrower Party, respectively.
Section 7.11 Solvency. Giving effect to the Loans, the fair saleable value
of Borrower's assets exceeds and will, immediately following the making of the
Loans, exceed Borrower's total liabilities, including, without limitation,
subordinated, unliquidated, disputed and contingent liabilities. The fair
saleable value of Borrower's assets is and will, immediately following the
making of the Loans, be greater than Borrower's probable liabilities, including
the maximum amount of its contingent liabilities on its Debts as such Debts
become absolute and matured. Borrower's assets do not and, immediately following
the making of the Loans will not, constitute unreasonably small capital to carry
out its business as conducted or as proposed to be conducted. Borrower does not
intend to, and does not believe that it will, incur Debts and liabilities
(including contingent liabilities and other commitments) beyond its ability to
pay such Debts as they mature (taking into account the timing and amounts of
cash to be received by Borrower and the amounts to be payable on or in respect
of obligations of Borrower).
Section 7.12 Full and Accurate Disclosure. No statement of fact made by or
on behalf of Borrower or any Borrower Party in this Agreement or in any of the
other Loan Documents or in any certificate, statement or questionnaire delivered
by Borrower or any Borrower Party in connection with the Loans contains any
untrue statement of a material fact or omits to state any material fact
necessary to make statements contained herein or therein not misleading. There
is no fact presently known to Borrower or any Borrower Party which has not been
disclosed to Administrative Agent which might have a Material Adverse Effect.
Section 7.13 Single Purpose Entity. (i) Borrower is and has at all times
since its formation been a Single Purpose Entity, (ii) Borrower has, with the
exception of the Project, owned no interest in any property, (iii) upon closing
of the Loan, the Prior Loan will be fully satisfied with the proceeds of the
Loan and Borrower shall not have any continuing liability, actual or contingent
with respect thereto, (iv) Borrower has provided Administrative Agent with true,
correct and complete copies of Borrower's current (and since the date of
inception of each) financial statements, (v) Borrower has prior to the Closing
Date conducted its affairs as a special purpose bankruptcy remote entity in
substantial accordance with (A) the "single purpose entity" provisions included
in Borrower's organizational documents, and (B) the Prior Loan Documents, (vi)
Exhibit I attached hereto contains a complete list of all documents evidencing,
securing, governing or otherwise pertaining to the Prior Loan and Borrower has
provided Administrative Agent with true, correct and complete copies of the
same, and (vii) Borrower's certifications and statements set forth in the
certificate attached hereto as Exhibit H are true and correct.
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Section 7.14 Management Agreement. The Management Agreement is the only
management agreement in existence with respect to the operation or management of
the Project. The copy of the Management Agreement delivered to Administrative
Agent is a true and correct copy, and such agreement has not been amended or
modified. Neither party to such agreement is in default under such agreement and
the Manager has no defense, offset right or other right to withhold performance
under or terminate such agreement.
Section 7.15 No Conflicts. The execution, delivery and performance of this
Agreement and the other Loan Documents by Borrower will not conflict with or
result in a breach of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any Lien (other than pursuant
to the Loan Documents) upon any of the property or assets of Borrower pursuant
to the terms of any indenture, mortgage, deed of trust, loan agreement,
operating agreement or other agreement or instrument to which Borrower is a
party or by which any of Borrower's property or assets is subject, nor will such
action result in any violation of the provisions of any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over Borrower or any of Borrower's properties or assets, and any
consent, approval, authorization, order, registration or qualification of or
with any court or any such regulatory authority or other governmental agency or
body required for the execution, delivery and performance by Borrower of this
Agreement or any other Loan Documents has been obtained and is in full force and
effect.
Section 7.16 Title. Borrower has good, marketable and insurable leasehold
title to the Ground Lease Property pursuant to the Ground Lease, free and clear
of all Liens whatsoever, except for the Permitted Encumbrances and such other
Liens as are permitted pursuant to the Loan Documents. Borrower has good,
marketable and insurable fee title to the Project (other than the Ground Lease
Property), free and clear of all Liens whatsoever, except for the Permitted
Encumbrances and such other Liens as are permitted pursuant to the Loan
Documents. The Mortgage creates (and upon the recordation thereof and of any
related financing statements there will be perfected) (1) a valid Lien on the
Project, subject only to Permitted Encumbrances and (2) security interests in
and to, and collateral assignments of, all personalty (including the leases),
all in accordance with the terms thereof, in each case subject only to any
applicable Permitted Encumbrances and such other Liens as are permitted pursuant
to the Loan Documents. To Borrower's knowledge, no claims have been made by any
party that Borrower has defaulted on any obligation to pay for work, labor or
materials affecting the Project which are or may become a Lien prior to, or of
equal priority with, the Liens created by the Loan Documents. To Borrower's
knowledge, none of the Permitted Encumbrances, individually or in the aggregate,
materially interfere with the benefits of the security intended to be provided
by the Mortgage and this Agreement, materially and adversely affect the value of
the Project, impair the use or operations of the Project or impair Borrower's
ability to pay its obligations in a timely manner.
Section 7.17 Use of Project. The Project is being, and will continue to be,
used exclusively for retail, general office and other appurtenant and related
uses thereto.
Section 7.18 Flood Zone. No portion of the improvements comprising the
Project is located in an area identified by the Secretary of Housing and Urban
Development or any successor thereto as an area having special flood hazards
pursuant to the National Flood Insurance Act of 1968, the Flood Disaster
Protection Act of 1973 or the National Flood Insurance Act of 1994, as amended,
or any successor law.
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Section 7.19 Insurance. Borrower has obtained and has delivered to
Administrative Agent certified copies of all of the insurance policies for the
Project reflecting the insurance coverages, amounts and other insurance
requirements set forth in this Agreement. No claims have been made under any
such policy, and no Person, including Borrower, has done, by act or omission,
anything which would impair the coverage of any such policy.
Section 7.20 Certificate of Occupancy; Licenses. All certifications,
permits, licenses and approvals, including without limitation, certificates of
completion and occupancy permits, required for the legal use, occupancy and
operation of the Project as a retail shopping center with general office and
other appurtenant and related uses thereto (collectively, the "Licenses") have
been obtained and are in full force and effect. Borrower shall keep and maintain
all Licenses in full force and effect. The use being made of the Project is in
conformity with any applicable certificate of occupancy issued for the Project.
Section 7.21 Physical Condition. Except as disclosed in the building
condition reports certified to Administrative Agent and delivered in connection
with the initial advance of the Loans, the Project, including, without
limitation, all buildings, improvements, parking facilities, sidewalks, storm
drainage systems, roofs, plumbing systems, HVAC systems, fire protection
systems, electrical systems, equipment, elevators, exterior sidings and doors,
landscaping, irrigation systems and all structural components, are in good
condition, order and repair in all material respects; to Borrower's knowledge,
there exists no structural or other material defects or damages in the Project,
whether latent or otherwise, and Borrower has not received written notice from
any insurance company or bonding company of any defects or inadequacies in the
Project, or any part thereof, which would adversely affect the insurability of
the same or cause the imposition of extraordinary premiums or charges thereon or
of any termination or threatened termination of any policy of insurance or bond.
Section 7.22 Boundaries. Except as shown on the survey of the Project
delivered to Administrative Agent prior to the Closing Date, all of the
Improvements lie wholly within the boundaries and building restriction lines of
the Project, and no improvements on adjoining properties encroach upon the
Project, and no Improvements encroach upon or violate any easements or other
encumbrances upon the Project, so as to materially adversely affect the value or
marketability of the Project, except those which are insured against by title
insurance.
Section 7.23 Separate Lots. The Project is comprised of one (1) or more
parcels which constitutes one (1) or more separate tax lots and does not
constitute a portion of any other tax lot not a part of the Project.
Section 7.24 Reserved.
Section 7.25 Filing and Recording Taxes. All transfer taxes, deed stamps,
intangible taxes or other amounts in the nature of transfer taxes required to be
paid by any Person under applicable legal requirements currently in effect in
connection with the transfer of the Project to Borrower or any transfer of a
controlling interest in Borrower have been paid. All mortgage, mortgage
recording, stamp, intangible or other similar tax required to be paid by any
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Person under applicable legal requirements currently in effect in connection
with the execution, delivery, recordation, filing, registration, perfection or
enforcement of any of the Loan Documents, including, without limitation, the
Mortgage, have been paid and, under current legal requirements, the Mortgage is
enforceable in accordance with its terms by Administrative Agent or any
subsequent holder thereof (on behalf of the Lenders), subject to applicable
bankruptcy, insolvency, or similar laws generally affecting the enforcement of
creditors' rights.
Section 7.26 Investment Company Act. Borrower is not (1) an "investment
company" or a company "controlled" by an "investment company," within the
meaning of the Investment Company Act of 1940, as amended; (2) a "holding
company" or a "subsidiary company" of a "holding company" or an "affiliate" of
either a "holding company" or a "subsidiary company" within the meaning of the
Public Utility Holding Company Act of 1935, as amended; or (3) subject to any
other federal or state law or regulation which purports to restrict or regulate
its ability to borrow money.
Section 7.27 Foreign Assets Control Regulations, Etc.
(1) Neither the execution and delivery of the Notes and the other Loan
Documents by Borrower Parties nor the use of the proceeds of the Loans,
will violate the Trading with the Enemy Act, as amended, or any of the
foreign assets control regulations of the United States Treasury Department
(31 CFR, Subtitle B, Chapter V, as amended) or the Anti-Terrorism Order or
any enabling legislation or executive order relating to any of the same.
Without limiting the generality of the foregoing, no Borrower Party or any
of their respective subsidiaries (a) is or will become a blocked person
described in Section 1 of the Anti-Terrorism Order or (b) engages or will
engage in any dealings or transactions or be otherwise associated with any
such blocked person.
(2) Each Borrower Party shall be at all times during the term of the
Loans an entity or person which (a) is creditworthy, (b) is not a
Prohibited Person, and (c) is in good standing in its state or country of
organization.
Section 7.28 Organizational Structure.
(1) Borrower has heretofore delivered to Administrative Agent a true
and complete copy of the Organizational Documents of each Borrower Party.
The only member of Borrower on the date hereof is Managing Member. As of
the date hereof, except as otherwise expressly set forth above in this
Section 7.28(1), no Person holds any membership interest or other ownership
interest in Borrower or has any right, conditional or otherwise, to acquire
now or in the future any such membership interest or other ownership
interest in Borrower.
(2) The only classes of membership interests in Managing Member are
"Class A" common membership interests and "Class B" preferred membership
interests. The only member of the Managing Member that owns any "Class A"
common membership interests in Managing Member on the date hereof is OG
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Retail Holding Co., LLC, a Delaware limited liability company. There are
more than 125 members of the Managing Member that own "Class B" preferred
membership interests in Managing Member on the date hereof and no such
member (or group of affiliated members) owns more than a ten percent (10%)
interest in Managing Member. OG Retail Holding Co., LLC is the sole
managing member of the Managing Member. As of the date hereof, except as
otherwise expressly set forth above in this Section 7.28(2), no Person
holds any membership interest or other ownership interest in Managing
Member or has any right, conditional or otherwise, to acquire now or in the
future any such membership interest or other ownership interest in Managing
Member.
(3) The only members of OG Retail Holding Co., LLC on the date hereof
are Sponsor and OMERS Realty Corporation, a Canadian corporation. Sponsor
is the sole administering member of OG Retail Holding Co., LLC. As of the
date hereof, except as otherwise expressly set forth above in this Section
7.28(3), no Person holds any membership interest or other ownership
interest in OG Retail Holding Co., LLC or has any right, conditional or
otherwise, to acquire now or in the future any such membership interest or
other ownership interest in OG Retail Holding Co., LLC (except for the
rights of Sponsor and OMERS Realty Corporation to acquire the interest of
the other expressly set forth in Section 9.2 of the limited liability
company operating agreement of OG Retail Holding Co., LLC).
(4) Glimcher Properties Corporation, a Delaware corporation is the
sole general partner of Sponsor. As of the date hereof, except as otherwise
expressly set forth above in this Section 7.28(4), no Person holds any
general partnership interest or other ownership interest (other than
limited partnership interests) in Sponsor or has any right, conditional or
otherwise, to acquire now or in the future any such general partnership
interest or other ownership interest (other than limited partnership
interests) in Sponsor.
(5) Schedule 7.28 contains a true and accurate chart reflecting the
ownership of all of the direct and indirect equity interests in Borrower,
including the percentage of ownership interest of the Persons shown
thereon.
Section 7.29 Ground Lease. The Ground Lease is the only ground lease in
effect with respect to all or any portion of the Project. Borrower has delivered
a true and correct copy of the Ground Lease together with any and all amendments
thereto to Administrative Agent. To the Borrower's actual knowledge, the Ground
Lease is in full force and effect and there is no default thereunder by any
party thereto and no event has occurred that, with the passage of time and/or
the giving of notice would constitute a default thereunder. Borrower is the sole
tenant under the Ground Lease and the holder of a good, valid and marketable
leasehold estate in the Ground Lease Property under the Ground Lease and the
interest of Borrower, as tenant under the Ground Lease, has not been assigned.
All rents, additional rents and other sums due and payable under the Ground
Lease has been paid in full. Neither the Borrower nor, to the Borrower's actual
knowledge, any predecessor tenant, the landlord under the Ground Lease nor any
predecessor landlord under the Ground Lease has commenced any action or given or
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received any notice for the purpose of terminating the Ground Lease. The Ground
Lease constitutes the entire agreement between the landlord under the Ground
Lease and the Borrower with respect to the subject matter thereof. All consents
and approvals required from the landlord under the Ground Lease in connection
with the Ground Lease Property have been obtained. Pursuant to the terms of the
Ground Lease, Borrower has the right to execute and deliver the Mortgage, to
record the same and to encumber its leasehold interest in the Ground Lease
Property pursuant thereto.
Section 7.30 Tenant Improvement Work. Schedule 7.30 attached hereto sets
forth a true and complete summary of all Tenant Improvement Work currently
provided for in any existing leases of any portion of the Project that has not
yet been fully performed or completed.
Section 7.31 Tenant Improvement Allowances. Schedule 7.31 attached hereto
sets forth a true and complete summary of all Tenant Improvement Allowances
currently provided for in any existing leases of any portion of the Project that
have not yet been fully paid or satisfied.
ARTICLE 8
FINANCIAL REPORTING
Section 8.1 Financial Statements.
(1) Reserved.
(2) Quarterly Reports. Within forty five (45) days after the end of
each calendar quarter (except for the last calendar quarter of the calendar
year, other than items (ii), (iii) and (iv) below, which items (ii), (iii)
and (iv) shall also be delivered within 45 days after the end of the last
calendar quarter of each calendar year), Borrower shall furnish to
Administrative Agent a detailed operating statement (showing quarterly
activity and year to date) stating operating revenues, operating expenses
and net income for the calendar quarter just ended and a balance sheet for
such quarter for Borrower. Borrower's quarterly statements shall be
accompanied by (i) a comparison of the budgeted income and expenses and the
actual income and expenses for the prior calendar quarter, (ii) a
calculation reflecting the Debt Service Coverage Ratio as of the last day
of such quarter, for such quarter and the last four quarters; (iii) a
current rent roll and leasing report for the Project, (iv) a separate
statement of Operating Revenues and Operating Expenses (as each such term
is defined in this Agreement) for such calendar quarter, and (v) a
certificate executed by the chief financial officer of Borrower or the
general partner of Sponsor (on behalf of Sponsor in its capacity as
administering member of the managing member of the managing member of
Borrower) stating that each such quarterly statement has been prepared in
accordance with GAAP, subject to customary footnotes and year-end
adjustments, and, together with such footnotes and adjustments, presents
fairly the financial condition and the results of operations of Borrower
and the Project as of the date and for the period covered thereby and
certifying that the separate statement of Operating Revenues and Operating
Expenses for such calendar quarter delivered pursuant to clause (iv) above
presents fairly and accurately the actual Operating Revenues and Operating
Expenses for such calendar quarter.
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(3) Annual Reports. Within ninety (90) days after the end of each
calendar year of Borrower's operation of the Project, Borrower will furnish
to Administrative Agent a complete copy of Borrower's annual financial
statements audited by BDO ▇▇▇▇▇▇▇, a "big four" accounting firm or other
independent certified public accountant reasonably acceptable to
Administrative Agent in accordance with GAAP for such calendar year which
financial statements shall contain a balance sheet, a detailed operating
statement stating operating revenues, operating expenses and net income for
each of Borrower and the Project. Borrower's annual financial statements
shall be accompanied by (i) a comparison of the budgeted income and
expenses and the actual income and expenses for the prior calendar year,
(ii) a separate statement of Operating Revenues and Operating Expenses (as
each such term is defined in this Agreement) for such calendar year, (iii)
a certificate executed by the chief financial officer of Borrower or the
general partner of Sponsor (on behalf of Sponsor in its capacity as
administering member of the managing member of the managing member of
Borrower) stating that such annual financial statements have been prepared
in accordance with GAAP, subject to customary footnotes and year-end
adjustments, and, together with such footnotes and adjustments, present
fairly the financial condition and the results of operations of Borrower
and the Project as of the date and for the period covered thereby and
certifying that the separate statement of Operating Revenues and Operating
Expenses for such calendar quarter delivered pursuant to clause (ii) above
presents fairly and accurately the actual Operating Revenues and Operating
Expenses for such calendar year, and (iv) an unqualified opinion of the
permitted auditor of the Borrower's annual financial statements.
(4) Certification; Supporting Documentation. Each such financial
statement shall be in scope and detail reasonably satisfactory to
Administrative Agent and certified by the chief financial representative of
Borrower.
(5) Additional Reports. Borrower shall deliver to Administrative Agent
as soon as reasonably available, but in no event later than thirty (30)
days after such items become available to Borrower in final form a summary
report containing each of the following with respect to the Project for the
most recently completed calendar year: (A) aggregate gross sales by all
tenants under leases or other occupants of the Project, both on an actual
(to the extent such information is provided by tenants) and on a
"comparable store sales basis" with respect to stores open for more than
one (1) year, (B) rent per square foot payable by each tenant and (C)
aggregate occupancy of the Project by anchor space and in-line store space
as of December 31.
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Section 8.2 Accounting Principles. All financial statements shall be
prepared in accordance with sound accounting principles applicable to commercial
real estate, consistently applied from year to year.
Section 8.3 Other Information. Borrower shall deliver to Administrative
Agent such additional information as Administrative Agent may reasonably request
regarding Borrower, its subsidiaries, its business, any Borrower Party and the
Project (including, without limitation, such financial information as
Administrative Agent may reasonably request regarding any tenant who, together
with other tenants known to Borrower to be Affiliates of such tenant, leases
twenty percent (20%) or more of the total rentable square feet in the Project)
within thirty (30) days after Administrative Agent's request therefor, to the
extent received by Borrower after using commercially reasonable efforts to
obtain.
Section 8.4 Annual Budget. At least thirty (30) days prior to the
commencement of each fiscal year, Borrower will provide to Administrative Agent
its proposed annual operating and capital improvements budget for such fiscal
year for review by Administrative Agent. Without limiting the foregoing,
Borrower shall be required to obtain Administrative Agent's reasonable approval
of any such budget submitted during the continuance of any (i) Event of Default,
or (ii) Low DSCR Trigger Period.
Section 8.5 Audits. Administrative Agent shall have the right, at any time
during the continuance of any (i) Event of Default, or (ii) Low DSCR Trigger
Period, to choose and appoint a certified public accountant to perform financial
audits as it deems necessary, at Borrower's expense; except that Borrower shall
not be required to pay for more than one (1) such audit in any calendar year
unless an Event of Default shall have occurred and is continuing, in which case
such limit shall not apply. Borrower shall permit Administrative Agent to
examine such records, books and papers of Borrower which reflect upon its
financial condition and the income and expense relative to the Project.
ARTICLE 9
COVENANTS
Borrower covenants and agrees with Administrative Agent and the Lenders as
follows:
Section 9.1 Due on Sale and Encumbrance; Transfers of Interests. Without
the prior written consent of Administrative Agent and the Lenders (to the extent
required under Section 12.2),
(1) Borrower shall not allow any Change of Control to occur, or permit
any transfer to occur (whether of equity interests or through any pledge or
encumbrance of equity interests, or of the economic or other benefits
therefrom, whether voluntary, involuntary, by operation of law or
otherwise) if any such transfer would result in a Change of Control;
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(2) neither Borrower nor any other Person having an ownership or
beneficial interest in Borrower shall (a) sell, transfer, convey, alienate,
mortgage, pledge, encumber, ▇▇▇▇▇ ▇ ▇▇▇▇ on, assign or grant any interest
in, the Project or any part thereof, whether voluntarily or involuntarily
(b) sell, transfer, convey, alienate, mortgage, pledge, encumber, ▇▇▇▇▇ ▇
▇▇▇▇ on, assign or grant any interest in, any direct or indirect ownership
interest in Borrower, whether voluntarily or involuntarily, if the same (I)
would result in a Change of Control, or (II) in the case of any mortgage,
pledge, encumbrance, Lien or collateral assignment of any kind, would
result in a Change of Control if the applicable mortgagee, pledgee,
encumbrance or Lien holder or assignee foreclosed or otherwise realized
upon such mortgage, pledge, encumbrance, Lien or collateral assignment or
otherwise exercised any of its rights with respect thereto; or (c) enter
into any easement or other agreement (other than leases entered into in
accordance with the terms of this Agreement) granting rights in or
restricting the use or development of the Project;
(3) no new general partner, member, or limited partner having the
ability to control the affairs of Borrower shall be admitted to or created
in Borrower (nor shall any existing general partner or member or
controlling limited partner withdraw from Borrower), and no change in
Borrower's organizational documents relating to control over Borrower
and/or the Project shall be effected.
As used in this Section 9.1, "transfer" shall include the sale, transfer,
conveyance, alienation, mortgage, pledge or encumbrance of, granting of a Lien
on, assignment of, or granting of any interest in, the legal or beneficial
ownership of (a) the Project, (b) any partnership interest in any general
partner in Borrower that is a partnership, (c) any membership interest in any
member in Borrower that is a limited liability company and (d) any voting stock
in any managing member in Borrower that is a corporation; "transfer" shall not
include the leasing of any space within the Project so long as Borrower complies
with the provisions of the Loan Documents relating to such leasing activity.
Section 9.2 Taxes; Charges. Borrower shall pay before any fine, penalty,
interest or cost may be added thereto, and shall not enter into any agreement to
defer, any real estate taxes and assessments, franchise taxes and charges, and
other governmental charges that may become a Lien upon the Project or become
payable during the term of the Loans (collectively, the "Taxes"), and will
promptly furnish Administrative Agent with evidence of such payment; however,
Borrower's compliance with Section 4.1 of this Agreement relating to impounds
for taxes and assessments shall, with respect to payment of such taxes and
assessments, be deemed compliance with this Section 9.2. Borrower shall not
suffer or permit the joint assessment of the Project with any other real
property constituting a separate tax lot or with any other real or personal
property. Borrower shall pay when due all claims and demands of mechanics,
materialmen, laborers and others which, if unpaid, might result in a Lien on the
Project; however, Borrower may contest the validity of such claims, demands or
Taxes so long as (A) in the case of Taxes, Borrower either (1) pays the
contested Tax to the applicable taxing authority, whether under protest or
otherwise, or (2) does not pay the applicable Tax but complies with clause (B)
below in connection therewith, and (B) in the case of any Taxes which Borrower
does not pay to the applicable taxing authority and in the case of any other
claims or demands (1) Borrower notifies Administrative Agent that it intends to
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contest such Tax, claim or demand, (2) Borrower provides Administrative Agent
with an indemnity, bond or other security reasonably satisfactory to
Administrative Agent (including an endorsement to Administrative Agent's title
insurance policy insuring against such Tax, claim or demand) assuring the
discharge of Borrower's obligations for such Taxes, claims and demands,
including interest and penalties, (3) Borrower is diligently contesting the same
by appropriate legal proceedings in good faith and at its own expense and
concludes such contest prior to the tenth (10th) day preceding the earlier to
occur of the Maturity Date or the date on which the Project is scheduled to be
sold for non-payment, (4) such proceedings shall not subject Borrower,
Administrative Agent or any Lender to either civil or criminal liability; and
(5) Borrower, upon final determination, shall pay the amount of such claims,
demands and Taxes together with all interest and penalties thereon and all cost
relating thereto.
Section 9.3 Control; Management.
(1) There shall be no change in the day-to-day control and management
of Borrower or any Borrower Party without the prior written consent of
Administrative Agent. Borrower shall not terminate, replace or appoint any
manager or terminate or amend the Management Agreement for the Project
without Administrative Agent's prior written approval. Any change in
ownership or control of the Manager shall be cause for Administrative Agent
to re-approve such Manager and Management Agreement. If at any time
Administrative Agent consents to the appointment of a new manager, such new
manager and Borrower shall, as a condition of Administrative Agent's
consent, execute a Manager's Consent and Subordination of Management
Agreement in the form then used by Administrative Agent. Each manager shall
hold and maintain all necessary licenses, certifications and permits
required by law. Borrower shall fully perform all of its covenants,
agreements and obligations under the Management Agreement.
(2) Borrower shall: (i) diligently perform and observe all of the
terms, covenants and conditions of the Management Agreement on the part of
the Borrower to be performed and observed so that the rights of the
Borrower under the Management Agreement remain unimpaired; and (ii)
promptly notify Administrative Agent of the giving of any notice by the
Manager to Borrower of any default by Borrower in the performance or
observance of any of the terms, covenants or conditions of the Management
Agreement on the part of Borrower and deliver to Administrative Agent a
true copy of each such notice. Borrower shall promptly enforce the
performance and observance of all of the covenants required to be observed
and performed by the Manager.
(3) If (i) at any time, an Event of Default occurs and is continuing,
(ii) Manager shall become bankrupt or insolvent or the subject of any
bankruptcy proceeding or (iii) a default by Manager occurs under the
Management Agreement, Administrative Agent shall have the right to (and
Borrower shall, at the request of Administrative Agent) terminate the
Management Agreement and replace Manager with an independent third-party
manager approved by Administrative Agent on terms and conditions reasonably
satisfactory to Administrative Agent.
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(4) Notwithstanding anything contained in the Management Agreement,
fees under the Management Agreement shall not exceed four and one-quarter
percent (4.25%) of gross revenues from the Project.
Section 9.4 Operation; Maintenance; Inspection. Borrower shall observe and
comply with all legal requirements applicable to the ownership, use and
operation of the Project. Borrower shall maintain the Project in good condition
in a manner customary for a class "B" enclosed regional mall in the Los Angeles,
California metropolitan area and shall promptly repair any damage or casualty.
Borrower shall permit Administrative Agent and the Lenders and their agents,
representatives and employees, upon reasonable prior notice to Borrower, to
inspect the Project and conduct such environmental and engineering studies as
Administrative Agent may require, provided such inspections and studies do not
materially interfere with the use and operation of the Project.
Section 9.5 Taxes on Security. Borrower shall pay all taxes, charges,
filing, registration and recording fees, excises and levies payable with respect
to the Notes or the Liens created or secured by the Loan Documents, other than
income, franchise and doing business taxes imposed on Administrative Agent or
any Lender. If there shall be enacted any law (1) deducting the Loans from the
value of the Project for the purpose of taxation, (2) affecting any Lien on the
Project, or (3) changing existing laws of taxation of mortgages, deeds of trust,
security deeds, or debts secured by real property, or changing the manner of
collecting any such taxes, Borrower shall promptly pay to Administrative Agent,
on demand, all taxes, costs and charges for which Administrative Agent or any
Lender is or may be liable as a result thereof; however, if such payment would
be prohibited by law or would render the Loans usurious, then instead of
collecting such payment, Administrative Agent may (and on the request of the
Majority Lenders shall) declare all amounts owing under the Loan Documents to be
immediately due and payable.
Section 9.6 Legal Existence; Name, Etc. Borrower shall preserve and keep in
full force and effect its existence as a Single Purpose Entity, entity status,
franchises, rights and privileges under the laws of the state of its formation,
and all qualifications, licenses and permits applicable to the ownership, use
and operation of the Project. Borrower shall not wind up, liquidate, dissolve,
reorganize, merge, or consolidate with or into, or convey, sell, assign,
transfer, lease, or otherwise dispose of all or substantially all of its assets,
or acquire all or substantially all of the assets of the business of any Person.
Borrower shall not permit any Borrower Party to wind up, liquidate, dissolve,
reorganize, or convey, sell, assign, transfer, lease, or otherwise dispose of
all or substantially all of its assets. Borrower shall conduct business only in
its own name and shall not change its name, identity, or organizational
structure, or the location of its chief executive office or principal place of
business or state of formation unless Borrower (a) shall have obtained the prior
written consent of Administrative Agent to such change, and (b) shall have taken
all actions necessary or requested by Administrative Agent to file or amend any
financing statement or continuation statement to assure perfection and
continuation of perfection of security interests under the Loan Documents.
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Section 9.7 Affiliate Transactions. Without the prior written consent of
Administrative Agent, Borrower shall not engage in any transaction with an
Affiliate of Borrower except in the ordinary course of its business and on terms
which are intrinsically fair and are no less favorable to it than would be
obtained in a comparable arm's-length transaction with an unrelated third party.
Section 9.8 Limitation on Other Debt. Borrower shall not, without the prior
written consent of Administrative Agent and the Majority Lenders, incur any Debt
other than (a) the Loans, (b) obligations under any Hedge Agreement entered into
in accordance with Section 9.15 and trade and operational debt permitted under
the definition of Single Purpose Entity.
Section 9.9 Further Assurances. Borrower shall promptly (1) cure any
defects in the execution and delivery of the Loan Documents, and (2) execute and
deliver, or cause to be executed and delivered, all such other documents,
agreements and instruments as Administrative Agent may reasonably request to
further evidence and more fully describe the collateral for the Loans, to
correct any omissions in the Loan Documents, to perfect, protect or preserve any
Liens created under any of the Loan Documents, or to make any recordings, file
any notices, or obtain any consents, as may be necessary or appropriate in
connection therewith.
Section 9.10 Estoppel Certificates. Borrower, within ten (10) days after
request, shall furnish to Administrative Agent a written statement, duly
acknowledged, setting forth the amount due on the Loans, the terms of payment of
the Loans, the date to which interest has been paid, whether any offsets or
defenses exist against the Loans and, if any are alleged to exist, the nature
thereof in detail, and such other matters as Administrative Agent reasonably may
request.
Section 9.11 Notice of Certain Events. Borrower shall promptly notify
Administrative Agent of (1) any Event of Default, together with a detailed
statement of the steps being taken to cure such Event of Default; (2) any notice
of default received by Borrower or any Borrower Party under other obligations
relating to the Project or otherwise material to Borrower's business; and (3)
any threatened or pending legal, judicial or regulatory proceedings, including
any dispute between Borrower and any Governmental Authority, affecting Borrower
or the Project.
Section 9.12 Indemnification. Borrower shall indemnify, defend and hold
Administrative Agent and each Lender harmless from and against any and all
losses, liabilities, claims, damages, expenses, obligations, penalties, actions,
judgments, suits, costs or disbursements of any kind or nature whatsoever,
including the reasonable fees and actual expenses of their counsel, which may be
imposed upon, asserted against or incurred by any of them relating to or arising
out of (1) the Project or (2) any of the Loan Documents or the transactions
contemplated thereby, including, without limitation, (a) any accident, injury to
or death of persons or loss of or damage to property occurring in, on or about
any of the Project or any part thereof or on the adjoining sidewalks, curbs,
adjacent property or adjacent parking areas, streets or ways, (b) any
inspection, review or testing of or with respect to the Project, (c) any
investigative, administrative, mediation, arbitration, or judicial proceeding,
whether or not Administrative Agent or any Lender is designated a party thereto,
commenced or threatened at any time (including after the repayment of the Loans)
in any way related to the execution, delivery or performance of any Loan
Document or to the Project, (d) any proceeding instituted by any Person claiming
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a Lien, and (e) any brokerage commissions or finder's fees claimed by any broker
or other party in connection with the Loans, the Project, or any of the
transactions contemplated in the Loan Documents, including those arising from
the joint, concurrent, or comparative negligence of Administrative Agent or any
Lender, except to the extent any of the foregoing is determined in a final
non-appealable judgment by a court of competent jurisdiction to have been caused
by Administrative Agent's or any Lender's gross negligence or willful
misconduct, in which case the party to whom the gross negligence or willful
misconduct is attributable (but not any other party) shall not be entitled to
the indemnification provided for hereunder to the extent of such gross
negligence or willful misconduct.
Section 9.13 Payment for Labor and Materials. Borrower will promptly pay
when due all bills and costs for labor, materials, and specifically fabricated
materials incurred in connection with the Project and never permit to exist
beyond the due date thereof in respect of the Project or any part thereof any
Lien, even though inferior to the Liens of the Loan Documents, and in any event
never permit to be created or exist in respect of the Project or any part
thereof any other or additional Lien other than the Liens or security of the
Loan Documents, except for the Permitted Encumbrances.
Section 9.14 Alterations. Borrower shall obtain Administrative Agent's
prior written consent, which consent shall not be unreasonably withheld or
delayed, to any alterations to any improvements that may have a Material Adverse
Effect, other than (a) tenant improvement work performed pursuant to the terms
of any lease executed on or before the date hereof, (b) tenant improvement work
performed pursuant to the terms and provisions of a lease and not adversely
affecting any structural component of any improvements, any utility or HVAC
system contained in any improvements or the exterior of any building
constituting a part of any improvements at the Project, or (c) alterations
performed in connection with the restoration of the Project after the occurrence
of a casualty in accordance with the terms and provisions of this Agreement.
Section 9.15 Hedge Agreements.
(1) Borrower will (A) within ten (10) days after the Closing Date,
enter into, and shall at all times thereafter maintain in full force and
effect, a Hedge Agreement in the notional amount equal to $45,000,000, and
(B) within ten (10) days after the date that Eurohypo has syndicated the
Loans to the extent that the remaining principal amount of the Loans held
by Eurohypo is not greater than $45,000,000, enter into, and shall at all
times thereafter maintain in full force and effect, a Hedge Agreement in
(or increase the existing Hedge Agreement by) the notional amount equal to
$45,000,000 (for a total of $90,000,000), in each case (under the foregoing
clauses (A) and (B)) reasonably satisfactory to Administrative Agent with
(i) a Eurohypo Counterparty or (ii) one or more other banks or insurance
companies (each a "Third-Party Counterparty"), that shall have the effect
of capping the LIBOR rate at five percent (5%) per annum through the
Maturity Date. The Hedge Agreement shall require monthly fixed rate and
floating rate payments and be based on a LIBOR Rate of interest having
successive Interest Periods (an "Interest Rate Hedge Period") of one month
or such other Interest Periods reasonably satisfactory to Administrative
Agent. Prior to entering into any Third-Party Hedge Agreement, Borrower
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shall notify Eurohypo in writing of its intention to enter into such
Third-Party Hedge Agreement, which notice shall include a description of
the terms and conditions upon which Borrower is willing to enter into same
and, in such event, Eurohypo shall have a right of first refusal to enter
into (or cause another Eurohypo Counterparty to enter into) a Hedge
Agreement with Borrower on the same terms and otherwise on such terms and
conditions as the parties thereto shall agree.
(2) All of Borrower's obligations under any Hedge Agreement provided
by a Eurohypo Counterparty shall be secured by the lien of the Mortgage on
a pari passu basis with the Loans and other sums evidenced or secured by
the Loan Documents. Borrower's rights under or in respect of any Hedge
Agreement shall be assigned to Administrative Agent pursuant to a Hedge
Agreement Pledge.
(3) Any Hedge Agreement with Third-Party Counterparties is herein
called a "Third-Party Hedge Agreement". With respect to each Third-Party
Hedge Agreement (i) Borrower's obligations thereunder shall not be secured
by the Mortgage and shall not be secured by any Lien on or in all or any
portion of the collateral under the Security Documents or on or in any
direct or indirect interest in Borrower; (ii) the Third-Party Counterparty
providing such Third-Party Hedge Agreement must have a long term credit
rating no lower than "AA" from S&P at the time of entry into such
Third-Party Hedge Agreement; (iii) the form and substance must be
reasonably satisfactory to Administrative Agent; (iv) such Third-Party
Hedge Agreement shall provide pursuant to its terms that it may not be
terminated for any reason other than upon the repayment in full of all of
the obligations under the Loan Documents or upon acceleration of the Loans,
and (v) the Third-Party Counterparty providing such Third-Party Hedge
Agreement must enter into a written agreement with Administrative Agent
providing Administrative Agent with the ability to cure any Borrower
defaults under the Third-Party Hedge Agreement and to maintain the
Third-Party Hedge Agreement in full force and effect after the occurrence
of any Borrower default or other Borrower caused termination event
thereunder caused by Borrower, which agreement must be in form and
substance acceptable to Administrative Agent in its reasonable discretion
and in all respects and shall in no event obligate Administrative Agent to
perform any of Borrower's obligations thereunder.
(4) In the event of any downgrade, withdrawal or qualification of the
rating of the a Third-Party Counterparty below "AA" by S&P Borrower shall
replace the Hedge Agreement with a replacement Hedge Agreement meeting the
requirements of this Section 9.15 not later than fifteen (15) Business Days
after learning of such downgrade, withdrawal or qualification.
(5) If Borrower fails for any reason or cause whatsoever to secure a
Hedge Agreement as and when required to do so hereunder, such failure shall
constitute an Event of Default and Administrative Agent shall be entitled
to exercise all rights and remedies available to it under this Agreement
and the other Loan Documents or otherwise, including the right (but not the
obligation) of Administrative Agent to secure or otherwise enter into one
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or more Hedge Agreements with a Lender for and on behalf of Borrower
without such action constituting a cure of such Event of Default and
without waiving Administrative Agent's or Lenders' rights arising out of or
in connection with such Event of Default. If Administrative Agent shall
enter into a Hedge Agreement with a Lender in accordance with its right to
do so pursuant to this subsection (5), then (i) the terms and provisions of
any such Hedge Agreement, including the term thereof, shall be reasonably
determined by Administrative Agent and (ii) Borrower shall pay all of
Administrative Agent's costs and expenses in connection therewith,
including any fees charged by the applicable counterparty, attorneys' fees
and disbursements, and the cost of additional title insurance in an amount
determined by Administrative Agent to be necessary to protect
Administrative Agent and the Lenders from potential funding losses under
any Hedge Agreement provided by Administrative Agent.
(6) Borrower shall, at its sole cost and expense, provide
Administrative Agent with such additional title insurance coverage and
endorsements to the title policy (or, if such additional title insurance is
not available by endorsement, Borrower shall provide separate title
insurance policies with respect thereto) as Administrative Agent shall
reasonably require in connection with any Hedge Agreement provided by
Administrative Agent under subsection (5) of this Section 9.15.
(7) If Borrower is entitled to receive a payment under any Hedge
Agreement upon a termination thereof, such payment shall be delivered to
Administrative Agent and applied by Administrative Agent to any amounts due
to Administrative Agent or the Lenders under the Loan Documents in such
order and priority as Administrative Agent shall determine in its sole and
absolute discretion.
(8) The economic and other benefits of the Hedge Agreements secured by
Borrower and all of the other rights of Borrower thereunder shall be
collaterally assigned to Administrative Agent as additional security for
the Loans, pursuant to a Hedge Agreement Pledge. All Hedge Agreement
Pledges shall be accompanied by (i) Uniform Commercial Code financing
statements, in duplicate, with respect to such pledges and (ii) the consent
and agreement of the counterparty thereunder that it will continue to
perform its obligations under such Hedge Agreement for the benefit of
Administrative Agent and the Lenders after enforcement of and/or
realization on such Hedge Agreement Pledge and an acknowledgement that
Administrative Agent shall not be deemed to have assumed any of the
obligations or duties of Borrower under any such Hedge Agreement.
(9) In connection with a Third-Party Hedge Agreement, Borrower shall
obtain and deliver to Administrative Agent an opinion from counsel (which
counsel may be in-house counsel for the Third-Party Counterparty) for the
Third-Party Counterparty (in form reasonably satisfactory to Administrative
Agent and upon which Administrative Agent, the Lenders and their respective
successors and assigns may rely) which shall provide, in relevant part,
that:
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(a) the Third-Party Counterparty is duly organized, validly existing, and
in good standing under the laws of its jurisdiction of incorporation or
organization and has the organizational power and authority to execute and
deliver, and to perform its obligations under, the Third-Party Hedge Agreement;
(b) the execution and delivery of the Third-Party Hedge Agreement by the
Third-Party Counterparty, and any other agreement which the Third-Party
Counterparty has executed and delivered pursuant thereto, and the performance of
its obligations thereunder have been and remain duly authorized by all necessary
action and do not contravene any provision of its certificate of incorporation
or by-laws (or equivalent organizational documents) or any law, regulation or
contractual restriction binding on or affecting it or its property;
(c) all consents, authorizations and approvals required for the execution
and delivery by the Third-Party Counterparty of the Third-Party Hedge Agreement,
and any other agreement which the Third-Party Counterparty has executed and
delivered pursuant thereto, and the performance of its obligations thereunder
have been obtained and remain in full force and effect, all conditions thereof
have been duly complied with, and no other action by, and no notice to or filing
with any Governmental Authority or regulatory body is required for such
execution, delivery or performance; and
(d) the Third-Party Hedge Agreement, and any other agreement which the
Third-Party Counterparty has executed and delivered pursuant thereto, has been
duly executed and delivered by the Third-Party Counterparty and constitutes the
legal, valid and binding obligation of the Third-Party Counterparty, enforceable
against the Third-Party Counterparty in accordance with its terms, subject to
applicable bankruptcy, insolvency and similar laws affecting creditors' rights
generally, and subject, as to enforceability, to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or at
law).
If any Hedge Agreement delivered by Borrower to Administrative Agent, shall by
its terms, expire prior to the Maturity Date, Borrower shall deliver to
Administrative Agent a replacement Hedge Agreement at least ten (10) Business
Days prior to the expiration date of the then current Hedge Agreement which
replacement Hedge Agreement shall be acceptable to Administrative Agent in its
reasonable discretion and otherwise satisfy the requirements of this Section
9.15.
Section 9.16 Certain Financial Covenants.
(1) Debt Service Coverage Ratio. Commencing with the calendar quarter
ending on June 30, 2008, Borrower shall not permit the Debt Service
Coverage Ratio determined as of the end of any calendar quarter to be less
than 1.00:1.00.
Section 9.17 Handicapped Access.
(1) Borrower (a) agrees that it shall use commercially reasonable
efforts to ensure that the Project shall at all times comply with the
requirements of the Americans with Disabilities Act of 1990, the Fair
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Housing Amendments Act of 1988, all state and local laws and ordinances
related to handicapped access and all rules, regulations, and orders issued
pursuant thereto including, without limitation, the Americans with
Disabilities Act Accessibility Guidelines for Buildings and Facilities
(collectively, "Access Laws") and (b) has no actual knowledge as to the
Project's non-compliance with any Access Laws where the failure to so
comply could have a material adverse effect on the Project or on Borrower's
ability to repay the Loans in accordance with the terms hereof.
(2) Notwithstanding any provisions set forth herein or in any other
document regarding Administrative Agent's approval of alterations of the
Project, Borrower shall not alter the Project (or permit the Project to be
altered) in any manner which would materially increase Borrower's
responsibilities for compliance with the applicable Access Laws without the
prior written approval of Administrative Agent. The foregoing shall apply
to tenant improvements (a) constructed by Borrower or (b) constructed by
any tenants with the knowledge of Borrower. Administrative Agent may
condition any such approval upon receipt of a certificate of Access Law
compliance from an architect, engineer, or other person reasonably
acceptable to Administrative Agent.
(3) Borrower agrees to give prompt notice to Administrative Agent of
the receipt by Borrower of any written complaints related to violation of
any Access Laws with respect to the Project and of the commencement of any
proceedings or investigations which relate to compliance with applicable
Access Laws.
Section 9.18 Zoning. Borrower shall not, without Administrative Agent's
prior consent, seek, make, suffer, consent to or acquiesce in any change or
variance in any zoning or land use laws affecting the Project or any portion
thereof. Borrower shall not use or permit the use of any portion of the Project
in any manner that could result in such use becoming a non-conforming use under
any zoning or land use law or any other applicable law or modify any agreements
relating to zoning or land use matters or with the joinder or merger of lots for
zoning, land use or other purposes, without the prior written consent of
Administrative Agent, such consent not to be unreasonably withheld, conditioned
or delayed. Without limiting the foregoing, in no event shall Borrower take any
action that would reduce or impair either (a) the number of parking spaces at
the Improvements without the prior written consent of Administrative Agent, such
consent not to be unreasonably withheld, or (b) access to the Project from
adjacent public roads. Further, without Administrative Agent's prior written
consent, Borrower shall not file or subject any part of the Project to any
declaration of condominium or co-operative or convert any part of the Project to
a condominium, co-operative or other direct or indirect form of multiple
ownership and governance.
Section 9.19 ERISA. Borrower shall not shall not take any action, or omit
to take any action, which would (a) cause Borrower's assets to constitute "plan
assets" for purposes of ERISA or the Code or (b) cause the Transactions to be a
nonexempt prohibited transaction (as such term is defined in Section 4975 of the
Code or Section 406 of ERISA) that could subject Administrative Agent and/or the
Lenders, on account of any Loan or execution of the Loan Documents hereunder, to
any tax or penalty on prohibited transactions imposed under Section 4975 of the
Code or Section 502(i) of ERISA.
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Section 9.20 Books and Records; Inspection Rights. Borrower will, and will
cause each of the other Borrower Parties to, keep proper books of record and
account in which full, true and correct entries are made of all dealings and
transactions in relation to its business and activities. Borrower will, and will
cause each of the other Borrower Parties to, permit any representatives
designated by Administrative Agent or any Lender, upon reasonable prior notice,
to visit and inspect its properties, to examine and make extracts from its books
and records, and to discuss its affairs, finances and condition with its
officers and independent accountants, all at such reasonable times and as often
as reasonably requested; provided that any such inspection shall not materially
interfere with the use and operation of the Project.
Section 9.21 Foreign Assets Control Regulations. Neither Borrower nor any
Borrower Party shall use the proceeds of the Loan in any manner that will
violate the Trading with the Enemy Act, as amended, or any of the foreign assets
control regulations of the United States Treasury Department (31 CFR, Subtitle
B, Chapter V, as amended) or the Anti-Terrorism Order or any enabling
legislation or executive order relating to any of the same. Without limiting the
foregoing, neither Borrower nor any Borrower Party will permit itself nor any of
its Subsidiaries to (a) become a blocked person described in Section 1 of the
Anti-Terrorism Order or (b) knowingly engage in any dealings or transactions or
be otherwise associated with any person who is known by such Borrower Party or
who (after such inquiry as may be required by applicable law) should be known by
such Borrower Party to be a blocked person.
Section 9.22 Litigation Naming Administrative Agent or a Lender. If any
litigation, administrative proceeding, investigation or other legal action shall
be commenced against Borrower, any Borrower Party or any tenant at the Project,
or that otherwise relates in any way to any such party or the Project or the
transactions contemplated hereby, and, in any such case, Administrative Agent or
any Lender is named as a party thereto, Borrower shall, within three (3) days of
written demand by Administrative Agent, provide Administrative Agent and/or any
such Lender with a Collateral Letter of Credit or bond satisfactory to
Administrative Agent and any such Lender in its or their sole discretion to
protect such party from any potential costs or liabilities relating thereto, all
in form and substance acceptable to each such party in its sole discretion;
provided, however, that Borrower shall not be required to so protect any such
party from any such costs or liabilities to the extent such costs or liabilities
have resulted solely from Administrative Agent's or any Lender's gross
negligence or willful misconduct, in which case the party to whom the gross
negligence or willful misconduct is attributable (but not any other party) shall
not be entitled to the protection to be provided for under such Collateral
Letter of Credit or bond to the extent of such gross negligence or willful
misconduct; and provided further, however, that if the applicable litigation,
administrative proceeding, investigation or other legal action shall have been
commenced by Administrative Agent or any Lender, then, the Administrative Agent
or such Lender which shall have commenced the same (but not any other party)
shall not be entitled to the protection to be provided for under such Collateral
Letter of Credit or bond.
Section 9.23 Ground Lease Covenants. With respect to the Ground Lease,
Borrower agrees as follows:
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(1) Borrower shall perform all obligations of the tenant under the
Ground Lease and under any statute, ordinance, rule or regulation relating
to the Ground Lease, and shall not to cause or permit any breach thereof,
and shall use diligent efforts in good faith to enforce the obligations of
the landlord under the Ground Lease to the end that Borrower may enjoy all
the rights granted under the Ground Lease. If Borrower shall default under
the Ground Lease, or if Administrative Agent shall receive notice of any
default under the Ground Lease, Administrative Agent may, at its option but
without any obligation to do so, take any action necessary or desirable to
cure any such default, Administrative Agent being authorized to enter upon
the Ground Lease Property and the remainder of the Project for such purpose
with or without notice and without becoming a mortgagee in possession.
Borrower shall pay to Administrative Agent all costs of Administrative
Agent incurred in curing any such default, together with interest on such
costs from the date of expenditure until said sums have been paid, at the
Default Rate.
(2) Borrower shall promptly (and in any event within five (5) Business
Days after the same is received or sent by Borrower) deliver to
Administrative Agent copies of any written notice of default under the
Ground Lease that is received, or sent, by Borrower.
(3) Borrower acknowledges and agrees that there shall, without the
written consent of Administrative Agent, be no merger of the Ground Lease
nor of the leasehold estate or other estate created thereby, with the fee
estate in the Ground Lease Property by reason of the fact that the Ground
Lease, or the leasehold estate or other estate created thereby, may be held
directly or indirectly by or for the account of any person or entity who or
which also holds the fee or leasehold estate in such property (including,
without limitation, by virtue of the exercise by Borrower of any right to
purchase all or any portion of the Ground Lease Property or the exercise by
the landlord under the Ground Lease of any right to require Borrower to
purchase all or any portion of the Ground Lease Property, which purchase by
the Borrower, in either such case, shall be subject to the restrictions
contained in this Agreement).
(4) Borrower acknowledges and agrees that no termination or surrender
by Borrower under the Ground Lease to the landlord thereunder shall be
valid or effective. The terms of the Ground Lease may not be modified,
amended, supplemented, waived or released, or terminated or subordinated to
any mortgage, agreement, lease or other interest, either orally or in
writing, without the prior written consent of Administrative Agent.
(5) Borrower acknowledges and agrees that if the Ground Lease is for
any reason whatsoever terminated prior to the expiration of its term and,
if pursuant to any provision of the Ground Lease or otherwise,
Administrative Agent or its designee shall acquire from the landlord under
the Ground Lease a new lease or other agreement for the use of the property
covered by the Ground Lease, Borrower shall not have any right, title or
interest in or to such new lease or other agreement or the estate created
thereby.
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(6) Without obtaining Administrative Agent's prior written consent,
Borrower shall not acquire the fee title to the Ground Lease Property or
make any election, give any consent or approval or invoke any right of
first refusal, purchase option, put or call right as a tenant under the
Ground Lease.
(7) Borrower shall from time to time upon the written request of
Administrative Agent request from the landlord under the Ground Lease, and
use commercially reasonable efforts to deliver to Administrative Agent,
estoppel certificates from the landlord under the Ground Lease, in form and
substance reasonably acceptable to Administrative Agent.
(8) Borrower acknowledges that pursuant to Section 365 of the
Bankruptcy Code it is possible that a trustee in bankruptcy of the landlord
under the Ground Lease, or such landlord as a debtor-in-possession, could
reject the Ground Lease, in which case the Borrower, as tenant, would have
the election described in Section 365(h) of the Bankruptcy Code (which
election, as the same may be amended from time to time, and together with
any comparable right under any other state or federal law relating to
bankruptcy, reorganization or other relief for debtors, whether now or
hereafter in effect, is herein called the "Election") to treat the Ground
Lease as terminated by such rejection or, in the alternative, to remain in
possession for the balance of the term of the Ground Lease, and any renewal
or extension thereof that is enforceable by the tenant under applicable
nonbankruptcy law. Borrower shall not permit the termination of the Ground
Lease by exercise of the Election or otherwise without the prior written
consent of Administrative Agent, which consent may be withheld, conditioned
or delayed for any reason in Administrative Agent's sole and absolute
discretion. In order to secure the covenant made in this subsection and as
security for the obligations of Borrower under the Loan Documents, Borrower
assigns the Election and all rights related thereto to Administrative Agent
(for the benefit of Lenders). Borrower acknowledges and agrees that the
foregoing assignment of the Election and related rights is one of the
rights which Administrative Agent may use at any time in order to protect
and preserve the other rights and interests of Administrative Agent and
Lenders under this Agreement and the other Loan Documents, since exercise
of the Election in favor of terminating the Ground Lease without
Administrative Agent's consent would constitute waste hereunder. Borrower
agrees that exercise of the Election in favor of preserving the right to
possession under the Ground Lease shall not be deemed to constitute a
taking or sale of the Ground Lease Property by Administrative Agent and
shall not entitle Borrower to any credit against the Loans or other
obligations under this Agreement and the other Loan Documents. Borrower
acknowledges and agrees that in the event the Election is exercised in
favor of the Borrower remaining in possession, Borrower's resulting rights
under the Ground Lease, as adjusted by the effect of Section 365 of the
Bankruptcy Code, shall then be subject to this Agreement and the other Loan
Documents.
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(9) If there shall be filed by or against Borrower a petition under
the Bankruptcy Code, and the Borrower, as the tenant under the Ground
Lease, shall determine to reject the Ground Lease pursuant to Section
365(a) of the Bankruptcy Code, then Borrower shall give Administrative
Agent not less than ten (10) days' prior notice of the date on which the
Borrower shall apply to the bankruptcy court for authority to reject the
Ground Lease. Administrative Agent shall have the right, but not the
obligation, to serve upon Borrower within such 10-day period a notice
stating that (i) Administrative Agent demands that the Borrower assume and
assign the Ground Lease to Administrative Agent pursuant to Section 365 of
the Bankruptcy Code and (ii) Administrative Agent agrees to cure or provide
adequate assurance of prompt cure of all defaults and provide adequate
assurance of future performance under the Ground Lease. If Administrative
Agent serves upon Borrower the notice described in the preceding sentence,
Borrower shall not seek to reject the Ground Lease and shall comply with
the demand provided for in clause (i) of the preceding sentence within
thirty (30) days after the notice shall have been given, subject to the
performance by Administrative Agent of the agreement provided for in clause
(ii) of the preceding sentence.
(10) Effective upon the entry of an order for relief in respect of the
Borrower under the Bankruptcy Code, the Borrower hereby assigns and
transfers to Administrative Agent a non-exclusive right to apply to the
bankruptcy court under Section 365(d)(4) of the Bankruptcy Code for an
order extending the period during which the Ground Lease may be rejected or
assumed.
ARTICLE 10
EVENTS OF DEFAULT
Each of the following shall constitute an Event of Default under the Loans:
Section 10.1 Payments. Borrower's failure to (i) pay any regularly
scheduled installment of principal, interest, the Agency Fee or other amount due
under the Loan Documents or (ii) make a deposit of cash, and/or deliver a
Collateral Letter of Credit required under the Loan Documents, within five (5)
days of (and including) the date when due, or Borrower's failure to pay the
Loans at the Maturity Date, whether by acceleration or otherwise.
Section 10.2 Insurance. Borrower's failure to maintain insurance as
required under Section 3.1 of this Agreement.
Section 10.3 Single Purpose Entity. If Borrower or any Borrower Party that
is required to be a Single Purpose Entity hereunder (it being acknowledged that,
so long as Borrower qualifies as a Single Purpose Entity by virtue of being a
Single Member Bankruptcy Remote LLC, no Borrower Party shall also be required to
be a Single Purpose Entity): (i) violates any of the provisions set forth
clauses (b)(i), (b)(ii), (b)(iii), (b)(iv), (b)(v), (b)(vi), (b)(vii),
(b)(viii), (b)(ix), (b)(x), (b)(xiv), (b)(xxi), (b)(xxii), (b)(xxiii), (b)(xxv),
(b)(xxxi), or (b)(xxxii) of the definition of Single Purpose Entity (either
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directly or as incorporated into the definition of Single Member Bankruptcy
Remote LLC) and such violation is not cured within five (5) Business Days of the
date that any officer of any Borrower or Borrower Party obtains knowledge of
such violation; (ii) violates any of the provisions set forth clauses (a) (to
the extent not covered under clause (i) above in this Section 10.3), (c), (d) or
(e) of the definition of Single Member Bankruptcy Remote LLC and such violation
is not cured within five (5) Business Days of the date that any officer of any
Borrower or Borrower Party obtains knowledge of such violation; or (iii)
violates any of the other provisions of the definition of Single Purpose Entity
or the definition of Single Member Bankruptcy Remote LLC and such violation is
not cured within thirty (30) days of the date that any officer of any Borrower
or Borrower Party obtains knowledge of such violation, provided, however, upon
reasonable discretion of Administrative Agent, such thirty (30) days may be
extended to sixty (60) days.
Section 10.4 Taxes. If any of the Taxes are not paid before the same become
delinquent.
Section 10.5 Sale, Encumbrance, Etc. The sale, transfer, conveyance,
alienation, mortgage, pledge or encumbrance of, granting of a Lien on,
assignment of, or granting of any interest in, the legal or beneficial ownership
of any part or all of the Project, or any interest therein, or of any interest
in Borrower, in violation of Section 9.1 of this Agreement.
Section 10.6 Representations and Warranties. Any representation or warranty
made in any Loan Document proves to be untrue in any material respect when made
or deemed made.
Section 10.7 Other Encumbrances. Any default under any document or
instrument, other than the Loan Documents, evidencing or creating a Lien on the
Project or any part thereof shall occur and such default shall not be cured
within any applicable notice or cure period provided for under such document or
instrument.
Section 10.8 Various Covenants. Borrower defaults under any of its
obligations under Section 6.2 (pertaining to lease approvals) and Sections 9.3
(management of the Project), 9.7 (transactions with Affiliates), 9.8
(limitations on debt), 9.18 (zoning and use changes) or 9.19 (ERISA), of this
Agreement.
Section 10.9 Hedge Arrangements. Borrower defaults under any of its
obligations under Section 9.15 of this Agreement.
Section 10.10 Financial Covenants. Borrower defaults under any of its
obligations under Section 9.16 of this Agreement.
Section 10.11 Involuntary Bankruptcy or Other Proceeding. Commencement of
an involuntary case or other proceeding against Borrower, any Borrower Party or
any other Person having an ownership or security interest in the Project (each,
a "Bankruptcy Party") which seeks liquidation, reorganization or other relief
with respect to it or its debts or other liabilities under any bankruptcy,
insolvency or other similar law now or hereafter in effect or seeks the
appointment of a trustee, receiver, liquidator, custodian or other similar
official of it or any of its property, and such involuntary case or other
proceeding shall remain undismissed or unstayed for a period of sixty (60) days;
or an order for relief against a Bankruptcy Party shall be entered in any such
case under the Bankruptcy Code.
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Section 10.12 Voluntary Petitions, Etc. Commencement by a Bankruptcy Party
of a voluntary case or other proceeding seeking liquidation, reorganization or
other relief with respect to itself or its Debts or other liabilities under any
bankruptcy, insolvency or other similar law or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar official for it or any
of its property, or consent by a Bankruptcy Party to any such relief or to the
appointment of or taking possession by any such official in an involuntary case
or other proceeding commenced against it, or the making by a Bankruptcy Party of
a general assignment for the benefit of creditors, or the failure by a
Bankruptcy Party, or the admission by a Bankruptcy Party in writing of its
inability, to pay its debts generally as they become due, or any action by a
Bankruptcy Party to authorize or effect any of the foregoing.
Section 10.13 Indebtedness. Any of the Borrower Parties, or any combination
thereof, shall default in the payment when due of any principal of or interest
on any of its other Indebtedness aggregating $500,000 or more and such default
shall not be cured within any applicable notice or cure period provided with
respect to such Indebtedness; or any event specified in any note, agreement,
indenture or other document evidencing or relating to any such Indebtedness
shall occur if the effect of such event is to cause, or (with the giving of any
notice or the lapse of time or both) to permit the holder or holders of such
Indebtedness to cause, such Indebtedness to become due, or to be prepaid in full
(whether by redemption, purchase, offer to purchase or otherwise); prior to its
stated maturity.
Section 10.14 Dissolution. Any of the Borrower Parties shall be terminated,
dissolved or liquidated (as a matter of law or otherwise) or proceedings shall
be commenced by any Person (including any Borrower Party) seeking the
termination, dissolution or liquidation of any Borrower Party, which, in the
case of actions by Persons other than a Borrower Party or any of their
Affiliates, shall continue unstayed and in effect for a period of sixty (60) or
more days.
Section 10.15 Judgments. One or more (i) judgments for the payment of money
(exclusive of judgment amounts fully covered, in excess of applicable permitted
deductibles, by insurance where the insurer has admitted liability in respect of
such judgment) aggregating in excess of $500,000 shall be rendered against one
or more of the Borrower Parties or (ii) non-monetary judgments, orders or
decrees shall be entered against any of the Borrower Parties which have or would
reasonably be expected to have a Material Adverse Effect, and, in either case,
the same shall remain undischarged for a period of thirty (30) consecutive days
during which execution shall not be effectively stayed, or any action shall be
legally taken by a judgment creditor to attach or levy upon any assets of such
Borrower Party to enforce any such judgment.
Section 10.16 Security. The Liens created by the Security Documents shall
at any time not constitute a valid and perfected first priority Lien (subject to
the Permitted Encumbrances) on the collateral intended to be covered thereby in
favor of Administrative Agent, free and clear of all other Liens (other than the
Permitted Encumbrances), or, except for expiration in accordance with its terms,
any of the Security Documents shall for whatever reason be terminated or cease
to be in full force and effect, or the enforceability thereof shall be contested
by any Borrower Party or any of their Affiliates;
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Section 10.17 Guarantor Documents. Any Guarantor shall (i) default under
any Guaranty beyond any applicable notice and grace period; or (ii) revoke or
attempt to revoke, contest or commence any action against its obligations under
any Guaranty.
Section 10.18 Security Accounts. Borrower uses, or permits the use of,
funds from the Security Accounts for any purpose other than the purpose for
which such funds were disbursed from the Security Accounts.
Section 10.19 Hedge Agreement. Borrower shall default under any Hedge
Agreement and such default is not cured within the applicable notice and cure
periods provided therein.
Section 10.20 Covenants. Borrower's failure to perform or observe any of
the agreements and covenants contained in this Agreement or in any of the other
Loan Documents and not specified above, and the continuance of such failure for
thirty (30) days after notice by Administrative Agent to Borrower; provided,
however, subject to any shorter period for curing any failure by Borrower as
specified in any of the other Loan Documents, Borrower shall have an additional
ninety (90) days to cure such failure if (1) such failure does not involve the
failure to make payments on a monetary obligation; (2) such failure cannot
reasonably be cured within thirty (30) days; (3) such failure is reasonably
susceptible to being cured by Borrower within such ninety (90) day period; (4)
Borrower is diligently undertaking to cure such default, and (5) Borrower has
provided Administrative Agent with security reasonably satisfactory to
Administrative Agent against any interruption of payment or impairment of
collateral as a result of such continuing failure.
Section 10.21 Ground Lease. If: (A) the Ground Lease is modified,
surrendered or terminated without Administrative Agent's prior written consent;
or (B) any event of default shall occur under the Ground Lease, or any event
shall occur which, with the giving of notice or passage of time or both, would
constitute an event of default under the Ground Lease, provided that in the case
of an event which has not yet matured into a Ground Lease event of default and
for which the Ground Lease allows a period of notice and cure, and such event
does not otherwise constitute an Event of Default under any of the other
sections of this Article 10, such event shall not constitute an Event of Default
under this Section 10.21 if Borrower promptly commences and diligently proceeds
to complete the cure of such event, and such event is cured to Administrative
Agent's reasonable satisfaction prior to the earlier of (i) the date such event
would otherwise constitute an Event of Default under any of the other sections
of this Article 10, or (ii) the date the same would, if not cured, constitute a
Ground Lease default.
Notwithstanding anything set forth in this Article 10, no cure periods will
be afforded for any willful breach hereunder or under any of the Loan Documents.
ARTICLE 11
REMEDIES
Section 11.1 Remedies - Insolvency Events. Upon the occurrence of any Event
of Default described in Section 10.8 or 10.9, the obligations of the Lenders to
advance amounts hereunder shall immediately terminate, and all amounts due under
the Loan Documents immediately shall become due and payable, all without written
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notice and without presentment, demand, protest, notice of protest or dishonor,
notice of intent to accelerate the maturity thereof, notice of acceleration of
the maturity thereof, or any other notice of default of any kind, all of which
are hereby expressly waived by Borrower; provided, however, if the Bankruptcy
Party under Section 10.8 or 10.9 is other than Borrower, then all amounts due
under the Loan Documents shall become immediately due and payable at
Administrative Agent's election, in Administrative Agent's sole and absolute
discretion.
Section 11.2 Remedies - Other Events. Except as set forth in Section 11.1
above, while any Event of Default exists and is continuing, Administrative Agent
may (1) by written notice to Borrower, declare the entire amount of the Loans to
be immediately due and payable without presentment, demand, protest, notice of
protest or dishonor, notice of intent to accelerate the maturity thereof, notice
of acceleration of the maturity thereof, or other notice of default of any kind,
all of which are hereby expressly waived by Borrower, (2) terminate the
obligation, if any, of the Lenders to advance amounts hereunder, and (3)
exercise all rights and remedies therefor under the Loan Documents and at law or
in equity.
Section 11.3 Administrative Agent's Right to Perform the Obligations. If
Borrower shall fail, refuse or neglect to make any payment or perform any act
required by the Loan Documents, then while any Event of Default exists and is
continuing, and without notice to or demand upon Borrower and without waiving or
releasing any other right, remedy or recourse Administrative Agent or any Lender
may have because of such Event of Default, Administrative Agent may (but shall
not be obligated to) make such payment or perform such act for the account of
and at the expense of Borrower, and shall have the right to enter upon the
Project for such purpose and to take all such action thereon and with respect to
the Project as it may deem necessary or appropriate. If Administrative Agent
shall elect to pay any sum due with reference to the Project, Administrative
Agent may do so in reliance on any ▇▇▇▇, statement or assessment procured from
the appropriate Governmental Authority or other issuer thereof without inquiring
into the accuracy or validity thereof. Similarly, in making any payments to
protect the security intended to be created by the Loan Documents,
Administrative Agent shall not be bound to inquire into the validity of any
apparent or threatened adverse title, Lien, encumbrance, claim or charge before
making an advance for the purpose of preventing or removing the same.
Additionally, if any Hazardous Materials affect or threaten to affect the
Project, Administrative Agent may (but shall not be obligated to) give such
notices and take such actions as it deems necessary or advisable in order to
▇▇▇▇▇ the discharge of any Hazardous Materials or remove the Hazardous
Materials. Borrower shall indemnify, defend and hold Administrative Agent and
the Lenders harmless from and against any and all losses, liabilities, claims,
damages, expenses, obligations, penalties, actions, judgments, suits, costs or
disbursements of any kind or nature whatsoever, including reasonable attorneys'
fees and disbursements, incurred or accruing by reason of any acts performed by
Administrative Agent or any Lender pursuant to the provisions of this Section
11.3, including those arising from the joint, concurrent, or comparative
negligence of Administrative Agent and any Lender, except to the extent that
they are determined in a final non-appealable judgment by a court of competent
jurisdiction to have resulted from Administrative Agent's or any Lender's gross
negligence or willful misconduct, in which case the party to whom the gross
negligence or willful misconduct is attributable (but not any other party) shall
not be entitled to the indemnification provided for hereunder to the extent of
such gross negligence or willful misconduct. All sums paid by Administrative
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Agent pursuant to this Section 11.3, and all other sums expended by
Administrative Agent or any Lender to which it shall be entitled to be
indemnified, together with interest thereon at the Default Rate from the date of
such payment or expenditure until paid, shall constitute additions to the Loans,
shall be secured by the Loan Documents and shall be paid by Borrower to
Administrative Agent upon demand.
ARTICLE 12
MISCELLANEOUS
Section 12.1 Notices. Any notice required or permitted to be given under
this Agreement shall be in writing and either shall be (a) mailed by certified
mail, postage prepaid, return receipt requested, (b) sent by overnight air
courier service, (c) personally delivered to a representative of the receiving
party, or (d) sent by telecopy (provided an identical notice is also sent
simultaneously by mail, overnight courier, or personal delivery as otherwise
provided in this Section 12.1) to the intended recipient at the "Address for
Notices" specified below its name on the signature pages hereof. Any
communication so addressed and mailed shall be deemed to be given on the
earliest of (1) when actually delivered, (2) on the first Business Day after
deposit with an overnight air courier service, or (3) on the third Business Day
after deposit in the United States mail, postage prepaid, in each case to the
address of the intended addressee, and any communication so delivered in person
shall be deemed to be given when receipted for by, or actually received by
Administrative Agent, a Lender or Borrower, as the case may be. If given by
telecopy, a notice shall be deemed given and received when the telecopy is
transmitted to the party's telecopy number specified above, and confirmation of
complete receipt is received by the transmitting party during normal business
hours or on the next Business Day if not confirmed during normal business hours,
and an identical notice is also sent simultaneously by mail, overnight courier,
or personal delivery as otherwise provided in this Section 12.1. Any party may
designate a change of address by written notice to each other party by giving at
least ten (10) days' prior written notice of such change of address.
Section 12.2 Amendments, Waivers, Etc.
(1) Subject to any consents required pursuant to this Section 12.2 and
any other provisions of this Agreement and any other Loan Document which
expressly require the consent, approval or authorization of the Majority
Lenders, this Agreement and any other Loan Document may be modified or
supplemented only by an instrument in writing signed by Borrower and
Administrative Agent; provided that, Administrative Agent may (without any
Lender's consent) give or withhold its agreement to any amendments of the
Loan Documents or any waivers or consents in respect thereof or exercise or
refrain from exercising any other rights or remedies which Administrative
Agent may have under the Loan Documents or otherwise provided that such
actions do not, in Administrative Agent's judgment reasonably exercised,
materially adversely affect the value of any collateral, taken as a whole,
or represent a departure from Administrative Agent's standard of care
described in Section 14.5 (and the assignment or granting of a
participation by Eurohypo shall not limit or otherwise affect its
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discretion in respect of any of the foregoing), except that Administrative
Agent will not, without the consent of each Lender, agree to the following
(provided that no Lender's consent shall be required for any of the
following which are otherwise required or contemplated under the Loan
Documents): (a) reduce the principal amount of the Loans or reduce the
interest rate thereon; (b) extend any stated payment date for principal of
or interest on the Loans payable to such Lender; (c) release Borrower, any
Guarantor or any other party from liability under the Loan Documents
(except for any assigning Lender pursuant to Section 12.24 and any
resigning Administrative Agent pursuant to Section 14.8); (d) release or
subordinate in whole or in part any material portion of the collateral
given as security for the Loans; (e) modify any of the provisions of this
Section 12.2, the definition of "Majority Lenders" or any other provision
in the Loan Documents specifying the number or percentage of Lenders
required to waive, amend or modify any rights thereunder or make any
determination or grant any consent thereunder; (f) modify the terms of any
Event of Default; or (g) consent to (i) the sale, transfer or encumbrance
of any portion of the Project (or any interest therein) or any direct or
indirect ownership interest therein and (ii) the incurrence by Borrower of
any additional indebtedness secured by the Project, in each case to the
extent (and subject to any standard of reasonability) such consent is
required under the Loan Documents.
(2) Notwithstanding anything to contrary contained in this Agreement,
any modification or supplement of Article 14, or of any of the rights or
duties of Administrative Agent hereunder, shall require the consent of
Administrative Agent.
Section 12.3 Limitation on Interest. It is the intention of the parties
hereto to conform strictly to applicable usury laws. Accordingly, all agreements
between Borrower, Administrative Agent and the Lenders with respect to the Loans
are hereby expressly limited so that in no event, whether by reason of
acceleration of maturity or otherwise, shall the amount paid or agreed to be
paid to Administrative Agent or any Lender or charged by any Lender for the use,
forbearance or detention of the money to be lent hereunder or otherwise, exceed
the maximum amount allowed by law. If the Loans would be usurious under
applicable law (including the laws of the state in which the Project is located
and the laws of the United States of America), then, notwithstanding anything to
the contrary in the Loan Documents: (1) the aggregate of all consideration which
constitutes interest under applicable law that is contracted for, taken,
reserved, charged or received under the Loan Documents shall under no
circumstances exceed the maximum amount of interest allowed by applicable law,
and any excess shall be credited on the Notes by the holders thereof (or, if the
Notes have been paid in full, refunded to Borrower); and (2) if maturity is
accelerated by reason of an election by Administrative Agent in accordance with
the terms hereof, or in the event of any prepayment, then any consideration
which constitutes interest may never include more than the maximum amount
allowed by applicable law. In such case, excess interest, if any, provided for
in the Loan Documents or otherwise, to the extent permitted by applicable law,
shall be amortized, prorated, allocated and spread from the date of advance
until payment in full so that the actual rate of interest is uniform through the
term hereof. If such amortization, proration, allocation and spreading is not
permitted under applicable law, then such excess interest shall be cancelled
automatically as of the date of such acceleration or prepayment and, if
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theretofore paid, shall be credited on the Notes (or, if the Notes have been
paid in full, refunded to Borrower). The terms and provisions of this Section
12.3 shall control and supersede every other provision of the Loan Documents.
Except as otherwise set forth herein or therein, the Loan Documents are
contracts made under and shall be construed in accordance with and governed by
the laws of the State of New York, except that if at any time the laws of the
United States of America permit the Lenders to contract for, take, reserve,
charge or receive a higher rate of interest than is allowed by the laws of the
State of New York or the laws of any other applicable state (whether such
federal laws directly so provide or refer to the law of any state), then such
federal laws shall to such extent govern as to the rate of interest which the
Lenders may contract for, take, reserve, charge or receive under the Loan
Documents.
Section 12.4 Invalid Provisions. If any provision of any Loan Document is
held to be illegal, invalid or unenforceable, such provision shall be fully
severable; the Loan Documents shall be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part thereof;
the remaining provisions thereof shall remain in full effect and shall not be
affected by the illegal, invalid, or unenforceable provision or by its severance
therefrom; and in lieu of such illegal, invalid or unenforceable provision there
shall be added automatically as a part of such Loan Document a provision as
similar in terms to such illegal, invalid or unenforceable provision as may be
possible to be legal, valid and enforceable.
Section 12.5 Reimbursement of Expenses. Borrower shall pay or reimburse
Administrative Agent and/or the Lenders on demand of the applicable party for:
(1) all expenses incurred by Administrative Agent in connection with the Loans,
including reasonable fees and expenses of Administrative Agent's attorneys,
environmental, engineering, appraisal, surveying and other consultants, and
fees, charges or taxes for the negotiation, recording or filing of Loan
Documents, (2) all expenses, whether internal or external, of Administrative
Agent in connection with the administration of the Loans (including, without
limitation, in connection with any Potential Default, Event of Default or any
requested or proposed modification, waiver or consent hereunder or under any of
the other Loan Documents), including audit costs, inspection fees, attorneys'
fees and disbursement, settlement of condemnation and casualty awards, and
premiums for title insurance and endorsements thereto, (3) all of Administrative
Agent's reasonable costs and expenses (including reasonable fees and
disbursements of Administrative Agent's external counsel) incurred in connection
with the syndication of the Loans to the Lenders, (4) all of Administrative
Agent's reasonable costs and expenses (including reasonable fees and
disbursements of Administrative Agent's external counsel) incurred in connection
with any Bifurcation of the Loans, and (5) all amounts expended, advanced or
incurred by Administrative Agent and the Lenders to collect the Notes, or to
enforce the rights of Administrative Agent and the Lenders under this Agreement
or any other Loan Document, or to defend or assert the rights and claims of
Administrative Agent and the Lenders under the Loan Documents or with respect to
the Project (by litigation or other proceedings), which amounts will include all
court costs, attorneys' fees and expenses, fees of auditors and accountants, and
investigation expenses as may be incurred by Administrative Agent and the
Lenders in connection with any such matters (whether or not litigation is
instituted), together with interest at the Default Rate on each such amount from
the date of disbursement until the date of reimbursement to Administrative Agent
and the Lenders, all of which shall constitute part of the Loans and shall be
secured by the Loan Documents.
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Section 12.6 Approvals; Third Parties; Conditions. All approval rights
retained or exercised by Administrative Agent and the Lenders with respect to
leases, contracts, plans, studies and other matters are solely to facilitate the
Lenders' credit underwriting, and shall not be deemed or construed as a
determination that the Lenders have passed on the adequacy thereof for any other
purpose and may not be relied upon by Borrower or any other Person. This
Agreement is for the sole and exclusive use of Administrative Agent, the Lenders
and Borrower and may not be enforced, nor relied upon, by any Person other than
Administrative Agent, the Lenders and Borrower. All conditions of the
obligations of Administrative Agent and the Lenders hereunder, including the
obligation to make advances, are imposed solely and exclusively for the benefit
of Administrative Agent and the Lenders, their successors and assigns, and no
other Person shall have standing to require satisfaction of such conditions or
be entitled to assume that the Lenders will refuse to make advances in the
absence of strict compliance with any or all of such conditions, and no other
Person shall, under any circumstances, be deemed to be a beneficiary of such
conditions, any and all of which may be freely waived in whole or in part by
Administrative Agent and the Lenders at any time in their sole and absolute
discretion.
Section 12.7 Lenders and Administrative Agent Not in Control; No
Partnership. None of the covenants or other provisions contained in this
Agreement shall, or shall be deemed to, give Administrative Agent or any Lender
the right or power to exercise control over the affairs or management of
Borrower, the power of Administrative Agent and the Lenders being limited to the
rights to exercise the remedies referred to in the Loan Documents. The
relationship between Borrower and the Lenders is, and at all times shall remain,
solely that of debtor and creditor. No covenant or provision of the Loan
Documents is intended, nor shall it be deemed or construed, to create a
partnership, joint venture, agency or common interest in profits or income
between Administrative Agent, the Lenders and Borrower or to create an equity in
the Project in Administrative Agent or any Lender. Administrative Agent and the
Lenders neither undertake nor assume any responsibility or duty to Borrower or
to any other person with respect to the Project or the Loans, except as
expressly provided in the Loan Documents; and notwithstanding any other
provision of the Loan Documents: (1) neither Administrative Agent nor any Lender
is, nor shall be construed as, a partner, joint venturer, alter ego, manager,
controlling person or other business associate or participant of any kind of
Borrower or its stockholders, members, or partners and neither Administrative
Agent nor any Lender intends to ever assume such status; (2) no Lender or
Administrative Agent shall in any event be liable for any Debts, expenses or
losses incurred or sustained by Borrower; and (3) no Lender or Administrative
Agent shall be deemed responsible for or a participant in any acts, omissions or
decisions of Borrower or its stockholders, members, or partners. Administrative
Agent, the Lenders and Borrower disclaim any intention to create any
partnership, joint venture, agency or common interest in profits or income
between Administrative Agent, the Lenders and Borrower, or to create an equity
in the Project in Administrative Agent or any Lender, or any sharing of
liabilities, losses, costs or expenses.
Section 12.8 Time of the Essence. Time is of the essence with respect to
this Agreement.
Section 12.9 Successors and Assigns. Subject to the provisions of Section
12.24, this Agreement shall be binding upon and inure to the benefit of
Administrative Agent, the Lenders and Borrower and the respective successors and
permitted assigns.
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Section 12.10 Renewal, Extension or Rearrangement. All provisions of the
Loan Documents shall apply with equal effect to each and all promissory notes
and amendments thereof hereinafter executed which in whole or in part represent
a renewal, extension, increase or rearrangement of the Loans. For portfolio
management purposes, the Lenders may elect to divide the Loans into two or more
separate loans evidenced by separate promissory notes so long as the payment and
other obligations of Borrower are not effectively increased or otherwise
modified. Borrower agrees to cooperate with Administrative Agent and the Lenders
and to execute such documents as Administrative Agent reasonably may request to
effect such division of the Loans.
Section 12.11 Waivers. No course of dealing on the part of Administrative
Agent or any Lender, their officers, employees, consultants or agents, nor any
failure or delay by Administrative Agent or any Lender with respect to
exercising any right, power or privilege of Administrative Agent or any Lender
under any of the Loan Documents, shall operate as a waiver thereof.
Section 12.12 Cumulative Rights. Rights and remedies of Administrative
Agent and the Lenders under the Loan Documents shall be cumulative, and the
exercise or partial exercise of any such right or remedy shall not preclude the
exercise of any other right or remedy.
Section 12.13 Singular and Plural. Words used in this Agreement and the
other Loan Documents in the singular, where the context so permits, shall be
deemed to include the plural and vice versa. The definitions of words in the
singular in this Agreement and the other Loan Documents shall apply to such
words when used in the plural where the context so permits and vice versa.
Section 12.14 Phrases. When used in this Agreement and the other Loan
Documents, the phrase "including" shall mean "including, but not limited to,"
the phrases "satisfactory to any Lender" or "satisfactory to Administrative
Agent" shall mean (except as otherwise expressly set forth herein) in form and
substance satisfactory to such Lender or Administrative Agent, as the case may
be, in all respects, the phrases "with Lender's consent", "with Lender's
approval", "with Administrative Agent's consent" or "with Administrative Agent's
approval" shall mean (except as otherwise expressly set forth herein) such
consent or approval at Lender's or Administrative Agent's, as the case may be,
discretion, and the phrases "acceptable to Lender" or "acceptable to
Administrative Agent" shall mean acceptable to Lender or Administrative Agent,
as the case may be, at such party's sole and absolute discretion."
Section 12.15 Exhibits and Schedules. The exhibits and schedules attached
to this Agreement are incorporated herein and shall be considered a part of this
Agreement for the purposes stated herein.
Section 12.16 Titles of Articles, Sections and Subsections. All titles or
headings to articles, sections, subsections or other divisions of this Agreement
and the other Loan Documents or the exhibits hereto and thereto are only for the
convenience of the parties and shall not be construed to have any effect or
meaning with respect to the other content of such articles, sections,
subsections or other divisions, such other content being controlling as to the
agreement between the parties hereto.
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Section 12.17 Promotional Material. Subject to Borrower's consent in each
case, such consent not to be unreasonably withheld, conditioned or delayed,
Borrower authorizes Administrative Agent and each of the Lenders to issue press
releases, advertisements and other promotional materials in connection with
Administrative Agent's or such Lender's own promotional and marketing
activities, and describing the Loans in general terms or in detail and
Administrative Agent's or such Lender's participation in the Loans. All
references to Administrative Agent or any Lender contained in any press release,
advertisement or promotional material issued by Borrower shall be approved in
writing by Administrative Agent and such Lender in advance of issuance.
Section 12.18 Survival. All of the representations, warranties, covenants,
and indemnities of Borrower hereunder (including environmental matters under
Article 5, the obligations under Sections 2.9(1), 2.9(5) and 2.9(6)), and under
the indemnification provisions of the other Loan Documents shall survive (a) the
repayment in full of the Loans and the release of the Liens evidencing or
securing the Loans, (b) the transfer (by sale, foreclosure, conveyance in lieu
of foreclosure or otherwise) of any or all right, title and interest in and to
the Project to any party, whether or not an Affiliate of Borrower and (c) in the
case of any Lender that may assign any interest in its Commitment or Loans
hereunder in accordance with the terms of this Agreement, the making of such
assignment, notwithstanding that such assigning Lender may cease to be a
"Lender" hereunder.
Section 12.19 WAIVER OF JURY TRIAL. BORROWER, ADMINISTRATIVE AGENT AND EACH
LENDER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, ARISING OUT OF, UNDER
OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE
OF CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER VERBAL OR WRITTEN) OR ACTION
OF EITHER PARTY OR ANY EXERCISE BY ANY PARTY OF THEIR RESPECTIVE RIGHTS UNDER
THE LOAN DOCUMENTS OR IN ANY WAY RELATING TO THE LOANS OR THE PROJECT
(INCLUDING, WITHOUT LIMITATION, ANY ACTION TO RESCIND OR CANCEL THIS AGREEMENT,
AND ANY CLAIM OR DEFENSE ASSERTING THAT THIS AGREEMENT WAS FRAUDULENTLY INDUCED
OR IS OTHERWISE VOID OR VOIDABLE). THIS WAIVER IS A MATERIAL INDUCEMENT FOR
ADMINISTRATIVE AGENT AND EACH LENDER TO ENTER THIS AGREEMENT.
Section 12.20 Remedies of Borrower. It is expressly understood and agreed
that, notwithstanding any applicable law or any provision of this Agreement or
the other Loan Documents to the contrary, the liability of Administrative Agent
and each Lender (including their respective successors and assigns) and any
recourse of Borrower against Administrative Agent and each Lender shall be
limited solely and exclusively to their respective interests in the Loans and/or
Commitments or the Project. Without limiting the foregoing, in the event that a
claim or adjudication is made that Administrative Agent, any of the Lenders, or
their agents, acted unreasonably or unreasonably delayed acting in any case
where by Applicable Law or under this Agreement or the other Loan Documents,
Administrative Agent, any Lender or any such agent, as the case may be, has an
obligation to act reasonably or promptly, or otherwise violated this Agreement
or the Loan Documents, Borrower agrees that none of Administrative Agent, the
Lenders or their agents shall be liable for any incidental, indirect, special,
punitive, consequential or speculative damages or losses resulting from such
failure to act reasonably or promptly in accordance with this Agreement or the
other Loan Documents.
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Section 12.21 Governing Law.
(1) THIS AGREEMENT WAS NEGOTIATED IN THE STATE OF NEW YORK, AND MADE
BY ADMINISTRATIVE AGENT AND LENDERS AND ACCEPTED BY BORROWER IN THE STATE
OF NEW YORK, AND THE PROCEEDS OF THE NOTES DELIVERED PURSUANT HERETO WERE
DISBURSED FROM THE STATE OF NEW YORK, WHICH STATE THE PARTIES AGREE HAS A
SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING TRANSACTION
EMBODIED HEREBY, AND IN ALL RESPECTS, INCLUDING, WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE, THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE AND ANY
APPLICABLE LAW OF THE UNITED STATES OF AMERICA, EXCEPT THAT AT ALL TIMES
THE PROVISIONS FOR THE CREATION, PERFECTION, AND ENFORCEMENT OF THE LIENS
AND SECURITY INTERESTS CREATED PURSUANT HERETO AND PURSUANT TO THE OTHER
LOAN DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE LAW OF
THE STATE IN WHICH THE PROJECT IS LOCATED, IT BEING UNDERSTOOD THAT, TO THE
FULLEST EXTENT PERMITTED BY THE LAW OF SUCH STATE, THE LAW OF THE STATE OF
NEW YORK SHALL GOVERN THE CONSTRUCTION, VALIDITY AND ENFORCEABILITY OF ALL
LOAN DOCUMENTS AND ALL OF THE OBLIGATIONS ARISING HEREUNDER OR THEREUNDER.
TO THE FULLEST EXTENT PERMITTED BY LAW, EACH OF BORROWER, ADMINISTRATIVE
AGENT AND EACH LENDER HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVES ANY
CLAIM TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS THIS
AGREEMENT AND THE NOTES, AND THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
PURSUANT TO SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
(2) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST ADMINISTRATIVE AGENT,
ANY LENDER OR BORROWER ARISING OUT OF OR RELATING TO THE LOAN DOCUMENTS MAY
AT ADMINISTRATIVE AGENT'S OPTION (WHICH DECISION SHALL BE MADE BY THE
MAJORITY LENDERS) BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN ▇▇▇ ▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, PURSUANT TO SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW AND BORROWER WAIVES ANY OBJECTIONS WHICH IT MAY NOW
OR HEREAFTER HAVE BASED ON VENUE AND/OR FORUM NON CONVENIENS OF ANY SUCH
SUIT, ACTION OR PROCEEDING, AND BORROWER HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING. BORROWER
DOES HEREBY DESIGNATE AND APPOINT CORPORATION SERVICE COMPANY, 2711
▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, AS ITS
AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY AND
ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN
ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND AGREES THAT SERVICE
OF PROCESS UPON SAID AGENT AT SAID ADDRESS AND WRITTEN NOTICE OF SAID
SERVICE MAILED OR DELIVERED TO BORROWER IN THE MANNER PROVIDED HEREIN SHALL
BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON BORROWER, IN
ANY SUCH SUIT, ACTION OR PROCEEDING IN THE STATE OF NEW YORK. BORROWER (A)
SHALL GIVE PROMPT NOTICE TO ADMINISTRATIVE AGENT OF ANY CHANGED ADDRESS OF
ITS AUTHORIZED AGENT HEREUNDER, (B) MAY AT ANY TIME AND FROM TIME TO TIME
DESIGNATE A SUBSTITUTE AUTHORIZED AGENT WITH AN OFFICE IN NEW YORK, NEW
YORK (WHICH SUBSTITUTE AGENT AND OFFICE SHALL BE DESIGNATED AS THE PERSON
AND ADDRESS FOR SERVICE OF PROCESS), AND (C) SHALL PROMPTLY DESIGNATE SUCH
A SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO HAVE AN OFFICE IN NEW YORK,
NEW YORK OR IS DISSOLVED WITHOUT LEAVING A SUCCESSOR.
Section 12.22 Entire Agreement. This Agreement and the other Loan Documents
embody the entire agreement and understanding between Administrative Agent, the
Lenders and Borrower and supersede all prior agreements and understandings
between such parties relating to the subject matter hereof and thereof.
Accordingly, the Loan Documents may not be contradicted by evidence of prior,
contemporaneous, or subsequent oral agreements of the parties. There are no
unwritten oral agreements between the parties. If any conflict or inconsistency
exists between the Commitment Letter and this Agreement or any of the other Loan
Documents, the terms of this Agreement shall control.
Section 12.23 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall constitute an original, but all of which shall
constitute one document.
Section 12.24 Assignments and Participations.
(1) Assignments by Borrower. Borrower may not assign any of its rights
or obligations hereunder or under the Notes without the prior consent of
all of the Lenders and Administrative Agent.
(2) Assignments by the Lenders. Each Lender may assign any of its
Loans, its Note and its Commitment (but only with the consent of
Administrative Agent); provided that:
(a) no such consent by Administrative Agent shall be required in the case
of any assignment by any Lender to another Lender or an Affiliate of such Lender
or such other Lender (provided that in the case of an assignment to any such
affiliate, the assigning Lender will not be released from its obligations under
the Loan Documents and Administrative Agent may continue to deal only with such
assigning Lender);
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(b) except to the extent Administrative Agent shall otherwise consent, any
such partial assignment (other than to another Lender or an affiliate of a
Lender) shall be in an amount at least equal to $10,000,000;
(c) each such assignment (including an assignment to another Lender or an
affiliate of a Lender) by a Lender of its Loans or Commitment shall be made in
such manner so that the same portion of its Loans and Commitment is assigned to
the respective assignee;
(d) subject to the applicable Lender's compliance with the provisions of
clauses (b) and (c) above, Administrative Agent's consent to an assignment shall
not be unreasonably withheld, delayed or conditioned if (i) such assignment is
made to an Eligible Assignee, and (ii) the provisions of clause (e) have been
satisfied; and
(e) upon execution and delivery by the assignee (even if already a Lender)
to Borrower and Administrative Agent of an Assignment and Acceptance pursuant to
which such assignee agrees to become a "Lender" hereunder (if not already a
Lender) having the Commitment and Loans specified in such instrument, and upon
consent thereto by Administrative Agent to the extent required above, the
assignee shall have, to the extent of such assignment (unless otherwise
consented to by Administrative Agent), the obligations, rights and benefits of a
Lender hereunder holding the Commitment and Loans (or portions thereof) assigned
to it (in addition to the Commitment and Loans, if any, theretofore held by such
assignee) and, except as provided in Section 12.24(2)(a), the assigning Lender
shall, to the extent of such assignment, be released from the Commitment (or
portion thereof) so assigned. Upon each such assignment the assigning Lender
shall pay Administrative Agent a processing and recording fee of $3,500 and the
reasonable fees and disbursements of Administrative Agent's counsel incurred in
connection therewith.
(3) Participations.
(a) A Lender may sell or agree to sell to one or more other Persons (each a
"Participant") a participation in all or any part of any Loans held by it, or in
its Commitment, provided (A) such Lender's obligations under this Agreement and
the other Loan Documents shall remain unchanged, (B) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations and (C) Borrower, Administrative 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 the other Loan
Documents. In no event shall a Lender that sells a participation agree with the
Participant to take or refrain from taking any action hereunder or under any
other Loan Document except that such Lender may agree with the Participant that
it will not, without the consent of the Participant, agree to (i) increase or
extend the term of such Lender's Commitment, (ii) extend the date fixed for the
payment of principal of or interest on the related Loan or Loans or any portion
of any fee hereunder payable to the Participant, (iii) reduce the amount of any
such payment of principal, (iv) reduce the rate at which interest is payable
thereon, or any fee hereunder payable to the Participant, to a level below the
rate at which the Participant is entitled to receive such interest or fee or (v)
107
consent to any modification, supplement or waiver hereof or of any of the other
Loan Documents to the extent that the same, under Section 12.2, requires the
consent of each Lender. Subject to subsection (3)(b) of this Section 12.24,
Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.9(1), 2.9(5), and 2.9(6) to the same extent as if it were a Lender
and had acquired its interest by assignment pursuant to subsection (2) of this
Section 12.24. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 12.24 as though it were a Lender; provided
that such Participant agrees to be subject to Section 12.24 as though it were a
Lender.
(b) A Participant shall not be entitled to receive any greater payment
under Section 2.9(1) or 2.9(6) than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with Borrower's
prior written consent. A Participant that is a non-U.S. Person that would become
a Lender shall not be entitled to the benefits of Section 2.9(6) unless Borrower
is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of Borrower, to comply with Section 2.9(6) as though it
were a Lender
(4) Certain Pledges. In addition to the assignments and participations
permitted under the foregoing provisions of this Section 12.24 (but without
being subject thereto), any Lender may (without notice to Borrower,
Administrative Agent or any other Lender and without payment of any fee)
assign and pledge all or any portion of its Loans and its Note to any
Federal Reserve Bank as collateral security pursuant to Regulation A and
any operating circular issued by such Federal Reserve Bank, and such Loans
and Note shall be fully transferable as provided therein. No such
assignment shall release the assigning Lender from its obligations
hereunder.
(5) Provision of Information to Assignees and Participants. A Lender
may furnish any information concerning Borrower, any Borrower Party or any
of their respective Affiliates or the Project in the possession of such
Lender from time to time to assignees and participants (including
prospective assignees and participants), provided that, prior any Lender
furnishing to any such actual or prospective assignee or participant any
material non-public information concerning the Borrower or any Borrower
Party, such actual or prospective assignee or participant shall have
executed a confidentiality agreement substantially in the form of that
attached hereto as Exhibit K (or have agreed to the terms thereof via
electronic signature or similar electronic means).
(6) Agent, Borrower and such participant/assignee Lender complies with
the terms of Section 12.30.
(7) No Assignments to Borrower or Affiliates. Anything in this Section
12.24 to the contrary notwithstanding, no Lender may assign or participate
any interest in any Loan held by it hereunder to Borrower or any of its
Affiliates without the prior consent of each Lender.
108
Section 12.25 Brokers. Borrower hereby represents to Administrative Agent
and each Lender that Borrower has not dealt with any broker, underwriters,
placement agent, or finder in connection with the transactions contemplated by
this Agreement and the other Loan Documents. Borrower hereby agrees to indemnify
and hold Administrative Agent and each Lender harmless from and against any and
all claims, liabilities, costs and expenses of any kind in any way relating to
or arising from a claim by any Person that such Person acted on behalf of
Borrower in connection with the transactions contemplated herein.
Section 12.26 Right of Set-off.
(1) Upon the occurrence and during the continuance of any Event of
Default, each of the Lenders is, subject (as between the Lenders) to the
provisions of subsection (3) of this Section 12.26, hereby authorized at
any time and from time to time, without notice to Borrower (any such notice
being expressly waived by Borrower) and to the fullest extent permitted by
law, to set-off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held, and other indebtedness at
any time owing, by such Lender in any of its offices, in Dollars or in any
other currency, to or for the credit or the account of Borrower against any
and all of the respective obligations of Borrower now or hereafter existing
under the Loan Documents, irrespective of whether or not such Lender or any
other Lender shall have made any demand hereunder and although such
obligations may be contingent or unmatured and such deposits or
indebtedness may be unmatured. Each Lender hereby acknowledges that the
exercise by any Lender of offset, set-off, banker's lien, or similar rights
against any deposit or other indebtedness of Borrower whether or not
located in California or any other state with certain laws restricting
lenders from pursuing multiple collection methods, could result under such
laws in significant impairment of the ability of all the Lenders to recover
any further amounts in respect of the Loan. Therefore, each Lender agrees
that no Lender shall exercise any such right of set-off, banker's lien, or
otherwise, against any assets of Borrower (including all general or
special, time or demand, provisional or other deposits and other
indebtedness owing by such Lender to or for the credit or the account of
Borrower) without the prior written consent of Administrative Agent and the
Majority Lenders.
(2) Each Lender shall promptly notify Borrower and Administrative
Agent after any such set-off and application, provided that the failure to
give such notice shall not affect the validity of such set-off and
application. The rights of the Lenders under this Section 12.26 are in
addition to other rights and remedies (including other rights of set-off)
which the Lenders may have.
(3) If an Event of Default has resulted in the Loans becoming due and
payable prior to the stated maturity thereof, each Lender agrees that it
shall turn over to Administrative Agent any payment (whether voluntary or
involuntary, through the exercise of any right of setoff or otherwise) on
account of the Loans held by it in excess of its ratable portion of
payments on account of the Loans obtained by all the Lenders.
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Section 12.27 Limitation on Liability of Administrative Agent's and the
Lenders' Officers, Employees, etc. Any obligation or liability whatsoever of
Administrative Agent or any Lender which may arise at any time under this
Agreement or any other Loan Document shall be satisfied, if at all, out of
Administrative Agent's or such Lender's respective assets only. No such
obligation or liability shall be personally binding upon, nor shall resort for
the enforcement thereof be had to, the property of any of Administrative Agent's
or any Lender's shareholders, directors, officers, employees or agents,
regardless of whether such obligation or liability is in the nature of contract,
tort or otherwise.
Section 12.28 Cooperation with Syndication.
(1) Borrower acknowledges that Eurohypo intends to syndicate a portion
of the Commitments to one or more Lenders (the "Syndication") and in
connection therewith, Borrower will take all actions as Eurohypo may
reasonably request to assist Eurohypo in its Syndication effort. Without
limiting the generality of the foregoing, Borrower shall, at the request of
Eurohypo (i) facilitate the review of the Loan and the Project by any
prospective Lender; (ii) assist Eurohypo and otherwise cooperate with
Eurohypo in the preparation of information offering materials (which
assistance may include reviewing and commenting on drafts of such
information materials and drafting portions thereof); (iii) deliver updated
information on Borrower, any Borrower Party and the Project; (iv) make
representatives of Borrower available to meet with prospective Lenders at
tours of the Project and bank meetings; (v) facilitate direct contact
between the senior management and advisors of Borrower and any prospective
Lender; and (vi) provide Eurohypo with all information reasonably deemed
necessary by it to complete the Syndication successfully. Borrower agrees
to take such further action, in connection with documents and amendments to
the Loan Documents, as may reasonably be required to effect such
Syndication.
(2) Until such time as Eurohypo provides Borrower with written notice
that the Syndication is complete, except for those financing transactions
listed on Schedule 12.28 attached hereto, no other similar credit
facilities or debts issued by Borrower or Sponsor will be syndicated or
privately placed which might, in Eurohypo's opinion, have a detrimental
effect on the successful completion of the Syndication. Borrower and
Sponsor shall notify Eurohypo in writing immediately if any such credit
facility or debt issuance is contemplated.
Section 12.29 Loan Components. Eurohypo shall have the right, at any time,
to direct the Administrative Agent, with respect to all or any portion of the
Loan, to (a) cause the Notes, the Mortgage and the other Security Documents to
be severed and/or split into two or more separate notes, mortgages and other
security agreements, so as to evidence and secure one or more senior and
subordinate mortgage loans, (b) create one more senior and subordinate notes
(i.e., an A/B or A/B/C structure) secured by the Mortgage and the other Security
Documents, (c) create multiple components of the Notes (and allocate or
re-allocate the outstanding principal amount of the Loan among such components)
110
or (d) otherwise sever the Loan into two or more loans secured by the Mortgage
and the other Security Documents (each of clauses (a) through (d), a
"Bifurcation"); in each such case, in whatever proportions and priorities as
Eurohypo may so direct in its discretion to the Administrative Agent; provided,
however, that in each such instance (i) the outstanding principal amount of all
the Notes evidencing the Loan (or components of such Notes) immediately
following such Bifurcation shall be equal the outstanding principal amount of
the Loan immediately prior to such Bifurcation, and (ii) the weighted average
Applicable Margin with respect to the aggregate outstanding principal balance of
all Base Rate Loans and LIBOR-based Loans immediately after such Bifurcation and
at all times prior to the occurrence of an Event of Default shall not exceed the
weighted average Applicable Margin with respect to the aggregate outstanding
principal balance of all Base Rate Loans and LIBOR-based Loans as set forth in
the initial Notes delivered hereunder (as such interest rates are subject to
being adjusted from time to time in accordance herewith, including as a result
of the accrual of interest at the Default Rate). If requested by the
Administrative Agent in writing, Borrower shall execute within ten (10) days
after such request, a severance agreement, amendments to or amendments and
restatements of any one or more Loan Documents, and such documentation as the
Administrative Agent may reasonably request to evidence and/or effectuate any
such Bifurcation, all in form and substance reasonably satisfactory to Eurohypo
and the Administrative Agent; provided, however, that notwithstanding any other
provision of Section 12.28 or this Section 12.29(1) to the contrary, Borrower
shall not be required to enter into any such documents and amendments which
would alter any of the material economic terms of the Loan Documents or which
would create new or greater obligations or liabilities on Borrower or the
Borrower Parties under the Loan Documents.
ARTICLE 13
FULL RECOURSE
Section 13.1 Full Recourse. The Loans and all obligations of the Borrower
under the Loan Documents shall be fully recourse to Borrower.
ARTICLE 14
ADMINISTRATIVE AGENT
Section 14.1 Appointment, Powers and Immunities. Each Lender hereby
appoints and authorizes Administrative Agent to act as its agent hereunder and
under the other Loan Documents with such powers as are specifically delegated to
Administrative Agent by the terms of this Agreement and of the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Administrative Agent (which term as used in this sentence and in Section 14.5
and the first sentence of Section 14.6 shall include reference to its affiliates
and its own and its affiliates' officers, directors, employees and agents):
(a) shall have no duties or responsibilities except those expressly set
forth in this Agreement and in the other Loan Documents, and shall not by reason
of this Agreement or any other Loan Document be a trustee for any Lender except
111
to the extent that Administrative Agent acts as an agent with respect to the
receipt or payment of funds, nor shall Administrative Agent have any fiduciary
duty to Borrower nor shall any Lender have any fiduciary duty to Borrower or any
other Lender;
(b) shall not be responsible to the Lenders for any recitals, statements,
representations or warranties contained in this Agreement or in any other Loan
Document, or in any certificate or other document referred to or provided for
in, or received by any of them under, this Agreement or any other Loan Document,
or for the value, validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement, any Note or any other Loan Document or any other
document referred to or provided for herein or therein or for any failure by
Borrower or any other Person to perform any of its obligations hereunder or
thereunder; and
(c) shall not be responsible for any action taken or omitted to be taken by
it hereunder or under any other Loan Document or under any other document or
instrument referred to or provided for herein or therein or in connection
herewith or therewith, except to the extent any such action taken or omitted
violates Administrative Agent's standard of care set forth in the first sentence
of Section 14.5.
(d) shall not, except to the extent expressly instructed by the Majority
Lenders with respect to collateral security under the Security Documents, be
required to initiate or conduct any litigation or collection proceedings
hereunder or under any other Loan Document; and
(e) shall not be required to take any action which is contrary to this
Agreement or any other Loan Document or Applicable Law.
The relationship between Administrative Agent and each Lender is a contractual
relationship only, and nothing herein shall be deemed to impose on
Administrative Agent any obligations other than those for which express
provision is made herein or in the other Loan Documents. Administrative Agent
may employ agents and attorneys-in-fact, and may delegate all or any part of its
obligations hereunder, to third parties and shall not be responsible for the
negligence or misconduct of any such agents, attorneys-in-fact or third parties
selected by it in good faith. Administrative Agent may deem and treat the payee
of a Note as the holder thereof for all purposes hereof unless and until a
notice of the assignment or transfer thereof shall have been filed with
Administrative Agent, any such assignment or transfer to be subject to the
provisions of Section 12.24. Except to the extent expressly provided in Sections
14.8, the provisions of this Article 14 are solely for the benefit of
Administrative Agent and the Lenders, and Borrower shall not have any rights as
a third-party beneficiary of any of the provisions hereof and the Lenders may
Modify or waive such provisions of this Article 14 in their sole and absolute
discretion..
Section 14.2 Reliance by Administrative Agent. Administrative Agent shall
be entitled to rely upon any certification, notice or other communication
(including, without limitation, any thereof by telephone, telecopy, telegram or
cable) reasonably believed by it to be genuine and correct and to have been
signed or sent by or on behalf of the proper Person or Persons, and upon advice
and statements of legal counsel, independent accountants and other experts
selected by Administrative Agent. As to any matters not expressly provided for
by this Agreement or any other Loan Document, Administrative Agent shall in all
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cases be fully protected in acting, or in refraining from acting, hereunder or
thereunder in accordance with instructions given by the Majority Lenders, and
such instructions of the Majority Lenders and any action taken or failure to act
pursuant thereto shall be binding on all of the Lenders.
Section 14.3 Defaults.
(1) Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of an Event of Default unless Administrative Agent
has received notice from a Lender or Borrower specifying such Event of
Default and stating that such notice is a "Notice of Default". In the event
that Administrative Agent receives such a notice of the occurrence of an
Event of Default, Administrative Agent shall give prompt notice thereof to
the Lenders. Within ten (10) days of delivery of such notice of Event of
Default from Administrative Agent to the Lenders (or such shorter period of
time as Administrative Agent determines is necessary), Administrative Agent
and the Lenders shall consult with each other to determine a proposed
course of action. Administrative Agent shall (subject to Section 14.7) take
such action with respect to such Event of Default as shall be directed by
the Majority Lenders, provided that, (A) unless and until Administrative
Agent shall have received such directions, Administrative Agent may (but
shall not be obligated to) take such action, or refrain from taking such
action, including decisions (1) to make protective advances that
Administrative Agent determines are necessary to protect or maintain the
Project and (2) to foreclose on any of the Project or exercise any other
remedy, with respect to such Event of Default as it shall deem advisable in
the interest of the Lenders except to the extent that this Agreement
expressly requires that such action be taken, or not be taken, only with
the consent or upon the authorization of all of the Lenders and (B) no
actions approved by the Majority Lenders shall violate the Loan Documents
or applicable law. Each of the Lenders acknowledges and agrees that no
individual Lender may separately enforce or exercise any of the provisions
of any of the Loan Documents (including the Notes) other than through
Administrative Agent. Administrative Agent shall advise the Lenders of all
material actions which Administrative Agent takes in accordance with the
provisions of this Section 14.3(1) and shall continue to consult with the
Lenders with respect to all of such actions. Notwithstanding the foregoing,
if the Majority Lenders shall at any time direct that a different or
additional remedial action be taken from that already undertaken by
Administrative Agent, including the commencement of foreclosure
proceedings, such different or additional remedial action shall be taken in
lieu of or in addition to, the prosecution of such action taken by
Administrative Agent; provided that all actions already taken by
Administrative Agent pursuant to this Section 14.3(1) shall be valid and
binding on each Lender. All money (other than money subject to the
provisions of Section 14.7) received from any enforcement actions,
including the proceeds of a foreclosure sale of the Project, shall be
applied, first, to the payment or reimbursement of Administrative Agent for
expenses incurred in accordance with the provisions of Sections 14.3(2),
(3) and (4) and 14.5 and to the payment of the Agency Fee to the extent not
paid by Borrower pursuant to Section 14.11, second, to the payment or
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reimbursement of the Lenders for expenses incurred in accordance with the
provisions of Sections 14.3(2), (3) and (4) and 14.5; third, to the payment
or reimbursement of the Lenders for any advances made pursuant to Section
14.3(2); and fourth, pari passu to the Lenders in accordance with their
respective Proportionate Shares (and to the Lender or Lenders under any
Hedge Agreement for its Additional Interest in accordance with Section
9.15), unless an Unpaid Amount is owed pursuant to Section 14.12, in which
event such Unpaid Amount shall be deducted from the portion of such
proceeds of the Defaulting Lender and be applied to payment of such Unpaid
Amount to the Special Advance Lender.
(2) All losses with respect to interest (including interest at the
Default Rate) and other sums payable pursuant to the Notes or incurred in
connection with the Loans shall be borne by the Lenders in accordance with
their respective proportionate shares of the Loans. All losses incurred in
connection with the Loans, the enforcement thereof or the realization of
the security therefor, shall be borne by the Lenders in accordance with
their respective proportionate shares of the Loan, and the Lenders shall
promptly, upon request, remit to Administrative Agent their respective
proportionate shares of (i) any expenses incurred by Administrative Agent
in connection with any Default to the extent any expenses have not been
paid by Borrower, (ii) any advances made to pay taxes or insurance or
otherwise to preserve the Lien of the Security Documents or to preserve and
protect the Project, whether or not the amount necessary to be advanced for
such purposes exceeds the amount of the Mortgage, (iii) any other expenses
incurred in connection with the enforcement of the Mortgage or other Loan
Documents, and (iv) any expenses incurred in connection with the
consummation of the Loans not paid or provided for by Borrower. To the
extent any such advances are recovered in connection with the enforcement
of the Mortgage or the other Loan Documents, each Lender shall be paid its
proportionate share of such recovery after deduction of the expenses of
Administrative Agent and the Lenders.
(3) If, at the direction of the Majority Lenders or otherwise as
provided in Section 14.3(1), any action(s) is brought to collect on the
Notes or enforce the Security Documents or any other Loan Document, such
action shall (to the extent permitted under applicable law and the
decisions of the court in which such action is brought) be an action
brought by Administrative Agent and the Lenders, collectively, to collect
on all or a portion of the Notes or enforce the Security Documents or any
other Loan Document and counsel selected by Administrative Agent shall
prosecute any such action on behalf of Administrative Agent and the
Lenders, and Administrative Agent and the Lenders shall consult and
cooperate with each other in the prosecution thereof. All decisions
concerning the appointment of a receiver while such action is pending, the
conduct of such receivership, the conduct of such action, the collection of
any judgment entered in such action and the settlement of such action shall
be made by Administrative Agent. The costs and expenses of any such action
shall be borne by the Lenders in accordance with each of their respective
proportionate shares.
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(4) If, at the direction of the Majority Lenders or otherwise as
provided in Section 14.3(1), any action(s) is brought to foreclose the
Mortgage, such action shall (to the extent permitted under applicable law
and the decisions of the court in which such action is brought) be an
action brought by Administrative Agent and the Lenders, collectively, to
foreclose all or a portion of the Mortgage and collect on the Notes.
Counsel selected by Administrative Agent shall prosecute any such
foreclosure on behalf of Administrative Agent and the Lenders and
Administrative Agent and the Lenders shall consult and cooperate with each
other in the prosecution thereof. All decisions concerning the appointment
of a receiver, the conduct of such foreclosure, the acceptance of a deed in
lieu of foreclosure, the bid on behalf of Administrative Agent and the
Lenders at the foreclosure sale of the Project, the manner of taking and
holding title to the Project (other than as set forth in subsection (5)
below), the sale of the Project after foreclosure, and the commencement and
conduct of any deficiency judgment proceeding shall be made by
Administrative Agent. The costs and expenses of foreclosure will be borne
by the Lenders in accordance with their respective proportionate shares.
(5) If title is acquired to the Project after a foreclosure sale or by
a deed in lieu of foreclosure, title shall be held by Administrative Agent
in its own name in trust for the Lenders or, at Administrative Agent's
election, in the name of a wholly owned subsidiary of Administrative Agent
on behalf of the Lenders.
(6) If Administrative Agent (or its subsidiary) acquires title to the
Project or is entitled to possession of the Project during or after the
foreclosure, all material decisions with respect to the possession,
ownership, development, construction, control, operation, leasing,
management and sale of the Project shall be made by Administrative Agent.
All income or other money received after so acquiring title to or taking
possession of the Project with respect to the Project, including income
from the operation and management of the Project and the proceeds of a sale
of the Project, shall be applied, first, to the payment or reimbursement of
Administrative Agent and the expenses incurred in accordance with the
provisions of this Article 14 and to the payment of the Agency Fee to the
extent not paid by Borrower pursuant to Section 14.11, second, to the
payment of operating expenses with respect to the Project; third, to the
establishment of reasonable reserves for the operation of the Project;
fourth, to the payment or reimbursement of the Lenders for any advances
made pursuant to Section 14.3(2); fifth to fund any capital improvement,
leasing and other reserves; and sixth, to the Lenders in accordance with
their respective Proportionate Shares (and to each of the Lenders under any
applicable Hedge Agreement for its Additional Interest in accordance with
Section 9.15), unless an Unpaid Amount is owed pursuant to Section 14.12,
in which event such Unpaid Amount shall be deducted from the portion of
such proceeds of the Defaulting Lender and be applied to payment of such
Unpaid Amount to the Special Advance Lender.
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Section 14.4 Rights as a Lender. With respect to its Commitment and the
Loans made by it Eurohypo (and any successor acting as Administrative Agent) in
its capacity as a Lender hereunder shall have the same rights and powers
hereunder as any other Lender and may exercise the same as though it were not
acting as Administrative Agent, and the term "Lender" or "Lenders" shall, unless
the context otherwise indicates, include Administrative Agent in its individual
capacity. Eurohypo (and any successor acting as Administrative Agent) and its
affiliates may (without having to account therefor to any Lender) lend money to,
make investments in and generally engage in any kind of lending, trust or other
business with Borrower (and any of its Affiliates) as if it were not acting as
Administrative Agent, and Eurohypo and its affiliates may accept fees and other
consideration from Borrower for services in connection with this Agreement or
otherwise without having to account for the same to the Lenders.
Section 14.5 Standard of Care; Indemnification. In performing its duties
under the Loan Documents, Administrative Agent will exercise the same degree of
care as it normally exercises in connection with real estate loans in which no
syndication or participations are involved, but Administrative Agent shall have
no further responsibility to any Lender except as expressly provided herein and
except for its own gross negligence or willful misconduct which resulted in
actual loss to such Lender, and, except to such extent, Administrative Agent
shall have no responsibility to any Lender for the failure by Administrative
Agent to comply with any of Administrative Agent's obligations to Borrower under
the Loan Documents or otherwise. The Lenders agree to indemnify Administrative
Agent (to the extent not reimbursed under Section 12.5, but without limiting the
obligations of Borrower under Section 12.5) ratably in accordance with the
aggregate principal amount of the Loans held by the Lenders (or, if no Loans are
at the time outstanding, ratably in accordance with their respective
Commitments), for any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind and nature whatsoever that may be imposed on, incurred by or asserted
against Administrative Agent (including by any Lender) arising out of or by
reason of any investigation in or in any way relating to or arising out of this
Agreement or any other Loan Document or any other documents contemplated by or
referred to herein or therein or the transactions contemplated hereby or thereby
(including, without limitation, the costs and expenses that Borrower is
obligated to pay under Section 12.5, but excluding, unless a Event of Default
has occurred and is continuing, normal administrative costs and expenses
incident to the performance of its agency duties hereunder) or the enforcement
of any of the terms hereof or 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 Administrative Agent's breach of its standard of care set forth in the
first sentence of this Section.
Section 14.6 Non-Reliance on Administrative Agent and Other Lenders. Each
Lender agrees that it has, independently and without reliance on Administrative
Agent or any other Lender, and based on such documents and information as it has
deemed appropriate, made its own credit analysis of Borrower and its Affiliates
and decision to enter into this Agreement and that it will, independently and
without reliance upon Administrative 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 analysis and decisions in taking or not taking action
under this Agreement or under any other Loan Document. Subject to the provisions
of the first sentence of Section 14.5, Administrative Agent shall not be
required to keep itself informed as to the performance or observance by Borrower
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of this Agreement or any of the other Loan Documents or any other document
referred to or provided for herein or therein or to inspect the Project or the
books of Borrower or any of its Affiliates. Except for notices, reports and
other documents and information expressly required to be furnished to the
Lenders by Administrative Agent hereunder or as otherwise agreed by
Administrative Agent and the Lenders, Administrative Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the affairs, financial condition or business of Borrower
or any of its Affiliates that may come into the possession of Administrative
Agent or any of its affiliates.
Section 14.7 Failure to Act. Except for action expressly required of
Administrative Agent hereunder, and under the other Loan Documents,
Administrative Agent shall in all cases be fully justified in failing or
refusing to act hereunder and thereunder unless it shall receive further
assurances to its satisfaction from the Lenders of their indemnification
obligations under Section 14.5 against any and all liability and expense that
may be incurred by it by reason of taking or continuing to take any such action.
Section 14.8 Resignation of Administrative Agent. Administrative Agent may
resign at any time by giving notice thereof to the Lenders and Borrower and the
Majority Lenders (other than Administrative Agent) may remove Administrative
Agent at any time for gross negligence or willful misconduct by giving at least
thirty (30) Business Days' prior written notice and cure period to
Administrative Agent, Borrower and all other Lenders. Upon any such resignation
or removal, the Majority Lenders shall have the right to appoint a successor
Administrative Agent that shall be a Person that meets the qualifications of an
Eligible Assignee. If no successor Administrative Agent shall have been so
appointed by the Majority Lenders and shall have accepted such appointment
within thirty (30) days after the retiring Administrative Agent's giving of
notice of resignation or its receipt of notice of removal, then the retiring or
removed Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, that shall be an institutional lender that meets the
requirements of the immediately preceding sentence. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring (or
retired) Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder (if not already discharged
therefrom as provided above in this Section 14.8). The fees payable by Borrower
to a successor Administrative Agent shall be the same as those payable to its
predecessor unless otherwise agreed between Borrower and such successor. After
any retiring Administrative Agent's resignation hereunder as Administrative
Agent, the provision of this Article 14 and Section 12.5 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 Administrative Agent.
Section 14.9 Consents under Loan Documents. Administrative Agent may as
expressly provided in the Loan Documents and, if not expressly provided, with
the consent of the Majority Lenders (a) grant any consent or approval required
of it or (b) consent to any modification, supplement or waiver under any of the
Loan Documents. If Administrative Agent solicits any consents or approvals from
the Lenders under any of the Loan Documents, each Lender shall within ten (10)
Business Days of receiving such request, give Administrative Agent written
notice of its consent or approval or denial thereof; provided that, if any
Lender does not respond within such ten (10) Business Days, such Lender shall be
117
deemed to have authorized Administrative Agent to vote such Lender's interest
with respect to the matter which was the subject of Administrative Agent's
solicitation as Administrative Agent elects. Any such solicitation by
Administrative Agent for a consent or approval shall be in writing and shall
include a description of the matter or thing as to which such consent or
approval is requested and shall include Administrative Agent's recommended
course of action or determination in respect thereof. Borrower and such
successor. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this Article 14 and Section 12.5 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 Administrative Agent.
Section 14.10 Authorization. Administrative Agent is hereby authorized by
the Lenders to execute, deliver and perform in accordance with the terms of each
of the Loan Documents to which Administrative Agent is or is intended to be a
party and each Lender agrees to be bound by all of the agreements of
Administrative Agent contained in such Loan Documents. Borrower shall be
entitled to rely on all written agreements, approvals and consents received from
Administrative Agent as being that also of the Lenders, without obtaining
separate acknowledgment or proof of authorization of same.
Section 14.11 Agency Fee. So long as the Commitments are in effect and
until payment in full of all obligations under this Agreement, the Notes and the
other Loan Documents, Borrower shall pay to Administrative Agent, for its sole
account, the Agency Fee. The Agency Fee shall be payable annually in advance
commencing on the Closing Date pursuant to the Fee Letter.
Section 14.12 Defaulting Lenders.
(1) If any Lender (a "Defaulting Lender") shall for any reason fail to
(i) make any respective Loan required pursuant to the terms of this
Agreement or (ii) pay its proportionate share of an advance or disbursement
to protect the Project or the Lien of the Security Documents, any of the
other Lenders may, but shall not be obligated to, make all or a portion of
the Defaulting Lender's Loan or proportionate share of such advance,
provided that such Lender gives the Defaulting Lender and Administrative
Agent prior notice of its intention to do so. The right to make such
advances in respect of the Defaulting Lender shall be exercisable first by
the Lender holding the greatest proportionate share and thereafter to each
of the Lenders in descending order of their respective proportionate shares
of the Loans or in such other manner as the Majority Lenders (excluding the
Defaulting Lender) may agree on. Any Lender making all or any portion of
the Defaulting Lender's proportionate share of the applicable Loan or
advance in accordance with the foregoing terms and conditions shall be
referred to as a "Special Advance Lender".
(2) In any case where a Lender becomes a Special Advance Lender (i)
the Special Advance Lender shall be deemed to have purchased, and the
Defaulting Lender shall be deemed to have sold, a senior participation in
the Defaulting Lender's respective Loan to the extent of the amount so
advanced or disbursed (the "Advanced Amount") bearing interest (including
interest at the Default Rate, if applicable) and (ii) the Defaulting Lender
shall have no voting rights under this Agreement or any other Loan
Documents so long as it is a Defaulting Lender. It is expressly understood
118
and agreed that each of the respective obligations under this Agreement and
the other Loan Documents, including advancing Loans, losses incurred in
connection with the Loan, including costs and expenses of enforcement,
advancing to preserve the Lien of the Mortgage or to preserve and protect
the Project, shall be without regard to any adjustment in the proportionate
shares occasioned by the acts of a Defaulting Lender. The Special Advance
Lender shall be entitled to an amount (the "Unpaid Amount") equal to the
applicable Advanced Amount, plus any unpaid interest due and owing with
respect thereto, less any repayments thereof made by the Defaulting Lender
immediately upon demand. The Defaulting Lender shall have the right to
repurchase the senior participation in its Loan from the Special Advance
Lender at any time by the payment of the Unpaid Amount.
(3) A Special Advance Lender shall (i) give notice to the Defaulting
Lender, Administrative Agent and each of the other Lenders (provided that
failure to deliver said notice to any party other than the Defaulting
Lender shall not constitute a default under this Agreement) of the Advance
Amount and the percentage of the Special Advance Lender's senior
participation in the Defaulting Lender's Loan and (ii) in the event of the
repayment of any of the Unpaid Amount by the Defaulting Lender, give notice
to the Defaulting Lender and Administrative Agent of the fact that the
Unpaid Amount has been repaid (in whole or in part), the amount of such
repayment and, if applicable, the revised percentage of the Special Advance
Lender's senior participation. Provided that Administrative Agent has
received notice of such participation, Administrative Agent shall have the
same obligations to distribute interest, principal and other sums received
by Administrative Agent with respect to a Special Advance Lender's senior
participation as Administrative Agent has with respect to the distribution
of interest, principal and other sums under this Agreement; and at the time
of making any distributions to the Lenders, shall make payments to the
Special Advance Lender with respect to a Special Advance Lender's senior
participation in the Defaulting Lender's Loan out of the Defaulting
Lender's share of any such distributions.
(4) A Defaulting Lender shall immediately pay to a Special Advance
Lender all sums of any kind paid to or received by the Defaulting Lender
from Borrower, whether pursuant to the terms of this Agreement or the other
Loan Documents or in connection with the realization of the security
therefor until the Unpaid Amount is fully repaid. Notwithstanding the fact
that the Defaulting Lender may temporarily hold such sums, the Defaulting
Lender shall be deemed to hold same as a trustee for the benefit of the
Special Advance Lender, it being the express intention of the Lenders that
the Special Advance Lender shall have an ownership interest in such sums to
the extent of the Unpaid Amount.
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(5) Each Defaulting Lender shall indemnify, defend and hold
Administrative Agent and each of the other Lenders harmless from and
against any and all losses, damages, liabilities or expenses (including
reasonable attorneys' fees and expenses and interest at the Default Rate)
which they may sustain or incur by reason of the Defaulting Lender's
failure or refusal to abide by its obligations under this Agreement or the
other Loan Documents, except to the extent a Defaulting Lender became a
Defaulting Lender due to the gross negligence or willful misconduct of
Administrative Agent and/or any Lender. Administrative Agent shall, after
payment of any amounts due to any Special Advance Lender pursuant to the
terms of subsection (3) above, set-off against any payments due to such
Defaulting Lender for the claims of Administrative Agent and the other
Lenders pursuant to this indemnity.
Section 14.13 Liability of Administrative Agent. Administrative Agent shall
not have any liabilities or responsibilities to Borrower on account of the
failure of any Lender (other than Administrative Agent in its capacity as a
Lender) to perform its obligations hereunder or to any Lender on account of the
failure of Borrower to perform its obligations hereunder or under any other Loan
Document.
Section 14.14 Transfer of Agency Function. Without the consent of Borrower
or any Lender, Administrative Agent may at any time or from time to time
transfer its functions as Administrative Agent hereunder to any of its offices
wherever located in the United States; provided that Administrative Agent shall
promptly notify Borrower and the Lenders thereof.
[Signature Pages Follow]
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EXECUTED as of the date first written above.
LENDER:
EUROHYPO AG, NEW YORK BRANCH
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Director
By: /s/ ▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
Address for Notices to Eurohypo AG,
New York Branch:
Eurohypo AG, New York Branch
1114 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Legal Director
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
With copies to:
Eurohypo AG, New York Branch
1114 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Head of Portfolio Operations
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
- and -
Sidley Austin LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopier No.: 312-853-7036
BORROWER:
▇▇▇▇▇▇ HILLS MALL, LLC,
a Delaware limited liability company
By: ▇▇▇▇▇▇ HILLS MALL REIT, LLC,
a Delaware limited liability company,
its sole member
By: OG RETAIL HOLDING CO., LLC,
a Delaware limited liability company,
its managing member
By: GLIMCHER PROPERTIES LIMITED PARTNERSHIP,
a Delaware limited partnership,
its administering member
By: GLIMCHER PROPERTIES CORPORATION,
a Delaware corporation,
its sole general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
Address for Notices:
c/o Glimcher Development Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
ADMINISTRATIVE AGENT:
EUROHYPO AG, NEW YORK BRANCH, as
Administrative Agent
By:_________________________
Name:
Title:
By:_________________________
Name:
Title:
Address for Notices to Eurohypo AG,
New York Branch:
Eurohypo AG, New York Branch
1114 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Legal Director
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
With copies to:
Eurohypo AG, New York Branch
1114 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Head of Portfolio Operations
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
- and -
Sidley Austin LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telecopier No.: 312-853-7036
EXHIBIT A
LEGAL DESCRIPTION OF PROJECT
Legal Description
All that certain real property situated in the County of Los Angeles, State of
California, described as follows:
PARCEL A - Fee Simple:
Parcels 5, 7 and 8, in the City of Industry, County of Los Angeles, State of
California, as shown on Parcel Map No. 322, filed in Book 315, Page(s) 37
through 44, inclusive, of Parcel Maps, in the Office of the County Recorder of
said County.
PARCEL B - Leasehold:
Parcels 5 and 6, in the City of Industry, County of Los Angeles, State of
California, as shown on Parcel Map No. 27-A, filed in Book 42, Page(s) 61
through 64, inclusive of Parcels Maps, in the Office of the County Recorder of
said County.
PARCEL C - Easements:
Non-exclusive easements, creating rights in real property, including but not
limited to, ingress and egress, passage and parking of vehicles; passage and
accommodation of pedestrians; sewer lines, water and gas mains, electrical power
lines, telephone lines, and other utility lines; development and construction of
said Tract; the construction, reconstruction, erection, removal and maintenance,
on, to, over, under and across to a maximum distance of 14 feet, of footings,
supports, canopies, flag poles, roof and building overhangs, awnings, alarm
bells, signs, lights and lighting devices and similar appurtenances over the
"Common Area" as defined and described in that certain Construction, Operation
and Reciprocal Easement Agreement in and upon all the terms, covenants,
conditions, provisions, reservations, limitations, duties, obligations, liens,
assessments and easements as more particularly and fully described and set forth
in said agreement by and between ▇▇▇▇-▇▇▇▇▇▇ Associates, a limited partnership
in which ▇▇▇▇▇▇ ▇. ▇▇▇▇, Inc., a California corporation, is the general partner;
▇▇▇▇▇▇▇▇-▇▇▇▇ Store, Inc., a California corporation; Sears, ▇▇▇▇▇▇▇ and Co., a
New York corporation; Adcor Realty Corporation, a New York corporation; and ▇.▇.
Penney Properties, Inc., a Delaware corporation, dated December 22, 1972 and
recorded December 22, 1972 as Instrument No. 712, as amended by that certain
First Amendment to Construction, Operation and Reciprocal Easement Agreement by
and between ▇▇▇▇-▇▇▇▇▇▇ Associates, a limited partnership in which ▇▇▇▇▇▇ ▇.
▇▇▇▇, Inc., a California corporation, is the general partner; ▇▇▇▇▇▇▇▇-▇▇▇▇
Store, Inc., a California corporation; Sears, ▇▇▇▇▇▇▇ and Co., a New York
corporation; Adcor Realty Corporation, a New York corporation; and ▇.▇. ▇▇▇▇▇▇
Properties, Inc., a Delaware corporation, dated February 1, 1974 and recorded
March 11, 1974 as Instrument No. 3991, as amended by that certain Second
Amendment to Construction, Operation and Reciprocal Easement Agreement by and
between ▇▇▇▇-▇▇▇▇▇▇ Associates, a Limited Partnership in which ▇▇▇▇▇▇ ▇. ▇▇▇▇,
Inc., a California corporation, is the general partner; ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
Stores, Inc., a California corporation (fka ▇▇▇▇▇▇▇▇-▇▇▇▇ Stores, Inc.); Sears,
▇▇▇▇▇▇▇ and Co., a New York corporation; Adcor Realty Corporation, a New York
corporation; and ▇.▇. Penney Properties, Inc., a Delaware corporation, dated
September 20, 1984 and recorded October 1, 1984 as Instrument No. ▇▇-▇▇▇▇▇▇▇,
and as further amended by that certain Third Amendment to Construction,
Operation and Reciprocal Easement Agreement by and between ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLC, a
California limited liability company; The May Department Stores Company, a New
York corporation; and Sears, ▇▇▇▇▇▇▇ and Co., a New York corporation, dated
December 1, 2001 and recorded January 8, 2002 as Instrument No. ▇▇-▇▇▇▇▇▇▇, all
in the Recorder's Office of Los Angeles County, California.
PARCEL D Easements:
Non-exclusive easements, creating rights in real property as contained in that
certain Declaration of Covenants, Conditions and Restrictions by ▇▇▇▇▇▇ Hills
Mall, LLC, a Delaware limited liability company, dated March 24, 2003 and
recorded March 26, 2003 as Instrument No. 03-838916, in the Recorder's Office of
Los Angeles County, California.
Assessor's Parcel Number: ▇▇▇▇-▇▇▇-▇▇▇ / ▇▇▇▇-▇▇▇-▇▇▇ / ▇▇▇▇-▇▇▇-▇▇▇
▇▇▇▇-▇▇▇-▇▇▇ / ▇▇▇▇-▇▇▇-▇▇▇
A-2
EXHIBIT B
LEGAL DESCRIPTION OF GROUND LEASE PROPERTY
Legal Description
All that certain real property situated in the County of Los Angeles, State of
California, described as follows:
PARCEL B - Leasehold:
Parcels 5 and 6, in the City of Industry, County of Los Angeles, State of
California, as shown on Parcel Map No. 27-A, filed in Book 42, Page(s) 61
through 64, inclusive of Parcels Maps, in the Office of the County Recorder of
said County.
PARCEL C - Easements:
Non-exclusive easements, creating rights in real property, including but not
limited to, ingress and egress, passage and parking of vehicles; passage and
accommodation of pedestrians; sewer lines, water and gas mains, electrical power
lines, telephone lines, and other utility lines; development and construction of
said Tract; the construction, reconstruction, erection, removal and maintenance,
on, to, over, under and across to a maximum distance of 14 feet, of footings,
supports, canopies, flag poles, roof and building overhangs, awnings, alarm
bells, signs, lights and lighting devices and similar appurtenances over the
"Common Area" as defined and described in that certain Construction, Operation
and Reciprocal Easement Agreement in and upon all the terms, covenants,
conditions, provisions, reservations, limitations, duties, obligations, liens,
assessments and easements as more particularly and fully described and set forth
in said agreement by and between ▇▇▇▇-▇▇▇▇▇▇ Associates, a limited partnership
in which ▇▇▇▇▇▇ ▇. ▇▇▇▇, Inc., a California corporation, is the general partner;
▇▇▇▇▇▇▇▇-▇▇▇▇ Store, Inc., a California corporation; Sears, ▇▇▇▇▇▇▇ and Co., a
New York corporation; Adcor Realty Corporation, a New York corporation; and ▇.▇.
Penney Properties, Inc., a Delaware corporation, dated December 22, 1972 and
recorded December 22, 1972 as Instrument No. 712, as amended by that certain
First Amendment to Construction, Operation and Reciprocal Easement Agreement by
and between ▇▇▇▇-▇▇▇▇▇▇ Associates, a limited partnership in which ▇▇▇▇▇▇ ▇.
▇▇▇▇, Inc., a California corporation, is the general partner; ▇▇▇▇▇▇▇▇-▇▇▇▇
Store, Inc., a California corporation; Sears, ▇▇▇▇▇▇▇ and Co., a New York
corporation; Adcor Realty Corporation, a New York corporation; and ▇.▇. ▇▇▇▇▇▇
Properties, Inc., a Delaware corporation, dated February 1, 1974 and recorded
March 11, 1974 as Instrument No. 3991, as amended by that certain Second
Amendment to Construction, Operation and Reciprocal Easement Agreement by and
between ▇▇▇▇-▇▇▇▇▇▇ Associates, a Limited Partnership in which ▇▇▇▇▇▇ ▇. ▇▇▇▇,
Inc., a California corporation, is the general partner; ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
Stores, Inc., a California corporation (fka ▇▇▇▇▇▇▇▇-▇▇▇▇ Stores, Inc.); Sears,
▇▇▇▇▇▇▇ and Co., a New York corporation; Adcor Realty Corporation, a New York
corporation; and ▇.▇. Penney Properties, Inc., a Delaware corporation, dated
September 20, 1984 and recorded October 1, 1984 as Instrument No. ▇▇-▇▇▇▇▇▇▇,
and as further amended by that certain Third Amendment to Construction,
Operation and Reciprocal Easement Agreement by and between ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLC, a
California limited liability company; The May Department Stores Company, a New
York corporation; and Sears, ▇▇▇▇▇▇▇ and Co., a New York corporation, dated
December 1, 2001 and recorded January 8, 2002 as Instrument No. ▇▇-▇▇▇▇▇▇▇, all
in the Recorder's Office of Los Angeles County, California.
PARCEL D Easements:
Non-exclusive easements, creating rights in real property as contained in that
certain Declaration of Covenants, Conditions and Restrictions by ▇▇▇▇▇▇ Hills
Mall, LLC, a Delaware limited liability company, dated March 24, 2003 and
recorded March 26, 2003 as Instrument No. 03-838916, in the Recorder's Office of
Los Angeles County, California.
Assessor's Parcel Number: ▇▇▇▇-▇▇▇-▇▇▇ / ▇▇▇▇-▇▇▇-▇▇▇
B-2
EXHIBIT C
[Form of Note]
PROMISSORY NOTE
$_______________ _________ __, 200_
[________][_________]
FOR VALUE RECEIVED, [BORROWER], a __________________ ("Borrower"), hereby
promises to pay to __________________ (the "Lender"), for account of its
respective Applicable Lending Offices provided for by the Agreement referred to
below, at the principal office of EUROHYPO AG, NEW YORK BRANCH, at 1114 Avenue
of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, the principal sum of
_______________ Dollars (or such lesser amount as shall equal the aggregate
unpaid principal amount of the Loans made by the Lender to Borrower under the
Agreement), in lawful money of the United States of America and in immediately
available funds, on the dates and in the principal amounts provided in the
Agreement, and to pay interest on the unpaid principal amount of each such Loan,
at such office, in like money and funds, for the period commencing on the date
of such Loan until such Loan shall be paid in full, at the rates per annum and
on the dates provided in the Agreement.
The date, amount, Type, interest rate and duration of Interest Period (if
applicable) of each Loan made by the Lender to Borrower, and each payment made
on account of the principal thereof, shall be recorded by the Lender on its
books and, prior to any transfer of this Note, endorsed by the Lender on the
schedule attached hereto or any continuation thereof, provided that the failure
of the Lender to make any such recordation or endorsement shall not affect the
obligations of Borrower to make a payment when due of any amount owing under the
Agreement or hereunder in respect of the Loans made by the Lender.
This Note is one of the Notes referred to in the Loan Agreement dated as of
_________ __, 200_ (as modified, supplemented, extended and in effect from time
to time, the "Agreement") between Borrower, the lenders party thereto (including
the Lender) and [___________], as Administrative Agent, and evidences Loans made
by the Lender thereunder. Terms used but not defined in this Note have the
respective meanings assigned to them in the Agreement.
The Agreement provides for the acceleration of the maturity of this Note
upon the occurrence of certain events and for prepayments of Loans upon the
terms and conditions specified therein.
Except as permitted by Sections 12.9 and 12.24 of the Agreement, this Note
may not be assigned by the Lender to any other Person.
This Note shall be governed by, and construed in accordance with, the law
of the State of New York without regard to conflicts of laws principles other
than Section 5-1401 of the General Obligations Law of the State of New York.
C-1
[As long as a Hedge Agreement with a Eurohypo Counterparty is in effect,
the interest payable under this Note shall be increased or decreased from time
to time in accordance with such Hedge Agreement. Therefore, this Note also
evidences such amounts as may become due and payable by Borrower under the Hedge
Agreement with the Eurohypo Counterparty, including, without limitation, any
amount payable upon or in connection with termination of such Hedge Agreement,
all of which sums shall be deemed to constitute "Additional Interest" evidenced
hereby and payable pursuant to this Note and in accordance with the terms and
provisions of the Hedge Agreement with a Eurohypo Counterparty.](1)
[BORROWER]
By_________________________
Name:
Title:
--------
(1) Delete if inapplicable.
C-2
SCHEDULE OF LOANS
This Note evidences Loans made, Continued or Converted under the within
described Agreement to Borrower, on the dates, in the principal amounts, of the
Types, bearing interest at the rates and having Interest Periods (if applicable)
of the durations set forth below, subject to the payments, Continuations,
Conversions and prepayments of principal set forth below:
Amount
Date Prim- Paid,
Made, copal Duration Prepaid, Unpaid
Continued Amount Type of Continued Prim-
or of of Interest Interest or copal Notation
Converted Loan Loan Rate Period Converted Amount Made by
C-3
EXHIBIT D
[Form of Assignment and Acceptance]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Loan Agreement dated as of _________ __, 200_ (as
amended and in effect on the date hereof, the "Agreement"), between [BORROWER],
the Lenders named therein and [___________], as Administrative Agent for the
Lenders among Administrative Agent and each Lender. Terms defined in the
Agreement are used herein with the same meanings.
The Assignor named below hereby sells and assigns, without recourse, to the
Assignee named below, and the Assignee hereby purchases and assumes, without
recourse, from the Assignor, effective as of the Assignment Date set forth
below, the interests set forth below (the "Assigned Interest") in the Assignor's
rights and obligations under the Agreement, including, without limitation, the
interests set forth below in the Commitment of the Assignor on the Assignment
Date and Loans owing to the Assignor which are outstanding on the Assignment
Date, together with (a) interest on the assigned Loans from and after the
Assignment Date [and] (b) the amount, if any, set forth below of the fees
accrued to the Assignment Date for account of the Assignor. The Assignee hereby
acknowledges receipt of a copy of the Agreement. From and after the Assignment
Date (i) the Assignee shall be a party to and be bound by the provisions of the
Agreement and, to the extent of the interests assigned by this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and (ii) the
Assignor shall, to the extent of the interests assigned by this Assignment and
Acceptance, relinquish its rights and be released from its obligations under the
Agreement.
This Assignment and Acceptance is being delivered to Administrative Agent
together with, if the Assignee is not already a Lender under the Agreement, an
administrative questionnaire in the form supplied by Administrative Agent, duly
completed by the Assignee. The [Assignee/Assignor] shall pay the fee payable to
Administrative Agent pursuant to Section 12.24(2)(e) of the Agreement.
This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of New York.
The Assignor represents and warrants to the Assignee that the Assignor is
the legal and beneficial owner of the Assigned Interest and has not created any
adverse interest therein. The Assignor and the Assignee represent and warrant to
each other that they are, respectively, authorized to execute and deliver this
Assignment and Acceptance.
D-1
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
("Assignment Date")(2) :
Percentage Assigned of
Facility/Commitment (set forth, to at
least 4 decimals, as a percentage of
Principal Amount the Facility and the aggregate
Assigned Commitments of all Lenders thereunder
Current Outstanding
Loans Assigned: $ %](3)
Future Funding
Commitment: $ %
[Fees Assigned (if any):]
The terms set forth above and below are hereby agreed to:
[NAME OF ASSIGNOR] , as Assignor
By:_________________________
Name:
Title:
[NAME OF ASSIGNEE] , as Assignee
By:_________________________
Name:
Title:
-----------
(2) Must be at least five Business Days after execution hereof by all required
parties.
(3) Delete if no future advances are involved.
D-2
The undersigned hereby consent to the within assignment:(4)
[ ],
as Administrative Agent
By:_________________________
Name:
Title:
--------------------
(4) Consent to be included to the extent required by Section 12.24(2) of the
Agreement.
D-3
EXHIBIT E
FORM OF NOTICES OF CONVERSION/CONTINUATION
NOTICES FOR CONVERSION AND CONTINUATIONS
_______________, ▇▇▇_
▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, as Administrative Agent
1114 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ___________________________________
Re: Loan Agreement dated as of _______________, 200_ (as the same may be
amended, modified or supplemented from time to time, the "Agreement") by
and among ▇▇▇▇▇▇ HILLS MALL, LLC, a Delaware limited liability company (the
"Borrower"), the lenders from time to time party to the Agreement (the
"Lenders"), and EUROHYPO AG, NEW YORK BRANCH, as Administrative Agent on
behalf of the Lenders (the "Administrative Agent")
Ladies and Gentlemen:
Reference is made to the Agreement. Capitalized terms used in this Notice of
Conversion/Continuation without definition have the meanings specified in the
Agreement.
Pursuant to Section 2.8(5) of the Agreement, Borrower hereby elects to convert
or continue the loans described in attached Schedule 1 (the "Loans"). In
connection therewith, Borrower and the undersigned authorized officer of
Borrower hereby certify that:
(1) Representations and Warranties. All representations and warranties of
Borrower contained in the Loan Documents, including those contained in Article 7
of the Agreement, are true and correct as of the date hereof and shall be true
and correct on the date of the continuation/conversion of the Loans, both before
and after giving effect to such continuation/conversion; and
E-1
(2) No Event of Default. No Event of Default exists as of the date hereof
or will result from the continuation/conversion of the Loans.
▇▇▇▇▇▇ HILLS MALL, LLC,
a Delaware limited liability company
By: ▇▇▇▇▇▇ HILLS MALL REIT, LLC,
a Delaware limited liability company,
its sole member
By: OG RETAIL HOLDING CO., LLC,
a Delaware limited liability company,
its managing member
By: GLIMCHER PROPERTIES LIMITED PARTNERSHIP,
a Delaware limited partnership,
its administering member
By: GLIMCHER PROPERTIES CORPORATION,
a Delaware corporation,
its sole general partner
By:
Name: _____________________________
Title _____________________________
E-2
Schedule 1
----------
to Notice of Conversion/Continuation
Loan to be Converted or Continued
A. All conversions and continuations must be of a Loan, or portion thereof, in
a principal amount of $1,000,000 or a multiple of $100,000 in excess
thereof.
B. Conversions/continuations to a LIBOR-based Loan under paragraphs (2) and
(3) below are not permitted if, after giving effect to thereto, (a) there
would be more than three (3) different LIBOR-based Loans in effect, or (b)
the aggregate outstanding principal amount of all LIBOR-based Loans would
be reduced to be less than $1,000,000.
(1) Conversion of a LIBOR-based Loan into a Base Rate Loan.
The following LIBOR-based Loan to a Base Rate Loan:
Amount: $______________________
Requested Conversion Date: _______________________
(must be a Business Day at least three (3)
Business Days after date of notice)
Last day of current Interest Period: _______________________
(2) Conversion of a Base Rate Loan into a LIBOR-based Loan.
The following Base Rate Loan to a LIBOR-based Loan:
Amount: $______________________
Requested Conversion Date: _______________________
(must be a Business Day at least three (3)
Business Days after date of notice)
Requested Interest Period: _______________________
(1, 2, 3, 6 or (to the extent twelve
month LIBOR contracts are available from,
and can be reasonably provided by, all
Lenders) 12 months)
E-Schedule 1-1
(3) Continuation of a LIBOR-based Loan into a Subsequent Interest Period.
The following LIBOR-based Loan into a subsequent Interest Period:
Amount: $______________________
Last day of current Interest Period: _______________________
(must be a Business Day at least three (3)
Business Days after date of notice)
Requested Interest Period: _______________________
(1, 2, 3, 6 or (to the extent twelve month
LIBOR contracts are available from, and
can be reasonably provided by, all Lenders)
12 months)
E-Schedule 1-2
EXHIBIT F
FORM OF HEDGE PLEDGE AGREEMENT
[See Attached]
F-1
EXHIBIT G
SAMPLE DSCR CALCULATION
[See Attached]
G-1
EXHIBIT H
FORM OF RECYCLED ENTITY CERTIFICATE
CERTIFICATE OF EXECUTIVE OFFICER
The undersigned, in his capacity as the _____________ of Glimcher
Properties Corporation, a Delaware corporation, as the sole general partner of
Glimcher Properties Limited Partnership, a Delaware limited partnership, as the
administering member of OG Retail Holding Co., LLC, a Delaware limited liability
company, as the managing member of ▇▇▇▇▇▇ Hills Mall REIT, LLC, a Delaware
limited liability company, as the sole member of ▇▇▇▇▇▇ Hills Mall, LLC, a
Delaware limited liability company (the "Borrower"), hereby certifies to
EUROHYPO AG, NEW YORK BRANCH, as administrative agent for the Lenders (together
with its successors and assigns "Administrative Agent") and to the Lenders that
from the date of its formation on December 2, 2005, to the date of this
certificate (this "Certificate"), Borrower:
1. is and always has been duly formed, validly existing, and in good
standing in the state of its formation, in the State where the Project is
located and in all other jurisdictions where it is qualified to do business;
2. has no judgments or liens of any nature against it except for tax liens
not yet due;
3. to its best knowledge, is in compliance with all laws, regulations, and
orders applicable to it and has received all permits necessary for it to
operate;
4. is not aware of any pending or threatened litigation, except as
otherwise set forth on Schedule 7.3 to the Loan Agreement;
5. is not involved in any dispute with any taxing authority;
6. has paid all taxes which it owes;
7. has never owned any property other than the Project that is the subject
of the current transaction evidenced by that certain Loan Agreement dated as of
the date hereof by and between Borrower, Administrative Agent and Lenders from
time to time a party thereto (the "Loan Agreement") and personal property
necessary or incidental to its ownership or operation of the Project and has
never engaged in any business other than the ownership and operation of the
Project;
8. is not now party to any lawsuit, arbitration, summons, or legal
proceeding, except the matters disclosed on Schedule 7.3 to the Loan Agreement;
9. has provided Administrative Agent with complete financial statements
that reflect a fair and accurate view of the Borrower's financial condition;
H-1
10. has received a phase 1 (and if recommended therein, a phase 2)
environmental site assessment for the Project, which did not disclose any
environmental noncompliance with respect to the Property or disclose any fact or
condition that would constitute or cause a breach under any environmental
representation, warranty, covenant or other provision contained in the Loan
Agreement or any of the other Loan Documents; and
11. has no material contingent or actual obligations not related to the
Project. Without limiting the foregoing, upon closing of the Loan, the Prior
Loan will be fully satisfied with the proceeds of the Loans and Borrower shall
have no continuing liability, actual or contingent with respect thereto.
Capitalized terms used in this Certificate but not otherwise defined shall
have the respective meanings assigned to them in the Loan Agreement.
H-2
IN WITNESS WHEREOF, the undersigned has hereunto set his hand this ___ day
of June, 2008.
_________________________________
Print Name: _____________________
In the capacity stated above
H-3
EXHIBIT I
LIST OF PRIOR LOAN DOCUMENTS
1. Loan Agreement dated May 9, 2003.
2. Loan Assumption Agreement dated December 29, 2005.
3. First Amendment to Loan Agreement dated May 24, 2006.
4. Note dated May 9, 2003.
5. Allonge to Note dated December 29, 2005.
6. Deposit Account Agreement dated May 9, 2003.
7. First Amendment to Deposit Account Agreement dated December 29, 2005.
8. Deposit Account Control Agreement dated December 29, 2005.
9. Deed of Trust dated May 9, 2003.
10. Assignment of Deed of Trust dated June 9, 2003.
11. Assignment of Agreements dated May 9, 2003.
12. Consent and Subordination to Property Management Agreement dated December
29, 2005.
13. Guaranty of Recourse Obligations dated December 29, 2005.
I-1
EXHIBIT J
LIST OF APPROVED LEASES AS OF THE CLOSING DATE
[See Attached]
J-1
EXHIBIT K
FORM OF CONFIDENTIALITY AGREEMENT
[Date]
[_______________]
[_______________]
[_______________]
[_______________]
[_______________]
Ladies and Gentlemen:
The ability of Eurohypo AG, New York Branch ("Eurohypo") and/or its
affiliates to provide you with certain non-public information (whether in
written, oral, electronic or other form, all such information being hereinafter
referred to as the "Confidential Information") concerning loan in the amount of
up to $90 million, to be secured by a first mortgage on a regional shopping
center located in ▇▇▇▇▇▇ Hills, California and commonly known as "▇▇▇▇▇▇ Hills
Mall" (the "Transaction") for ▇▇▇▇▇▇ Hills Mall, LLC, a Delaware limited
liability company, and its affiliates, Glimcher Realty Trust, a Maryland real
estate investment trust, and OMERS Realty Corporation, a Canadian corporation
(collectively, the "Company") under discussion is contingent on your agreeing to
keep the Confidential Information confidential.
By signing in the space provided below, you agree to keep the Confidential
Information confidential from everyone other than your directors, officers,
employees and agents (collectively, your "Representatives") who are or are
expected to become engaged in evaluating, approving, structuring or
administering the Transaction. You may, however, disclose the Confidential
Information (a) upon the request or demand, of any regulatory agency or
authority having jurisdiction over you, (b) to the extent the Confidential
Information is public or has become public other than through disclosure by you
or your Representatives and (c) to your legal counsel and independent auditors
as required in connection with the operation of your business. In the event that
you are requested or required by any court or administrative agency or pursuant
to any subpoena, interrogatory or similar process to disclose any of the
Confidential Information, you shall, unless specifically prohibited by law,
provide Eurohypo and the Company with immediate written notice thereof so that
an appropriate protective order may be sought or compliance herewith waived.
Notwithstanding the foregoing, you may disclose to any and all persons, without
limitation of any kind, the "tax treatment" and "tax structure" (in each case
within the meaning of Treasury Regulation Section 1.6011-4) of the Transaction
and all materials of any kind (including opinions or other tax analyses) that
are or have been provided to you relating to the tax treatment or tax structure;
provided, however, that with respect to any document or similar item that in
either case contains information concerning such tax treatment or tax structure
of the transactions contemplated hereby as well as other information, this
sentence shall only apply to such portions of the document or similar item that
relate to such tax treatment or tax structure.
K-1
You hereby acknowledge that the Confidential Information is proprietary and
valuable and you agree not to use the Confidential Information for any purpose
whatsoever except for evaluating the Transaction. You agree that all of your
non-employee Representatives having access to the Confidential Information shall
have executed with you an agreement substantially similar to this
confidentiality agreement ("Confidentiality Agreement") and you agree to enforce
such agreement(s). You agree to protect the Confidential Information with at
least the same standard of care and procedures that you use to protect your own
trade secrets and confidential proprietary information, but in no event may such
standard of care be less than that of professional reasonable care. Upon prior
written request of Eurohypo, you will provide a list of persons who have or had
or will have access to the Confidential Information. You agree to maintain a
permanent record of all confidentiality agreements executed pursuant to this
Confidentiality Agreement. You shall be responsible for any breach of this
Confidentiality Agreement by any of your Representatives and you shall indemnify
Eurohypo and the Company and their respective affiliates for any loss,
liability, cost or expense, including attorneys' fees, incurred by Eurohypo or
any of their respective affiliates in connection therewith except to the extent
that a claim arises from Eurohypo's or the Company's or their respective
affiliates' gross negligence or willful misconduct.
You understand and agree that the Confidential Information furnished to you
has been prepared by [________________________] and contains certain projections
concerning the Company. None of Eurohypo or the company or their respective
affiliates make any representations or warranties with respect to the accuracy
or completeness of the Confidential Information. Nothing contained therein is,
or can be relied on as, a promise or representation as to the future, although
the Company believes that such projections are realistic.
In the event that you determine not to proceed with the Transaction, you
agree promptly to advise Eurohypo of your decision and promptly, upon Eurohypo's
or the Company's written request, to return all the Confidential Information to
Eurohypo or the Company or to destroy it and certify its destruction to Eurohypo
and the Company.
You acknowledge that should Eurohypo or the Company allege that you or any
of your Representatives have breached this Confidentiality Agreement, Eurohypo
or the Company, as applicable, is entitled to seek a temporary restraining
order, preliminary injunction or other legal redress for your actions, or those
of your Representatives, in the U.S. Federal District Court for the Southern
District of New York or the courts of the State of New York located in New York
County (and appellate courts from any thereof) and you hereby consent to the
jurisdiction of such courts should Eurohypo or the Company seek such a remedy or
in connection with any dispute relating to this Confidentiality Agreement.
EUROHYPO, THE COMPANY AND YOU HEREBY IRREVOCABLY WAIVE ALL RIGHT TO A TRIAL BY
JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO
THIS CONFIDENTIALITY AGREEMENT.
K-2
Notwithstanding anything to the contrary herein, your obligation to keep
the Confidential Information confidential as set forth herein shall
automatically terminate on the earlier of (a) five (5) years from the date of
this Confidentiality Agreement or (b) upon written notification from the Company
and Eurohypo.
The validity, construction and performance of this Confidentiality
Agreement shall be governed by the internal laws of the State of New York,
without regard to provisions regarding conflicts of law.
No waiver, amendment or modification of any provisions of this
Confidentiality Agreement shall be effective unless in writing and signed by the
party against whom such waiver, amendment or modification is sought to be
enforced. No failure or delay by either party in exercising any right, power or
remedy under this Confidentiality Agreement, except as specifically provided in
this Confidentiality Agreement, shall operate as a waiver of any such right,
power or remedy. The parties to this Confidentiality Agreement intend that the
Company shall be a beneficiary of this Confidentiality Agreement entitled to
enforce its provisions to the same extent as if it were a signatory hereto.
Please indicate your agreement by signing below and returning this
Confidentiality Agreement to Eurohypo Bank AG, New York Branch.
Very truly yours,
Eurohypo Bank AG, New York Branch
By:_______________________ By:_______________________
Name: Name:
Title: Title:
ACCEPTED AND AGREED TO
AS OF THE DATE HEREOF:
[Insert Name of Recipient of Information]
By:____________________
Name:
Title:
K-3
EXHIBIT L
FORM OF REPLACEMENT CLEARING ACCOUNT AGREEMENT
[See Attached]
L-1
SCHEDULE 1
COMMITMENTS
LENDER COMMITMENT
Eurohypo AG, New York $90,000,000.00
Schedule 1 - 1
SCHEDULE 2.1
ADVANCE CONDITIONS
The initial advance of the Loans shall be subject to the terms of the
Commitment Letter, and Administrative Agent's and each Lender's receipt, review,
approval and/or confirmation of the following, at Borrower's cost and expense,
each in form and content satisfactory to Administrative Agent and each Lender in
their sole and absolute discretion:
1. The Loan Documents, executed by Borrower and, as applicable, each
Borrower Party.
2. Payment to Administrative Agent of the fees as set forth in the Fee
Letter.
3. An ALTA (or equivalent) mortgagee policy of title insurance in the
maximum amount of the Loans, with reinsurance and endorsements as Administrative
Agent may require, in the form of the marked-up commitment or pro forma policy
and endorsements thereto approved by Lender on or before the Closing Date.
4. All documents evidencing the formation, organization, valid existence,
good standing, and due authorization of and for Borrower and each Borrower Party
for the execution, delivery, and performance of the Loan Documents by Borrower
and each Borrower Party.
5. Legal opinions issued by counsel for Borrower and each Borrower Party,
opining as to the due organization, valid existence and good standing of
Borrower and each Borrower Party, and the due authorization, execution,
delivery, enforceability and validity of the Loan Documents with respect to,
Borrower and each Borrower Party; that the Loans, as reflected in the Loan
Documents and the Commitment Letter, are not usurious; that the Loan Documents
do not create or constitute a partnership, a joint venture or a trust or
fiduciary relationship between Borrower and Administrative Agent or any Lender;
and as to such other matters as Administrative Agent and Administrative Agent's
counsel reasonably may specify.
6. Current Uniform Commercial Code searches, and litigation, bankruptcy and
judgment reports as requested by Administrative Agent, with respect to Borrower,
Borrower's partners and members, and principals, and the immediately preceding
owner of the Project.
7. Evidence of insurance as required by this Agreement, and conforming in
all respects to the requirements of Administrative Agent.
8. A current "as-built" survey of the Project, dated or updated to a date
not earlier than thirty (30) days prior to the date hereof, certified to
Administrative Agent (on behalf of the Lenders) and the issuer of the title
insurance, prepared by a licensed surveyor acceptable to Administrative Agent
and the issuer of the title insurance, and otherwise in form and substance
acceptable to the Administrative Agent.
9. A current engineering report with respect to the Project acceptable to
the Administrative Agent.
Schedule 2.1 - 1
10. A current Site Assessment.
11. All appraisals, environmental reports, building condition reports and
Site Assessments delivered to Administrative Agent prior to the execution of
this Agreement shall be certified to Administrative Agent (on behalf of the
Lenders and their successors and assigns) without modification or change thereto
in the form reasonably requested by Administrative Agent which may include
certification to additional participants, co-lenders and/or investors.
12. A current rent roll of the Project, certified by Borrower or the
current owner of the Project. Such rent roll shall include the following
information: (a) tenant names; (b) unit/suite numbers; (c) area of each demised
Project and total area of the Project (stated in net rentable square feet); (d)
rental rate (including escalations) (stated in gross amount and in amount per
net rentable square foot per year); (e) lease term (commencement, expiration and
renewal options); and (f) expense pass-through. In addition, Borrower shall
provide Administrative Agent with a copy of the standard lease form to be used
by Borrower in leasing space in the Project, and, at Administrative Agent's
request, true and correct copies of all leases of the Project.
13. A copy of the management agreement for the Project, certified by
Borrower as being true, correct and complete.
14. Borrower's deposit into the applicable Reserve Accounts of any amounts
required to be deposited on the Closing Date under Article 4.
15. Evidence that (a) the Project and the operation thereof comply with all
legal requirements, including that all requisite certificates of occupancy,
building permits, and other licenses, certificates, approvals or consents
required by any Governmental Authority have been issued without variance or
condition, (b) following any casualty, the improvements which form a part of the
Project may be reconstructed and the current use thereof restored, and (c) that
there is no litigation, action, citation, injunctive proceedings, or like matter
pending or threatened with respect to the validity of such matters. At
Administrative Agent's request, Borrower shall furnish Administrative Agent with
a zoning endorsement to Administrative Agent's title insurance policy, a zoning
report for the Project and, if requested by Administrative Agent, utility
letters from applicable service providers.
16. No material change shall have occurred in the financial markets or in
the financial condition of Borrower or any Borrower Party or in the Net
Operating Income of the Project, or in the financial condition of any anchor
store owner or tenant under any Major Lease, which would have a Material Adverse
Effect or that would, in Administrative Agent's reasonable judgment, adversely
impact the successful syndication of the Loans. Further, there shall not exist
any material default by Borrower or any principal in Borrower (or any entity
owned or controlled by any of them) under any loan, financing or similar
arrangement with any lender.
17. No condemnation or adverse zoning or usage change proceeding shall have
occurred or shall have been threatened in writing against the Project; the
Project shall not have suffered any significant damage by fire or other casualty
which has not been repaired; no structural change to the Project shall have
occurred or to any of the Improvements thereon; no law, regulation, ordinance,
moratorium, injunctive proceeding, restriction, litigation, action, citation or
Schedule 2.1 - 2
similar proceeding or matter shall have been enacted, adopted, or threatened by
any third party or Governmental Authority, which would have, in Administrative
Agent's or any Lender's judgment, a Material Adverse Effect on Borrower, any
Borrower Party or the Project.
18. The Debt Service Coverage Ratio shall not be less than 1.50:1.00, and
the Loan to Value Ratio shall not exceed fifty-five percent (55%), based on an
Appraisal obtained by Administrative Agent not more than ninety (90) days prior
to the Closing Date.
19. Borrower's cash investment in the Project is at least $79,000,000.
20. All fees and commissions payable to real estate brokers, mortgage
brokers, or any other brokers or agents in connection with the Loans or the
acquisition of the Project have been paid, such evidence to be accompanied by
any waivers or indemnifications deemed necessary by Administrative Agent.
21. The Sources and Uses Budget showing total costs relating to closing of
the proposed transaction, all uses of the initial advance, and amounts allocated
for future advances (if any).
22. Payment of Administrative Agent's costs and expenses in underwriting,
documenting, and closing the transaction and any Syndication or Bifurcation,
including, without limitation, preparation of the Loan Documents and due
diligence (including, without limitation, fees and expenses of Administrative
Agent's appraisers, inspecting engineers, environmental and other consultants,
surveyors and outside counsel).
23. Estoppel certificates from (a) tenants occupying at least 65% of the
rented space in the Project and (b) all anchor tenants and tenants under Major
Leases, excluding Linens `N Things and CompUSA.
24. Unless waived by Administrative Agent, subordination, non-disturbance
and attornment agreements from (a) all tenants under any lease that demises
5,000 rentable square feet or more in the Project and which lease is not
self-subordinating pursuant to the terms thereof without further action, and (b)
all anchor tenants.
25. Service contracts, warranties, licenses and permits, applicable to the
operation or use of the Project.
26. An Appraisal of the Project, which, among other things, verifies that
the value of the Project is not less than $170,000,000.
27. Evidence that the Project is at least 90% occupied by tenants that are
not in material default.
28. Such other documents or items as Administrative Agent or its counsel
reasonably may require.
29. The representations and warranties contained in this Loan Agreement and
in all other Loan Documents are true and correct.
Schedule 2.1 - 3
30. The title policy, survey, insurance policies, appraisal, environmental
report, engineering report and other third party reports shall run in favor of
"Eurohypo AG, New York Branch or its designee, as Administrative Agent on behalf
of the lenders in its lending syndicate from time to time, and the successors
and assigns of each of the foregoing, all of whom may rely thereon".
31. No Potential Default or Event of Default shall have occurred or exist.
32. 2008 operating budgets and other cash flow projections for the Project
as approved by Administrative Agent and such other third-party due diligence
providers as applicable.
33. Balance sheet for Borrower dated as of March 31, 2008.
34. Satisfactory financial review and background checks (including such
background checks as deemed necessary by Administrative Agent to comply with the
Patriot Act) of Borrower and Sponsor.
35. Payment of any due and payable real estate taxes and assessments
remaining unpaid as of the Closing Date.
36. Such other conditions as may reasonably be required by Administrative
Agent.
Schedule 2.1 - 4
SCHEDULE 2.4(1)
WIRE INSTRUCTIONS
Bank of New York
ABA# ▇▇▇-▇▇▇-▇▇▇
A/C# 8900513497
A/C Name: Eurohypo AG, NY
Re: Glimcher/▇▇▇▇▇▇ Hills Mall, LLC
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
Schedule 2.4(1) - 1
SCHEDULE 4.6
REQUIRED REPAIRS
-----------------------------------------------------------------------------------------------------
Required Repair Description Allocated Portion Required
of Required Completion
Repair Fund Schedule
-----------------------------------------------------------------------------------------------------
Parking Paving Overlay deteriorated pavement south $130,948 Within 1 year
Sidewalks mall parking area after the
Closing Date
-----------------------------------------------------------------------------------------------------
HVAC Replace roof top units. $96,250 Within 1 year
after the
Closing Date
-----------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------
Total: $227,198
-----------------------------------------------------------------------------------------------------
Schedule 4.6 - 1
SCHEDULE 6.1
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES ON LEASES
[Borrower to provide for Eurohypo review]
Schedule 6.1 - 1
SCHEDULE 6.2
LEASING GUIDELINES
1. All leases, lease extensions, amendments or other modifications shall contain
commercially reasonable terms and conditions that are consistent with leases for
a Similar Retail Asset.
2. All rents paid by tenants, including all Rents payable during any extension
term, shall be consistent with the then-market rental rate for a Similar Retail
Asset.
3. All landlord concessions shall be consistent with the then-market landlord
concessions for a Similar Retail Asset.
4. Each lease (as extended, amended or otherwise modified, if applicable) shall
have a term that is consistent with the then-market term for the type of
business to be conducted in the premises demised by such Lease for a Similar
Retail Asset.
5. No lease (as extended, amended or otherwise modified, if applicable) shall
contain any right for such tenant to offset any sum against rent unless such
offset is as a result of the failure of the Borrower to (a) pay such tenant the
tenant improvement allowance, (b) perform tenant improvement obligations
expressly contained in such lease, or (c) perform any material repair or
maintenance obligations expressly contained in such lease.
6. The tenant under each lease is credit worthy, as determined by the Borrower
in its commercially reasonable judgment.
7. All payment of rent from each tenant under any lease shall be made in
Dollars.
For the purposes of this Leasing Guideline Schedule, the term "Similar Retail
Asset" shall mean a similar retail asset of the same retail caliber and quality
as the Project in a location having similar market demographics as the Project.
Schedule 6.2 - 1
SCHEDULE 7.3
LITIGATION
--------------------------------------------------------------------------------
TENANT/ PLAINTIFF TYPE OF LITIGATION CASE NO. AND FILE DATE
--------------------------------------------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ Collection Los Angeles, CA Superior Court
Case No. KC051489
Filed 9/28/07
--------------------------------------------------------------------------------
L.A. Italian Kitchen Civil Los Angeles, CA Superior
Court Case No. BE387571
Filed 3/19/08
--------------------------------------------------------------------------------
Linens `N Things Bankruptcy U.S. Bankruptcy Court
District of Delaware
Case No. 08-10832
Filed 5/2/08
--------------------------------------------------------------------------------
Schedule 7.3 - 1
SCHEDULE 7.28
ORGANIZATIONAL CHART
[See Attached]
Schedule 7.28 - 1
SCHEDULE 7.30
TENANT IMPROVEMENT WORK
--------------------------------------------------------------------------------
TENANT OUTSTANDING WORK BUDGETED AMOUNT
--------------------------------------------------------------------------------
▇▇▇▇▇ and Barrys Escalators $512,350.00
--------------------------------------------------------------------------------
Schedule 7.30 - 1
SCHEDULE 7.31
TENANT IMPROVEMENT ALLOWANCES
-------------------------------------------------------------------------------------------------
TENANT TOTAL ALLOWANCE AMOUNT PAID TO DATE ALLOWANCE OUTSTANDING
-------------------------------------------------------------------------------------------------
▇▇▇▇▇ and Barrys $908,495.00 $454,247.50 $454,247.50
-------------------------------------------------------------------------------------------------
Max's of Manila $50,000.00 $0 $50,000.00
-------------------------------------------------------------------------------------------------
Yogur Ville (fka Snow
Mountain) $45,000.00 $0 $45,000.00
-------------------------------------------------------------------------------------------------
Zumiez $130,000.00 $0 $130,000.00
-------------------------------------------------------------------------------------------------
▇▇▇ Shops $120,000.00 $0 $120,000.00
-------------------------------------------------------------------------------------------------
Schedule 7.31 - 1
SCHEDULE 12.28
PERMITTED FINANCING TRANSACTIONS
One or more loan transactions entered into by Affiliates of Borrower or Sponsor
(but not by Borrower itself) secured by certain properties commonly known as (a)
Morgantown Mall located in Morgantown, WV, (b) Grand Central Mall located in
Parkersburg, WV, and/or (c) Northtown Mall located in Blaine, MN, in an
aggregate amount not to exceed $120,000,000.
Schedule 12.28 - 1
LIST OF DEFINED TERMS
Page No.
Access Laws...............................................................1, 89
Act...........................................................................1
Additional Cash Collateral Account............................................1
Additional Costs..........................................................1, 42
Additional Interest...........................................................1
Adjusted LIBOR Rate...........................................................1
Advance Date..............................................................2, 40
Advanced Amount...............................................................2
Affiliate.....................................................................2
Agency Fee....................................................................2
Agreement..................................................................2, 1
Anti-Terrorism Order..........................................................2
Applicable Lending Office.....................................................3
Applicable Margin.............................................................3
Appraisal.....................................................................3
Approved Fund.................................................................3
Approved Lease(s).............................................................3
Assigned Interest.............................................................1
Assignment and Acceptance.....................................................3
Assignment of Rents and Leases................................................3
Award.........................................................................3
Bankruptcy Code...............................................................4
Bankruptcy Party..........................................................4, 94
Base Rate.....................................................................4
Base Rate Loans...............................................................4
Basle Accord..................................................................4
Bifurcation...................................................................4
Borrower......................................................................1
Borrower Party................................................................4
Borrower's Operating Account..................................................4
Business Day..................................................................4
Cash Management Account.......................................................5
Cash Management Agreement.....................................................5
Casualty......................................................................5
Casualty Consultant...........................................................5
Casualty Retainage............................................................5
Casualty/Taking Account.......................................................5
Change of Control.............................................................5
Clearing Account..............................................................6
Clearing Account Agreement....................................................6
Clearing Bank.................................................................6
Closing Date..................................................................6
Defined Terms - 1
Collateral Letter of Credit...................................................6
Commitment....................................................................7
Commitment Letter.............................................................7
Condemnation..................................................................7
Condemnation Proceeds.........................................................7
Continue......................................................................7
Convert.......................................................................7
Debt..........................................................................7
Debt Service..................................................................8
Debt Service Account..........................................................8
Debt Service Coverage Ratio...................................................8
Default Rate..................................................................8
Defaulting Lender.............................................................9
Depository Bank...............................................................9
Dollars.......................................................................9
Election......................................................................9
Eligible Assignee.............................................................9
Environmental Claim.......................................................9, 66
Environmental Indemnity.......................................................9
Environmental Laws.......................................................10, 67
Environmental Liens......................................................10, 67
Environmental Loss.......................................................10, 67
Eurohypo.....................................................................10
Eurohypo Counterparty........................................................10
Event of Default.............................................................10
Executive Order..............................................................20
Federal Funds Rate...........................................................10
Fee Letter...................................................................10
First Extension Notice...................................................10, 33
First Extension Period...................................................10, 33
Flood Insurance Acts.........................................................11
Flood Insurance Policies"....................................................11
Form W 8ECI..................................................................11
Form W-8BEN..................................................................46
Form W-8ECI..................................................................46
Governmental Authority.......................................................11
Ground Lease.................................................................11
Ground Lease Property........................................................11
Ground Rent Reserve Account..................................................11
Ground Rent Reserve Fund.....................................................11
Guarantors...................................................................11
Guaranty.....................................................................11
Hazardous Materials......................................................11, 67
Hedge Agreement..............................................................12
Hedge Agreement Pledge.......................................................12
Improvements.................................................................12
Defined Terms - 2
Indebtedness.................................................................12
Independent Director.........................................................12
Insurance Premiums...........................................................13
Interest Period..............................................................13
Interest Rate Hedge Period...............................................14, 86
LIBOR Rate...................................................................14
LIBOR-based Loans............................................................14
Licenses.................................................................14, 76
Lien.........................................................................14
Loan Documents...............................................................15
Loan to Value Ratio..........................................................15
Loan Transactions............................................................15
Loans........................................................................15
Low DSCR Account.............................................................15
Low DSCR Cure Delivery.......................................................15
Low DSCR Cure Prepayment.....................................................15
Low DSCR Release Event.......................................................15
Low DSCR Reserve Fund........................................................16
Low DSCR Trigger Event.......................................................16
Low DSCR Trigger Period......................................................16
Major Lease..................................................................16
Majority Lenders.............................................................16
Management Agreement.........................................................16
Manager......................................................................16
Managing Member..............................................................16
Material Action..............................................................16
Material Adverse Effect......................................................17
Maturity Date................................................................17
Monthly Debt Service Payment Amount..........................................17
▇▇▇▇▇'▇......................................................................18
Mortgage.....................................................................18
Net Operating Income.........................................................18
Net Proceeds.................................................................18
Net Proceeds Deficiency......................................................18
Notes........................................................................18
Operating Expenses...........................................................18
Operating Revenues...........................................................18
Participant..................................................................19
Payment Date.................................................................19
Payor....................................................................19, 40
Permitted Encumbrances.......................................................19
Person.......................................................................19
Policy.......................................................................19
Potential Default............................................................19
Prime Rate...................................................................19
Prior Loan...................................................................19
Defined Terms - 3
Prior Loan Documents.........................................................19
Prohibited Person............................................................20
Project......................................................................20
Proposed Lender..........................................................20, 47
Qualified Insurer............................................................20
Regulation D.................................................................20
Regulatory Change............................................................21
Related Entity...............................................................21
Requesting Lender........................................................21, 47
Required Payment.........................................................21, 40
Required Repair Reserve Fund.................................................21
Required Repairs.............................................................21
Reserve Account Collateral...................................................21
Reserve Funds................................................................21
Reserve Requirement..........................................................21
Restoration..................................................................22
S&P..........................................................................22
Second Extension Notice..................................................22, 34
Second Extension Period..................................................22, 34
Security Accounts............................................................22
Security Documents...........................................................22
Single Member Bankruptcy Remote LLC..........................................22
Single Purpose Entity........................................................24
Site Assessment..............................................................26
Sole Member..................................................................27
Sources and Uses Budget......................................................27
Special Advance Lender.......................................................27
Special Member...............................................................27
Sponsor......................................................................27
Stub Interest Period.....................................................27, 31
Subordination of Management Agreement........................................27
Syndication..................................................................27
Tax and Insurance Reserve Account............................................27
Tax and Insurance Reserve Fund...............................................27
Taxes....................................................................27, 82
Tenant Improvement Allowances................................................27
Tenant Improvement Work......................................................28
Terrorism Insurance..........................................................28
Terrorism Insurance Required Amount..........................................28
Third Party Counterparty.....................................................28
Third Party Hedge Agreement..................................................28
Third-Party Counterparty.....................................................85
Threshold Amount.............................................................28
Type.........................................................................28
U.S. Person..................................................................46
U.S. Taxes...................................................................46
Unpaid Amount................................................................28
Defined Terms - 4