Exhibit 10.26
LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement") is made as of the 7 day of
March, 2000, by and between DVL, INC., a Delaware corporation ("Borrower") and
PENNSYLVANIA BUSINESS BANK, a Pennsylvania State banking association ("Bank"),
WITNESSETH THAT:
WHEREAS, Borrower has requested and applied to Bank for the Loan in
order to finance the costs for the acquisition of the Collateral Loans and
certain costs related thereto, and Bank is willing to make the Loan on the terms
and conditions hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, receipt of which
is hereby acknowledged, and intending to be legally bound hereby, the parties
hereby covenant and agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. As used herein, and in the schedules and exhibits
attached hereto, the following terms shall have the following meanings:
"Affiliates" shall mean any Person controlled, controlling or
under common control with such affiliated Person. Control shall mean the
possession, direct or indirect, of the power to direct or cause the direction of
the management and policies of such Person, whether through the ownership of
voting securities, by contract or otherwise.
"Assignments of Leases and Rents" shall mean those assignments
of leases and rents set forth on Schedule I hereto, and all amendments and
modifications thereof, which secure the Collateral Notes and which have been
acquired by Borrower this day and collaterally assigned to Bank as security for
the Loan.
"Bank" shall mean Pennsylvania Business Bank, a Pennsylvania
banking corporation, and its successors and assigns.
"Bank Debt" shall mean all obligations, liabilities and
indebtedness of Borrower to Bank, its successors and assigns, evidenced by,
arising under or relating to Bank Loan Documents, whether as principal,
guarantor, surety or otherwise, direct or indirect, secured or unsecured, joint
and/or several, absolute or contingent, due or not due, matured and unmatured,
original, renewed, extended, refinanced or replaced, now existing or hereafter
incurred or created, consensual or created by law, and including
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principal (whether resulting from advances made by Bank or from indebtedness
purchased by Bank), interest, yield protection payments, premiums, fees,
expenses (including collection expenses), taxes, charges, commissions and
attorneys' fees, including indemnification obligations of Borrower with respect
to any claims that may be made against Bank whether arising before or after
payment of Bank Debt or any assignment of Bank Debt, and including all
obligations, liabilities and indebtedness of Borrower to Bank incurred or
arising after the commencement of any case by or against Borrower under the U.S.
Bankruptcy Code, specifically including any post-petition interest or advances.
"Bank Loan Documents" shall mean this Agreement, the Note, the
Collateral Assignment Documents and all other documents, instruments,
certificates and agreements executed in connection with the Loan, as the same
may be amended, replaced or supplemented from time to time.
"Borrower" shall mean DVL, Inc., and its successors and
permitted assigns.
"Borrower Documents" shall mean Borrower's articles of
incorporation and by-laws and all amendments thereto, and all consents,
certificates and agreements issued or entered into in respect thereto.
"Business Day" shall mean any day other than a Saturday or
Sunday or a legal holiday on which commercial banks are authorized or required
to be closed for business in Philadelphia, Pennsylvania.
"Collateral" shall mean the Collateral Loan Documents as
collaterally assigned and pledged by the Collateral Assignment Documents and all
other security pledged or otherwise provided pursuant to this Agreement, the
Collateral Assignment Documents or any of the other Bank Loan Documents.
"Collateral Assignments of Assignments of Leases and Rents"
shall mean those certain Collateral Assignments of Assignments of Leases and
Rents dated this date and executed and delivered by Borrower pursuant to which
Borrower has collaterally assigned and pledged to Bank the Collateral
Assignments of Leases and Rents, as the same may be amended or modified.
"Collateral Assignment Documents" shall mean the Collateral
Assignment and Pledge Agreement, the Note Allonges, the Collateral Assignments
of Mortgages, and the Collateral Assignments of Assignments of Leases and Rents,
as the same may be amended, replaced or supplemented from time to time.
"Collateral Assignment and Pledge Agreement" shall mean that
certain Collateral Assignment and Pledge Agreement dated this date and executed
and delivered by Borrower pursuant to which Borrower has collaterally assigned
and pledged to Bank the Collateral Loan Documents, as the same may be amended or
modified.
"Collateral Assignments of Mortgages" shall mean those certain
Collateral Assignments of Mortgage dated this date and executed and delivered by
Borrower pursuant to which Borrower has collaterally assigned and pledged to
Bank the Collateral Mortgages.
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"Collateral Borrowers" shall mean the maker, and its
successors and assigns, of each of the Collateral Notes.
"Collateral Loan Documents" shall mean the Collateral Notes,
the Collateral Mortgages, the Collateral Assignments of Leases and Rents and any
and all other documents, agreements or instruments evidencing, securing or
otherwise pertaining to the Collateral Loans.
"Collateral Loans" shall mean the loans evidenced by the
Collateral Notes.
"Collateral Notes" shall mean those promissory notes set forth
on Schedule II hereto, and all amendments and modifications thereof, which have
been acquired by Borrower on or about this day and which have been collaterally
assigned to Bank as security for the Loan.
"Conditional Default" shall mean an event or condition which,
with the passage of time or the giving of notice, or both, would become an Event
of Default.
"Default Rate" shall have the meaning assigned to it in
Section 3.2 hereof.
"Event of Default" or "Events of Default" shall have the
meaning assigned to those terms in Section 9.1 hereof.
"GAAP" shall mean generally accepted accounting principles as
are in effect from time to time, applied on a consistent basis both as to
classification of items and amounts.
"Governmental Approvals" shall mean all consents, licenses,
permits and all other authorizations or approvals required with respect to the
use and occupancy of the Improvements.
"Hazardous Substances" shall mean includes any substances,
chemicals, materials or elements that are prohibited, limited or regulated by
any Law, or any other substances, chemicals, materials or elements that are
defined as "hazardous" or "toxic," or otherwise regulated, under any Law, or
that are known or considered to be harmful to the health or safety of occupants
or users of the Properties. The term Hazardous Substances shall also include any
substance, chemical, material or element (i) defined as a "hazardous substance"
under the Comprehensive-Environmental Response, Compensation and Liability Act
of 1980 ("CERCLA") (42 U.S.C. ▇▇.▇▇. 9601, et seq.), as amended by the Superfund
Amendments and Reauthorization Act of 1986, and as further amended from time to
time, and regulations promulgated thereunder; (ii) defined as a "regulated
substance" within the meaning of Subtitle I of the Resource Conservation and
Recovery Act (42 U.S.C. ▇▇.▇▇. 6991-6991i), and regulations promulgated
thereunder; (iii) designated as a "hazardous substance" pursuant to Section 311
of the Clean Water Act (33 U.S.C. ss. 1321), or listed pursuant to Section 307
of the Clean Water Act (33 U.S.C. ss. 1317); (iv) defined as "hazardous",
"toxic", or otherwise regulated, under any Law or by any Federal, state or local
agency or political subdivision, including,; (v) which is petroleum, petroleum
products or derivatives or constituents thereof; (vi) which is asbestos or
asbestos-containing materials; (vii) the presence of which requires
notification, investigation or remediation under any Laws or common law; (viii)
the presence of which on the Properties causes or threatens to cause a nuisance
upon any of the Properties or to adjacent properties or poses or threatens to
pose a hazard to the health or safety of persons on or about any of the
Properties; (ix) the presence of which on adjacent properties
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would constitute a trespass; (x) which is urea formaldehyde foam insulation or
urea formaldehyde foam insulation-containing materials; (xi) which is lead base
paint or lead base paint-containing materials; (xii) which are polychlorinated
biphenyls or polychlorinated biphenyl-containing materials; (xiii) which is
radon or radon-containing or producing materials; or (xiv) which by any laws of
any governmental authority requires special handling in its collection, storage,
treatment, or disposal.
"Impositions" shall mean all (i) real estate and personal
property taxes and other taxes and assessments, water and sewer rates and
charges and all other governmental charges and any interest or costs or
penalties with respect thereto and charges for any easement or agreement
maintained for the benefit of the Property, general and special, ordinary and
extraordinary, foreseen and unforeseen, of any kind and nature whatsoever which
at any time may be assessed, levied or imposed upon the Property, or the rent or
income received therefrom, or any use or occupancy thereof, and (ii) other
taxes, assessments, fees and governmental charges levied, imposed or assessed
upon or against the Properties.
"Improvements" shall mean all improvements now or hereafter
located on the Land.
"Indebtedness" shall mean any and all indebtedness,
obligations, or liabilities (whether matured or unmatured, liquidated or
unliquidated, direct or indirect, absolute or contingent, or joint or several)
of any nature whatsoever.
"Insolvency Proceedings" shall mean an action or proceeding
seeking any reorganization, arrangement, composition, readjustment, liquidation
or other similar relief under the U.S. Bankruptcy Code or any present or future
statute, law or regulation, or any proceedings for voluntary liquidation,
dissolution or other winding up, or the appointment of any trustee, receiver,
liquidator or conservator or similar official (whether in a proceeding or
otherwise), or any assignment for the benefit of creditors or any marshalling of
assets.
"Interest Payment Date" shall mean each date specified for the
payment of interest in Section 3.4 hereof.
"Kinder Property" shall mean that certain property located in
Kinder, Parish of ▇▇▇▇▇, Louisiana which is encumbered by one of the Collateral
Mortgages.
"Land" shall mean the land and other real property and
appurtenants thereto which are encumbered by the Mortgages.
"Law" shall mean any law (including common law), constitution,
statute, treaty, regulation, rule, ordinance, order, injunction, writ, decree or
award of any Official Body.
"Loan" shall mean the loan to be made by Bank pursuant to this
Agreement in the principal amount of One Million Dollars ($1,000,000).
"Loan Fee" shall have the meaning assigned to it in Section
6.1 (d).
"Mandatory Principal Payments" shall mean for each monthly
period an amount equal to the aggregate of the monthly payments required to be
made under the Collateral Notes after deducting
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therefrom (i) all sums due and payable under the Senior Loan Documents and (ii)
interest owing on the Loan as determined by this Loan Agreement.
"Material Adverse Change" shall mean any set of circumstances
or events which (a) has or could reasonably be expected to have any material
adverse effect whatsoever upon the validity or enforceability of this Agreement,
any other Bank Loan Document or any of the Collateral Loan Documents, (b)
impairs materially or could reasonably be expected to impair materially the
ability of Borrower to duly and punctually pay or perform its obligations under
Bank Loan Documents or to enforce, or realize the benefits of, the Collateral
Loan Documents , (c) impairs materially or could reasonably be expected to
impair materially the ability of Bank to enforce its legal remedies pursuant to
this Agreement or any other Bank Loan Document, or (d) impairs materially or
could reasonably be expected to impair materially the value of the Collateral
Loans or the Properties.
"Maturity Date" shall have the meaning assigned to it in
Section 2.3 hereof.
"Mortgages" shall mean those mortgages set forth on Schedule
III hereto, and all amendments and modifications thereof, which secure the
Collateral Notes and which have been acquired by Borrower on or about this day
and collaterally assigned to Bank as security for the Loan.
"Note" shall mean that certain Promissory Note, of even date
herewith, given by Borrower to Bank in a face amount equal to the Loan, as
amended, renewed, replaced or supplemented from time to time.
"Note Allonges" shall mean those certain allonges by which
Borrower has endorsed over to Bank the Collateral Notes.
"Official Body" shall mean any national, federal, state, local
or other government or political subdivision or any agency, authority, bureau,
central bank, commission, department or instrumentality of either, or any court,
tribunal, grand jury or arbitrator, in each case whether foreign or domestic.
"Prime Rate" shall mean the interest rate per annum as the
"Prime Rate" in the Money Rates section of the Wall Street Journal (or any
successor publication, or if such publication ceases to exist or ceases to
report such rate, a rate of interest as is reasonably determined by Bank (which
determination shall be conclusive absent manifest error) and publicly announced
by Bank from time to time as its prime rate of interest), which interest rate is
not necessarily the most favorable interest rate offered by Bank.
"Principal Office" shall mean the main banking office of Bank
in Philadelphia, Pennsylvania.
"Properties" shall mean the Land and the Improvements.
"Senior Loans" shall mean any and all loans which are secured
by Senior Mortgages.
"Senior Lender" shall mean the lender under or holder of a
Senior Loan.
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"Senior Loan Documents" shall mean the Senior Mortgages and
any and all other documents, agreements or instruments evidencing, securing or
delivered in connection with the Senior Loans.
"Senior Mortgages" shall mean any and all mortgages on the
Properties which mortgages are senior in lien priority to the Mortgages and
which mortgages are set forth in the Title Policies.
"Solvent" shall mean, with respect to any party on a
particular date, that on such date (i) the fair value of the property of such
party is greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such party, (ii) the present fair market
value of the assets of such party is not less than the amount that will be
required to pay the probable liability of such party on its debts as they become
absolute and matured, (iii) such party is able to realize upon its assets and
pay its debts and other liabilities, contingent obligations and other
commitments as they mature in the normal course of business, and (iv) such party
does not intend to, and does not believe that it will, incur debts or
liabilities beyond such party's ability to pay such debts and liabilities as
they mature.
"Tenants" shall mean any and all lessees, tenants or
occupants, now or hereafter, of the Improvements or any portion thereof.
"Tenant Leases" shall mean those leases set forth on Schedule
IV hereto pursuant to which a Tenant leases, occupies or licenses the
Improvements or any portion thereof.
"Term" shall have the meaning assigned to that term in Section
2.3 hereof.
"Title Policies" shall mean the title policies insuring the
lien priority of the Mortgages and naming Bank as an insured party pursuant to
the Collateral Assignments of Mortgages, which Title Policy shall be in form and
substance, and issued by a title company, reasonably satisfactory to Bank.
"Uniform Commercial Code" shall mean the Uniform Commercial
Code as enacted in each applicable jurisdiction.
1.2 Construction. All references to article or section numbers shall
refer to this Agreement, unless otherwise stated. The above recitals are hereby
made a part of this Agreement.
1.3 Accounting Principles. Except as otherwise provided in this
Agreement, all accounting or financial terms shall have the meanings ascribed to
such terms by GAAP.
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ARTICLE II
AGREEMENT TO LEND
2.1 Agreement to Lend. Subject to and conditioned upon the terms,
provisions and conditions contained in this Agreement and the other Bank Loan
Documents and in reliance upon the representations and warranties set forth
herein, Bank agrees to advance the Loan to Borrower.
2.2 The Note. The Loan shall be evidenced by the Note, and the Loan
shall bear interest calculated and payable as provided in Article III below.
2.3 Term. The term of the Loan (the "Term") shall commence as of the
date hereof and shall terminate on April 1, 2005 (the "Maturity Date"). Borrower
shall pay the outstanding principal of the Loan and all unpaid interest accrued
on the Loan in full on the Maturity Date. The unpaid amounts of the Loan, as set
forth on the books and records of Bank or other holders of the Note maintained
in the ordinary course of business shall be presumptive evidence of the
principal amount thereof owing and unpaid, absent manifest error, but the
failure to record any such amount on the books and records shall not limit or
affect the obligations of Borrower hereunder or under the Note to make payments
of principal and interest on the Loan when due.
ARTICLE III
LOAN INTEREST, PAYMENTS AND FEES
3.1 Interest Rate. Borrower shall pay interest in respect of the
outstanding unpaid principal amount of the Loan at a per annum rate equal to the
Prime Rate, as it may change from time to time, plus one and one half percent
(1.50%). Bank's determination, made generally in accordance with its
determinations applicable on loans similar to the Loan, of a rate of interest
and any change therein shall, in the absence of manifest error, be presumed
correct and binding upon all parties hereto. If at any time the designated rate
applicable to any portion of the Loan made by Bank exceeds the highest lawful
rate, the rate of interest on the Loan shall be limited to the highest lawful
rate.
3.2 Default Interest; Late Payment Charge. To the extent permitted by
law, upon the occurrence and during the continuation of any Event of Default,
Borrower shall pay interest on the entire principal amount of the Loan then
outstanding and all other sums due under the Loan, at a rate per annum equal to
the Prime Rate plus five percent (5%) (the "Default Rate"). The rate of interest
payable under this Section 3.3 shall accrue before and after any judgment has
been entered. In addition, Borrower shall pay a late payment charge equal to
five percent (5%) of the amount of any payment due under the Loan which is not
received by Bank within ten (10) days after the date such payment is due.
Borrower acknowledges that the increased interest rate and the late payment
charge provided for herein reflect, among other things, the fact that the Loan
has become a substantially greater risk given its default status and that Bank
is entitled to additional compensation for such risk.
3.3 Payments. All payments and prepayments to be made in respect of
principal, interest or other amounts due from Borrower hereunder (including
amounts to be advanced from the proceeds
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of the Loan pursuant to Section 6.1 hereof), shall be payable prior to 12:00
Noon Philadelphia time on the date when due without presentment, demand, protest
or notice of any kind except as otherwise required by Bank Loan Documents, all
of which are hereby expressly waived by Borrower, and without setoff,
counterclaim or other deduction of any nature, and an action therefor shall
immediately accrue, subject, nevertheless, to any grace and cure periods
provided in this Agreement and applicable thereto. Such payments shall be made
to Bank at the Principal Office in U.S. Dollars and in immediately available
funds.
3.4 Interest Payment Dates. Interest on the Loan shall be due and
payable in arrears on the first day of each month after the date hereof, and
also on the Maturity Date or any earlier date to which payment of the Note has
been accelerated.
3.5 Mandatory Amortization.
(a) Mandatory payments on account of principal of the Loan in
amounts equal to the Mandatory Principal Payments shall be due and payable
monthly commencing on the first (1st) day of the first month following the date
hereof.
(b) As additional payments to be applied to principal
outstanding under the Loan, Borrower shall remit or cause to be remitted to
Bank, within three (3) days of receipt, any and all amounts paid on account of
principal outstanding under any of the Collateral Loans which are in excess of
the regularly scheduled monthly payments made by, or on behalf of, the
Collateral Borrower under such Collateral Loans including, without limitation,
any repayment in full of any of the Collateral Loans; provided, that in the case
of a sale of the Kinder Property, the amount remitted by Borrower shall be as
reasonably agreed to by Lender and Borrower but, in event, not less than
$800,000 regardless of the amount received by Borrower under the Collateral
Notes with respect to the Kinder Property.
3.6 Optional Prepayments. Borrower shall have the right at its option
from time to time to make permanent prepayments of the Loan in whole or part
without premium or penalty.
3.7 Increased Costs or Reduced Return. If any Law, guideline or
interpretation or any change in any Law, guideline or interpretation or
application thereof by any Official Body charged with the interpretation or
administration thereof or compliance with any request or directive (whether or
not having the force of Law) of any central bank or other Official Body:
(a) subjects Bank, its holding company or any of their
respective assets to any tax or charge with respect to this Agreement,
the Note or payments by Borrower of principal, interest, or other
amounts due from Borrower hereunder or under the Note (except for
taxes, including any franchise tax, on the overall net income of Bank),
(b) imposes, modifies or deems applicable any reserve, special
deposit, allocation of capital or similar requirement (including,
without limitation, Regulation D of the Board of Governors of the
Federal Reserve System) against credits or commitments to extend credit
extended by, or assets (funded or contingent) of, deposits with or for
the account of, or other acquisition of funds by, Bank or its holding
company, or
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(c) imposes, modifies or deems applicable any capital adequacy
or similar requirement (A) against assets (funded or contingent) of, or
credits or commitments to extend credit extended by, Bank or its
holding company, or (B) otherwise applicable to the obligations of Bank
under this Agreement,
and the result of any of the foregoing is to increase the actual cost to, reduce
the actual income receivable by, or impose any actual expenses (including loss
of margin) upon Bank with respect to this Agreement, the Note, or the making,
maintenance or funding of any part of the Loan (or, in the case of any capital
adequacy or similar requirement, to have the effect of reducing the rate of
return on Bank's capital, taking into consideration Bank's customary policies
with respect to capital adequacy) by an amount which Bank in its reasonable
discretion deems to be material, and, provided such cost, reduction in income,
or expense affects other loans similar to the Loan and Bank generally requires
compensation similar to the compensation provided herein to be paid on such
similar loans, Bank may from time to time notify Borrower of the amount
determined in good faith (using any averaging and attribution methods employed
in good faith) by Bank to be necessary to compensate Bank for such increase in
cost, reduction of income or additional expense. Such notice shall be delivered
within three (3) months of the date Bank becomes aware of the increased costs or
reduced return and shall set forth in reasonable detail the basis for such
determination. Such amount shall be due and payable by Borrower to Bank within
twenty (20) days following receipt of such notice; provided, that, if within
such twenty (20) day period, Borrower gives notice that it intends to repay in
full the Loan and all other sums owing under this Loan Agreement, the Note and
the other Bank Loan Documents and Borrower does in fact make such full repayment
within ninety (90) days of Bank's original notice, no additional compensation
under this Section 3.7 shall be required.
3.8 Application of Prepayments. All prepayments permitted pursuant to
Section 3.6 shall be applied in the following order: first, to the payment of
any outstanding fees, expenses or other charges due to Bank; second, to accrued
and unpaid interest due on the Loan; and third, to the principal amount of the
Loan.
3.9 Receipt of Payment. Subject to the rights of the Senior Lenders,
Borrower hereby acknowledges and agrees that it is intended that Bank shall
receive directly all payments made by the Tenants under the Tenant Leases and
the Collateral Borrowers under the Collateral Loans, such payments to be applied
to interest and principal under the Loan in accordance with the terms hereof.
Borrower shall take all actions necessary to cause such payments to be sent to
Bank including the giving by Borrower of any necessary notices.
ARTICLE IV
AFFIRMATIVE COVENANTS
Borrower hereby covenants and agrees that, from the date
hereof and until Bank Debt has been paid in full and all other obligations
hereunder shall have been performed and discharged, it will comply with each of
the following covenants:
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4.1 Preservation of Existence. Borrower shall maintain its existence as
a corporation under the laws of the State of Delaware.
4.2 Payment of Liabilities. Borrower shall duly pay and discharge all
liabilities to which it is subject or which are asserted against it, prior to
the date when any fine, late charge or other penalty for late payment may be
imposed, except to the extent that such liabilities are being contested in good
faith and by appropriate and lawful proceedings diligently conducted. Borrower
shall cause the Collateral Borrowers to duly pay and discharge all liabilities
to which any of them or the Properties are subject or which are asserted against
it or the Properties, prior to the date when any fine, late charge or other
penalty for late payment may be imposed, except to the extent that such
liabilities are being contested in good faith and by appropriate and lawful
proceedings diligently conducted.
4.3 Compliance with Laws. Borrower shall comply with, and shall cause
each of the Collateral Borrowers to comply with, all applicable Laws in all
respects, provided that Borrower shall not be deemed to be in violation of this
Section 4.3 if any failure to comply with any Law (a) would not result in fines,
penalties, other similar liabilities or injunctive relief, the imposition of
which would result in a Material Adverse Change and (b) would not materially
adversely affect the Collateral or the validity of the Loan, any of Bank Loan
Documents, the Collateral Loan or any of the Collateral Loan Documents.
4.4 Keeping of Records and Books of Account. Borrower shall, and shall
cause each of the Collateral Borrowers to, maintain and keep proper books of
record and account, which enable it to issue financial statements and reports in
accordance with Section 7.1 and in which full, true and correct entries shall be
made in all material respects of all of its dealings and business and financial
affairs.
4.5 Visitation Rights. Borrower shall permit any of the officers or
authorized employees or representatives of Bank to, as often as Bank may
reasonably request, with reasonable notice, at Bank's expense and at such
reasonable times, to examine, copy and make excerpts from its books and records.
4.6 Subordination of Affiliate Loans and Advances to Borrower. Borrower
shall cause any Indebtedness between it and any and all of the Collateral
Borrowers to be subordinated to the Loan, Bank Loan Documents, the Collateral
Loans and the Collateral Loan Documents. Notwithstanding the preceding sentence,
Borrower shall, in the normal course of its business as general partner of the
Collateral Borrowers, be permitted, from time to time, to make, and receive
payment on, loans to the Collateral Borrowers, provided, that such outstanding
loans shall not exceed $10,000 to any one of the Collateral Borrowers and
payment shall be suspended and subordinated to the Loan upon the occurrence of
an Event of Default.
4.7 Performance of Obligations. Borrower shall duly pay, perform and
discharge all of its obligations hereunder and under the other Bank Loan
Documents and with respect to the Collateral Loans. Borrower shall cause each of
the Collateral Borrowers to duly pay, perform and discharge all of the
Collateral Borrower's obligations under the Collateral Loan Documents and the
Senior Loan Documents.
4.8 Enforcement of the Collateral Loan Documents. Borrower shall
enforce, and preserve all of its rights under, the Collateral Loan Documents in
accordance with their terms subject to the right
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of Bank hereunder. In the event Borrower becomes aware of a default under the
Collateral Loan Documents, Borrower shall promptly provide Bank with written
notice of such default.
4.9 Notices. Borrower shall promptly provide Bank with written notice
of the occurrence of a default under any of the Tenant Leases or any of the
Senior Loan Documents.
4.10 Further Assurances. Borrower shall, from time to time, at its
expense, faithfully preserve and protect Bank's lien on and security interest in
the Collateral as continuing first priority perfected liens, and shall take such
other action as Bank may reasonably deem necessary or advisable from time to
time in order to preserve, perfect and protect the liens granted under the
Collateral Documents, to exercise and enforce Bank's rights and remedies
thereunder and with respect to the Collateral and to carry out the terms of this
Agreement and the other Bank Loan Documents. Borrower shall, from time to time,
at its expense, cause the Collateral Borrowers such action as Bank may
reasonably deem necessary or advisable from time to time in order to preserve,
perfect and protect the liens granted under the Collateral Loan Documents, to
exercise and enforce Borrower or Bank's rights and remedies under the Collateral
Loan Documents and with respect to the Collateral Loans and to carry out the
terms of this Agreement, the other Bank Loan Documents and the Collateral Loan
Documents.
4.11 Estoppel Certificates. At any time or times, within ten (10)
Business Days after written demand by Bank therefor, Borrower shall deliver to
Bank a certificate duly executed and in form satisfactory to Bank, stating and
acknowledging the then unpaid principal balance of, and interest due and unpaid
under, the Loan, the fact that there are no defenses, off-sets or counterclaims
thereto (or, if such should not be the fact, then the facts and circumstances
relating to such defenses, off-sets or counterclaims) and such other matters as
Bank may reasonably require. At any time or times, within ten (10) Business Days
after written demand by Bank therefor, Borrower shall deliver to Bank a
certificate duly executed by each of the Collateral Borrowers in form
satisfactory to Bank, stating and acknowledging the then unpaid principal
balance of, and interest due and unpaid under, each of the Collateral Loans, the
fact that there are no defenses, off-sets or counterclaims thereto (or, if such
should not be the fact, then the facts and circumstances relating to such
defenses, off-sets or counterclaims) and such other matters as Bank may
reasonably require. Within forty-five (45) days of the date hereof and from time
to time within ten (10) Business Days after written demand by Bank therefor,
Borrower shall endeavor to deliver to Bank a certificate duly executed by each
of the Tenants in form satisfactory to Bank, but in accordance with the form
required to be given by each of the Tenants under its Tenant Lease, stating and
acknowledging the date through which rent is paid under, and the remaining term
of, its Tenant Lease, the fact that there are no defenses, off-sets or
counterclaims thereto or defaults on the part of the Collateral Borrower
thereunder (or, if such should not be the fact, then the facts and circumstances
relating to such defenses, off-sets, counterclaims or defaults) and such other
matters as Bank may reasonably require; provided, that the failure by Borrower
to provide such certificate from one or more of the Tenants shall not constitute
an Event of Default if Borrower has exercised diligent good faith efforts to
obtain such certificates.
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4.12 Inspection. Borrower shall endeavor, in good faith, to provide, or
cause to be provided, to Bank, or its designees, access to the Properties upon
the reasonable request of Bank Prior to the occurrence of an Event of Default
hereunder, the cost of all such inspections shall be at the reasonable expense
of Borrower.
4.13 Annual Loan Fee. In addition to such other fees and charges which
may be due and payable by Borrower hereunder, Borrower shall pay to Bank, by no
later than each annual anniversary date of the Loan occurring during the Term, a
fee in an amount equal to one quarter percent (0.25%) of the then outstanding
principal balance under the Loan per year.
4.14 Kinder Sale. In the event that an agreement of sale is entered
into for the sale of the Kinder Property, Borrower shall or shall cause Kinder
Associates, or its successor, to promptly deliver to Bank a copy of the fully
executed agreement of sale.
ARTICLE V
NEGATIVE COVENANTS
Borrower hereby covenants and agrees that, from the date
hereof and until Bank Debt has been paid in full and all other obligations
hereunder shall have been performed and discharged, it will comply with each of
the following negative covenants:
5.1 Changes in Organizational Documents. Borrower shall not amend or
modify, or permit any material, nonadministrative amendment or modification of,
in any respect, Borrower Documents to the extent the same would result in a
Material Adverse Change; provided, however, Borrower shall provide to Bank
copies of any and all amendments or modifications to Borrower Documents.
5.2 Transfer of the Collateral. Borrower shall not, voluntarily or by
operation of law, directly or indirectly, sell, convey, transfer, assign,
pledge, encumber, or permit to be sold, conveyed, transferred, assigned, pledged
or encumbered any interest, whether nominal, beneficial or otherwise in or any
part of the Collateral. Any prohibited transaction under this Section 5.2 shall
be null and void. Bank shall not be under any obligation to allege or show any
impairment of the Collateral, and Bank may pursue any legal or equitable
remedies for default without such allegation or showing, notwithstanding the
foregoing.
5.3 Liquidation or Dissolution. Borrower shall not liquidate or
dissolve.
5.4 Transfer of the Properties or Ownership Interest in the Collateral
Borrowers. Borrower shall not authorize, permit or allow (i) except for the sale
of the Kinder Property in accordance with this Loan Agreement, the Properties or
any of them to be sold, conveyed, transferred, assigned, pledged or encumbered
except for the Senior Mortgages and the Mortgages, whether nominal, beneficial
or otherwise or (ii) its general partnership interest or its limited partnership
interest, if any, in the Collateral Borrowers to be sold, conveyed, transferred,
assigned, pledged or encumbered. Any prohibited transaction under this Section
5.5 shall be null and void. Bank shall not be under any obligation to allege or
show any impairment of the Properties, the Collateral Loan Documents or the
Collateral, and
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Bank may pursue any legal or equitable remedies for default without such
allegation or showing, notwithstanding the foregoing.
5.5 Breach of Documents. Borrower shall not commit any act, or permit
any act to occur, which would, in any manner, give rise to a breach of any term,
covenant or condition under any of Bank Loan Documents, the Collateral Loan
Documents or any other contract to which Borrower is a party or by which it is
bound.
5.6 Judgments. Borrower shall not permit any judgment obtained against
it in an amount exceeding $50,000 to remain unpaid for a period of thirty (30)
days following the entry thereof without obtaining a stay of execution or
causing such judgment to be bonded.
5.7 Creation of Liens. Borrower shall not, whether voluntarily or
involuntarily, create, incur, assume or suffer to exist or be created, or permit
any pledge of, or any deed of trust, mortgage, lien, charge, security interest
or encumbrances of any nature with respect to the Collateral, or assign, pledge
or in any way transfer or encumber its rights to receive income from the
Collateral, except for Bank Loan Documents.
5.8 Material Adverse Change. Borrower shall not take any action which
would result in a Material Adverse Change.
5.9 Collateral Loan Documents. Borrower shall not amend, modify,
replace or extend any of the Collateral Loan Documents or any of the obligations
of the Collateral Borrowers thereunder nor shall Borrower release, enforce or
file suit with respect to any obligation on the part of the Collateral Borrower
without the prior written consent of Bank, which consent shall not be
unreasonably withheld.
5.10 Publicity. Borrower shall not without the prior written consent of
Bank (which consent may be withheld at Bank's sole discretion) allow, cause or
otherwise permit any publicity, advertisement or other public notice of the Loan
or the matters described herein, unless Borrower in its good faith discretion,
believes that such publicity, advertisement or other public notice is required
by law.
ARTICLE VI
CONDITIONS PRECEDENT AND DISBURSEMENT MATTERS
6.1 Conditions Precedent to Closing. As a condition to Bank's
obligation to close and fund the Loan and to proceed with the transactions
contemplated herein, Borrower, at its expense, shall have satisfied, fulfilled
or provided, to Bank's sole satisfaction, at or before the date hereof all of
the conditions and items set forth below unless the satisfaction, fulfillment or
provision thereof shall have been waived by Bank:
(a) No portion of the Property shall have been damaged by fire
or other casualty and not repaired to the condition immediately prior to such
casualty, and no condemnation or taking of the Property or any portion thereof
shall be pending or threatened;
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(b) Bank shall have received all duly executed, and
acknowledged if necessary, Bank Loan Documents, Borrower Documents and
Collateral Documents, including originals of all of the Collateral Notes and all
amendments and modification thereto, and all other documents to be delivered
and/or executed by third parties shall have been delivered and/or executed, and
all of the same shall be in form and substance acceptable to Bank;
(c) The security interests in all personal property described
in the Collateral Documents shall have been, subject to recording of any
financing statements, duly perfected and shall constitute valid and enforceable
first priority liens and security interests in such property;
(d) A Loan Fee in the amount of $10,000 shall have been paid
to Bank;
(e) No Event of Default or Conditional Default shall have
occurred and be continuing under this Agreement or any of the other Bank Loan
Documents;
(f) No default shall have occurred and be continuing under any
of the Senior Loan Documents or any of the Tenant Leases;
(g) Bank shall have received the most recent financial
statements of Borrower as required by Section 7.1;
(h) Bank shall have received a written opinion or opinions of
counsel to Borrower addressed to Bank in form and scope satisfactory to Bank and
its counsel;
(i) Bank shall have received or be reimbursed for all of
Bank's reasonable out-of-pocket expenses incurred in connection with the Loan,
including, but not limited to, the reasonable fees and expenses of Bank's legal
counsel;
(j) All of the representations and warranties of Borrower as
set forth in Article VIII hereof shall be true, correct and accurate in all
material respects;
(k) Bank shall have received, reviewed and approved the
Collateral Loan Documents;
(l) Bank shall have received commitments for the Title
Policies;
(m) Bank shall have received and reviewed all of the documents
in connection with the acquisition of the Collateral Loan Documents by Borrower;
(n) Borrower and, if necessary, each of the Collateral
Borrowers, shall have executed and delivered to Bank letters addressed to each
of the Senior Lenders and/or the Tenants, as the case may be, directing payment
to Bank of all sums to be paid by the Tenants under the Tenant Leases, subject
to the rights of the Senior Lenders; and
(o) Bank shall have received and reviewed such other materials
and documents as Bank may reasonably require.
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6.2 Disbursement Procedures. Upon satisfaction of the requirements set
forth in Section 6.1 hereof, Bank shall disburse the Loan , in a manner
satisfactory to Bank, for payment towards the acquisition of the Collateral Loan
Documents.
6.3 Note and Collateral Documents. All advances of the Loan proceeds
shall be evidenced by the Note and secured by the Collateral Documents.
6.4 No Other Rights. All conditions to the obligation of Bank to make
advances hereunder are imposed solely and exclusively for the benefit of Bank
and its assigns, and no other person shall have standing to require satisfaction
of such conditions in accordance with their terms or be entitled to assume that
Bank will make or not make advances in the absence of strict compliance with any
or all thereof, and no other person shall, under any circumstances, be deemed to
be a beneficiary of such conditions, any or all of which may be freely waived in
whole or in part by Bank at any time if, in its sole discretion, it deems it
advisable to do so. In no event shall any other party be deemed to be a
beneficiary of the Loan that may be advanced to Borrower pursuant to the terms
hereof or have any right to an accounting therefor. Bank shall not in any way or
for any purpose be deemed to be or to become a partner of or a joint venturer or
a member of a joint enterprise with Borrower in connection with the ownership of
the Collateral Loan Documents or the ownership, development or operation of the
Properties or the Loan contemplated herein.
ARTICLE VII
REPORTING REQUIREMENTS
7.1 Financial Reports. Until Bank Debt is repaid in full, Borrower
shall furnish or cause to be furnished to Bank within the time periods specified
below, the following financial reports and information:
(a) As soon as available, but in no event later than thirty
(30) days after filing, copies of all (i) quarterly 10Q reports filed with the
Securities and Exchange Commission, (ii) quarterly 10K reports filed with the
Securities and Exchange Commission and (iii) income tax returns and any requests
for extensions thereof filed with the Internal Revenue Service;
(b) Within fifteen (15) days after receipts, all reports and
materials submitted by the Collateral Borrowers to Borrower; and
(c) Within a reasonable period after demand, such other
information requested by Bank from time to time as reasonably deemed necessary
or appropriate by Bank to evaluate the financial condition of Borrower or the
Collateral Loan Documents.
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ARTICLE VIII
REPRESENTATIONS AND WARRANTIES
Borrower hereby represents and warrants to Bank as follows,
which representations and warranties shall be recertified to Bank with
submission of the information set forth in Article VII:
8.1 Due Formation; Capacity. Borrower is a corporation duly formed and
validly existing under the laws of the State of Delaware, and has full power and
authority to own the Collateral Loan Documents and to conduct its affairs as now
being conducted and as proposed to be conducted.
8.2 Power and Authority. Borrower has full power and authority to enter
into, execute, deliver and carry out this Agreement and the other Bank Loan
Documents to which it is a party, and to perform its respective obligations
hereunder and thereunder, and all such actions have been duly authorized by all
necessary proceedings on its part. Borrower has obtained all consents and
authorizations required for its existence and for their operation and ownership
of the Collateral Loan Documents by any Law, Official Body, Borrower Documents
or any other agreement or instrument to which it is bound.
8.3 General Partner. Borrower is the sole general partner of each of
the Collateral Borrowers.
8.4 Validity and Binding Effect of Bank Loan Documents. Borrower has
duly and validly executed and delivered this Agreement and the other Bank Loan
Documents to which it is a party. This Agreement and the other Bank Loan
Documents constitute legal, valid and binding obligations of Borrower
enforceable against it in accordance with their respective terms, except to the
extent that enforceability of any of such documents may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforceability of creditors' rights generally and general
principles of equity including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing.
8.5 Validity and Binding Effect of Collateral Loan Documents. The
Collateral Borrowers have each duly and validly executed and delivered each of
the Collateral Loan Documents to which it is a party. The Collateral Loan
Documents constitute legal, valid and binding obligations of each of the
Collateral Borrowers enforceable against each in accordance with their
respective terms, except to the extent that enforceability of any of such
documents may be limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting the enforceability of creditors' rights
generally and general principles of equity including, without limitation,
concepts of materiality, reasonableness, good faith and fair dealing.
8.6 Validity and Binding Effect of Tenant Leases. Each of the Tenant
Leases were duly and validly executed and delivered by each of the Tenants to
which it is a party. The Tenant Leases constitute legal, valid and binding
obligations of each of the Tenants enforceable against each in accordance with
their respective terms, except to the extent that enforceability of any of such
documents may be limited by bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting
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the enforceability of creditors' rights generally and general principles of
equity including, without limitation, concepts of materiality, reasonableness,
good faith and fair dealing.
8.7 No Conflict. Neither the execution and delivery of this Agreement
or the other Bank Loan Documents nor the consummation of the transactions herein
or therein contemplated or compliance with the terms and provisions hereof or
thereof by them will conflict with, constitute a default under or result in any
breach of (i) the terms and conditions of Borrower's Documents, (ii) any
Governmental Approval or (iii) or any agreement or instrument to which Borrower
is a party or is bound by any Law.
8.8 Other Agreements. Borrower is not a party to any agreement or
instrument materially adversely affecting its present or proposed business,
properties or assets, operation or conditions, financial or otherwise and
Borrower has no actual knowledge that it is in default of the performance,
observance, or fulfillment of any material obligation, covenant or condition set
forth in any agreement or instrument to which it is a party.
8.9 No Conditional Default or Event of Default. No Conditional Default
has occurred and is continuing and no condition exists or will be caused by the
disbursement of the Loan which will constitute a Conditional Default or an Event
of Default.
8.10 Default under the Collateral Loan Documents. No default on the
part of any of the Collateral Borrower exists under the Collateral Loan
Documents.
8.11 Senior Loan Balances and Collateral Loan Balances. The current
principal amount outstanding under each of the Senior Loans and the Collateral
Loans is as set forth on Schedule V hereto. The annual payments to be made under
the Collateral Loan Documents, after reduction for payments owing under the
Senior Loans, are as set forth on Schedule VI hereto.
8.12 Default under the Senior Loan Documents. No default on the part of
any of the Collateral Borrower exists under the Senior Loan Documents.
8.13 Tenant Leases. Except for the Tenant Leases, there are no leases,
occupancy agreements, licenses or other agreements pertaining to the leasing,
occupancy or licensing of the Improvements, or any portion thereof. No default
on the part of any of the Tenants or the Collateral Borrower exists under the
Tenant Leases and the Tenant Leases remain in full force and effect binding on
the Tenants in accordance with their terms.
8.14 Senior Loans and Tenant Leases. The information with respect to
the Senior Loans and the Tenant Leases as set forth on Schedule IV hereto is
true, correct and complete.
8.15 No Litigation or Investigations. There is no pending or, to
Borrower's knowledge, threatened litigation or governmental investigation (or
any basis therefor known to Borrower) which questions the capacity, ability or
authority of (i) Borrower to execute, deliver and perform the provisions of this
Agreement or Bank Loan Documents or (ii) any of the Collateral Borrowers to have
executed, delivered and perform the provisions of the Collateral Loan Documents.
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8.16 Information. The information, financial statements and other
financial data furnished by Borrower to Bank are true and correct in all
material respects and, in the case of financial statements, present fairly the
financial condition of Borrower in accordance with GAAP (if such information,
financial statements and other information are required to be prepared in
accordance with GAAP accounting pursuant to the terms hereof). All other
information given to Bank with respect to Borrower, the Collateral Borrower and
the Collateral Loans is accurate and correct in all material respects and is
complete insofar as completeness may be necessary to give Bank a true and
accurate knowledge of the subject matter. All surveys, plot plans and similar
documents heretofore furnished by Borrower to Bank with respect to the
Properties were, to Borrower's knowledge, accurate and complete in all material
respects as of their respective dates and, to Borrower's knowledge, remain true
and correct in all material respects as of the date hereof. Except as set forth
on Schedules I, II and III hereto, there are no documents or agreements
pertaining to (i) the Collateral Loans, (ii) the Collateral Borrower's
obligations under the Collateral Loans or (iii) Borrower's obligations, rights
and remedies with respect to the Collateral Loans.
8.17 Title Aspects. The Collateral Borrowers have clear and
unencumbered title to the Properties owned by them, subject to only to the
Senior Mortgages, the Mortgages and the other exceptions set forth in the Title
Policies.
8.18 Governmental Approvals. To Borrower's knowledge, all Governmental
Approvals are in full force and effect.
8.19 Security Interests. The liens and security interests granted or to
be granted to Bank pursuant to this Agreement and the other Bank Loan Documents
constitute and will continue to constitute valid perfected first priority
security interests under the Uniform Commercial Code or other applicable Law,
entitled to all the rights, benefits and priorities provided by the Uniform
Commercial Code or any other Law, and the property secured thereby is subject to
no other liens or encumbrances.
8.20 Mortgages. The liens and security interests granted to Borrower
pursuant to the Collateral Mortgages and the other Collateral Loan Documents
constitute and will continue to constitute valid perfected mortgage liens on the
Properties and valid perfected security interests under the Uniform Commercial
Code or other applicable Law on all personalty of the Collateral Borrowers
located at the Properties, entitled to all the rights, benefits and priorities
provided pursuant to the terms thereof and by the Uniform Commercial Code or any
other Law, and the Properties secured thereby are subject to no other liens or
encumbrances except as set forth on the Title Policies.
8.21 Insurance. All insurance policies and bonds to be furnished
pursuant to the Leases and the Collateral Loan Documents have been furnished and
are valid and in full force and effect. No notice has been received by Borrower
and, to Borrower's knowledge, no claim made and no grounds exist to cancel or
void any of such policies or bonds or to reduce the coverage provided thereby.
8.22 Solvency. Borrower and each of the Collateral Borrowers is Solvent
as of the date of this Agreement. After giving effect to the transactions
contemplated by Bank Loan Documents, including all indebtedness incurred thereby
and the security interests granted and the payment of all fees related thereto,
Borrower will be Solvent.
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8.23 Hazardous Substances. To the best of Borrower's actual knowledge
(without inquiry or investigation), there are no Hazardous Substances located or
present at or about the Properties, or any portion thereof.
ARTICLE IX
DEFAULTS AND REMEDIES
9.1 Events of Default. The following shall be deemed to be Events of
Default under this Agreement (whatever the reason therefor and whether
voluntary, involuntary or affected by operation of Law):
(a) Borrower shall (i) fail to pay the principal of the Loan
at the Maturity Date or (ii) fail to make any other payment of principal
(including the Mandatory Principal Payments), interest or any other amount owing
hereunder or under the other Bank Loan Documents for five (5) business days
after such payment became due and payable.
(b) Any representation or warranty made at any time by
Borrower herein or in any other Bank Loan Document, or in any certificate, other
instrument or written statement furnished to Bank pursuant to the provisions
hereof or thereof, shall prove to have been false or misleading in any material
and adverse respect as of the time it was made or furnished;
(c) Borrower shall default in the performance or observance of
any of the covenants set forth in Sections 4.1 or 4.3.
(d) Borrower shall fail to comply with any covenant contained
in this Agreement or any of the other Bank Loan Documents, other than those
defaults referred to in the other subparagraphs of this Section 9.1, and shall
not cure that failure within the period of time specified for such cure or, if
no such period of time is specified, within thirty (30) days after written
notice thereof by Bank to Borrower, or, if such failure can not be cured using
diligent efforts in said thirty (30) day period, then such longer period of time
as Bank determines to be reasonable under the circumstances, but in no event
longer than ninety (90) days provided Borrower is diligently pursuing such cure.
(e) Borrower or any of the Collateral Borrowers shall cease to
be Solvent or shall be unable to pay its respective debts as the same shall
mature or there shall be filed by or against (unless dismissed within sixty (60)
days after any involuntary filing) Borrower or any of the Collateral Borrowers a
petition in bankruptcy or a petition seeking the appointment of a receiver,
trustee or conservator for Borrower or any of the Collateral Borrowers or any
portion of their respective properties or seeking reorganization or to effect a
plan or other arrangement with or for the benefit of creditors, or Borrower or
any of the Collateral Borrowers shall consent to the appointment of a receiver,
trustee or conservator;
(f) Any of Bank Loan Documents shall cease to be legal, valid
and binding agreements enforceable against Borrower in accordance with the
material respective terms thereof or shall in any way be terminated (except in
accordance with their terms) or any of Bank Loan Documents
45
become or be judicially declared ineffective or inoperative or shall in any way
cease to give or provide the respective liens, security interests, rights,
titles, interests, remedies, powers or privileges intended to be created
thereby;
(g) Any of the Collateral Loan Documents shall cease to be
legal, valid and binding agreements enforceable against any of the Collateral
Borrowers in accordance with the material respective terms thereof or shall in
any way be terminated (except in accordance with their terms) or any of the
Collateral Loan Documents become or be judicially declared ineffective or
inoperative or shall in any way cease to give or provide the respective liens,
security interests, rights, titles, interests, remedies, powers or privileges
intended to be created thereby;
(h) A default shall occur under any of the other Bank Loan
Documents beyond the longer of any applicable notice or grace period contained
therein or contained in this Loan Agreement;
(i) A default on the part of any of the Collateral Borrowers
shall occur under any of the other Collateral Loan Documents beyond any
applicable notice or grace period contained therein but in no event beyond
thirty (30) days;
(j) A default on the part of any of the Collateral Borrowers
shall occur under any of the other Senior Loan Documents beyond any applicable
notice or grace period contained therein but in no event beyond thirty (30)
days;
(k) A default shall occur under any of the Tenant Leases on
the part of any of the Tenants or on the part of any of the Collateral Borrowers
beyond any applicable notice or grace period contained therein but in no event
beyond thirty (30) days;
(l) A Material Adverse Change shall have occurred;
(m) Any party shall obtain an order or decree in any court of
competent jurisdiction enjoining or prohibiting Bank or Borrower from carrying
out the terms and conditions of any of Bank Loan Documents or any of the
Collateral Loan Documents and such order or decree is not vacated or stayed
within sixty (60) days after the filing thereof;
(n) A judgment is entered in connection with any obligation,
other than the Loan, in excess of $50,000 with respect to Borrower or any of the
Collateral Borrowers and any such judgment remains unpaid for a period of thirty
(30) days following the entry thereof without the obtaining of a stay of
execution or causing such judgment to be bonded; or
(o) The Land or the Improvements, or any portion thereof,
shall be sold without the prior written consent of Bank which consent shall be
granted or conditioned at the sole discretion of Bank.
9.2 Remedies.
(a) If an Event of Default shall occur and be continuing, and
without any notice to Borrower or any other act by Bank, at the election of
Bank, the Note shall become immediately due and
46
payable without presentment, demand, protest or other notice of any kind, all of
which are hereby waived by Borrower, together with interest at the Default Rate
accruing on the principal amount thereof from and after the date of such Event
of Default (including following the entry of a judgment); and
(b) If an Event of Default shall occur and be continuing, and
without any notice to Borrower or any other act by Bank, at the election of
Bank, Bank (i) shall have, and may exercise, every and all of the rights and
benefits of the holder of the Collateral Loan Documents including, without
limitation, under the Collateral Mortgages in accordance with their terms, (ii)
may give any notices, declare any defaults or file any actions or petitions with
respect to any of the Collateral Loan Documents including, without limitation,
mortgage foreclosure actions with respect to some or all of the Properties,
(iii) may endorse, assign, sell or otherwise convey any or all of the Collateral
Notes and any or all of the other Collateral Loans and (iv) shall have any and
all other rights with respect to the Collateral Loan Documents as is provided to
it under this Loan Agreement, any of the other Bank Loan Documents or at law or
in equity, all of which Borrower hereby authorizes and agrees to.
(c) If an Event of Default shall occur and be continuing, Bank
shall have the right, in addition to all other rights and remedies available to
it, without notice to Borrower, to set-off against and apply to the then unpaid
balance of Bank Debt and all other obligations of Borrower hereunder or under
any other Bank Loan Document any debt owing to, and any other funds held in any
manner for the account of, Borrower, other than third party security and similar
deposits, by Bank or by such branch, subsidiary or affiliate, including without
limitation, all funds in all deposit accounts (whether time or demand, general
or special, provisionally credited or finally credited, or otherwise) now or
hereafter maintained by Borrower for its own account with Bank or such branch,
subsidiary or affiliate. Such right shall exist whether or not Bank shall have
made any demand under this Agreement or any other Bank Loan Document, whether or
not such debt owing to or funds held for the account of Borrower is or are
matured or unmatured and regardless of the existence or adequacy of any
Collateral, the Guaranty or other security for the Loan, right or remedy
available to Bank; and
(d) From and after the date on which Bank has taken any action
pursuant to this Article IX and until all Bank Debt has been paid in full, any
and all proceeds received by Bank from any sale or other disposition of any
Collateral, or any part thereof, or the exercise of any other remedy by Bank,
shall be applied as follows:
(i) first, to reimburse Bank for reasonable
out-of-pocket costs, expenses and disbursements, including without
limitation, reasonable attorneys' fees and legal expenses, incurred by
Bank in connection with realizing on any Collateral or collection of
any obligations of Borrower under any of Bank Loan Documents or of any
of the Collateral Borrowers under any of the Collateral Loan Documents,
including advances made subsequent to an Event of Default by Bank or
for the reasonable maintenance, preservation, protection or enforcement
of, or realization upon, any Collateral, including without limitation,
advances for Impositions, insurance, repairs and the like and
reasonable expenses incurred to sell or otherwise realize on, or
prepare for sale or other realization on, any of the Collateral; and
(ii) second, to the repayment of the Loan principal,
interest, fees, expenses or otherwise, in such order as Bank shall
determine.
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(e) Bank shall have all of the rights and remedies contained
in this Agreement and the other Bank Loan Documents. In exercising any rights or
remedies hereunder or under the other Bank Loan Documents or the Collateral Loan
Documents (including without limitation, delivery of any default notice and the
election of judicial or non-judicial remedies) or in waiving any of the express
terms of this Agreement or the other Bank Loan Documents or any of the
Collateral Loan Documents, Bank shall be permitted to proceed in such order,
successively or concurrently, and manner as Bank may determine in its sole
discretion. In addition, Bank shall have all of the rights and remedies of a
secured party under the Uniform Commercial Code or other applicable Law, all of
which rights and remedies shall be cumulative and non-exclusive, to the extent
permitted by Law.
9.3 Notice of Sale. Any notice required to be given by Bank of a sale,
lease, or other disposition of any Collateral or any other intended action by
Bank, if given five (5) Business Days prior to such proposed action, shall
constitute commercially reasonable and fair notice thereof to Borrower.
ARTICLE X
MISCELLANEOUS
10.1 Modifications, Amendments or Waivers. This Agreement may be
modified or amended and any right set forth herein waived, only by an instrument
in writing signed by both Bank and Borrower.
10.2 No Implied Waivers; Cumulative Remedies; Writing Required. No
course of dealing and no delay or failure of Bank in exercising any right,
power, remedy or privilege under this Agreement or any other Bank Loan Document
or any of the Collateral Loan Documents shall affect any other or future
exercise thereof or operate as a waiver thereof; nor shall any single or partial
exercise thereof or any abandonment or discontinuance of steps to enforce such a
right, power, remedy or privilege preclude any further exercise thereof or of
any other right, power, remedy or privilege. The rights and remedies of Bank
under this Agreement and any other Bank Loan Documents and any of the Collateral
Loan Documents are cumulative and not exclusive of any rights or remedies which
they would otherwise have and may be exercised multiple times. Any waiver,
consent or approval of any kind or character on the part of Bank of any breach
or default under this Agreement or any such waiver of any provision or condition
of this Agreement must be in writing and shall be effective only to the extent
specifically set forth in such writing.
10.3 Reimbursement and Indemnification of Bank by Borrower;
Impositions. Except as otherwise limited in this Agreement, Borrower agrees
unconditionally upon demand to pay or reimburse to Bank and to hold Bank
harmless against (i) liability for the payment of all reasonable out-of-pocket
costs, expenses and disbursements, including but not limited to reasonable fees
and expenses of counsel, incurred by Bank subsequent to the date of this
Agreement (a) relating to any amendments, waivers or consents pursuant to the
provisions hereof, and (b) in connection with any workout or restructuring, or
in connection with the protection, preservation, exercise or enforcement of this
Agreement or any other Bank Loan Document or any of the Collateral Loan
Documents or collection of amounts due hereunder or under any of the other Bank
Loan Documents or due under any of the Collateral Loan Documents or the proof
and allowability of any claim arising under this Agreement or any other Bank
Loan
48
Document or any of the Collateral Loan Documents, whether in insolvency
proceedings or otherwise, upon an Event of Default or Conditional Default, and
(ii) all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted against Bank in any
way relating to or arising out of this Agreement or any other Bank Loan Document
or any of the Collateral Loan Documents or any action taken or omitted by Bank
hereunder or thereunder, except to the extent the same is caused by the gross
negligence or wilful misconduct of Bank or its agents, employees, contractors or
Affiliates. Borrower agrees unconditionally to pay all stamp, document,
transfer, recording or filing taxes or fees and similar Impositions (except for
taxes, including any franchise tax, on the overall net income of Bank) now or
hereafter determined by Bank to be payable in connection with this Agreement or
any other Bank Loan Document or any of the Collateral Loan Documents, and
Borrower agrees unconditionally to save Bank harmless from and against any and
all present or future claims, liabilities or losses with respect to or resulting
from any omission to pay or delay in paying any such taxes, fees or other
similar Impositions.
10.4 Holidays. Whenever any payment or action to be made or taken
hereunder shall be stated to be due, or any time period is otherwise set to
expire, on a day which is not a Business Day, such payment or action shall be
made or taken on the next following Business Day, and such extension of time
shall be included in computing interest or fees, if any, in connection with such
payment or action, or such time period shall be extended to the next following
Business Day.
10.5 Participation and Assignment of the Loan by Bank. Notwithstanding
any other provision of this Agreement, Borrower understands that Bank may,
without notice to Borrower, at any time or from time to time assign and/or
participate all or portions of the Loan
10.6 Notices. All notices, requests, demands, directions and other
communications (collectively, "Notices") given to or made upon any party hereto
under the provisions of this Agreement shall be in writing and shall be
delivered or sent to the respective parties at the addresses and numbers set
forth below or in accordance with any subsequent written direction from any
party to the others. All Notices shall, except as otherwise expressly herein
provided, be effective (i) in the case of hand delivered notice, when hand
delivered, (ii) if given by mail, with first class postage prepaid, return
receipt requested, on the date of delivery indicated on the return receipt, and
(iii) if given by any other means (including by air courier), when delivered.
If to Borrower:
DVL, Inc.
Heron Tower
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
49
With a copy to:
Klehr, Harrison, ▇▇▇▇▇▇, Branzburg &
▇▇▇▇▇▇ LLP
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esquire
With a copy to:
c/o P&A Associates
The ▇▇▇▇▇▇▇ Building
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
If to Bank:
Pennsylvania Business Bank
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esquire
10.7 Severability. The provisions of this Agreement are intended to be
severable. If any provision of this Agreement shall be held invalid or
unenforceable in whole or in part in any jurisdiction such provision shall, as
to such jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without in any manner affecting the validity or enforceability
thereof in any other jurisdiction or the remaining provisions hereof in any
jurisdiction.
10.8 Governing Law. This Agreement shall be deemed to be a contract
under the laws of the Commonwealth of Pennsylvania and for all purposes shall be
governed by and construed and enforced in accordance with the laws of the
Commonwealth of Pennsylvania without regard to its conflicts of laws principles.
10.9 Prior Understanding. This Agreement, together with the other Bank
Loan Documents, supersedes all prior understandings and agreements, whether
written or oral, between the parties hereto and thereto relating to the
transactions provided for herein and therein, including any prior
confidentiality agreements and commitments.
50
10.10 Duration; Survival. All representations and warranties of
Borrower contained herein or made in connection herewith shall survive the
making of the Loan and shall not be waived by the execution and delivery of this
Agreement, any investigation by Bank, the making of the Loan or payment in full
of Bank Debt. All covenants and agreements of Borrower contained herein relating
to the payment of principal, interest, premiums, additional compensation or
expenses and indemnification, including those set forth in the Note, Article III
and Sections 10.3 and 10.20 hereof, shall survive payment in full of Bank Debt.
10.11 Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of Bank, and Borrower its successors and assigns,
except that Borrower may not assign or transfer any of its rights and
obligations hereunder or any interest herein.
10.12 Counterparts. This Agreement may be executed by different parties
hereto on any number of separate counterparts, each of which, when so executed
and delivered, shall be an original, and all such counterparts shall together
constitute one and the same instrument.
10.13 Exceptions. The representations and warranties and covenants
contained herein shall be independent of each other and no exception to any
representation, warranty or covenant shall be deemed to be an exception to any
other representation, warranty or covenant contained herein unless expressly
provided, nor shall any such exceptions be deemed to permit any action or
omission that would be in contravention of applicable Law.
10.14 Jurisdiction, etc. Borrower hereby unconditionally and
irrevocably (a) subjects itself to the jurisdiction of the courts of the
Commonwealth of Pennsylvania and any federal courts sitting in Pennsylvania in
connection with any action, suit or proceeding under or relating to, or to
enforce any of the provisions of, this Agreement, (b) waives, to the extent
permitted by law, any right to obtain a change in venue from any such court in
any such action, suit or proceeding, and (c) agrees to service of process sent
both by certified mail, return receipt requested, postage prepaid and by
reputable overnight courier to its address referred to in Section 10.6 hereof.
Borrower irrevocably agrees that service of process in accordance with the
foregoing sentence shall be deemed in every respect effective and valid personal
service of process upon Borrower. The provisions of this Section 10.14 shall not
limit or otherwise affect the right of Bank to institute and conduct an action
in any other appropriate manner, jurisdiction or court.
10.15 WAIVER OF JURY TRIAL. BORROWER AND BANK AS CONSIDERATION TO THE
OTHER FOR ENTERING INTO THIS LOAN AGREEMENT HEREBY WAIVE TRIAL BY JURY IN ANY
ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER BANK LOAN
DOCUMENT TO THE FULL EXTENT PERMITTED BY LAW.
10.16 No Third Parties Benefitted. This Agreement is made and entered
into for the sole protection and benefit of Borrower and Bank. No trust fund is
created by this Agreement and no other persons or entities including, without
limitation, any Collateral Borrower will have any right of action under this
Agreement or any right against Bank to obtain any proceeds of the Loan.
51
10.17 Authority to File Notices. Borrower irrevocably appoints Bank as
its attorney-in-fact, coupled with an interest, with full power of substitution,
after the occurrence of and during the continuation of any Event of Default, to
file for record, at Borrower's cost and expense and in Borrower's names, any
actions, complaints, petitions, requests or notices that Bank considers
necessary or desirable to protect the Collateral.
10.18 Interpretation. Whenever the context requires, all words used in
the singular will be construed to have been used in the plural, and vice versa,
and each gender will include any other gender. The captions of the articles,
sections, schedules and exhibits of this Agreement are for convenience only and
do not define or limit any terms or provisions. In the event of a conflict
between the terms of the other Bank Loan Documents and this Agreement, the terms
of this Agreement shall control.
10.19 Status of Parties. It is understood and agreed that the
relationship of the parties hereto is that of borrower and lender and that
nothing contained herein or in any of the other Bank Loan Documents shall be
construed to constitute a partnership, joint venture or co-tenancy between
Borrower and Bank.
10.20 Brokerage Fee. Borrower represents to Bank that no broker or
other person is entitled to a brokerage fee or commission as a result of
Borrower's actions or undertakings in connection with the Loan and agrees to
hold Bank harmless from all claims for brokerage commissions which may be made
as a result of such actions or undertakings, if any.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
52
IN WITNESS WHEREOF, the parties hereto, by their officers
thereunto duly authorized, have executed this Agreement under seal as of the day
and year first above written.
[SEAL] BORROWER:
ATTESTATION: DVL, INC., a Delaware Corporation
By: By:
---------------------- ------------------------------
Name: Name:
---------------------- ------------------------------
Title: Title:
---------------------- ------------------------------
BANK:
PENNSYLVANIA BUSINESS BANK
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
53
SCHEDULE I
ASSIGNMENTS OF LEASES AND RENTS
DOCUMENT EXECUTION RECORDING DATE BOOK/PAGE
DATE (LaSalle Parish, LA)
--------------------------------------------------- ------------------------ ------------------------ -------------------------
Assignment of Lease & Rentals from Kenbee 11/28/83 11/30/83 123/378
Management-Oklahoma, Inc. ("Kenbee") to Registry ▇▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ Investment Board
First Assignment of Leases & Rents (Kinder to 11/23/82 2/7/83 COB 256/457
Kenbee)
Assignment of Lessor's Interest in Leases by 4/3/84 4/5/84 COB 266/404
Kinder Associates to Western National Life No. 231,423
Insurance Company
Assignment of Leases & Rents in favor of 11/23/82 11/30/82 394/129
Kenbee Management-Oklahoma, Inc. (held by
assignment to Del-Val)
Assignment of Leases and Rents from 11/19/85 11/20/85 904/337
Alexandria to Kenbee Management-Oklahoma, Inc.
1.1
SCHEDULE II
COLLATERAL NOTES
DOCUMENT EXECUTION DATE
-------- --------------
$900,000 Note from Jena Associates to Kenbee Management-Oklahoma, Inc., as 11/28/83
amended 11/28/83
$844,109 Note from Kinder Associates to Western National Life Insurance Company 4/3/84
$1,200,000 Note from Kinder Associates to Kenbee Management-Oklahoma, Inc. 10/29/82
$3,550,000 Note from St. Albans Associates to Spring Valley Development 12/28/79
Corporation, Inc.
$1,090,000 Note from Stigler Associates to Kenbee Management-Oklahoma, Inc. 11/23/82
$685,000 Note from Alexandria Associates to Kenbee Management-Oklahoma, Inc. 11/19/85
2.1
SCHEDULE III
MORTGAGES
DOCUMENT EXECUTION DATE RECORDING DATE BOOK/PAGE
-------------------------------------------------- ------------------------- ---------------------- --------------------------
$900,000 Wrap-Around Mortgage from Jena 11/28/83 11/30/83 MB 123/414
Associates to Kenbee Management-Oklahoma, Registry No. 124044
Inc., as amended 10/9/87
$844,109 Mortgage from Kinder Associates to 4/3/84 4/5/84 156/346
Western National Life Insurance Company No. 313,422
(First Mortgage)
$1,200,000 Mortgage from Kinder Associates 10/29/82 2/7/83 MB 150/267
to Kenbee Management-Oklahoma, Inc., as
modified 4/3/84, 1/1/88 & 1/1/92
$3,550,000 Mortgage from St. Albans 12/28/79 1/10/80 39/336 (City)
Associates to Spring Valley Development 35/72 (Town)
Corporation, Inc., as modified 1/1/92 &
6/30/95
$1,090,000 Mortgage from Stigler Associates 11/23/82 11/30/82 MB 394/118
to Kenbee Management-Oklahoma, Inc., as
modified 12/13/83, 1/1/88 & 1/1/92
$685,000 Mortgage from Alexandria 11/19/85 11/20/85 480/219
Associates to Kenbee Management-Oklahoma,
Inc., as modified 3/18/86
3.1
SCHEDULE IV
TENANT LEASES
DOCUMENT EXECUTION DATE
-------- --------------
Lease between Kenbee Management-Oklahoma, Inc. and Wal-Mart Stores, Inc. 11/28/83
Lease between Kinder Associates and Wal-Mart Stores, Inc. 10/27/82
Lease between St. Albans Associates and The ▇▇▇▇▇ Group, Inc., as amended August 9/1/89
24, 1990, August 7, 1992 and March 24, 1995.
Lease Between Stigler Associates 11/23/82
& Wal-Mart Stores, Inc.
Lease between ▇▇▇▇▇▇ Building Co., Inc. & ▇▇▇'▇ Drug Company 3/25/85
4.1
SCHEDULE V
SENIOR LOAN AND COLLATERAL LOAN BALANCES
Property Senior Loan Balances Collateral Loan Balances
-------- -------------------- ------------------------
Alexandria $93,371.94 $853,042.78
Jena 332,680.82 1,710,058.92
358,506.36
Kinder 2,835,556.73
Stigler 330,728.77 2,601,182.08
284,762.55
St. Albans 967,223.88 2,056,851.15
5.1
SCHEDULE VI
SENIOR LOANS AND TENANT LEASES
Property Senior Loans Tenant Leases
--------------------------------- ---------------------------------------------- ------------------------------------------------
Alexandria Central Life Assurance Company dated ▇▇▇'▇ Drug Company
3/18/86 in original principal amount of
$603,500
Jena State of Wisconsin Investment Board dated Wal-Mart Stores, Inc.
11/28/83 in original principal amount of
$800,631
Firstar Trust Company, as agent for Phoenix
Home Life Mutual Insurance Company dated
5/6/94 in original principal amount of
$231,784.48
Kinder Western National Life Insurance Company Wal-Mart Stores, Inc.
dated 4/3/84 in original principal amount of
$844,109
Stigler State of Wisconsin Board of Investment dated Wal-Mart Stores, Inc.
12/15/83 in original principal amount of
$783,493
Firstar Trust Company, as agent for Phoenix
Home Life Mutual Insurance Company dated
5/23/94 in original principal amount of
$184,048.84
St. Albans Lincoln National Life Insurance Company The ▇▇▇▇▇ Group
dated 6/30/95 in original principal amount of
$1,633,456.25
6.1
PROMISSORY NOTE
$1,000,000.00 Philadelphia, Pennsylvania
March 7, 2000
FOR VALUE RECEIVED, the undersigned, DVL, INC., a Delaware
corporation, (the "Borrower") having its principal place of business at, and
with an address of, Heron Tower, ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇, hereby promises to pay to the order of PENNSYLVANIA BUSINESS BANK (the
"Bank"), the principal sum of One Million Dollars and No Cents (US
$1,000,000.00) in accordance with that certain Loan Agreement of even date
herewith by and between the Borrower and the Bank (as amended, supplemented, or
modified from time to time, the "Loan Agreement") and payable on the Maturity
Date (as defined in the Loan Agreement) or as otherwise provided in the Loan
Agreement.
The Borrower shall pay interest on the unpaid principal balance
hereof from time to time outstanding from the date hereof at the rate or rates
per annum, and at the times, provided in the Loan Agreement.
Upon the occurrence and during the continuation of an Event of
Default, the Borrower shall pay interest on the entire principal amount of the
then outstanding Loan evidenced by this Promissory Note at a rate per annum
equal to the Default Rate. Such interest rate will accrue before and after any
judgment has been entered.
Principal on this Promissory Note will be payable in the amounts,
and at the times, as provided in the Loan Agreement.
Subject to the provisions of the Loan Agreement, payments of both
principal and interest shall be made without setoff, counterclaim or other
deduction of any nature at the Real Estate Banking offices of the Bank located
at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, in lawful
money of the United States of America in immediately available funds.
This Promissory Note is the Note referred to in, and is made
subject to and is entitled to the benefits of, the Loan Agreement and the other
Bank Loan Documents, including the representations, warranties, covenants,
conditions, security interests or liens contained or granted therein. The Loan
Agreement among other things contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events and also for
prepayment, in certain circumstances, on account of principal hereof prior to
maturity upon the terms and conditions therein specified. Reference is hereby
made to the Loan Agreement for the complete agreement between the Borrower and
the Bank concerning the payment of the Loan, all of which are incorporated
herein by this reference.
All capitalized terms used herein shall, unless otherwise defined
herein, have the same meanings given to such terms in the Loan Agreement.
6.2
Except as otherwise expressly provided in the Loan Agreement, the
Borrower waives presentment, demand, notice, protest and all other demands and
notices in connection with the delivery, acceptance, performance, default or
enforcement of this Note and the Loan Agreement.
This Note shall bind the Borrower and its successors and assigns,
and the benefits hereof shall inure to the benefit of the Bank and its
successors and assigns. All references herein to the "Borrower" and the "Bank"
shall be deemed to apply to the Borrower and the Bank, respectively, and their
respective successors and assigns.
THE BORROWER HEREBY WAIVES ITS RIGHT TO A TRIAL BY JURY IN
CONNECTION WITH THE ENFORCEMENT OF THIS NOTE OR ANY OTHER BANK LOAN DOCUMENT.
THE BORROWER HEREBY IRREVOCABLY AUTHORIZES AND EMPOWERS ANY
ATTORNEY OF RECORD, OR THE PROTHONOTARY OR CLERK OF ANY COURT IN THE
COMMONWEALTH OF PENNSYLVANIA OR ELSEWHERE, TO APPEAR FOR THE BORROWER, AT ANY
TIME OR TIMES, AFTER THE OCCURRENCE OF AN EVENT OF DEFAULT UNDER ANY OF THE BANK
LOAN DOCUMENTS, IN ANY SUCH COURT IN ANY ACTION BROUGHT AGAINST THE BORROWER, BY
THE BANK WITH RESPECT TO THE AGGREGATE AMOUNTS PAYABLE UNDER THE LOAN DOCUMENTS,
WITH OR WITHOUT DECLARATION FILED, AS OF ANY TERM, AND THEREIN TO CONFESS OR
ENTER JUDGMENT AGAINST THE BORROWER, FOR ALL SUMS PAYABLE BY THE BORROWER TO THE
BANK UNDER THIS NOTE, AS EVIDENCED BY AN AFFIDAVIT SIGNED BY A DULY AUTHORIZED
DESIGNEE OF THE BANK SETTING FORTH SUCH AMOUNT THEN DUE FROM THE BORROWER TO THE
BANK, PLUS AN ATTORNEY'S COMMISSION EQUAL TO FIVE PERCENT (5%) OF THE SUMS THEN
OUTSTANDING UNDER THIS NOTE, BUT IN NO EVENT LESS THEN $5,000, WITH COSTS OF
SUIT, RELEASE OF PROCEDURAL ERRORS AND WITHOUT RIGHT OF APPEAL. IF A COPY OF
THIS NOTE, VERIFIED BY AN AFFIDAVIT, SHALL HAVE BEEN FILED IN SUCH ACTION, IT
SHALL NOT BE NECESSARY TO FILE THE ORIGINAL AS A WARRANT OF ATTORNEY. THE
BORROWER WAIVES THE RIGHT TO ANY STAY OF EXECUTION, THE BENEFIT OF ALL EXEMPTION
LAWS NOW OR HEREAFTER IN EFFECT AND ANY AND ALL RIGHTS TO PRIOR NOTICE AND
HEARING WITH RESPECT TO THE GARNISHMENT OR ATTACHMENT OF ANY PROPERTY PURSUANT
TO A JUDGMENT ENTERED HEREUNDER. NO SINGLE EXERCISE OF THE FOREGOING WARRANT AND
POWER TO BRING ANY ACTION OR CONFESS JUDGMENT THEREIN SHALL BE DEEMED TO EXHAUST
THE POWER, BUT THE POWER SHALL CONTINUE UNDIMINISHED AND MAY BE EXERCISED FROM
TIME TO TIME AS OFTEN AS THE BANK SHALL ELECT UNTIL ALL AMOUNTS PAYABLE TO THE
BANK UNDER THIS NOTE SHALL HAVE BEEN PAID IN FULL. THE EXERCISE BY THE BANK OF
ITS RIGHTS AND REMEDIES AND THE ENTRY OF ANY JUDGMENT BY THE BANK UNDER THIS
SECTION SHALL NOT AFFECT IN ANY WAY THE INTEREST RATE PAYABLE HEREUNDER OR UNDER
ANY OF THE OTHER LOAN DOCUMENTS OR ANY AMOUNTS DUE TO THE BANK, BUT INTEREST
SHALL CONTINUE TO ACCRUE ON SUCH AMOUNTS AT THE DEFAULT RATE INCLUDING FOLLOWING
THE ENTRY OF A JUDGMENT AGAINST THE BORROWER IN CONNECTION HEREWITH.
This Note and any other document delivered in connection herewith
and the rights and obligations of the parties hereto and thereto shall for all
purposes be governed by and construed and enforced in accordance with the
internal laws of the Commonwealth of Pennsylvania without giving effect to its
conflicts of law principles.
6.3
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
6.4
IN WITNESS WHEREOF and intending to be legally bound hereby, the
undersigned has executed this Promissory Note in the original principal amount
of $1,000,000 with the intention that it constitute a sealed instrument.
BORROWER:
Witness/Attest: DVL, INC.
By: By:
------------------- -----------------------
Name: Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------
Title: Title: President
-------------------
[This is the signature page to that certain Promissory Note in the original
principal amount of $1,000,000.00 dated March 7, 2000 executed by DVL, INC. and
delivered to PENNSYLVANIA BUSINESS BANK.]
6.5
PLEDGE, COLLATERAL ASSIGNMENT AND SECURITY AGREEMENT
THIS PLEDGE, COLLATERAL ASSIGNMENT AND SECURITY AGREEMENT (this "Pledge
Agreement") dated as of March 7, 2000, by DVL, INC., a Delaware corporation,
having its principal place of business at, and with an address of, Heron Tower,
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Pledgor") to and in favor
of PENNSYLVANIA BUSINESS BANK, having an address at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Lender");
BACKGROUND:
A. Pledgor has on or about this date acquired those certain notes,
mortgages, security instruments and other documents listed on Schedule I hereto
(together with any and all other documents delivered in connection therewith or
pertaining thereto, the "Collateral Loan Documents"). Such notes set forth on
Schedule I hereto, and any and all amendments, modification or replacements
thereof, are referred to herein individually as a "Collateral Note" and
collectively as the "Collateral Notes" and such mortgages set forth on Schedule
I hereto, and any and all amendments, modification or replacements thereof, are
referred to herein individually as a "Mortgage" and collectively as the
"Mortgages"
B. Lender has this day made a loan to Pledgor in the original
principal amount of $1,000,000 (the "Loan") pursuant to the terms and conditions
set forth in that certain Loan Agreement of even date herewith by and between
Lender and Pledgor (the "Loan Agreement"). The purpose of the Loan is to finance
Pledgor's acquisition of the Collateral Loan Documents. The Loan is evidenced by
a certain Promissory Note of even date herewith in the original principal amount
of $1,000,000 executed by Pledgor and delivered to Lender (the "Note"). As a
condition precedent to Lender's agreement to make the Loan to Pledgor, Lender
has required that Pledgor execute and delivery this Pledge Agreement pursuant to
which the Loan shall be secured by, inter alia, the Collateral Loan Documents.
NOW, THEREFORE, in consideration of Lender making the Loan to
Pledgor and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound,
Pledgor agrees as follows:
XI Pledge, Assignment and Security Interest. Pledgor hereby
pledges and assigns to Lender, and grants Lender a security interest in, all of
Pledgor's right, title and interest in and to the Collateral Loan Documents
including, but not limited to, those Collateral Loan Documents set forth on
Schedule I hereto. This pledge and assignment is made as collateral security for
the full payment and performance by Pledgor of all of its obligations under the
Loan Agreement, the Note and all other documents evidencing or securing the Loan
(collectively, the "Loan Documents")
XII Perfection. In order to effectuate the foregoing pledge,
Pledgor has endorsed (in a writing separate from each Collateral Note) and
delivered the Collateral Notes to Lender. After the occurrence and during the
continuance of an Event of Default (as defined in the Loan Agreements), Lender
shall have all of Pledgor's rights in connection with the Collateral Notes, the
Mortgages and the other Collateral Loan Documents.
6.6
XIII No Obligation of Lender. Lender shall not be obligated to
perform, enforce or discharge any obligation under the Collateral Notes, the
Mortgages or any of the other Collateral Loan Documents or have any obligation
to any of the makers of the Collateral Notes or any of their successors (the
"Obligors"). To that end, Pledgor hereby indemnifies and agrees to defend, with
counsel reasonably acceptable to Lender, and hold Lender and its officers,
directors, agents and employees harmless from and against any and all claims,
liabilities, costs (including, without limitation, reasonable legal fees and
court costs), losses or damages that any of them may incur under or by reason of
this Pledge Agreement or any alleged obligation or undertaking on the part of
Lender to perform or discharge any of the terms of the Collateral Notes, the
Mortgages or any of the other Collateral Loan Documents.
XIV Representation and Warranties of Pledgor. Pledgor hereby
represents and warrants to Lender that (i) Pledgor has an assignable interest in
the Collateral Notes, the Mortgages and the other Collateral Loan Documents,
free and clear of all liens and encumbrances and claims of all other parties,
(ii) no proceeding currently exists or is threatened with respect to any of the
Collateral Loan Documents, (iii) Pledgor has not made any prior pledge or
assignment of any of Collateral Notes, the Mortgages or other Collateral Loan
Documents.
XV Covenants of Pledgor. Pledgor hereby covenants to Lender that
Pledgor shall (i) not make any other assignment or pledge of any of the
Collateral Loan Documents and (ii) defend, at its own expense, Lender's right,
title and interest in and to any and all of the Collateral Loan Documents
against the claims of any person, partnership, corporation or other entity.
XVI Lender's Rights After Default. After the occurrence and during
the continuance of any Event of Default (as defined in the Loan Agreement),
Lender, at its option, without further notice and without regard to the adequacy
of security for the sums secured by this Pledge Agreement, either in person or
by agent, may do any one or more of the following:
(a).0.1 Take any and all actions or exercise any or all rights
and powers of a secured party under the Uniform Commercial Code of the
applicable state (the "UCC") or otherwise collect upon or dispose of any or all
of the Collateral Loan Documents in any manner permitted under the UCC after
default by a debtor or under any other applicable law;
(a).0.2 Exercise any or all of the rights granted to Lender
under the Loan Agreement or any of the other Loan Documents; and
(a).0.3 To the extent permitted by law, do any other act or
acts that Lender deems proper to protect its rights hereunder or with respect to
the Collateral Loan Documents.
XVII Sale of Collateral Loan Documents.
(a).0.1 At any bona fide public sale, and to the extent
permitted by law, at any private sale, Lender shall be free to purchase all or
any part of the Collateral Loan Documents, free of any right or equity of
redemption in Pledgor, which right or equity is hereby waived and released. Any
such sale may be on cash or credit. Lender will not be obligated to make any
sale if it determines not to do so, regardless of the fact that notice of the
sale may have been given. Lender may adjourn any sale and sell at the time and
place to which the sale is adjourned. If the Collateral Loan Documents are
customarily sold on a recognized market or threatens to decline speedily in
value, Lender may sell such Collateral Loan Documents at any time without giving
prior notice to Pledgor. Whenever
6.7
notice is otherwise required by law to be sent by Lender to Pledgor of any sale
or other disposition of the Collateral Loan Documents, five (5) business days
written notice sent to Pledgor at its address specified above will be
reasonable.
(a).0.2 Pledgor recognizes that Lender may be unable to effect
or cause to be effected a public sale of the Collateral Loan Documents, so that
Lender may be compelled to resort to one or more private sales. Pledgor
understands that private sales so made may be at prices and on other terms less
favorable to the seller than if the Collateral Loan Documents were sold at
public sales. Pledgor agrees that private sales made under the foregoing
circumstances shall be deemed to have been made in a commercially reasonable
manner.
(a).0.3 The net proceeds arising from the disposition of the
Collateral Loan Documents after deducting expenses incurred by Lender will be
applied to the Bank Debt (as defined in the Loan Agreement) in the order
determined by Lender. If any excess remains after the discharge of all of the
Bank Debt, the same will be paid to Pledgor. Nothing contained herein will
obligate Lender to proceed against Pledgor, any of the Obligors or any other
party obligated under Collateral Loan Documents prior to proceeding under the
Loan Documents.
(a).0.4 If at any time Lender is lawfully compelled to
disgorge any amount received by it in payment or on account of the Collateral
Loan Documents and if Lender repays all or any part of such amount, Pledgor will
be and remain liable for the amounts so repaid or recovered to the same extent
as if never originally received by Lender.
XVIII Covenants of Lender. Lender convents that, upon timely
payment to Lender of all amounts due by Pledgor and timely performance by
Pledgor of all obligations arising under the Loan Documents in accordance with
the terms thereof, Lender shall return to Pledgor the Notes endorsed to Pledgor
without recourse or warranty and, at Pledgor's cost, shall execute, and deliver
to Pledgor such documents, instruments and agreements necessary to terminate
this Pledge Agreement.
XIX Miscellaneous.
(a).0.1 If any provision of this Pledge Agreement is held to
be invalid, the remainder of this Pledge Agreement and its application shall not
be affected.
(a).0.2 This Pledge Agreement shall inure to the benefit of
Lender and its successors and assigns and shall be binding upon Pledgor and its
successors and assigns.
(a).0.3 This Pledge Agreement shall be construed and enforced
in accordance with the laws of the Commonwealth of Pennsylvania, without regard
to the choice of law principles thereof and except to the extent that the
Uniform Commercial Code of the jurisdiction(s) governing the Notes and other
Loan Documents provides that the validity or perfection of the security interest
hereunder, or remedies hereunder in respect of any particular collateral, are
governed by the laws of a jurisdiction other than the Commonwealth of
Pennsylvania. Pledgor agrees that, at Lender's option, any controversy arising
under or in relation to this Pledge Agreement or any other Loan Documents shall
be litigated in the Commonwealth of Pennsylvania. At Lender's option, the Court
of Common Pleas for Philadelphia County, Pennsylvania and the federal court for
the Eastern District of Pennsylvania, shall have jurisdiction over all
controversies which may arise under or in relation to this Pledge Agreement,
including, without limitation, those controversies relating to the execution,
jurisdiction, breach, enforcement or compliance with this Pledge Agreement or
any other issue arising under, related to, or in connection with any of the
other Loan
6.8
Documents. Pledgor irrevocably consents to service, jurisdiction, and venue of
such courts for any litigation arising from this Pledge Agreement or any of the
other Loan Documents, and waives any other venue to which it might be entitled
by virtue of domicile, habitual residence or otherwise. Nothing contained
herein, however, shall prevent Lender from bringing any suit, action or
proceeding or exercising any rights against Pledgor, or against any property in
any other jurisdiction. Initiating such suit, action or proceeding or taking
such action in any other jurisdiction shall in no event constitute a waiver of
the agreement contained herein that the laws of the Commonwealth of Pennsylvania
shall govern the rights and obligations of Pledgor and Lender as provided
herein, or the submission herein by Pledgor to personal jurisdiction within the
Commonwealth of Pennsylvania. The foregoing provisions were knowingly, willingly
and voluntarily agreed to by Pledgor upon consultation with independent counsel.
(a).0.4 All notices, directions, certificates or
communications hereunder shall be given by certified or registered mail, return
receipt requested, by hand delivery or by nationally recognized overnight
courier addressed to the appropriate notice address set forth in the heading to
this Pledge Agreement. Any of the parties hereto may, by such notice described
above, designate any further or different address to which subsequent notices,
directions, certificates or other communications shall be sent without any
requirement of execution of any amendment to this Pledge Agreement. Any such
notice, certificate, direction or communication shall be delivered in accordance
with Section 10.6 of the Loan Agreement.
(a).0.5 This Pledge Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which taken
together shall constitute one and the same instrument.
(a).0.6 The headings set forth before the text of each
paragraph contained in this Pledge Agreement are for convenience only, and shall
not affect the meaning or interpretation of this Pledge Agreement in any way.
(a).0.7 This Pledge Agreement may be recorded in the public
records.
6.9
IN WITNESS WHEREOF, Pledgor has caused this Pledge Agreement to be
executed by and through its duly authorized officer as of the date first set
forth above.
PLEDGOR:
DVL, INC.
[SEAL]
ATTEST:
By: By:
---------------------- ------------------------------
Name: Name:
---------------------- ------------------------------
Title: Title:
---------------------- ------------------------------
6.10
COMMONWEALTH OF PENNSYLVANIA )
) ss:
COUNTY OF PHILADELPHIA )
Be it remembered, that on this 7 day of March, 2000, before me,
the subscriber, a Notary Public, in and for the said county, personally appeared
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, who I am satisfied is the person who signed the within
instrument as the President of DVL, Inc., a Delaware corporation, and delivered
the same as such officer aforesaid, and that the within instrument is the
voluntary act and deed of such corporation, made by a Resolution of its Board of
directors.
Witnesseth my hand and seal.
-------------------------------------------------
Notary Public
6.11
Schedule I
COLLATERAL LOAN DOCUMENTS